The strange case of the magical Aboriginal aliens

Magic Transistor — Aboriginal Rainbow Serpent

How does a person have a “fundamental connection to the land” if they weren’t even born there? Can a person not born in Australia still claim to be “indigenous” while someone born here cannot, simply on account of their ancestry? Does race supersede the law of the land?

These are the sort of questions which, tacitly at least, are being asked of Australia’s High Court. quote.

A landmark trial in the [High Court of Australia] has begun this morning to determine whether Aboriginal Australians can be considered an “alien” under the Constitution and, as a result, be deported following a serious criminal conviction. end quote.

Put like that, this case sounds terrible: another clear example of White Australia dispossessing Aboriginal Australians. Except: quote.

Although both have Aboriginal heritage neither was born in Australia and they were sent to immigration detention having failed the migration character test and face derogation to Papua New Guinea and New Zealand. end quote.

Neither are Australian citizens either.

So in other words, they are being treated exactly like anyone else under Australian law. Australia has shown in recent years that it’s taking a no-nonsense approach to foreign citizens who commit serious crimes in Australia.

But now the High Court is being asked to elevate race above the law of the land.


Stephen Keim SC began arguments this morning on behalf of the men with a two-pronged case based on the “fundamental” connection of Aboriginal Australians to the country and a broader angle that no person born to a “non-alien” parent outside of Australia can be considered an alien.

The argument has already touched on Mabo and the now defunct concept of Terra Nullius, the Hindmarsh Island bridge case, the Tasmanian Dams judgment and the citizenship of Barnaby Joyce.

“What we say is, to interpret the ‘aliens’ clause in the constitution to say it’s all right to remove Aboriginal Australians from the country they have occupied for 80,000 years on the mere basis that they happen to be born overseas is another dispossession and raises similar challenges to that considered by the court with regard to Terra Nullius,” Mr Keim told the court today. end quote.

This is nonsense, of course. Neither has “occupied” Australia for 80,000 years. What this is arguing is that at best one-half of someone’s ancestry somehow conveys on them, not only rights that no-one else has, but some kind of magical “connection”. This is a racist argument that is frankly not far removed from the “Blood and Soil” nonsense of the Nazis.

The only part of the argument that is at all rational is whether a person born to a “non-alien” parent outside of Australia can be considered an alien. But Australia doesn’t automatically grant citizenship to children born overseas to Australian citizens. Even if applying for such, adult children born overseas to Australian citizens must be of good character. quote.

Justices of the court savaged part of the argument, however, and said Mr Keim was advancing a “vastly expansive rewrite of our understanding” of section 51 (19) of the constitution.

“You are inviting the court to answer a much larger question and the chances are it will not be answered,” Chief Justice Susan Kiefel said. end quote.

In what seems an ominous sign, though, the justices are urging that the plaintiff’s lawyers just go with the vibe of the thing and uh, well, that’s it, it’s the vibe. Case closed. quote.

Rather than focus on broader arguments about whether citizenship and the status of “non-alienship” are the same, justices urged Mr Keim to target his argument at the question of Aboriginality and the powers of the parliament to find indigenous people to be outsiders. end quote.


Let’s be honest: if your argument is that someone has specific rights solely because of their race, how is that not racist? Let’s be even more honest: if you’re talking about “spiritual connections”, you’re talking about magic. Australia’s High Court recently endorsed such magical thinking when it compensated an Aboriginal group for “spiritual loss” derived from “the pervasiveness of Dreaming”. This is a magical argument, no more nor less than claiming God, Vishnu or L. Ron Hubbard gifted the land to your people.