Is Mr.Thoms an "alien" to Australia within the meaning of s 51(xix) of the Constitution?
That was the question because the Federal Government only has the powers that the Constitution gives to it.
1 Mr Thoms was born on 16 October 1988 in New Zealand and acquired the status of a New Zealand citizen at birth. His father was at this time a New Zealand citizen. Mr Thoms' mother is an Australian citizen by birth, which entitled Mr Thoms to acquire Australian citizenship….
2 Mr Thoms first came to Australia in December 1988. [when he was two months old] He has resided permanently in Australia since November 1994, when he was granted a Special Category Visa. [when he was 6 years old] He travelled from Australia to New Zealand on a temporary basis in 1997-1998 and 2002-2003. He has not departed Australia since January 2003.
3 [So apart from short trips to other family in New Zealand he has been in Australia since he was two months old – something like all of his life, he is now 31 years old]
4 Mr Thoms identifies as a member of the Gunggari People and is accepted as such by other members of the Gunggari People. He is a common law holder of native title which has been recognised by determinations of native title made by the Federal Court of Australia.
5 So Mr. Thoms has been living the life as a member of the group he was born into – even though his birth was out of country he was two months when his mother brought him back to her country.
6 So: Is he an Alien to Australia? That is the question because the Federal Government only has the powers that the Constitution gives to it.
COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT - SECT 51
Legislative powers of the Parliament…
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: … (xix) naturalization and aliens;
This empowers the Commonwealth Parliament to "create and define the concept of Australian citizenship", to select or adopt the criteria for citizenship or alienage, and to attribute to any person who lacks the qualifications for citizenship "the status of alien"
But, in the same way that a power to make laws with respect to lighthouses does not authorize the making of a law with respect to anything which is, in the opinion of the law-maker, a lighthouse, the Parliament cannot, simply by giving its own definition of 'alien', expand the power under s 51(xix) to include persons who could not possibly answer the description of 'aliens' in the ordinary understanding of the word.
What the High Court decided is that a person with the characteristics and history of Mr.Thoms cannot fit in to the status of “alien” to the land of Australia.
This decision has opened a substantial field for abuse by aboriginal activists – we shall have to see what they do with it ,
but it is not true to say that anyone with a smidgeon of aboriginal DNA escapes the definition of alien.
John Bolton 18th February 2020.