ipl-logo

Kiefel CJ And The High Court Of Australia

1234 Words5 Pages

The dissenting judgement of Kiefel CJ and the majority judgement of Bell J in the High Court of Australia decision in Love v Commonwealth (2020) 94 ALJR 198, 204–212 [1]– [47], 212–218 [49]–[82] prompts significant discussion of the principal legal issue in interpreting section 51(xix) of the term “aliens” in the Australian Constitution and its implications for Indigenous peoples. Bell J, as part of the majority, held that the Parliament did not have the power to treat an Aboriginal person as an “alien” and the Migration Act 1958 (Cth) could not apply to Aboriginal Australians under section 51(xix); this was an exception deemed appropriate regarding the common law recognition of the native law title. In contrast, Kiefel CJ dissented that Aboriginal …show more content…

To compare judgements, the case of Love v Commonwealth will firstly be summarised. Love v Commonwealth is significant in addressing the principal legal issue of the interpretation of “aliens” in section 51 (xix) of the Australian constitution. This issue was raised by the High Court, as the plaintiffs, Brendan Thoms and Daniel Love, were of Indigenous ancestry but were non-citizens who were at risk of being deported as “aliens” due to their criminal sentence and cancellation of their visas. The plaintiffs submitted that as Aboriginal Australians, their deep connection to Australia recognised by common law means that they cannot be recognised as “aliens”, thus arguing that deportation contradicted their native title rights (Mabo v Queensland (No 2)). In contrast, the Commonwealth submitted they had the authority under s51 (xix) to determine who would be alien and thus asserted the possibility that the plaintiffs could be deported as they lacked citizenship under the Australian Citizenship Act 2007 (Cth). Unlike Kiefel CJ, Bell J held that the plaintiffs of Aboriginal Australian descent should not be considered as “aliens” within the meaning of section 51 (xix) of the Australian …show more content…

Kiefel CJ held that the plaintiffs’ argument of the common law in recognizing traditional laws and customs was misleading; Kiefel CJ clarifies that the common law only recognises native title and does not determine a person’s legal status in relation to the Australian polity. Furthermore, in constitutional terms, “belonging” refers to the formal legal relationship between a person and the community or body politic, not just a sense of connection to land. Kiefel CJ recognizes the constitutional implication that if the plaintiffs seek to imply this new principle of granting certain rights to Aboriginal persons regardless of their citizenship status, this would raise issues of race and sovereignty. Furthermore, this is not supported by existing common law or constitutional provisions, which raises concerns about judicial subjectivity. This demonstrates that Kiefel CJ’s approach considers the broader implications of interpreting the

Show More
Related

How Did Eddie Mabo Change Australia

902 Words | 4 Pages

The Mabo decision changed the legal, political and social relationships between Aboriginal and non-Aboriginal people. In recognising the traditional rights of Murray Islanders it changed Australia forever. The Mabo decision opened the doors for other indigenous people and groups to be able to claim ownership of land. They were required to prove that they had continuous connection to the land and maintained their traditional associating with it. The 'native title ' is the recognition by law that some aboriginal and torres strait islander people have rights to certain land due to their traditional laws and customs.

Read More

The Pivotal Case Of Mabo V. Queensland (No. 2)

1505 Words | 7 Pages

The pivotal case of Mabo v Queensland [No.2] constitutes a significant shift in Australian law, authorising a new version of history that recognises Indigenous land rights and uses historical evidence to justify legal decisions. Utilising law and history reshaped legal history and redefined legal doctrines, notably with Indigenous land rights and how it overturned the doctrine of terra nullius. The 'Mabo' case, decided in 1992 by the High Court of Australia, challenged this doctrine by affirming Indigenous land rights, specifically on Eddie Mabo's claim to Murray Island. The essay ventures into the breakdown of the case decision. Looking at how it utilised historical evidence, its connection to legal precedent and sovereignty, and its reshaping

Read More

B Pulsey & Anor V State Of B Impulsey

1503 Words | 7 Pages

LAWS1052 Extended Case Note Assignment Bulsey & Anor v State of Queensland [2015] QCA 187 (6 October 2015) (“Bulsey”) I. Introduction Bulsey represents the ongoing struggle of Indigenous Australians’ rights to be recognised and the importance of preventing arbitrary use of power. It highlights the potential for police to abuse their powers of arrest and emphasises that this concern is especially significant for Aborigines. Further, Bulsey deliberates intentional torts and in particular, personal injury damages and aggravated damages.

Read More

The Significance Of The 1992 Mabo High Court Case

702 Words | 3 Pages

The 1992 Mabo High Court case represents one of the most profound cases in Australian history leading to the turning point of Reconciliation for Aboriginals and Torres Strait Islanders. As a result of this decision, it changed the legislation of the indigenous Australians introducing land rights and impacted the indigenous Australians society rights and freedom as a more desirable outcome in the movement towards Reconciliation. The 1992 Mabo court case was a pivotal turning point in the progressive Reconciliation in Australia. It paved the pathway for Indigenous land rights and confronted the state of Queensland and Australian commonwealth to regain their freedom and equality.

Read More

How Did Rob Riley Influence Australia

691 Words | 3 Pages

Australian History has been notably marked with themes of conflict among; culture, race and nation since the beginning of time. Similar to many other culturally diverse countries, Australia has slowly become two distinctly different races, disjointedly connected to create ‘one culture’ (Ward, R. 2017). Along this journey, there have been various significant political figures contributing to the recognition and progression of Indigenous issues within Australia. Namely one of the most determined and instrumental political warriors within the local and national Indigenous political domain is Rob Riley.

Read More

Aboriginal Deaths In Custody Case Study

1583 Words | 7 Pages

Here, the Aboriginal Protection Act 1869 (VIC) was made to establish an inclusive scheme of control over the lives of First Australians (Australian Institute of Aboriginal and Torres Strait Islander Studies, 2014). New South Wales’ equivalent to this was the Aborigines Protection Act 1909 (NSW) which was to provide protection and care of Aboriginal People but rather legislated for the control of their lives. The policies of assimilation directly related to and relied on segregation and protectionism policies. This policy reflected the views of all governmental bodies of Australia, in that they thought it necessary that Aboriginal people were to eventually exercise the equivalent method of living as non-Indigenous Australians and to live as members of a sole community appreciating the same rights and freedoms, accept the same responsibilities, observing similar duties and be predisposed to the same loyalties, hopes and

Read More

What Is The Howard Government's Policy Of Practical Reconciliation

1234 Words | 5 Pages

The Howard government’s policy of “practical reconciliation” has been a failure on two substantial levels which resulted in failing to benefit Indigenous Aboriginals. First the policy ignores the significance of “symbolic reconciliation” which provides justice to Indigenous people. Second, the policy, although set out to improve the socio economic disadvantage experienced by Indigenous Australians, did not actually succeed. The election of John Howard’s government in 1996 marked the beginning of a discursive shift away from the view of social justice which has been a target pursued by the Council of Aboriginal Reconciliation and supported by the previous Labor government. The new Howard government refused to accept the approach of previous

Read More

Terra Nullius In Australia

301 Words | 2 Pages

Prior to the European settlement of Australia (1788), indigenous Australians inhabited the continent and had recognised laws within their clans. However, as documented in the case of the Yirrkala community, due to the notorious laws being unwritten, the doctrine of terra nullius enabled the European power to claim the discovered land as part of its empire despite their being evident inhabitants. The British adapted the international law concept of terra nullius to govern the situation in “settled” colonies, which is how the law regarded Australia. The first test of terra nullius in Australia occurred with the decision of R v Tommy 1827, which indicated that the native inhabitants were only subject to English law where the incident concerned

Read More

How Should The Australian Constitution Be Changed

301 Words | 2 Pages

Today Australia prides itself on being a place of fairness and equity for all its citizens. But the Australian Constitution still does not recognise Aboriginal and Torres Strait Islander Australians as the first people of this land. Importantly, we now know that Aboriginal and Torres Strait Islander people and their cultures form part of the longest culture on Earth and evidence of their presence in Australia is now dated back over 60,000 years. It is only right that modern Australia should recognise and acknowledge Aboriginal and Torres Strait Islander people and culture - past and present - in our Constitution to record their valued place as part of this country and our national identity. Most of the states - Victoria, Queensland, New South Wales and South Australia have already amended their Constitutions to formally recognise Aboriginal and/or Torres Strait Islander Australians as the first people and nations of their jurisdictions.

Read More

Summary: The 1965 Freedom Rides

589 Words | 3 Pages

Since the arrival of the first fleet, through to 1945, Australia has made important progress in improving Indigenous freedoms and rights. This progress has been marked by protest movements like the freedom rides, policy changes such as the 1967 referendum, and legal victories such as the 1992 Mabo case. However, there are still significant challenges, including socio-economic disparities and struggles for land rights, that still prevent equality today in Australia. Australia has significantly improved Indigenous rights and freedoms from the first fleet to 1945. A way their rights were recognised and respected was through the 1965 Freedom Rides.

Read More

The Pros And Cons Of Racial Discrimination In Australia

756 Words | 4 Pages

Introduction The Racial Discrimination Act was implemented in 1975 and was drafted in response to a global push to codify protections for Indigenous Australians and other racial minorities. Section 18C of this act makes it unlawful to offend, insult, humiliate or intimate an individual or a group of people on the basis of race, colour or national origin (Austlii.edu.au.) This clause was brought to the fore front of national debate as popular conservative columnist, Andrew Bolt, was found in violation of this law when he accused mix-raced Indigenous Australians of using their heritage to claim government benefits. The Abbott government pledged to repeal section 18C but has subsequently withdrawn the motion following severe backlash from the wider community (Aston.)

Read More

Argumentative Essay On Aboriginal Health

2026 Words | 9 Pages

According to the World Health Organisation (WHO) health is a legally obligated human right, which the government is expected to uphold and protect for the enjoyment of “all people without discrimination” (1). Australian legislation is the antithesis of the WHO’s definition, evidenced by the 1905 Aboriginies Act. The Act 'enshrined in policy the practice of child removal and entrenched paternalistic, racist, controlling and ultimately destructive attitudes towards Aboriginal people', research argues (2). It wasn't until 1962 that Aboriginal iAsuatralia gained the right to vote in Commonwealth elections, and only after the 1967 National Referendum that the Australian Constitution's race clause was eliminated, signifying the start of Indigenous Australians' citizenship rights. These developments were brought about by a social movements led by Indigenous people that arose during the 1950s and 1960s, which vigorously advocated for Aboriginal self-determination, sovereignty, and community control.

Read More

Public Misconceptions: Australia's Failure Of An Indigenous Treaty

1488 Words | 6 Pages

Following the controversial definition of sovereignty, a popular argument emerged claiming ‘a nation cannot make a treaty with itself’ from former prime minister John Howard. With Howard’s highly influential status, this was quickly adopted by many Australians who insisted that Indigenous people are also Australians and therefore a treaty would divide the nation. However, Howard’s definition is based on an extremely narrow understanding of the terms ‘treaty’ and sovereignty. This misconception negatively affects the process of treaty-making as it creates unprecedented fear when in reality Indigenous people do not seek recognition of statehood. Therefore, as the controversial debate over the implications of sovereignty continues, the underlying issue must first be addressed: an embedded and outdated definition weaponised by the HCA to prevent progression in treaty-making.

Read More

Aboriginal Identity Essay

1190 Words | 5 Pages

Abstract Being an aborigine in a white dominated society is a complicated identity. Australia, one of the white governed nations, also owns many aboriginal tribes. They lived harmonious lives in the early period. But European colonization has made a profound effect on the lives of Aboriginals in Australia, which led to the total demolition of their native culture, identity and history. As a result the new generation Aboriginals have lost their Aboriginal heritage and have been accepted neither by Aboriginals nor by whites.

Read More

Secularism In Australia

1312 Words | 6 Pages

During the early years of the British colonising Australia, Indigenous Australians were immediately overpowered and taken advantage of. While the context of the following example is of a religious context, it is not limited only to that of the religious power of the state. Read (1981, p. 37) accounts for the 6000 Indigenous children in New South Whales alone who were forcefully removed from their families by the state between the years of 1883 and 1969, which Barker describes as government authority perceiving one group “more civilised” than the other. Similarly, Barker also points out the ineffectiveness of religious authority as an influence or control over individual lives in modernised western societies – societies in which removal of Indigenous children by the state, for example, is illegal and does not take place in a modern society that lacks the power it previously had, (2003, pp. 296-299). While this is only one example of how the church and state could be separate in modern Australia alongside separation of law and religion in the commonwealth constitution (Innes, 2009), Wallace (2005) notes that there was no mention of the church and state in this constitution – confirming the ambiguity of this legislation (Bouma, et al., 2011, p. 47).

Read More

More about Kiefel CJ And The High Court Of Australia

Open Document