7

Was Namatjira an Alien? The High Court’s Flawed History of Belonging in Australia

Peter Prince¹

Note of warning

Aboriginal and Torres Strait Islander readers are advised that the following chapter contains names, words and images of people who have died. Such words and images are already in the public domain. In addition, statements by white officials, politicians and newspapers that are recognised as racially offensive today are quoted to illustrate the thinking at the time. Readers are warned that the chapter contains words and descriptions that may be culturally sensitive and would not normally be used in public or community contexts.

Introduction

In ‘Why High Court Judges Make Poor Historians’, Rob McQueen notes the observation of Italian historian Alessandro Portelli:

The distinction between legal and historical truth deserves one final comment. Historical truth is hardly ever more than a descriptive hypothesis: legal truth has a performative nature. Whether things happened as the court says or not, to all practical purposes they now did: a court’s [decision] creates truth … legal truth, in turn has a tendency to become historical truth as well.²

As McQueen says, ‘once a particular version of history is given the imprimatur of “authenticity” by a superior court, it becomes the definitive account of the particular event’.³ Statements about Australian history by the nation’s High Court have particular significance. This chapter contends that the High Court needs to better confront racialised conceptions of national identity and belonging from the era of White Australia in order to resist the enduring influence of such attitudes and policies – and that failure to do so unavoidably perpetuates them. The laws of any country reflect the values of society and the time period in which they were made. The chapter argues that laws from earlier periods of Australian history in which white privilege was the foundation of the social order cannot be applied to contemporary society in an uncritical manner.

Using three case studies, the chapter examines the fragmented way the High Court has been willing to engage in a postcolonial reckoning with the country’s past discrimination. Individuals in each case study faced deportation. Their fate depended on the court’s assessment of whether they legally belonged. For each occasion, the judicial approach to the historical context can be questioned. In the first two examples, the High Court failed to acknowledge the pervasive legal discrimination in nineteenth- and twentieth-century Australia against First Nations peoples and other non-European inhabitants. In the last instance, the High Court glossed over the positive discrimination throughout the same period in favour of ethnic Anglo-Celtic and other ‘Aryan’ residents.

First, in the landmark ‘Aboriginal belonging’ case, Love & Thoms (2020), the High Court claimed that Aboriginal people had never been considered ‘aliens’ or ‘foreigners’ in their own country. Yet, as the shameful treatment of world-famous artist Albert Namatjira shows, this does not accurately reflect the experience of First Nations peoples following European colonisation. Without disputing the outcome of the case – that ‘Aboriginal Australians’ could not validly be subject to draconian federal powers over ‘aliens’ – this chapter argues that the High Court presented an idealised view of what the law should have been on Indigenous belonging in nineteenth- and twentieth-century Australia, ignoring the unpalatable reality of what it actually was. An understanding of the deficiencies in Aboriginal ‘citizenship’ under imposed white law in post-1788 Australia would add strength to calls in the Uluru Statement from the Heart for constitutional enshrinement of an Indigenous ‘Voice’ to the Commonwealth Parliament.

Second, in 2021, Mr Troyrone Zen Lee, born as an Australian citizen in the former territory of Papua, won a long battle in the Federal Court to regain his Australian passport (and, hence, his career and access to his wife and family overseas). The Department of Home Affairs had revoked his passport five years earlier based on the High Court’s decision in Ame’s Case (2005). The High Court said Papuans born before independence in 1975 were never ‘real Australians’ because they were denied entry to the mainland and lacked other rights of Australian citizens. However, the court failed to acknowledge that this reasoning was directly linked to the White Australia–era policy of excluding ‘dark-skinned’ Papuans to protect the aspiration for a white continent. Because the High Court in Ame’s Case avoided confronting this historic racism, it continues to cause personal hardship well into the twenty-first century. Unable to question the High Court’s precedent, the Federal Court had to distinguish Mr Lee’s situation before it could order the return of his passport and livelihood.

Third, in Falzon (2018)⁴ and Chetcuti (2021),⁵ the High Court ruled that two men who had arrived as small boys from the British colony of Malta in the mid-twentieth century and had lived in Australia ever since did not ‘belong’ and could be deported to their country of birth. Their right to remain in Australia was cancelled after they were convicted of serious crimes. Mr Falzon had made Australia his home for over 60 years and Mr Chetcuti for more than 70 years! Like other British subjects, they possessed full ‘citizenship rights’ from the time they arrived and had no need to formally become Australian citizens. Mr Chetcuti was even part of the conscription ballot during the Vietnam War. But they were caught by the High Court’s retrospective declaration that any British subjects from the United Kingdom or its former colonies who disembarked, even before the creation of Australian citizenship in 1949, could be treated as ‘aliens’ from the time of their arrival if they had not been naturalised as citizens. The chapter contends that this idealised rewriting of history denies the inherent allegiance and loyalty to the ‘home country’ of Anglo-Australians from previous generations. It is difficult to imagine an Australian court in the 1950s or 1960s labelling white British subjects in Australia as ‘aliens’ or ‘outsiders’ who could be expelled from the country.

Idealising Australia’s Indigenous History

The first case study looks at the gap between law and history on a fundamental issue for modern-day Australia – the legal treatment of First Nations peoples. The 2020 High Court case Love & Thoms v. Commonwealth⁶ involved two men of Australian Indigenous background, Daniel Love and Brendan Thoms, each born outside Australia (Love in Papua New Guinea, Thoms in New Zealand), who had not formally become Australian citizens. Both were issued with a deportation order under the Migration Act 1958 on character grounds. However, by a bare 4:3 majority, the High Court ruled that the spiritual and cultural connection of Aboriginal people with the land and waters of Australia over tens of thousands of years meant that the men could not be categorised as ‘outsiders’ or ‘aliens’ in a legal sense.⁷ This decision means that no ‘Aboriginal Australian’,⁸ even if born overseas, can validly be deported by a law such as the Migration Act made under the ‘aliens power’ in the Australian Constitution.

While the narrow ruling in Love & Thoms must be welcomed as a landmark recognition – albeit one made 120 years after Federation – of the constitutional belonging of First Australians, disappointingly the High Court presented what might reasonably be described as a ‘whitewashed’ view of their legal treatment since 1788. Judgments in the case gave the misleading impression that, since European colonisation, Australia’s First Peoples had always been understood as having full legal membership status under imposed British law.

Despite the narrow margin, both the majority and minority judges agreed on the relevant history. Chief Justice Kiefel (minority) stated that, from the time of British settlement, ‘the legal status of Aboriginal persons in Australia – as subjects of the Crown – has not been different from other Australians’.⁹ Similarly, Justice Gordon (majority) said:

Aboriginal Australians were regarded as British subjects following settlement … Status as a British subject extended to all inhabitants … nothing in the [1890s] Convention Debates purported to treat Aboriginal Australians as aliens or within the reach of the aliens power.¹⁰

Justice Gageler (minority) observed that ‘members of Aboriginal and Torres Strait Islander societies have never been understood to fall outside the standard common law or statutory rules’ regarding British subject or Australian citizen status.¹¹ Justice Edelman (majority) stated that Aboriginal people had always been ‘belongers’ (the opposite of ‘aliens’) in Australia and that, ‘even with racial application, alien was not applied to persons described as members of the Aboriginal race’:

Since settlement, Aboriginal people have been inseparably tied to the land of Australia generally, and thus to the political community of Australia … [At] Federation, the Aboriginal people in Australia were not regarded as aliens to the political community … Aboriginal people were a necessary part of the ‘people of Australia’ and the Australian political community … Aboriginal people simply did not fall within the application of ‘alien’, a foreigner to the political community.¹²

These statements by the High Court confuse what the law should have been in relation to the legal status of Aboriginal people with how they were actually treated and regarded legally after European settlement.

It was convenient for the High Court in 2020 to deem First Nations peoples, because of what is now accepted as their unique connection with the land and waters of Australia,¹³ to have always ‘belonged’ under white law; however, the historical legal reality is very different. Until a generation ago, the Australian political community was incomplete, precisely because Aboriginal people were excluded from it. As Bri Lee observes:

Australia only achieved a true democracy in the 1960s when Aboriginal Australians were finally allowed to vote. Indeed, as white women in Australia saw an opportunity to climb to the next rung in the pyramid at the turn of the century, they threw Indigenous Australian women under the bus in the process.¹⁴

Far from always being regarded as ‘belongers’ and not ‘aliens’, Anglo-Celtic lawmakers in the nineteenth and early twentieth centuries refused to accord First Nations peoples even the detested status of ‘alien’. Much impressed by Social Darwinism, most thought Aboriginal Australians were a ‘dying or doomed race’¹⁵ not worth counting as ‘people’. They openly queried whether the continent’s first inhabitants were human. In 1902, prominent federal Australian Labor Party member King O’Malley, later minister for home affairs, told the new Australian Parliament that: ‘An aboriginal is not as intelligent as a Māori. There is no scientific evidence that he is a human being at all.’¹⁶ As Richard Broome explains, contrary to the current High Court’s portrayal of a benign acceptance at Federation of Indigenous Australians as equal members of the political community:

By 1900 most settler Australians held derogatory views towards Aboriginal Australians, which were a mixture of ignorance, indifference, fanciful racial theories, a belief in white superiority, and the need to rationalise the continued dispossession of Aboriginal land. In this vein, settler Australians shaped the Constitution, which failed to count Aboriginal people with other Australians.¹⁷

Section 127 of the Australian Constitution (repealed in 1967) directed that ‘aboriginal natives shall not be counted … in reckoning the numbers of people of the Commonwealth or a State’.¹⁸ As John Chesterman and Brian Galligan point out, rather than being included as a ‘necessary part of the Australian political community’:

for the first half century of Australian nationhood … it was the ‘aboriginal native’ who was the key boundary marker to Australian citizenship … the Australian citizen was thought to be simply a ‘natural-born or naturalised’ person who was not an ‘aboriginal native’.¹⁹

In this extract, Chesterman and Galligan are referring to ‘Australian citizenship’ as a ‘bundle of rights’²⁰ not as a formal legal status. In this practical sense, the clearest indicator of ‘belonging to’ or being ‘a citizen of’ a political community is the right to vote. The Commonwealth Franchise Act 1902 and Commonwealth Electoral Act 1918 barred any ‘aboriginal native of Australia’ from voting unless they could already vote at a state level.²¹ Queensland, Western Australia and the Northern Territory denied Aboriginal Australians the right to vote until well after World War II, meaning they were also excluded from the political process at the federal level. It was not until 1962 that the Commonwealth Electoral Act was amended to give Indigenous Australians the right to vote in federal elections regardless of state law.²² However, Queensland did not grant Aboriginal and Torres Strait Islander people voting rights until 1965.²³

Commonwealth legislation also denied First Nations peoples other rights enjoyed by Anglo-Celtic members of the Australian political community. The Invalid and Old-Age Pensions Act 1908 disqualified ‘aboriginal natives of Australia’ from receiving pensions.²⁴ The Emigration Act 1910 prevented ‘aboriginal natives’ leaving Australia except with a permit.²⁵ Under the Maternity Allowance Act 1912, women who were ‘aboriginal natives of Australia’ could not be paid an allowance.²⁶ In 1947, the Social Services Consolidation Act maintained the exclusion of ‘aboriginal natives of Australia’ from invalid and old age pensions, widow’s pensions and maternity allowances.²⁷

Discrimination by the Commonwealth against ‘aboriginal natives’ was accompanied by even greater restrictions under state and territory law.²⁸ Peter Bayne argues that ‘a massive edifice of law’ discriminating against Indigenous people was erected in the Australian colonies from the middle of the nineteenth century.²⁹ As the Australian Institute of Aboriginal and Torres Strait Islander Studies notes, so-called protection laws controlled every aspect of the lives of Aboriginal people:

from the forced removal of children, where they lived, worked, had wages and entitlements withheld (now known as Stolen Wages), owned land, to their personal relationships and contact with family and community. These laws were in force from the 1840s … and then, after federation, well into the 1960s and even the 1970s for some states.³⁰

In Queensland, for example, the Protection of Aboriginals and Restriction of the Sale of Opium Amendment Act 1934 specified that:

The Minister may from time to time cause any aboriginal or half-caste … to be removed to any reserve, institution, or district and kept there, or to be removed from any reserve, institution, or district to any other reserve institution or district, and kept there.³¹

The extensive range of Commonwealth and state laws preventing participation of Australia’s First Nations peoples in the political community had a calamitous effect on their lives. As the next part of this section shows, even global fame was no protection.

Case Study 1: Albert Namatjira

In Alice Springs … Namatjira came under intense small-town scrutiny … only Australian citizens were allowed to be in Alice in the evenings, and Albert’s children weren’t citizens.³²

Albert Namatjira’s story provides a real-life example of how First Nations peoples were treated as ‘aliens’ or ‘outsiders’ in the Australian community, contrary to the High Court’s portrayal in Love & Thoms. In 1935 at Hermannsburg mission, south-west of Alice Springs, Namatjira, an Arrernte man, learnt to paint watercolours in the European style.³³ By the 1950s, reproductions of his paintings hung in schools and loungerooms across Australia:³⁴

The contemporary settler public … saw Namatjira’s painting as empirical evidence of a pathway from the primitive to the civilised … Namatjira, the successful artist, represented the potential of all Aborigines to assimilate and to live ‘like us’.³⁵

Namatjira was introduced to the Queen in Canberra in 1954 as part of a Northern Territory delegation.³⁶ But, according to Julie Wells and Michael Christie, ‘because he was an Aboriginal person, Namatjira was not in any real sense a citizen’.³⁷ The Commonwealth minister for territories, Paul Hasluck, agreed, declaring:

The status of Albert Namatjira is that of an aboriginal as defined in the Aboriginals Ordinance 1918–1947 … as an aboriginal he is free to move about anywhere in native reserves, and in his own tribal area … he is at present legally barred from being in certain prohibited areas.³⁸

Figure 7.1: William Dargie, Portrait of Albert Namatjira, 1956.

Source: Collection of Queensland Art Gallery | Gallery of Modern Art, © QAGOMA. Photograph: QAGOMA.

In the 1950s, as Sven Lindqvist explains:

the Aborigines of the Alice Springs area could still be interned against their will; they were not allowed into white hotels, hospitals or other ‘prohibited areas’ and could not travel or leave employment without permission. They were outside the social security system and did not receive old age pensions, maternity allowances or any other social benefits. Marriages were prohibited across racial boundaries, except by special permission from the authorities.³⁹

Like other First Nations peoples in the Northern Territory, Namatjira’s life was overseen by white officials despite his standing as a world-famous artist. As the head of the federal Department of Territories explained in 1957, departmental officials ‘look after a trust account for him and advise him from time to time on the state of his account and suggest ways of spending his money advantageously’.⁴⁰

In 1953, Hasluck instigated replacement of the Aboriginals Ordinance in the Northern Territory with the ostensibly non-discriminatory Welfare Ordinance ‘to facilitate the Commonwealth Government’s policy of assimilation which is designed to provide opportunities for aborigines to merge into full membership of the greater community which surrounds them’.⁴¹ Despite its race-neutral wording, the Welfare Ordinance was ‘almost confined in its application to aboriginals’.⁴² It came into effect in 1957 after a ‘Register of Wards’ was compiled containing the names of over 15,000 First Nations people.⁴³ After a national campaign in support of his exemption, Namatjira was one of only six Aboriginal people of full descent in the Northern Territory not listed on the register. As a result, Wells and Christie observe, ‘Namatjira was made a citizen’.⁴⁴ This meant ‘he could vote, be served in restaurants and treated in hospitals reserved for white people. He was free from all restrictions governing the life of “wards”.’⁴⁵ As Sydney’s Sun newspaper declared, ‘Namatjira was given full citizenship rights. He was made a “white man”’.⁴⁶ The backlash was swift:

In Alice Springs, many thought this was too great an honour for a ‘black ape’. Namatjira came under intense small-town scrutiny. Did he have his children with him after dark? He wasn’t allowed to do that, because only Australian citizens were allowed to be in Alice in the evenings, and Albert’s children weren’t citizens. Had he been drinking with his relations? He wasn’t allowed to do that, because offering Aborigines alcohol was prohibited.⁴⁷

In 1958, Namatjira was convicted by an Alice Springs magistrate of supplying alcohol to a ‘ward’, one of his relatives. As Lindqvist argues, ‘innumerable white people broke these rules and went unpunished. They earned good money illicitly supplying alcohol to black people.’⁴⁸ Immediately there were calls for Namatjira’s ‘citizenship’ to be taken away. While these were rejected by the administrator of the Northern Territory, his statement below shows white officials’ wilful confusion (as highlighted in Chapter 6) in relation to ‘citizen rights’ for Indigenous Australians and ‘citizenship’ as legal membership status:

The question of whether Namatjira will retain his citizenship is essentially one for Namatjira himself … He could lose his citizenship rights only if he himself requested the loss of those rights by asking to be declared a ward, or, if in terms of the Welfare Ordinance, he became incapable of protecting his own interests.⁴⁹

Namatjira was sentenced to six months hard labour. In the Northern Territory Supreme Court, Justice Kriewaldt halved the sentence, declaring: ‘All my life the duty of Christians towards heathens … has been impressed upon me.’⁵⁰ When it considered Namatjira’s case, the High Court was troubled by the ‘block declaration’ of ward status for many thousands of Aboriginal people given no opportunity to argue against their inclusion.⁵¹ But it refused leave to appeal, commending the ‘protective nature’ of the Welfare Ordinance and noting the (entirely theoretical) right of judicial review for an individual declared a ward.⁵² Showing a similar level of confusion between ‘citizen rights’ and legal citizenship, Minister Hasluck observed:

Mr Namatjira is an Australian citizen and his citizenship cannot be revoked. The only way for him to lose his citizenship is for him to make a request himself to be placed under the provisions of the Welfare Ordinance of the Northern Territory.⁵³

Fellow artists, including Arthur Boyd and Clifton Pugh, protested against Namatjira’s conviction, telling Hasluck that ‘Namatjira’s humiliation is our humiliation and will already appear so in the eyes of the world’.⁵⁴ The Australian Builders’ Labourers Federation also wrote to the minister:

this inhuman gaoling spotlights the outrageous situation aboriginal people are in and relegates them to second class citizenship in their own land. Further, that it holds the whole of the Australian people up to shame before the world and makes a mockery of our United Nations pledges. We urge that … the restricting laws imposed on the aboriginal people be rescinded, giving them equal status with white people in Australia.⁵⁵

Hasluck was unmoved by these entreaties:

If anything lies on our conscience it is that at a time when Albert Namatjira was under our protection and was not a citizen, we did not resist strongly enough the pressure from various quarters, doubtless acting in good faith, to take him away from his own environment … More harm was done to him outside the Territory than anything he learnt in the Territory.⁵⁶

Figure 7.2: Vincent Namatjira, Western Aranda people, Albert and Vincent, 2014.

Source: Collection of Queensland Art Gallery | Gallery of Modern Art, © Vincent Namatjira/Copyright Agency. Photograph: Natasha Harth, QAGOMA.

Namatjira served his sentence at an internment camp 200 kilometres north-west of Alice Springs.⁵⁷ After his release ‘he showed no interest in painting. He seemed to have lost the will to live and died of a heart attack in August 1959.’⁵⁸ Wells and Christie reflect that:

Concerned settler Australians had believed that in granting Namatjira citizenship he would be liberated and the last barrier to his full assimilation removed. Surely when he became a citizen he would ‘live like us’? Namatjira’s citizenship, however, was flawed, leaving the nation struggling to come to terms with what had gone wrong.⁵⁹

In Love & Thoms, the High Court claimed that First Nations peoples in Australia were never regarded as aliens;⁶⁰ yet, as Namatjira’s case clearly demonstrates, the standard discourse in Australia about ‘citizenship’ in the 1950s showed little understanding of, let alone respect for, the automatic and irrevocable equal membership status that Aboriginal people possessed under imposed white law. Under common law rules unchanged since Calvin’s Case (1608),⁶¹ Aboriginal Australians were automatically ‘British subjects’ from the time of European settlement; later, they became ‘Australian citizens’ when that concept was created legally in 1949. But senior Australian Government figures, including Minister Hasluck, claimed that only Namatjira and a handful of other First Nations people in the Northern Territory were sufficiently ‘like us’ to be ‘made citizens’ when excluded from the Register of Wards in 1957. In assimilation rhetoric, this meant that these six people, all men, took their place as ‘members of the community of the Commonwealth’. In the eyes of Australia’s white population, the thousands of other First Nations peoples whose names were on the register were not ‘made citizens’ but remained ‘outsiders’ who were not ‘one of us’ and did not ‘belong’, even in their own country. As Oodgeroo Noonuccal lamented in a poem presented to the Federal Council for the Advancement of Aborigines in 1962:

Make us mates, not poor relations,

Citizens, not serfs on stations.

Must we native Old Australians

In our own land rank as aliens?⁶²

Colonial Legal History and Indigenous Belonging

Australia’s colonial legal history was also much more muddled in relation to recognition of the legal belonging of First Nations peoples than statements from the High Court in 2020 might lead us to believe. In cases from the 1820s to the early 1840s, the New South Wales Supreme Court was uncertain about the legal status of Australia’s Indigenous people. In Lowe’s Case (1827), Lieutenant Lowe was acquitted of the murder of an Aboriginal man.⁶³ His barrister, William Charles Wentworth, claimed that the court had no jurisdiction because Aboriginal inhabitants were neither British subjects nor aliens – indeed, they barely deserved recognition as ‘people’ at all:

they are men, no more subject to punishment by our code, than a set of idiots or lunatics … Here are a set of natives one degree just above the beasts of the field – possessing no understanding beyond a confused notion of right and wrong, and that is all.⁶⁴

In a series of cases, the Supreme Court disregarded the law with respect to the subject status of Indigenous inhabitants. R v. Ballard (1829),⁶⁵R v. Murrell (1836)⁶⁶ and R v. Bonjon (1841)⁶⁷ each concerned the alleged murder of one Indigenous inhabitant by another. Debates about the jurisdiction of colonial courts over Aboriginal ‘crimes’ formed part of a ‘much deeper discourse around the conditions under which indigenous people would be accommodated in settler societies’.⁶⁸ According to Lisa Ford:

the officers of the Crown and the new Supreme Court together invented jurisdiction over Aboriginal Australians in New South Wales … The court wrought a revolution in the theory and practice of jurisdiction in New South Wales … a revolution grounded in the logic of territoriality.⁶⁹

But the Supreme Court had no need to ‘invent jurisdiction’ over Indigenous people within the boundaries of New South Wales. Under the law dating back to Calvin’s Case, any person ‘habitually resident’ or born in territory annexed by the British in 1788 had the status of a subject under English law and came within the jurisdiction of colonial courts on that basis. Despite having the principles in Calvin’s Case in front of it,⁷⁰ the Supreme Court ignored the established law, focusing instead on levels of ‘civilisation’ and other non-legal, social factors. The court thought Aborigines incapable of exercising rights and liberties as ‘subjects’ because of their ‘savage’, ‘barbarous’ and ‘uncivilised’ way of life.⁷¹ Justice Burton, in Murrell, stated that Indigenous inhabitants were akin to ‘strangers’ who had entered the territory of the British sovereign.⁷² As Henry Reynolds observed:

His argument … begged the question of where the Aborigines had come from if they were legally equivalent to foreigners who had entered the society from outside unless, of course, he conceded that unsettled ‘Aboriginal’ Australia was in effect a foreign country.⁷³

In the early decades of European settlement Aboriginal people were seen as a threat and labelled as ‘aliens’ by prominent colonial figures. According to Peter Bayne:

Many settlers in violent contact (or, as was often said, at war) with the Aborigines held the view that the Aborigines were not to be regarded as British subjects. Sometimes they were regarded as ‘enemy aliens’ to justify the use of force against them. Some senior officials, such as the explorer Thomas Mitchell, certainly took this view and acted upon it.⁷⁴

In 1836, Thomas Mitchell, surveyor-general of New South Wales, led an expedition that resulted in large numbers of Aboriginal people being killed. The explorer’s report:

caused consternation at the Colonial Office … due to the fact that Mitchell regarded the Aborigines as ‘Aliens with whom war can exist, and against whom HM’s Troops may exercise belligerent right’.⁷⁵

For more than a hundred years, there was ongoing warfare with First Nations peoples who resisted invasion of their homelands. Given the ever-present violence on the Queensland frontier in the second half of the nineteenth century:

few colonists subscribed to the view that hostile Aborigines were rebellious subjects. To most people on the frontier they were enemies who were engaged in a war for control of the territory. The same views, expressed during the 1850s, were common currency forty years later … It seemed the height of folly to suggest that their enemies were British subjects and should be treated as such.⁷⁶

Contrary to the impression given by Justice Gordon in Love & Thoms, there was no discussion of the ‘aliens power’ at any of the 1890s constitutional conventions,⁷⁷ much less any benevolent decision to exclude First Nations peoples from the constitutional concept of ‘alien’. There were numerous references at the conventions to ‘aliens’ in a derogatory racial sense – referring to ‘coloured races’ even if they were British subjects – especially in the debate on the ‘races power’.⁷⁸ By this time, ‘alien race’ was a standard phrase used by Anglo-Celtic lawmakers in Australia to refer to those who were different or ‘not one of us’ in a non-legal, racial sense.⁷⁹ Contrary to Justice Edelman’s statement, Aboriginal Australians could also be regarded as an ‘alien race’ in this general, non-legal sense. Australia’s First Nations peoples were excluded from the original version of the ‘races power’ in section 51(xxvi) of the Australian Constitution not because they were recognised as subjects (and not aliens) under the law, but simply because their regulation was to be left to the states.⁸⁰

As Chesterman and Galligan say:

A comprehensive constitutional treatment of citizenship might be considered by some to be preferable, and certainly it would be neater and simpler. But that is not the way citizenship has been handled in Australia. Those who do not pursue the substantive complexities of Australian citizenship remain at the surface, fulminating against the supposed ignorance of the founders and the emptiness of Australian citizenship.⁸¹

However, rather than ‘fulminate against the ignorance of the founding fathers’, the High Court in Love & Thoms provided a false positive impression, maintaining that Aboriginal Australians had never been seen differently in terms of legal membership status. As this section has shown, there was a consistent lack of regard in Australia for Aboriginal legal belonging from European settlement until at least the 1960s. But the emphasis in academic writing on ‘substantive citizenship’ is also misleading. In particular, it fails to highlight the trashing of the rule of law in colonial and post-Federation Australia with the repeated failure by Anglo-Celtic lawmakers to treat First Nations peoples with the equal legal and constitutional membership they were entitled to. A lack of attention to formal legal membership means historians have not held past lawmakers to account for their failure to respect the automatic legal belonging of First Nations peoples under white law and how that should have flowed through to equal rights of citizenship and protection.

Uluru Statement

The concept of a ‘makarrata’ or coming together after a struggle called for in the 2017 Uluru Statement from the Heart – facing the facts of wrongs and living again in peace, involving not only agreement-making but also truth-telling about Australia’s past – would be strengthened by the recognition that, even under the settler Europeans’ own imposed laws, Aboriginal people were frequently regarded as ‘aliens’, the ‘other’ or as ‘not belonging’– that is, as not having the formal citizenship in their own country that they were legally entitled to. As a group of 40 public law experts from across Australia said in March 2021:

Constitutional enshrinement of a First Nations Voice would meet the widespread desire among Australians for the Constitution to properly reflect Australia’s history and values … A constitutionally enshrined Voice will develop and sustain a respectful relationship between First Nations peoples and others in Australian society based on respect for equal dignity where, in the past, lack of that respect has contributed to their exclusion and disempowerment.⁸²

As Ann Curthoys, Ann Genovese and Alexander Reilly have argued in relation to the 1992 Mabo decision,⁸³ ‘the new understandings of history’ had become so compelling that ‘the High Court was forced to abandon its old legal narrative’ of pre-colonial Australia as terra nullius (unoccupied).⁸⁴ Three decades later, in Love & Thoms there was no comparable appreciation of the history of First Nations peoples in Australia. The majority finding in that case (i.e. that Australia’s Indigenous peoples were never ‘aliens’ or ‘outsiders’ under imposed settler law) would not have been undermined by recognition that they were, in fact, regarded and treated this way – contrary to the law from the time of European settlement onwards. The danger with this lack of recognition is ‘law’s assertion of its own sovereignty [or] reliance on its own history’, with the consequence that ‘the final judgment acts as an authorised version of the past’⁸⁵ – however inaccurate that might be – which can only be corrected by the High Court itself if/when a similar case comes before it. The next case study discusses another area in which the High Court has failed, yet again, to confront Australia’s racialised history of identity and belonging.

Case Study 2: Excluding Papuan Australians

It is well documented that the ‘imperatives’ of ‘White Australia’ were pivotal to the decision to federate the country and the framing of its constitutional powers:⁸⁶ political debates on the legislative framework that constituted the White Australia policy are replete with racist rhetoric.⁸⁷ The absence of a citizenship provision in the Australian Constitution gave the Commonwealth legislature extraordinary latitude to determine who should be regarded as a member of the Australian community and who should not.⁸⁸ Therefore, it should come as no surprise that, in late 1901, as Australia’s new Commonwealth Parliament called for the transfer from Great Britain of the colony of British New Guinea, Senator Thomas Playford made the avowedly racist and deeply offensive statement that: ‘We also wish to know … whether the n*****s will be allowed to cross the narrow strait and find their way into Australia proper.’⁸⁹

The former South Australian premier and his fellow members of parliament supported the expansion of Australia’s new Federation into the Pacific as part of its own ‘Monroe Doctrine’.⁹⁰ However, as Mr Cameron from Tasmania asked in the House of Representatives, ‘there are 350,000 natives at present in New Guinea, and if they become part of the Commonwealth, how can we have a White Australia?’⁹¹ In 1905, Australia eagerly passed legislation to accept the transfer of the new territory, renamed Papua.⁹² Playford need not have worried. As Adelaide’s Register explained:

the new nation does not seek to raise the Papuans to the rank of Australians ... on account of their dark pigmented skins they will be regarded as aliens and not be permitted even to visit it.⁹³

The racist ideology evident in this statement aligns with some of the most offensive elements of the White Australia policy. Papuans were entitled to Australian birth certificates and passports but they were prohibited from travelling to the mainland for the 70 years that Papua was an Australian territory.⁹⁴

When Australian citizenship was formally created after WWII, Papuans (like Aboriginal Australians) were given a form of ‘pretend’ citizenship only. Asked in 1948 if Papuans could travel to mainland Australia and enjoy the right to vote, Immigration Minister Arthur Calwell declared: ‘We do not even give them the right to come to Australia … a native of Papua would be an Australian citizen but would not be capable of exercising rights of citizenship.’⁹⁵ Even after a major relaxation of the White Australia policy in the mid-1960s,⁹⁶ Papuan Australians were not allowed to travel to the Australian mainland (or Tasmania).⁹⁷ The exclusion of Papuan Australians continued until they could be kept out as foreigners after Papua New Guinea’s independence in 1975. As recently as 2005, Australia’s High Court used this history of racial exclusion to justify stripping citizenship rights from Papuans born as Australians before Papua New Guinean independence. It continues to be used today to deprive long-term Australian residents of these rights. This reminds us that, despite abolition of the White Australia policy, attitudes from that time cannot merely be considered a quaint historic relic and consigned to the dustbin of history.

Ame’s Case: Avoiding the Racial Issue

The determination throughout the White Australia era to keep dark-skinned people away from the mainland meant Papuans lost their Australian citizenship in 1975.⁹⁸ On Papua New Guinea Independence Day, 16 September 1975, regulations made by Australian Governor-General Sir John Kerr removed Australian citizenship from those who became citizens of the new nation.⁹⁹ Only a few Papuans already granted permanent residence in Australia did not become citizens of Papua New Guinea and kept their Australian citizenship. When challenged in Ame’s Case (2005),¹⁰⁰ the High Court stated that Papuans were never ‘real Australians’. The Australian Parliament had denied them normal citizenship rights like voting and jury service as well as freedom of movement in and out of the mainland. Further, because it was not considered ‘real’, their Australian citizenship could be unilaterally removed by executive regulation without their consent.¹⁰¹ The High Court agreed that Mr Ame’s birth in Papua in 1967 meant that he had been born in ‘Australia’ under the Australian Citizenship Act 1948 (Cth).¹⁰² However, it said the meaning of ‘Australia’ in 1975 under the Migration Act 1958 (Cth) was different, excluding Papua and other external territories. Thus, Mr Ame was an Australian citizen but also an ‘immigrant’ who could be kept out of ‘Australia proper’. This meant that he automatically lost Australian citizenship when he became a Papua New Guinea citizen. And, as a non-Australian citizen, he was not legally a member of the Australian community and could be deported from Australia as an ‘alien’ under the Migration Act.

Only Justice Kirby in the Ame decision acknowledged the racism of past Australian lawmakers, saying Calwell’s 1948 statement and ‘repeated references to ethnicity and race in the parliamentary debates’ reflected a concern:

to preserve to the Commonwealth the power to exclude from entry into the Australian mainland foreign nationals and even British subjects who were ‘ethnologically of Asiatic origin’ or other ‘pigmentation or ethnic origin’.¹⁰³

But, even Justice Kirby was unable to find in favour of Mr Ame. As Kim Rubenstein and Jacqueline Field note, it is striking that the High Court in Ame saw no need to engage in a postcolonial reckoning with past discrimination. Instead, the court left the nature and security of Australian citizenship ‘floating, adrift on … the tides of prejudice’.¹⁰⁴ In this way, highly racialised policies from early 1900s Australia continue to taint the country’s legal system and cause personal hardship into the twenty-first century.

Troyrone Zen Lee: A ‘Real Australian’

In 2021, Troyrone Zen Lee, born as an Australian citizen in Port Moresby in 1975, won a long court battle to regain his Australian passport. In 1982, Mr Lee’s family moved to Brisbane. His Australian passport was renewed at least four times after first being issued in 1979. In 2016, he was ‘dumbfounded’ when told by a Department of Home Affairs official during another routine renewal that he was not, in fact, an Australian citizen.¹⁰⁵ Drawing on Ame’s Case, Home Affairs said he had never been a ‘real Australian’ and, instead, was a citizen of Papua New Guinea. Senior officials in Papua New Guinea told Mr Lee this was not the case.¹⁰⁶ Deprived of his Australian passport, Mr Lee was unable to pursue his career as an electrical engineer specialising in high-speed rail projects in Asia. He was also separated from his wife and Australian-born son, living in Taiwan.¹⁰⁷ And he was at risk of losing his right to stay in Australia – all because of the Department of Home Affairs’ interpretation of the High Court’s Ame decision, which can be traced directly back to the White Australia–era prohibition against ‘dark-skinned’ Papuans coming to the Australian mainland.

When Mr Lee challenged the confiscation of his Australian passport, the Federal Court stated that Home Affairs was wrong.¹⁰⁸ However, as a lower court, it could not question the Ame precedent set by the High Court. Instead, it found a way around this, noting that when Mr Lee was a child, Australian authorities did not treat him as an ‘immigrant’. This meant that he had a pre-existing right of permanent residence on the Australian mainland and therefore did not become a Papua New Guinea citizen at independence. In other words, he had never lost the Australian citizenship he was born with. The Commonwealth appealed to the full Federal Court, which also found in favour of Mr Lee, taking the unusual step of recommending an ‘Act of Grace’ payment because of the significant ‘emotive and economic impact’ of the Commonwealth’s mistake in depriving him of his Australian passport.¹⁰⁹

The Commonwealth elected not to appeal the case to the High Court. While this means that Mr Lee will not lose his birthright Australian citizenship, an appeal would have given the High Court the opportunity to reconsider its Ame judgment, a decision that has led to such cases. The current legal position, therefore, is that Ame continues to be the leading authority on this issue. By deciding not to appeal, the Commonwealth chose not to expose the issue to further scrutiny. Significantly, it also leaves for another day the postcolonial reckoning with past racial discrimination that Rubenstein and Field have called for.

The first two sections in this chapter have discussed how the High Court did not properly confront historic legal discrimination against people of colour in key decisions on Australian identity and belonging. The next section discusses how the High Court has also ignored legal discrimination in favour of British subjects who arrived from the United Kingdom and its former colonies. It now deems such people to have always been ‘aliens’ if they have not taken out citizenship. Two men from the former British colony of Malta who both made Australia their home for more than half a century have been caught up in this rewriting of history, losing High Court appeals against their expulsion.

Cast Study 3: Deporting Maltese ‘Belongers’

In July 1948, Frederick Chetcuti, born in Malta and not quite three years old, arrived in Australia with his family. For the next 73 years he lived in Australia. But, in 2021, the High Court had no hesitation in labelling him an ‘alien’ who had never belonged in the Australian community, upholding his deportation to a country he had left as an infant more than seven decades before.¹¹⁰ In a similar case in 2018, the High Court ruled that John Falzon, who also arrived from Malta as a small boy – in his case 61 years before – could be deported as an ‘alien’ because he never belonged in Australia.¹¹¹ Neither Mr Chetcuti nor Mr Falzon had formally become Australian citizens. Both committed crimes for which they were punished with lengthy terms of imprisonment. The responsible minister cancelled their ‘absorbed persons’ visas and right to stay in Australia under section 501 of the Migration Act, satisfied they failed the ‘character test’ due to their criminal record.¹¹²

The Chetcuti and Falzon cases raise a number of issues in relation to identity and belonging in Australia: the practice of banishing permanent resident non-citizens who commit serious crimes; the retrospective alteration of the law in a way that is inconsistent with the country’s history; and further implications of the legacy of White Australia, this time for inhabitants of Maltese origin.

Australia’s Banishment Policy

In 2014, Australia introduced mandatory cancellation of visas under the Migration Act if a non-citizen was convicted and given a prison term of 12 months or more.¹¹³ As Justice Gageler and Justice Gordon explained in the Falzon case:

The purpose of cancelling a visa pursuant to s 501(3A) is to exclude from the Australian community a class of persons who, in the view of the Parliament, should not be permitted to remain in Australia.¹¹⁴

The idea that people can be disqualified from belonging to the Australian community because they commit crimes conflicts with the reality that all communities contain those who engage in anti-social and/or criminal behaviour. Neither Mr Chetcuti nor Mr Falzon applied for a formal document stating that they were Australian citizens; however, for well over half a century, both men were full members of – in other words, they ‘belonged to’ – the Australian community in a practical sense. Mr Falzon had ‘two sisters and four brothers, four adult children and 10 grandchildren in Australia as well as nieces, nephews and other minor family members’.¹¹⁵ As Justice Nettle later acknowledged:

All of his kin had either been born here or come here years before and remained here ever since. As a result of living almost all of his life in Australia, and of all of his kin being here, the man was deeply connected to the Australian community and without any sense of connection to any other country. On any view, Mr Falzon had been ‘absorbed’ into the community.¹¹⁶

The discretionary power to cancel a permanent residency or ‘absorbed persons’ visa on ‘character grounds’ has existed since 1992.¹¹⁷ However, a change in 2014 to mandatory cancellation after conviction for serious crime means that no account can now be taken of the range of reasons a person might, nevertheless, be allowed to remain as part of the Australian community. As the Age noted in relation to an earlier ‘banishment’ case:

In the case of convicted criminals who, but for attention to bureaucratic detail, are in all other respects Australian, the idea of sending them ‘home’ to countries with which they have no more than a nominal relationship seems neither reasonable nor fair … the fact that these people have committed crimes does not justify the authorities using the citizenship laws to ‘dispose’ of a social problem any more than transportation to the colonies was a solution to the social ills of late 18th century England.¹¹⁸

Although the prime minister of Australia, Anthony Albanese, has foreshadowed a more commonsense approach in the case of New Zealand citizens brought up in Australia,¹¹⁹ the law as it currently stands compares unfavourably with the situation even at the height of the White Australia policy 120 years ago. Michael Williams points out that, in the 1900s, application of the infamous dictation test under the Immigration Restriction Act 1901, which sought to prevent ‘undesirables’, primarily non-Europeans, from entering or remaining in Australia, was a matter of discretion; each case was dealt with on its merits, including for those convicted of violent crime. For example, Atlee Hunt, secretary of the Department of External Affairs (responsible for administration of the dictation test) asked for further information to help him decide if prisoners due to be released should be given the test and thus deemed to be ‘prohibited immigrants’:

In particular, Hunt wished to know such potentially modifying factors as, how long a person had been in the Commonwealth, their marriage status and if the family were in Australia, if the offence was a first one, a report of their character in general, and of course if the ‘man is coloured’.¹²⁰

Retrospective Alteration of Legal Belonging

Until well after WWII, the Australia of the white Anglo-Celtic colonisers was proudly ‘British’. In his famous welcome to Queen Elizabeth II and the Duke of Edinburgh in 1963, Prime Minister (Sir) Robert Menzies placed great emphasis on the Australian people’s allegiance as subjects of the British Crown:

When we see you, we see you as our Queen. We see you as our Sovereign Lady … We are proud to think that so far from abrogating any of our liberties because we are your subjects, we know that we add to our liberty because we are your subjects. It is a proud thought for us to have you here, to remind ourselves that in this great structure of government which has evolved, you … are the living and lovely centre of our enduring allegiance.¹²¹

Australian governments over many generations were eager to accept British migrants as full members of the Australian political community. British subjects living in Australia were entitled to vote in federal and state elections,¹²² could be employed in the public service, were liable for jury service and (like Mr Chetcuti) were obliged to perform national military service. Before 1976, a person’s nationality was recorded in the Australian census as either ‘British’ or ‘foreign’.¹²³ Until 1984, Australian passports could be issued to British subjects who were not Australian citizens. Perhaps most significantly, British subjects without Australian citizenship were eligible to become members of the Australian Parliament. According to the Australian Constitution, ‘until Parliament otherwise provides’, members of parliament ‘must be a subject of the Queen’ and meet residency requirements.¹²⁴ After Australian citizenship was created in 1949,¹²⁵ the Australian Parliament had the opportunity to specify citizenship as a requirement,¹²⁶ but it did not do so until 1981.¹²⁷ Before then, it was impossible for British subjects living in Australia who had not become citizens to contravene section 44(i) of the Constitution,¹²⁸ the (now infamous) section that prohibits any person ‘under any acknowledgement of allegiance, obedience, or adherence to a foreign power … or a subject or a citizen of a foreign power’ from standing for federal parliament.¹²⁹ Until the mid-1980s, therefore, British subjects living in Australia who had not become citizens could not have been regarded as ‘aliens’ in a constitutional sense.

But, in 2003, in the Shaw case,¹³⁰ the High Court retrospectively decreed that all British subjects who arrived after ‘Australian citizenship’ was formally created in 1949 could be regarded as ‘aliens’ from the time of their arrival unless they were subsequently naturalised as Australian citizens, no matter how many decades they had lived in Australia. In the Chetcuti case in 2021, the High Court extended this further, stating that ‘the aliens power reached all those persons who entered this country before 26 January 1949 who did not become Australian citizens’.¹³¹ This affects hundreds of thousands of settlers from the United Kingdom¹³² as well as arrivals from British colonies like Malta, such as Mr Falzon and Mr Chetcuti.

As in Love & Thoms, the High Court’s retrospective pronouncement of what, in its view, the law should have been does not accord with the actual legal treatment of such people in Australia. As Justice Kirby remarked in his dissenting judgment in Shaw, arrivals from the United Kingdom ‘were immediately welcomed into full membership of the Australian community. Nor did they see themselves as aliens.’¹³³ Nevertheless, under Australian law as currently interpreted by the High Court, settlers from Britain and its former colonies such as Malta who have not become citizens – even those like Mr Chetcuti and Mr Falzon who came to Australia as young children and made Australia their home for well over half a century – are deemed to be ‘aliens’; for such people, the right to remain freely in Australia has been lost. They are now subject to laws made under the ‘aliens power’ in the Constitution, including cancellation of their resident visas under the Migration Act and banishment if convicted of a serious crime.

The decisions in Falzon and Chetcuti exemplify the separation of the law on ‘belonging’ in Australia from historical and social reality. This concerns at least some members of the High Court. In 2022, Justice Edelman (backed by Justice Steward and with some support also from Justice Gordon)¹³⁴ stated that, since the 1980s, High Court cases had seen:

an imperial march of the application of the aliens power, extending it far beyond any ordinary understanding, capturing more and more members of the permanent population of the Commonwealth of Australia … [C]ase by case, the application of the essential meaning of ‘alien’ – a foreigner to the Australian political community – was extended further and further to apply to persons who had less and less foreign connection.¹³⁵

Justice Edelman criticised the outcomes in Shaw, Falzon and Chetcuti, declaring ‘an overly broad application of the aliens power was adopted in decisions of this Court that, described politely, would strike an ordinary person as very curious’.¹³⁶ Although part of the majority in the last two cases, Justice Edelman indicated that he believed the High Court’s labelling of Mr Falzon and Mr Chetcuti as ‘aliens’ who could be expelled despite having spent their lives in Australia was flawed:

it is very hard to see how those conclusions can be supported by any ordinary application, with regard to today’s morals and standards, of the essential meaning of ‘alien’ as a foreigner or outsider to the Australian political community.¹³⁷

Justice Edelman suggested a new approach, arguing that the test for non-alien status should be the same as for moving beyond the category of ‘immigrant’ under the Constitution. If a person lacked formal citizenship, he or she should nevertheless be accepted as a full legal member if ‘unconditionally absorbed’ into the Australian community.¹³⁸ This would allow a return to the type of discretionary approach in place even when the White Australia policy was at its zenith. As Sangeetha Pillai observes, such comments ‘may foreshadow future change with wide ranging implications for migration law, especially since Edelman J is guaranteed a place on the High Court until 2044’.¹³⁹

More Echoes of White Australia: Maltese ‘White Aliens’

The labelling of Mr Chetcuti and Mr Falzon as ‘aliens’ who did not ‘belong’ despite living almost their entire lives in Australia would not have surprised Maltese settlers from earlier generations. Notwithstanding their equal legal membership status as British subjects, Maltese migrants in the 1920s and 1930s were labelled, along with other southern Europeans, as ‘white aliens’.¹⁴⁰ Barry York notes that Maltese settlers ‘suffered discrimination whenever they were excluded from “British preference” systems of employment’. The Australian Workers’ Union ‘refused to count the Maltese as British’.¹⁴¹

In 1925, Queensland appointed a Royal Commission to Inquire into and Report on the Social and Economic Effect of Increase in Number of Aliens in North Queensland. As the Brisbane Courier reported:

Representatives of the Australian Workers’ Union have called on the Premier and urged upon him the need for State action in respect of the large arrivals in the North of Southern Europeans. They maintained that the arrival of hundreds of aliens in the North would mean starvation and misery either for them or for those whose employment they would take.¹⁴²

Maltese settlers in north Queensland, along with Sicilians and Greeks, were a focus of the royal commission. Commissioner T. A. Ferry lauded the efficiency of workers from Britain and northern Italy, but lamented ‘that, unfortunately, the majority of the new arrivals in Queensland happened to be of the Southern Italian and Mediterranean type’:

There is sufficient evidence to show that many of the new arrivals are of the latter type here referred to. Their behaviour in the trains in crowding out the carriages and jostling women and children is adding to the objection to foreigners generally, and their standard of living is obviously very low. According to the evidence of one witness, the principal offenders in this respect are Maltese, Sicilians, and Greeks.¹⁴³

Ferry said the Maltese were:

hard-working and honest, but uneducated and their standard of living is inferior to the British or Italian … I inspected a Maltese lodging-house in Innisfail and found about twenty (20) men living in one room. Every room was crowded with bunks with just enough space between to enable the occupants to move about.¹⁴⁴

Ferry visited a number of townships in north Queensland but interviewed only 39 witnesses.¹⁴⁵ His cursory 26-page report relied heavily on hearsay and rumour and concluded that:

It is certain that the growing animosity against all foreigners is due to the different and inferior types arriving … Workers who for years have sacrificed much to obtain favourable industrial conditions naturally resent the intrusion into their midst of large numbers of immigrants, many of whom are of a hopelessly inferior type.¹⁴⁶

Michelle Langfield argues that Australian inhabitants of Maltese descent ‘objected to the principle of British subjects of “white race” being treated as “aliens”’.¹⁴⁷ According to York:

The number of Maltese immigrants would have been greater were it not for the Australian government’s introduction, in 1931, of a Landing Permit requirement for them. In effect, this placed them in exactly the same category as non-British ‘aliens’.¹⁴⁸

In 1938, Malta’s high commissioner complained that settlers from the British colony were ‘citizens’ who belonged in Australia:

the Commissioner for Malta in Australia (Captain Henri Curmi), in an address to the Constitutional Club yesterday, said that the 10,000 Maltese in this country had proved valuable citizens. Their combined assets, according to a recent census, had a total value of £4,000,000. Maltese had been coming to Australia for 80 years, but many of their descendants, over about three generations, had passed out of the classification of Maltese.¹⁴⁹

Conclusion: The High Court’s History Matters

As Helen Irving has observed in relation to the High Court’s use of the 1890s constitutional convention debates: ‘how well did the justices perform as historians? … [T]he respectful answer must be: not brilliantly.’¹⁵⁰ This was also true in the case studies above. This chapter contends that the High Court has put forward an idealised version of Australian history – one that disregards or ignores the shameful legal treatment of First Nations peoples; the deliberate exclusion of Papuan Australians because of their dark skin; and the unquestioned past acceptance of British settlers as ‘belongers’, along with the gifting to such people of all the rights of ‘citizenship’ denied to First Nations peoples whose ancestors had ‘belonged’ on the lands of Australia for tens of thousands of years. As Irving explains, ‘it would appear, indeed, that the “history” done by judges occupies a different hermeneutical space from the “history” done by historians’.¹⁵¹

As the case studies show, the adjudication by the High Court on issues of identity and belonging determines, in a very real way, whether people can remain part of the Australian community. But the history presented by the court also matters, not just the decisions themselves. As Galarrwuy Yunupingu said in relation to the Uluru Statement:

Let us be who we are – Aboriginal people in a modern world – and be proud of us. Acknowledge that we have survived the worst that the past had thrown at us, and we are here with our songs, our ceremonies, our land, our language and our people – our full identity. What a gift this is that we can give you if you choose to accept us in a meaningful way.¹⁵²

How can Australia acknowledge that First Nations peoples ‘have survived the worst that the past had thrown at’ them if the legal history portrayed by the highest court in the land inaccurately describes the citizenship or subject status of Aboriginal people as having always been equal to whites? As Love & Thoms makes clear, it is not only the Australian Constitution but also the High Court that should properly reflect Australia’s history in relation to First Nations peoples by acknowledging their past exclusion and disempowerment from the Australian community.

Curthoys, Genovese and Reilly argue that:

law cannot avoid history, nor, we argue, should it do so. What is called for is not for law to escape the dilemma of historiography but, fully recognising it, to respond appropriately. One alternative to maintaining the separation of law and history is to embrace history in judgment.¹⁵³

It should be automatic that legal precedents from the era of White Australia that adjudicated on elements of that policy are now treated with caution. Regrettably, it must be concluded that the High Court has been deficient in this regard. Chapter 1 notes the shameful Robtelmes case from 1906, in which the High Court authorised the mass deportation of Australia’s South Sea Islander community on the basis of their race. Remarkably, almost 120 years later, it is still being cited by the High Court as foundational authority for sweeping use of the ‘aliens power’ in the Constitution.¹⁵⁴ Despite that case approving a key legislative element of the White Australia policy, until 2020 no High Court judge had considered its validity against this historical context, let alone tested the perfunctory labelling by Chief Justice Griffith of the entire Islander community as ‘indisputably alien’. Even though Justice Edelman agreed in Love & Thoms that Robtelmes was decided on racial grounds, the case continues to be relied on by Edelman and his fellow judges in the High Court’s jurisprudence.¹⁵⁵ As Irving suggests, the High Court has some distance to go both in its portrayal of the history of identity and belonging in Australia, and in properly applying that history in its decisions in this area.