A Black Eye for Parliamentary Sovereignty, Democracy and the Constitution

As of yesterday the Australian Government lost the sovereign right to absolutely and unequivocally enforce its its own Migration Act and effectively determine who is an Australian citizen and who is not.

Four unelected judges have ridden roughshod over 25 million Australians, trashed the constitution and emasculated parliamentary sovereignty.

If determining who is an Australian citizen and who is an “alien” is not fundamental to national sovereignty I don’t know what is.

However, from now on Australian citizenship for racially privileged persons can be settled by a corroboree of “Aunts” and “Uncles” sitting around the campfire deciding whether or not to acknowledge a person’s claim to indigeneity.

Where this mess will end up is anybody’s guess as technically the High Court has created a new class of person that is neither an Australian citizen nor an alien, aptly described by dissenting Justice Gagelar as being “consigned to a constitutional netherworld”.

You can bet Australian citizenship will follow as it would seem incongruous that a “First Australian” was not Australian.

You would think that a Government that campaigns on sovereign borders would be deeply troubled by this development.

However, the indigenous Minister for Indigenous Affairs, Ken Wyatt is apparently pleased the High Court has racially segregated the nation and upheld the equally stupid (and vague) notion of a “three part test” of indigeneity.

One might have thought that the recent controversy surrounding the indigenous bona fides of “academic” Bruce Pascoe might have given Wyatt cause for concern rather than celebration of the inadequate “three part test” that now determines not just your grant money but your right to citizenship.

That Wyatt could defend or celebrate this decision is surely a joke although unsurprising given his craven handling of the Pascoe matter where he chose to shoot the messenger raising legitimate questions about the integrity and legitimacy of indigenous grant programs. He is unfit to be a Minister of the Crown.

If you want to understand how absurd the High Court ruling is consider the Tasmanian ATSIC elections in 2002. Following controversy at the 1999 elections, whereby it was alleged that many of the voters and even some of the representatives were not in fact Aboriginal, ATSIC and the Federal Government agreed to trial an Indigenous Electoral roll overseen by the AEC. Disputes about eligibility were to be adjudicated by The Independent Indigenous Advisory Committee (IIAC).

Of the 1,298 people who applied to go on the indigenous electoral roll, 2,572 objections were lodged against approximately 1,100 people. To say this was farcical was an understatement. There were twice as many objections as there were people wanting to vote at the election and the objections constituted 90% of the electoral roll. Ultimately, the IIAC accepted 621 onto the roll and rejected 587. This was out of a total indigenous population greater than 14,000.

Of those rejected 137 challenged the decision of the IIAC at the Administrative Appeals Tribunal (AAT). All were successful and reinstated on the electoral roll bring the final number of eligible voters up to 750. The Tasmanian Aboriginal Centre responded angrily to the AAT judgment stating that as a result more than a third of the candidates standing for election were “white”. It called for a boycott of the poll.

This example perfectly illustrates the absurdity of the High Court decision. Australian citizenship can now be determined by self identifying as indigenous and determined by the vague application of a subjective three part test indigenous Australians can’t even agree on. It will be interesting to see how the Daniel Love case plays out.

Worse still the High Court have snuck through the back door a form of indigenous sovereignty that was specifically rejected by Mabo. The majority justices have shown an arrogant contempt of the Australian people and their right to determine such matters by referendum.

The only positive likely to flow from this terrible decision is it that should kill off for good an indigenous Voice to Parliament enshrined in the constitution (assuming this decision doesn’t establish a precedent for that as well).

Remember all those elitist lawyers, activists and academics looking down their noses on the little people and scoffing at their racism and small mindedness because they dared warn of the dangers of judicial activism and the toxicity of identity politics?

The High Court has emphatically demonstrated that those concerns are well founded and constitutional recognition will be abused by judicial activists imposing their own beliefs and ideals over the Australian people.

So now we do need a referendum dealing with our indigenous past, not to “complete the constitution”, but to restore it and our sovereignty that the guardians of the constitution so arrogantly thought to trash.

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94 Responses to A Black Eye for Parliamentary Sovereignty, Democracy and the Constitution

  1. Bill

    So you are blaming the Courts for the fact that the Government can’t write its own laws properly.

    Sounds like a case of sour grapes to me.

  2. Nob

    The only positive likely to flow from this terrible decision is it that should kill off for good an indigenous Voice to Parliament enshrined in the constitution (assuming this decision doesn’t establish a precedent for that as well).

    You’re dreamin’.

    If the vibe feels right, anything will pass.
    It’s all about the vibe.

  3. Pyrmonter

    Let’s test that:

    Australia has a Constitution: Canberra is neither Westminster nor Wellington.

    Section 51 of that Constitution confers on the ‘Australian’ (actually, federal) government a long list of power, which have been broadly interpreted, but which, given the list’s existence, are not comprehensive of all state power. All other powers are reserved to the states.

    The High Court has said that one power – dealing with ‘aliens’ – doesn’t extend to a class of people who descend from and have maintained connections with communities of people who most certainly were not aliens at settlement. Is that a usurpation of sovereignty? Or is it exactly the sort of thing the highest court in a federal structure will routinely do when interpreting a Constitution that grants limited powers?

    (As noted elsewhere, I don’t like the decision. But Justinian’s argument by reference to popular sovereignty is the wrong criticism)

  4. Can we have a referendum on the following question:

    Should the current judges of the high court should be dismissed immediately?

  5. Ragu

    As of yesterday the Australian Government lost the sovereign right to absolutely and unequivocally enforce its its own Migration Act and effectively determine who is an Australian citizen and who is not.

    is there a link for that

  6. Roger

    The High Court has said that one power – dealing with ‘aliens’ – doesn’t extend to a class of people who descend from and have maintained connections with communities of people who most certainly were not aliens at settlement.

    That’s debatable.

    The nation of Australia did not exist at settlement.

    What did exist – for argument’s sake – were hundreds of aboriginal ‘nations’. If a member of one of these nations entered the territory of another uninvited, he was, according to aboriginal law, very much an alien.

    Therefore, if the justices wish to link immunity from deportation to links to the land – a specious argument, but there it is in the judgement – those so immune must be confined to the land of the ‘nation’ they identify with. That, of course, is absurd, as is the judgement.

  7. candy

    I would have thought this makes Constitutional recognition much easier to get through, in fact a necessity.

    If an individual even a criminal who does not live here, can claim a link to an indig. ancestor over 200 years ago, and therefore be deemed a citizen and able to claim rights, then that elevated group surely must be recognised in the Constitution as an elevated group.

    I’ve always supported Recognition and still to as an administrative touch-up to the Constitution, but it has become something else entirely now. If Pascoe chap can re-write history and be accepted, it’s a total con job by people on the make.

  8. Ragu

    looking at the first few paragraphs, The Vibe Court has ruled that Australia has some kind of a Right of Abode for denizens with a tenuous genetic link to the native population.

    correct?

  9. Pyrmonter

    @ Roger

    At settlement, the peoples of various indigenous ‘nations’ became the King’s subjects. In the eyes of the law introduced at settlement, they weren’t aliens.

  10. struth

    The utter insufferable racism of our Urban elite Judiciary , and their ignorance, and the corruption it will , and has enabled, is well described by Justinian.
    That there are some responses by naïve, integrity vacant twats, shows what a mess we are in.

  11. Pyrmonter

    @ Ragu

    In a strict sense, no. Denizen is an obsolete category of alien. The last alien to undergo denizenization (you had to be an alien to undergo it) was the painter Sir Lawrence Alma-Tadema in the 1870s. The majority holds that there is a class of non-citizen, non-alien.

  12. Roger

    At settlement, the peoples of various indigenous ‘nations’ became the King’s subjects. In the eyes of the law introduced at settlement, they weren’t aliens.

    But that’s not what the judgement hinges on. It hinges on the attachment of indigenous people to land. What the justices have overlooked is that that attachement wasn’t to the continent of Australia, which aborigines didn’t even know existed, let alone the nation of Australia, but to discrete areas delineated by totemic lore. The justices in the majority have discarded principles of constitutional law and replaced them with mystical European notions about primitive peoples.

  13. Ragu

    They contend that they are outside the purview of those statutes and s 51(xix) because they have a special status as a “non-citizen, non-alien”. They say that they have that status because although they are non-citizens they cannot be aliens because they are Aboriginal persons. Mr Thoms identifies, and is accepted by other Gunggari People, as a member of the Gunggari People. He is a common law holder of native title which has been recognised by determinations made by the Federal Court of Australia[4]. Mr Love identifies as a descendant of the Kamilaroi group and is recognised as such by one Elder of that group.

    such sophistry would never work anywhere else. otherwise i would be a citizen of England, Scotland, Greece Australia and any other country.

  14. Ragu

    It hinges on the attachment of indigenous people to land.

    no. Its a genetic link. As a human I have always a “link” to the land

  15. Mother Lode

    Is there an equivalent of this faculty, this unseen and uncut umbilicus, that runs through generations forever binding us to one place?

    Do these two men also have this living leash to New Guinea and New Zealand.

    Does it repeatedly branch for the exponentially increasing number of ancestors two parents, and their two parents etc?

    Does it stop at Australia for Aborigines? Or does it extend further back, to South East Asia or even back to Africa? Does it stop at the emergence of Homo Sapiens, or go back further still

    Am I unknowingly suffering from my long removal from England, or the homeland of the Saxons or Jutes, possibly some Scandinavia if a Viking crossed paths with one of my foremothers?

    This magical shit really needs to be stamped out.

  16. Ragu

    Federation it was well recognised that an attribute of an independent sovereign State was to decide who were aliens and whether they should become members of the community[8]. It was a view held by international jurists of the time and was followed by the courts of the United Kingdom[9]. At Federation there were two leading theories about the status of subject or citizen and how it was to be determined. On one view that status was acquired by descent; on the other it was acquired by reference to a person’s place of birth. The latter reflected the view of the common law, earlier expressed in Calvin’s Case[10], but which had been modified by statute in the United Kingdom. But by s 51(xix) it was to be left to the Commonwealth Parliament to deal with the subject matter of aliens[11].

    seriously. WTF.

  17. jupes

    However, the indigenous Minister for Indigenous Affairs, Ken Wyatt is apparently pleased the High Court has racially segregated the nation and upheld the equally stupid (and vague) notion of a “three part test” of indigeneity.

    Yet Wyatt himself accepted Pascoe as an Abo after just a two part test.

  18. Bruce of Newcastle

    I can’t wait for the first Turkmenistani Aboriginal migrant to take his case to the High Court.

  19. Andre Lewis

    The High Court has usurped its authority and the government should swiftly enact a law to reverse the decision in very clear terms so activist judges cannot do this again in future. Both the people subject to this ruling were born outside of Australia and are not citizens. One by actual evidence of aboriginal descent is as aboriginal as I am or Bruce Pascoe is, which is not at all. The farce has to stop.

  20. Graham

    I suspect that one of the practical effects of the majority High Court judgment (4 to 3) will be that large numbers of non-citizens facing deportation for crimes committed will claim that they are indigenous so that they escape eligibility for deportation.

    It will simply become another way of gaming the system.

    Another thing to remember is that 3 of the 4 in the majority (Nettle, Edelman and Gordon JJ) were Coalition nominated judges to the High Court. Another poor legacy of George Brandis as Attorney-General. The last two at least (Edelman J and Michelle Gordon J) were his picks for the High Court. As Professor Jim Allan keeps on pointing out, the Coalition are hopeless at nominating conservative judges to the High Court.

    They can hardly complain about the bitter fruits of their poor nominations to the Court. I doubt that they will learn anything from the experience.

  21. Ragu

    Do these two men also have this living leash to New Guinea and New Zealand.

    it gets more retarded

    The majority considers that Aboriginal Australians

    contradicts this

    The plaintiffs argue that the power should be read so as not to apply to a person who is not a citizen of Australia, who is a citizen of a foreign country and is not naturalised as an Australian citizen,

  22. Roger

    no. Its a genetic link.

    Not solely, in this case.

    The justices reiterated the tripartite nature of indigenous identity under law: genetics, self-identification and recognition by an indigenous community.

  23. jupes

    This magical shit really needs to be stamped out.

    I tell you what else needs to be stamped out. The Administrative Appeals Tribunal.

    Of those rejected 137 challenged the decision of the IIAC at the Administrative Appeals Tribunal (AAT). All were successful and reinstated on the electoral roll …

    100% success rate! FMD. Every time you hear of these tossers they are doing something to stuff up this country. Worse than useless.

  24. JC

    Can someone explain this. I’m using an anecdote.
    One of my kids was born in the US and obviously both parents are Australian citizens. She was entitled to an Australian passport and would have been entitled at any time in her life.

    Forgetting these two are aboriginal. If they have even one Australian parent, the right to claim citizenship wouldn’t be impinged.

    Why did this even go to the HC as I would have thought their entitlement to make this claim is set in stone.

  25. Pyrmonter

    @ JC

    I’ve seen a press report – so may not be reliable – that the NZ one is entitled to citizenship as of right, but hasn’t sought it. So, this is essentially taxpayer funded exploration of the boundaries of the law brought about by his choices. There is a place for that, but I’m not sure it should be a large one.

  26. Cassie of Sydney

    “As Professor Jim Allan keeps on pointing out, the Coalition are hopeless at nominating conservative judges to the High Court.”

    The Coalition are just utterly hopeless at advocating and pursuing any conservative or right-wing agendas.

  27. Ragu

    this is essentially taxpayer funded exploration of the boundaries of the law brought about by his choices

    it seems to me that old mate is making a claim to government loot as part of the reparations push, but as a non_citizen.

  28. Pyrmonter

    @ Ragu

    Not sure about your ‘wtf’. Nationality by descent was the continental way: and your ‘personal law’ tended to infect issues like your ability to contract or participate in legal proceedings. Place of birth was the common law way. It’s how the US has ‘birthright citizenship’; and was the law here and in the UK until into the 20C. In that sense, the common law was much more open to aliens, and much less concerned with nationality, than were the ‘rationalist’ exponents of the Codes of Justinian and Napoleon.

  29. Ragu

    Not sure about your ‘wtf’.

    The Vibeness are ruling on a theory, not law. to me, that is ridiculous.

  30. JC

    Pyrmonter

    I can understand how this pollutes the law with the racial aspect again raising it’s ugly head through judicial fiat, but I’m not really impressed this is the end of the world. If one parent is an Australian citizen then a child has a right to claim it as well. This has been the law of the land forever, at least as I understand it and I really see no complication with this.

    Having said that, I really think the HC decision simply puts a kabosh on Recognition at a plebiscite as the punters won’t like this racism that’s encroaching through the courts.

  31. candy

    JC
    The 2 guys are seeking damages for false imprisonment after being put in immigration detention pending their deportation because of crimes, is what I’ve read.

    Hence High Court, I think?

  32. Mother Lode

    no. Its a genetic link.

    What is the mechanism of a genetic link?

    Can an Aboriginal Australian suffer a mutation where they do not have the linky gene?

    Can someone from, say Finland, have be born with the freak mutation that given them the linky gene?

    Parents pass genes to their offspring. None of those genes carry ‘rights’.

    What happened 250 years ago, 60,000 years ago, 20 million years ago, is in the past. It is not connected to now. If I had an apple this morning and someone took it, I do not still retain some mystical connection to the apple.

    The past that we refer to is something that we create in the present – we use (unreliable) memory, evidence, conventions, laws to create predictable and regular behaviour. And we often get it wrong. We can’t consult past times with special genetic senses.

    Let people play the silly game if they want. Don’t let them force others to play.

  33. Ragu

    citizen then a child has a right to claim it as well

    yes, you make an application. it isn’t an automatic right which grants you full citizenship

  34. Ragu

    from memory, a person born in the USA that has foreign born parents, has to reaffirm their allegiance the the United States by 15yrs of age.

  35. JC

    Candy

    Forgetting they have aboriginal heritage, it really becomes murky if these two sacks of shit had the overhang of an implied right to claim citizenship through both or one of their parents. To me, it’s not laid down they belonged in immigration detention. This applies to aboriginals or others in this regard.

  36. Cassie of Sydney

    “Ragu
    #3322156, posted on February 13, 2020 at 11:43 am
    from memory, a person born in the USA that has foreign born parents, has to reaffirm their allegiance the the United States by 15yrs of age.”

    Since when? My nephew didn’t have to “reaffirm his allegiance”. He travels to the USA regularly on business and always uses his US passport to enter the country.

  37. Ragu

    The preamble to the Citizenship Act identifies an important feature of the relationship between citizen and State.

    oh dear. Full vibeness

    It is the loyalty owed by a citizen to the State.

    which does not exist, according to the plaintiff.

    The plaintiffs do not challenge the provisions of those statutes. They do not contend that the criteria stated in the Citizenship Act for Australian citizenship and the inference to be drawn from those criteria respecting the status of alien is not within the power given by s 51(xix). They contend that they are outside the purview of those statutes and s 51(xix) because they have a special status as a “non-citizen, non-alien”.

    what a joke. this is worse than the Family Court and its vampiric hangers on

  38. Ragu

    no shit, dickhead.

    go tell your missus to not bite it, JC

  39. Ragu

    Since when? My nephew didn’t have to “reaffirm his allegiance”.

    quite rightly, your extended family keep you out of the loop to protect your tenuous line to reality as expressed by cab drivers

  40. Pyrmonter

    @ Cassie

    I struggle to think, perhaps himself aside, whom Jim Allan thinks ought to sit on the High Court. Edelman was about as sound looking as they come. Conversely, I’d always expected Gageler to follow most passing fashions, but, unusually, find myself in full agreement with him.

    The excellent Anne Toomey has something studiedly even-handed on the ABC website that I recommend:

    https://www.abc.net.au/news/2020-02-12/high-court-love-and-thoms-aboriginal-connection-to-land/11954662

  41. JC

    Hey , at least it’s no else’s. 🙂

  42. Ragu

    you really are a dickwad, Head Defect.

    you have no fucking idea so you go the other route.

    piss weak.

  43. JB of Sydney/Shanghai

    We could save a fortune on legal fees if we used a simple DNA test. ($100 at present.)

  44. Cassie of Sydney

    “Ragu
    #3322172, posted on February 13, 2020 at 11:53 am
    Since when? My nephew didn’t have to “reaffirm his allegiance”.

    quite rightly, your extended family keep you out of the loop to protect your tenuous line to reality as expressed by cab drivers”

    JC was way too nice calling you a “dickhead”…..you’re actually a fucking moron.

  45. JC

    Lol

    That obviously hit a raw nerve. Good

  46. Ragu

    Head Defect and cassie are saying that anyone born in the USA can become president, which is false.

  47. Ragu

    Head Defect and Cassie think this is just fine

    In Nolan v Minister for Immigration and Ethnic Affairs[34] it was observed that, as a matter of etymology, “alien” means belonging to another place. This is not a reference to a person’s feelings of connection, however strong. It is not a reference to perceptions, to how a person might be understood by others to have a connection to a country. Rather it describes a person’s lack of formal legal relationship with the community or body politic of the country with which they contend to have a connection. In the United States the meaning attributed to “alien” has been said to be “one born out of the United States, who has not since been naturalized under the constitution and laws”[35].

  48. Ragu

    JC
    The 2 guys are seeking damages for false imprisonment after being put in immigration detention pending their deportation because of crimes, is what I’ve read.

    this is the nub of the matter.

    Head Defect; what are your thoughts?

  49. candy

    To me, it’s not laid down they belonged in immigration detention.

    You are right JC, though you just know they will be held up as heroes now, because indigenous connection, but their crimes were DV and causing serious bodily harm, and they will probably seek compensation money and get it.
    You do harm, and you get money for it.

  50. JC

    Candy

    The immigration minister and the blockheaded bureaucrats are partly to blame here. This is a decent example of risk management. There was a risk it would end up in court and should never have got close to this.

  51. Ragu

    Wrong again Defect.

    The Vibe Court are ruling on implied feelz

  52. FelixKruell

    The more rights/benefits we grant purely on the basis of indigenous-ness, the more important the test for indigenous-ness becomes.

    Yet any time you raise the question of that test (i.e. Bruce Pascoe), you’re told it’s inappropriate to ever question anyone’s identity.

    Hmmm…

  53. Ragu

    The true ruling should be on the explicit vibe. No citizenship: no rights

  54. old bloke

    “Ragu
    #3322156, posted on February 13, 2020 at 11:43 am
    from memory, a person born in the USA that has foreign born parents, has to reaffirm their allegiance the the United States by 15yrs of age.”

    Ragu, I haven’t heard of this before. I have two grandchildren born and living in the USA, both in their late teens, and both hold dual Oz/USA citizenship & passports. They have never mentioned this reaffirmation process, which would be quite pointless in any event as it doesn’t impinge on their Oz citizenship.

  55. Kneel

    “The 2 guys are seeking damages for false imprisonment after being put in immigration detention pending their deportation because of crimes, is what I’ve read.”

    Ah – well then, since it seems they are NOT aliens, they can be tried and imprisoned here if found guilty. No comebacks on that one – by their own hand.

  56. Cassie of Sydney

    “old bloke
    #3322231, posted on February 13, 2020 at 12:43 pm
    “Ragu
    #3322156, posted on February 13, 2020 at 11:43 am
    from memory, a person born in the USA that has foreign born parents, has to reaffirm their allegiance the the United States by 15yrs of age.”

    Ragu, I haven’t heard of this before. I have two grandchildren born and living in the USA, both in their late teens, and both hold dual Oz/USA citizenship & passports. They have never mentioned this reaffirmation process, which would be quite pointless in any event as it doesn’t impinge on their Oz citizenship.”

    OB….there is no reaffirmation of allegiance.

  57. Ragu

    Oh

    OB….there is no reaffirmation of allegiance.

    There you go.

    Dumb fucks don’t make a deal of it because it’s just something that comes up. Meanwhile….

  58. Cassie of Sydney

    “Ragu
    #3322238, posted on February 13, 2020 at 12:50 pm
    Oh

    OB….there is no reaffirmation of allegiance.

    There you go.

    Dumb fucks don’t make a deal of it because it’s just something that comes up. Meanwhile….”

    The only “dumb fuck” is you….meanwhile…fuck off.

  59. Tel

    The true ruling should be on the explicit vibe. No citizenship: no rights

    The true ruling is that aboriginal councils have been given the legal right to grant Australian citizenship.

  60. old bloke

    Prior to 1986, parties could appeal to the Privy Council in London if they were dissatisfied with a ruling from the Australian High Court. If that right still existed, I don’t know if the learned judges sitting on the Privy Council would arrive at a different decision to that of the majority of the Australian High Court.

    Nevertheless, I’m sure the Judges on the Australian High Court would have been more circumspect in forming their judgements knowing that some bewigged learned gentleman with some outlandish title in a land far away would subject their judgements to a very analytical review.

  61. Ragu

    The why of Ted Cruz not being ineligible is his parents are US citizens. Fuckheads.

    It’s all fairly simple. Caddies relations don’t get a look in because the parents have no allegiance. Therefore there is a time that the child, born in the USA, can consider changing allegiance to Uncle Sam

    Why are you lot so dumb about this?

  62. Blair

    “The High Court has said that one power – dealing with ‘aliens’ – doesn’t extend to a class of people who descend from and have maintained connections with communities of people who most certainly were not aliens at settlement.”
    Children of First Fleeters were not aliens, after all they were born in NSW, so why should their descendants be treated differently to descendants of Aboriginals and Torres Strait Islanders?

  63. Pyrmonter

    @ Blair

    I’m tempted to suggest that as descendants of First Fleeters, most of them are descendants of felons or those convicted of treasons and outlaws, and weren’t recognised by the law …
    As British Subjects, their nationality has been determined by successive laws dealing with aliens. I suppose an argument may now have been opened up as to whether all of those laws are valid, though I think that question has been agitated in the 1980s and 1990s cases referred to in Thom and Love.

    @ Old Bloke

    Not quite. Privy Council appeals on constitutional issues were abolished in the 70s. Appeals from the state courts survived until the mid 1980s. The Commonwealth was able to and did take action earlier than the states.

  64. Ragu

    Children of First Fleeters were not aliens,

    no shit. but people born in other countries were not citizens of the colony.

    F-

    please try harder

  65. Ragu

    i wonder how many can see the subtle difference?

  66. Ragu

    actually, there is no subtle difference. The answer is right in your face.

    to be honest, its fucking depressing reading the Head Defect and others agreeing with this crap when the answer is explicit and was put into law 200 years ago.

  67. Pyrmonter

    @ Ragu

    There was no concept of ‘citizenship of the colony’: they were His Majesty’s subjects, wherever they were within the British Dominions. Until the 1920s imperial ‘nationality’ was more or less uniform; its uniformity was broken in the late 1940s after a conference between the UK and Dominions. The UK stripped many of its colonials of their citizenship in response to commonwealth immigration in the 1960s and 1970s, with the low point being the tardy treatment of the Hong Kongers. Now that the number of colonials is trivial (about 150,000 I think – Bermuda, Gibraltar, a few specks in the Caribbean and the Falklands for all intents and purposes) they’ve become more generous again.

  68. Lee

    However, the indigenous Minister for Indigenous Affairs, Ken Wyatt is apparently pleased the High Court has racially segregated the nation and upheld the equally stupid (and vague) notion of a “three part test” of indigeneity.

    It’s precisely because the Liberal party is full of hopeless LINOs like Wyatt, I would vote for a new right wing party (to the right of the Libs) in this country in a heartbeat.

  69. Ragu

    There was no concept of ‘citizenship of the colony

    That is highly debatable

  70. Pyrmonter

    @ Ragu

    Happy to be enlightened, but my understanding is that the colonies conferred ‘British Subject’ status on those they naturalized; and that that status was portable.

  71. nb

    Andre Lewis, #3322119, posted on February 13, 2020 at 11:19 am says:

    ‘the government should swiftly enact a law to reverse the decision.’

    Andre is right. There might be a million ways to provide a ratiocination for this decision. That is not the point. No need to cry over spilt milk. Act. Act immediately. And in this rare instance, act retrospectively.

  72. Ragu

    Happy to be enlightened, but my understanding is that the colonies conferred ‘British Subject’ status on those they naturalized; and that that status was portable.

    legally, all those deported were english subjects. once old mate established the colony of Australia then they became; Joe Fart, Australian a Britisher

    until they named the colony, then you became an Australian. at such time the governor should have, and did know, that henchforth a citizen became an Australian.

    why are we arguing about this?

  73. nb

    Lee #3322304, posted on February 13, 2020 at 1:49 pm says:
    ‘I would vote for a new right wing party (to the right of the Libs)’
    Which means you wish there existed a prominent right wing party.
    It’d also be nice to have a neutral state broadcaster instead of a Maoist one.
    Currently Australia is in serious danger from the long march.

  74. I_am_not_a_robot

    Both Justice Gordon and Justice Edelman referred to a supposed ‘metaphysical’ tie connection or bond Indigenous people have to “the land and waters that now make up the territory of Australia”.
    Justice Edelman uses ‘metaphysical’ five times, e.g.:

    … Political community is not a concept that is wholly a creature of legislation. For example, a child born in Australia to two parents who have only Australian citizenship is not an alien. The metaphysical ties between that child and the Australian polity, by birth on Australian land and parentage, are such that the child is a non-alien, whether or not they are a statutory citizen. The same must also be true of an Aboriginal child whose genealogy and identity includes a spiritual connection forged over tens of thousands of years between person and Australian land, or “mother nature” …

    So there is now a separate category of persons besides those with citizenship through birth or naturalisation viz. citizens through ‘metaphysics’.

  75. Ragu

    The metaphysical ties between that child and the Australian polity,

    the child can’t vote. therefore, there is no attachment to polity.

  76. Ragu

    otherwise my metaphysical belief of not voting would trump the law.

    i think the original fuck-up goes back to the court ruling on questions on notice.

    specifically, that a question without notice was not written into the rules, therefore it is allowed.

  77. Ragu

    thanks I am Not

    I think the Chief Vibes fucked up

    by birth on Australian land and parentage,

  78. Ragu

    fuck this. where is Dot QC?

    As someone that has been dragged through the non-perjury bullshit of the legislated Family Court i will say. I refuse to be ruled by such contradictory bullshit makers as the Justices of our high court.

  79. The part that ain’t dawned on anybody in the j’ism class (yet):
    This pair are just the first two.
    There’s detention cells full of people born overseas & have never been citizens of Australia, with some indigenous Australian genes.
    Some have been deported.

    Repatriating the backlog is going to be done either undercover, or else can be front page news.
    As with this pair – the others aren’t deported or facing deportation for jaywalking.

  80. Pyrmonter

    At the risk of being tendentious – this is arguably not the third, but the fourth class of person recognized by the Constitution.

    The Queen herself cannot be her own subject; was in any event not a British Subject resident here when Australian citizenship was created; and cannot be an alien. She may be a class of 1, but she has an odd nationality status.

  81. BorisG

    I mostly agree with Judith except for the word ‘unelected’. They have been selected according to law, but elected officials or their nominees.

  82. Stanley

    So does a child overseas-born to ISIS fighters who are identified aboriginals, have the right to come back to Australia? Does the same right apply to children of Caucasian-Arabian-Australian ISIS fighters

  83. Squirrel

    This is the racial equivalent of homeopathy.

  84. Justinian the Great

    A lot of the comments seem to be going off on wild tangents.

    The Commonwealth Government has lost the unilateral right to decide who is alien to this country.

    In limited instances that can now be determined by an alternative authority, i.e. an indigenous one.

    As Justice Keifel stated that is a defecto form of indigenous sovereignty.

    Hence, the bigger issue is not whether a few criminals are allowed to stay it is that:

    a) The Commonwealth Government (i.e. democracy) has lost the right to determine absolutely who is or is not an alien and that goes to the very essence of national sovereignty. Sorry, but there is an important principle at stake here you cannot sweep under the carpet.

    b) The precedent that indigenous Australians are above common law could apply to many other aspects of law. Where will this end?

    It is the danger of the logic and the precedent beyond the two specific individuals in this case.

    It is the precedent that indigenous Australians based on race (inadequately defined) can sidestep common law principles.

    The absurdity of the High Court decision (leaving side the contested claims of indigneity) is that affiliation with a minute part of Australia, i.e. a specific indigenous “country” (a BS notion to begin with) either guarantees you Australia wide privileges .

    At best your “non-alien” status applies only to being within a specific aboriginal “country”. Presumably this would mean that the moment you move beyond that “country” boundary you once again are alien.

    This decision is logically absurd but is dangerous because it implies first user rights that transcend common law.

  85. Pyrmonter

    Justinian – the federal government can no more define the scope of the aliens power than it can deem a river to be a trading or financial corporation or a an apple to be a telegraph: those are questions of scope of power that derive from the federal constitution. To borrow a hackneyed phrase, the river cannot rise above its source.

    It’s a bad decision (though perhaps not quite so entrenched as you might think – as improbable a person as Jeremy Gans has wondered on twitter whether it can’t be stifled by legislation under the race power – but limits on federal legislative power ought to be the norm, not the exception. If the High Court ever decided the Engineers Case was wrongly decided, we’d see even less federal legislation. And might well be the better for it. The absence of federal power is not anarchy; it’s the states.

  86. Tim Neilson

    The absence of federal power is not anarchy; it’s the states.

    In the case of immigration, I’d say that absence of federal power is a pretty fair imitation of anarchy.

  87. Pyrmonter

    Even if central action is required, the states can refer power. Or the Constitution can be amended. The decision is a bad one, but ‘popular sovereignty’ isn’t the issue.

  88. Professor Fred Lenin

    The politicians should not contradict the judges,judges have risen to the top of the lawtrade ,politicians were the dregs of the lawtrade , and politicians are only elected by the people ,judges are Appointed by someone?

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