By the narrowest of margins, the nation’s highest court has elevated a racial distinction to a position of constitutional privilege that would never be accepted if such a question were put to the people at a referendum.
Four of the court’s seven judges have pre-empted the people of this nation by injecting a new racist concept in the Constitution that can only be overturned by referendum or a future High Court.
This shameful ruling has punched a hole in the principle that everyone is equal before Australian law and has eroded the federal government’s ability to protect the community from foreign criminals who have never tried to become citizens.
Even when born overseas and holding the citizenship of another country, foreign criminals with Aboriginal ancestry can no longer be treated as aliens for the purposes of migration law.
There will be those who will say the impact can be confined to the specific facts of the case. But a dreadful precedent has been set.
In this case, the High Court majority has effectively created a new right for foreigners that comes at the expense of Australians who expect their governments to protect them from criminals, regardless of their race.
The majority has decided that foreign citizens with Aboriginal ancestry have such a special connection with Australia that it would be inconsistent with that special connection to treat them as aliens for the purposes of migration law. This principle was applied even though the men who brought this challenge never tried to become Australian citizens.
Common sense has gone out the window. The majority has invented a new, illogical category in migration law that applies only to Aborigines who hold foreign citizenship: they can simultaneously be non-citizens and non-aliens.
The implications of this mess are endless. In times of international trouble, will the federal government be expected to scour the planet in order to come to the rescue of non-citizens who claim Aboriginal ancestry?
Because a crucial part of the test for Aboriginality depends on the views of communities or their leaders, this means Aboriginal communities — and not parliament — will have the power to determine when the normal migration law will apply.
This was too much for Chief Justice Susan Kiefel, who differed strongly with the majority and pointed out that such a mechanism “would be to attribute to the group the kind of sovereignty which was implicitly rejected by (the Mabo decision)”.
Kiefel’s dissent goes a long way to limiting the damage to the court’s reputation. Four judges went off on a frolic: Geoffrey Nettle, Michelle Gordon, James Edelman and Virginia Bell. Kiefel was steadfast, backed by Stephen Gageler and Patrick Keane.
The Chief Justice points out in her dissent that it is settled law that it is up to parliament, relying on the Constitution, to create and define the concept of citizenship and determine who is an alien.
She also argues that “questions of constitutional interpretation cannot depend on what the court perceives to be a desirable policy regarding the subject of who should be aliens and the desirability of Aboriginal non-citizens continuing to reside in Australia”.
“In the absence of a relevant constitutional prohibition or exception, express or implied, it is not a proper function of a court to limit the method of exercise of legislative power,” Kiefel wrote.
The great tragedy of this decision is that it will inevitably be used to attack the arguments of those, like this writer, who have argued for a constitutionally entrenched Aboriginal voice to federal parliament.
The judges in the majority are massively out of step with community values and the core principle of equality before the law. They have done a disservice to the legitimate aspirations of indigenous Australians.
Journo’s response ‘is a pyramid of lies’
Nine reporter Nick McKenzie ‘threw his lawyers under the bus’ by suggesting they knew he’d been given privileged information but done nothing about it, a court has heard.
Caseload retreat by DPP risks ‘anarchy’
The ACT prosecution office will no longer handle matters such as construction violations and animal protection offences, in a move which has been criticised for creating a possible state of ‘anarchy’.
The lunacy at the heart of the latest decision by the High Court comes down to this: this is pure racism built upon an illegitimate exercise of judicial power.