HC ruling on Aboriginal status

[Aractus]

So the High Court yesterday made a surprising ruling, finding that under the constitution Indigenous Australians cannot be considered aliens, even if they were born overseas and hold no Australian citizenship. This was a majority 4-3 decision.

Firstly the fact that it's not based on citizenship should not come as a surprise. Citizenship is just something that exists in statute, not in the constitution. What the ruling means is that a class of person exists, an Australian national, who cannot be denied those rights or classed as an alien under the constitution. They are immune from immigration law that would seek to deport them.

This decision can never be changed or challenged. It is not in the power of the legislature to alter the constitution, except by referendum, which would be impossible not to mention political suicide to try.

Secondly is difficult to see the logic. Aboriginals were considered aliens when the constitution was originally written, and, although that section has since been removed from the constitution you can't credibly argue that the constitution's authors had in mind Aboriginals as a protected class of people in any form.

Thirdly this is a racially-based decision. It creates, in the words of constitutional law expert Anne Twomey "creates a race-based constitutional distinction". In the ruling "Justice Gordon pointed out that the Constitution does not prohibit special treatment of a race. Indeed, the existing race power in the Constitution positively permits it."

[brewerb]

What percent aboriginal do I need to be to get in?

BTW, nice link, I ain't gonna pay.

[Dānu]

"I'm an aboriginal, and so is my wife!"

[Bucky Ball]

They should just turn the whole thing into a penal colony or something.

[SYZ]

Unfortunately, the link from Aractus is behind a paywall (typical Murdoch), and I refuse to pay for my news.

Legal experts urge caution on high court ruling that Aboriginal Australians are not 'aliens'.

[epronovost]

This might sound terribly ignorant, but how many Australian aboriginal people are born outside of Australia and migrate back into it? Are there so many of them it might actually be an issue?

[Aractus]

As I've said before you can use Bypass Paywalls for Firefox.

[SYZ]

This might sound terribly ignorant, but how many Australian aboriginal people are born outside of Australia and migrate back into it? Are there so many of them it might actually be an issue?

Maybe one or 2 a year? Dunno really.

[Aractus]

This might sound terribly ignorant, but how many Australian aboriginal people are born outside of Australia and migrate back into it? Are there so many of them it might actually be an issue?

Look, there are many problems I have with the law. I want our Ingenious people to feel valued and appreciated, but none of us want a two-class citizenship based on "race" and this is what this ruling has in effect created. We don't believe in "race" in Australia, we believe that we're all the one human race - we are all homosapians. That's grounded in science and is totally against prejudice.

"Race" is a bigoted construct imported from Europe and places outside of Australia, it has no place in our legal system.

[Cavebear]

So the High Court yesterday made a surprising ruling, finding that under the constitution Indigenous Australians cannot be considered aliens, even if they were born overseas and hold no Australian citizenship. This was a majority 4-3 decision.

Firstly the fact that it's not based on citizenship should not come as a surprise. Citizenship is just something that exists in statute, not in the constitution. What the ruling means is that a class of person exists, an Australian national, who cannot be denied those rights or classed as an alien under the constitution. They are immune from immigration law that would seek to deport them.

This decision can never be changed or challenged. It is not in the power of the legislature to alter the constitution, except by referendum, which would be impossible not to mention political suicide to try.

Secondly is difficult to see the logic. Aboriginals were considered aliens when the constitution was originally written, and, although that section has since been removed from the constitution you can't credibly argue that the constitution's authors had in mind Aboriginals as a protected class of people in any form.

Thirdly this is a racially-based decision. It creates, in the words of constitutional law expert Anne Twomey "creates a race-based constitutional distinction". In the ruling "Justice Gordon pointed out that the Constitution does not prohibit special treatment of a race. Indeed, the existing race power in the Constitution positively permits it."

That does seem odd. But are you talking about a child of aboriginal Australian citizens who happened to be abroad when the child was born? In the US, a similar situation would hold that the child was a US citizen. If born of US citizens who happened to be abroad at the time of birth, the child is still a US citizen. It happens among diplomats, business travelers, even vacationers.

[epronovost]

This might sound terribly ignorant, but how many Australian aboriginal people are born outside of Australia and migrate back into it? Are there so many of them it might actually be an issue?

Look, there are many problems I have with the law. I want our Ingenious people to feel valued and appreciated, but none of us want a two-class citizenship based on "race" and this is what this ruling has in effect created. We don't believe in "race" in Australia, we believe that we're all the one human race - we are all homosapians. That's grounded in science and is totally against prejudice.

"Race" is a bigoted construct imported from Europe and places outside of Australia, it has no place in our legal system.

While I agree with you on the idea that race as a biological concept is bullshit and that all people should be equal, I find this belief often...practicle.

By that I mean, Australia (and many other countries), were perfectly fine imposing the supremacy of white people over indigenous population often in a brutal and cruel way, but when the tide shifts and those people who were brutalised and oppressed gain or reclaim privileges in reperation for crimes comitted against them, suddenly race should not count and all people should be strictly equal. That makes me queazy as it seems clearly to the advantage of the oppressor; they can cheat to win and never pay the price. Equality without justice isn't worth anything in my opinion.

[Cavebear]

This might sound terribly ignorant, but how many Australian aboriginal people are born outside of Australia and migrate back into it? Are there so many of them it might actually be an issue?

Look, there are many problems I have with the law. I want our Ingenious people to feel valued and appreciated, but none of us want a two-class citizenship based on "race" and this is what this ruling has in effect created. We don't believe in "race" in Australia, we believe that we're all the one human race - we are all homosapians. That's grounded in science and is totally against prejudice.

"Race" is a bigoted construct imported from Europe and places outside of Australia, it has no place in our legal system.

While I agree with you on the idea that race as a biological concept is bullshit and that all people should be equal, I find this belief often...practicle.

By that I mean, Australia (and many other countries), were perfectly fine imposing the supremacy of white people over indigenous population often in a brutal and cruel way, but when the tide shifts and those people who were brutalised and oppressed gain or reclaim privileges in reperation for crimes comitted against them, suddenly race should not count and all people should be strictly equal. That makes me queazy as it seems clearly to the advantage of the oppressor; they can cheat to win and never pay the price. Equality without justice isn't worth anything in my opinion.

"Sauce for the goose is sauce for the gander". Logic and law must be applied equally to all. One of the most disgusting habits of some politicians is that they argue A vs B one year and B vs A the next as it suits their cause. Such people MUST be removed from office as they are completely untrustable.

[epronovost]

"Sauce for the goose is sauce for the gander".  Logic and law must be applied equally to all.  One of the most disgusting habits of some politicians is that they argue A vs B one year and B vs A the next as it suits their cause.  Such people MUST be removed from office as they are completely untrustable.

I disagree (kinda). The law should support and defend justice and equality not one at the expense of the other.

[SYZ]

That does seem odd.  But are you talking about a child of aboriginal Australian citizens who happened to be abroad when the child was born...

Overseas-born children are eligible for citizenship by descent if one or
both of the parents was an Australian citizen when the child was born.

[Cavebear]

"Sauce for the goose is sauce for the gander".  Logic and law must be applied equally to all.  One of the most disgusting habits of some politicians is that they argue A vs B one year and B vs A the next as it suits their cause.  Such people MUST be removed from office as they are completely untrustable.

I disagree (kinda). The law should support and defend justice and equality not one at the expense of the other.

Are you suggesting that no proactive laws should be enacted to reverse past gender or ethnic discrimination?

[epronovost]

"Sauce for the goose is sauce for the gander".  Logic and law must be applied equally to all.  One of the most disgusting habits of some politicians is that they argue A vs B one year and B vs A the next as it suits their cause.  Such people MUST be removed from office as they are completely untrustable.

I disagree (kinda). The law should support and defend justice and equality not one at the expense of the other.

Are you suggesting that no proactive laws should be enacted to reverse past gender or ethnic discrimination?

I do believe that laws should be enacted to reverse past gender and ethnic discrimination because these laws are necessary to defend justice and equality in society.

[SYZ]

I do believe that laws should be enacted to reverse past gender and ethnic discrimination because these laws are necessary to defend justice and equality in society.

As we've done in Australia with the likes of the 1992 Mabo decision of the High Court of Australia which
overturned the legal doctrine of terra nullius—which described land that is legally deemed to be
unoccupied or uninhabited— and which characterised Australian law with regard to land and Aboriginal title.
Also the 1967 Federal referendum result which had the immediate effect of including Aboriginal people in
determinations of population, give them the right to vote, and also empowered Parliament to legislate
specifically for this racial group.

[epronovost]

I do believe that laws should be enacted to reverse past gender and ethnic discrimination because these laws are necessary to defend justice and equality in society.

As we've done in Australia with the likes of the 1992 Mabo decision of the High Court of Australia which
overturned the legal doctrine of terra nullius—which described land that is legally deemed to be
unoccupied or uninhabited— and which characterised Australian law with regard to land and Aboriginal title.
Also the 1967 Federal referendum result which had the immediate effect of including Aboriginal people in
determinations of population, give them the right to vote, and also empowered Parliament to legislate
specifically for this racial group.

These laws do not reverse past ethnic discrimination they basically recognise aboriginal people as human who can own thing and have civic rights. That's the very basic of humanity. You can't treat human being like pests and then declare a hundred years later that they are human and say "all is good now, justice has been restaured!".  Once the Australian government will have paid for over a century of inhumane treatment and theft, then justice will have been served, but not before.

[SYZ]

I do believe that laws should be enacted to reverse past gender and ethnic discrimination because these laws are necessary to defend justice and equality in society.

As we've done in Australia with the likes of the 1992 Mabo decision of the High Court of Australia which
overturned the legal doctrine of terra nullius—which described land that is legally deemed to be
unoccupied or uninhabited— and which characterised Australian law with regard to land and Aboriginal title.
Also the 1967 Federal referendum result which had the immediate effect of including Aboriginal people in
determinations of population, give them the right to vote, and also empowered Parliament to legislate
specifically for this racial group.

These laws do not reverse past ethnic discrimination they basically recognise aboriginal people as human who can own thing and have civic rights. That's the very basic of humanity. You can't treat human being like pests and then declare a hundred years later that they are human and say "all is good now, justice has been restored!".  Once the Australian government will have paid for over a century of inhumane treatment and theft, then justice will have been served, but not before.

Well, it's obviously impossible to go back in time and change what the original English settlers did to our
aborigines—killing, persecution, enslavement, etc.  And I'm not sure what you mean by the Australian
government should've "paid" for a century of inhumanity?

At any rate, Australian aborigines now have exactly the same voting and human rights, social benefits such
as health care and education, housing and land ownership rights as non-Aboriginals, and have since 1967.
We currently have 16 sitting members of state, territory, and federal parliaments who are Aboriginal, and
more than 40 Aboriginal MPs since 1971.

[Thumpalumpacus]

As we've done in Australia with the likes of the 1992 Mabo decision of the High Court of Australia which
overturned the legal doctrine of terra nullius—which described land that is legally deemed to be
unoccupied or uninhabited— and which characterised Australian law with regard to land and Aboriginal title.
Also the 1967 Federal referendum result which had the immediate effect of including Aboriginal people in
determinations of population, give them the right to vote, and also empowered Parliament to legislate
specifically for this racial group.

These laws do not reverse past ethnic discrimination they basically recognise aboriginal people as human who can own thing and have civic rights. That's the very basic of humanity. You can't treat human being like pests and then declare a hundred years later that they are human and say "all is good now, justice has been restored!".  Once the Australian government will have paid for over a century of inhumane treatment and theft, then justice will have been served, but not before.

Well, it's obviously impossible to go back in time and change what the original English settlers did to our
aborigines—killing, persecution, enslavement, etc.  And I'm not sure what you mean by the Australian
government should've "paid" for a century of inhumanity?

At any rate, Australian aborigines now have exactly the same voting and human rights, social benefits such
as health care and education, housing and land ownership rights as non-Aboriginals, and have since 1967.
We currently have 16 sitting members of state, territory, and federal parliaments who are Aboriginal, and
more than 40 Aboriginal MPs since 1971.

The inequality imposed by a century+ of racist policies can't be undone simply by granting current legal equality, because the starting conditions mean that there is a big difference between legal equality and practical equality.

We Americans are confronting the same issues with regard to our centuries of legalized discrimination of minorities. When the older structure was racist, it gave advantages that still resonate today even when the legal table is leveled -- things such as heritable wealth, educational opportunities, and so forth -- so I'm not slinging stones here, just pointing out that starting position matters, and history can be an encumbrance in that light.