My alternate title was vaguely connected ramblings about weird idiosyncrasies of Australian immigration and indigenous law.
Dustin Martin besides having maybe the worst haircut in the country is probably the best current AFL player.You might have seen him hanging out with Serena Williams while the reddit founder played a dj set in an iconic photo. A couple weeks ago he was named best on ground for the grand final in front of 30,000 people. He shouted out his father, Shane watching in Auckland just like his last grand final speech. It would’ve been illegal for him to even be in the country as he was deported to NZ in 2016 as a result of drug trafficking convictions and being the president of the rebel’s motorcycle gang. He’s of Maori descent and from New Zealand but Dustin was born in Victoria to an Australian woman. This year his father was again deported to New Zealand as he was stopped at Sydney Airport. He started legal proceedings immediately after based on the massive decision in Love v Commonwealth.
Australia and NZ’s little-known Schengen Area
Australia and New Zealand have long standing ties and, in some ways, exist as a European Union of 2 countries. New Zealand was invited to the first constitutional conventions prior to Australia’s independence in 1901 with overtures to join as a state. Clause 6 of the Constitution act still defines “the states” to include the then colony of NZ. They ended up not joining due to agricultural protectionism, snobbery over not being descendants of convicts and racist language in the constitution that probably would’ve violated the treaty of Waitangi with the Maori’s. Even up to WW1 it seemed like Australasia might be formed with both countries sending one combined team to the 1908 and 1912 Olympics under the Australasian banner. They fought together as part of the Australian and New Zealand Army Corps in WW1 and briefly in WW2 and Vietnam. ANZAC day is a national holiday in both countries similar to Veterans Day in the US. We signed a big free trade deal in 1983 and the last 20 years serious politicians have toyed with the idea of a common currency or even a full union.
*** I swear its going to relate back to Dustin
The Trans-Tasman Travel arrangement in 1973 allows for free movement between the 2 countries, But free movement had informally been in place since colonial days. Cracks started to appear fairly quickly though. Australia’s GDP per person is about $20,000 higher than NZ and living standards are substantially higher in Australia, NZ though a well-off place for example has had the highest rate of homelessness in the OECD. Scores moved to Australia to find work which nativists used to rail against. Now more than half a million kiwis live in Australia, about 15% of NZ’s total population. In the 90’s Australia restricted kiwis receiving social security immediately after moving to Australia. They also made it harder for kiwis to apply for citizenship.
Repealing racist immigration laws with a racist immigration law
The Migration Act of 1958 basically repealed the “white Australia policy” keeping non-whites and non-Christians out. Amendments over the years basically created the mandatory detention of asylum seekers and 95% of fucked up immigration policy in Australia. Deportation is still governed by s200 of the act. A 2014 amendment allowed the deportation to occur based on a “character test” where security concerns exist. A lot of this was broad legislating was based on rising Trans-Tasman crime while the conservative government blaming lax immigration laws. New Zealand gangs have made more of a presence in Australia especially in the eastern states and the rebels motorcycle gang of Dusty’s father was founded in Australia and spread over to NZ. About 50% of all deportations under this amendment were of New Zealand nationals with critics noting they were majority Maori or Pacific Islanders. Shane was one of these NZ, Maori deportations.
Its been a constant irritation to NZ including Jacinta Arden and has made relations sometimes frosty.
Love v Commonwealth.
Despite a 4:3 conservative majority the case was hailed a progressive victory with potentially huge ramifications. The court ruled that indigenous Australians could not be considered “aliens” despite not being Australian citizens. Lawyers were quick to point out that the ruling narrowly involved interpretation of the “aliens” power of s51 of the constitution but still was a major shift. The amendments of the migration act I talked about above were made under the “aliens” power rather the immigration power of s51xxvii.
The judges suggested Love could not be an “alien” due to specific common law protections owed to indigenous peoples but also highlighted the how persons with sufficient connections to the community and the country should not be deported.
Native title is too complicated for me to summarise properly without adding 15000 words to a text post on my shitposting board. Law protects the rights and customs of indigenous peoples and their interest in the land which could not be extinguished by European occupation. Very different to the sovereignty recognised of US or Canadian first peoples. For this reason, native title is taught in land law taking up like 50% of the content. Personally, I find the Mabo judgement very persuasive despite it not recognising sovereignty. Justice Brennan states that “native title has its origin and is given its content by the traditional laws acknowledged by and the customs observed by the Aboriginal inhabitants of a territory” and the judges emphasize that indigenous customs and law should not be replaced by European concepts of proprietary ownership which did not exist in indigenous societies. Indigenous people have a deep connection to the land including cultural and religious elements and “private ownership” didn’t exist with the land being more communal property. So for instance, I live on the land traditionally of the Wurundjeri tribe. While I have ownership and possession, Wurundjeri people might have a proprietary interest in the land allowing them to hunt kangaroos or practice religious beliefs. In some ways its like the banks interest in property when you get a mortgage, not possession but rights associated in land.
*** Disclaimer this paragraph was written by an extremely white guy who scraped a credit in land law.
Some have theorized the decision might signal a gradual step towards judicial acceptance of aboriginal sovereignty though most scholars are doubtful.
Hopefully the emphasis on “connection” with Australia or Australian communities might increase the rights of undocumented immigrants and asylum seekers in preventing their deportation.
Parts of the decision go into the distinction between a citizen and an alien. I’m mildly optimistic that the decision at least could expand some of the rights afforded to citizens to all residents.
For Dustin Martin’s dad, the proceedings are still ongoing as he has claimed to be related to Tasmanian indigenous peoples.
Links to read more
Mabo ruling (Foundation of native title) http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1992/23.html
Migration Act 1958 http://www5.austlii.edu.au/au/legis/cth/consol_act/ma1958118/index.html
Love v Commonwealth 2020 http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2020/3.html