When kids get control of a cubby house, the first thing that they do is to work out how to stop other kids getting in to share the spoils.  We tend to be hostile to outsiders, or foreigners – people who are sometimes called ‘aliens’. We tend to blend ‘alien’ with ‘enemy’, although our usage acknowledges the difference.  We are all apparently built that way. The process was scarily described by William Golding in Lord of the Flies.  You can see it in families, towns, cities – and in law firms.  Whether you see this impulse as one of inclusion or exclusion may depend on how you see the world at large, but being an outsider, like being a stranger, can hurt. (It was Camus who wrote a book about that.)

Ancient Athens and Rome were very fussy about who qualified for their membership, but as time went on, the Romans got more generous – you might say broad minded – about those that they would or would not let into the club, and some historians say that that this was why the empire of Rome lasted much longer and covered a much larger area than that of Athens.

When the English started their jail in this country, they brought their laws with them.  Those laws included a lot of law derived from judicial precedent as the judges over many centuries had recognised the customs of the English people until they hardened into law.  That body of law is called the common law, and it was that law that said that the white settlers in the land they would call Australia brought their English laws with them.  For a variety of reasons, the prior inhabitants were not consulted about this process.

Our legal ancestors are therefore the English.  And their ancestors were in turn the Anglo-Saxons, and before that the people of the German forests whom the Romans branded as ‘barbarians’.  (The Athenians had been even more exclusive or stand-offish.)    It is not therefore silly to say that the origins of our laws are German in nature rather than Roman.  Roman law was thoroughly received in Germany, so thoroughly that a distinguished American legal scholar, James Barr Ames, would much later be able to say, with a perfectly straight face ‘The English law is more German than the law of Germany itself.’    Roscoe Pound said the same thing, and that the doctrine of the supremacy of law goes back to a fundamental notion of Germanic law.

How then did our legal ancestors deal with foreigners?  (I must confess to a preference for that word over ‘aliens,’ as the latter for me summons up images of flying saucers, Martians, and Alec Guinness waving a funny kind of a sword.)  If you were born in England, you were not a foreigner, or alien.  But if you were born outside England, you were an alien, and nothing short of a statute could give an alien all the rights of a natural born subject.

The critical issue for the English in the middle ages was loyalty or allegiance.  If a foreigner sued in England, he could be met by the plea: ‘You are an alien and your king is at war with our king.’  You will see here the premium put on personal allegiance – a vassal pledged loyalty to his liege lord.  The English had it on good authority (Matthew 6:24) that no man could serve two masters.  But once you got past that simple split, things got murky and downright distasteful.

Maitland teaches us that the starting point of the laws about aliens finds itself with the loss of Normandy – about 1259.  He also says this:

Of course very ancient law may regard every stranger as an enemy; but it will lay far more stress upon purity of blood than on place of birth; it will be tribal rather than territorial law…..But feudalism is opposed to tribalism and even to nationalism; one becomes a lord’s subject by doing homage to him, and this done, the nationality of one’s ancestors and the place of one’s birth are insignificant.  The law of feudal contract attempts for a while to swallow up all other law.  In England however a yet mightier force than feudalism came into play.  A foreigner at the head of an army recruited from many lands conquered England, became king of the English, endowed his followers with English lands.  For a long time after this, there could be little law against aliens, there could hardly be such a thing as English nationality.

(This is from Pollock and Maitland, The History of English Law before the time of Edward I, 1895. Pollock wrote only the first chapter. Included in the ‘Sorts and Conditions of Men’ are the ‘Unfree, Aliens, Jews, Outlaws, Convicted Felons, Excommunicates, Lepers, Lunatics and Idiots – and Women’.   Bracton said that excommunicates were ‘spiritual lepers’.  The concept of bankruptcy was still in the offing.  What these people all have in common is some disability, some lack of rights – some loss of status not to be entered into lightly or ill advisedly.)

There are three things to note from this excursus.

First, the English nation now is the product of a history that features a number of invasions or, at least, movements of peoples.   So is Australia.  Since some white people here get skittish about the word ‘invasion’ in this context, we might use the term ‘encroachment’ or ‘settlement’, begging the question of assent of those imposed upon – although that was not an issue at the arrival of the first Aborigines on this land.  (I have a recollection of Sir William Blackstone referring to the Norman Conquest as a ‘rude shock’ which, as understatements go, is pleasingly English.)  Indeed, unless you are standing smack dab in the middle of the Garden of Eden, or the Rift Valley, we are all descended from migrants.  And we are still building this country by welcoming migrants (with one appallingly mean and hypocritical exception).

As Maitland showed us, issues of identity may be very fluid when a nation is being formed by migration and settlement – or invasion.  The meanness of the kids in the cubby house may then become very unsettling.  And these issues of identity are made more fluid for us now by the significant numbers of people who now hold two passports or who claim to be dual nationals – something quite beyond the comprehension of our ancestors.

In short, and unsurprisingly, the denotation of a term like ‘alien’ varies in time and space.

Secondly, when we seek to find the underlying rationale of our laws about our treatment of foreigners or aliens, we may find ourselves on ground that is very wobbly – both intellectually and morally.  Maitland was writing two generations before Mein Kampf came out, but the terms tribalism, nationalism and purity of blood are now likely to die on our lips.  And that’s before you get to the four lettered word beginning with ‘r’.   So, entering into this territory is worse than watching little boys playing with matches – it’s like watching Superman fondling kryptonite.  (And I resist the temptation to refer to a minister fondling a piece of coal.)

Thirdly, and as we have seen, classifying a person as an alien diminishes that person’s legal standing and legal rights.  For example, I cannot be deported; if I were an alien, I could be, and the whole lynch-pin of my rights to the due process of the law would have taken a mighty hit.  No Australian wants to become subject to deportation by some stroke of a pen or some other fluke or error – or some law that is stated in doubtful terms or is of doubtful validity.  And this is not least the case when both major parties resemble kids in a cubby house showing extreme vigilance and a malignant jealousy about just who might come into and remain in the cubby house.  Otherwise decent people have been heard to descant loudly on their powers about who we will let in to our cubby house.

The other day, the High Court had to deal with issues about who may or may not be an ‘alien’ within the meaning of that term in our Constitution.  Before looking at their Honours’ decision, may I mention one other fact? What is clear, what is transcendentally clear, is that when on that fateful day the people of our first nation saw the sails of the first fleet round the heads of Sydney Cove, and beheld some of the foetid and depraved human cargo on board, they were looking at something more alien than anyone else on this planet had ever been exposed to.  And we may well imagine, as did Keats when writing of the men of Cortez staring at the Pacific, that they ‘Look’d at each other with a wild surmise’ – but with anything but silence.  These white people were at least as alien to these black people as flying saucers would be to us.  At Botany Bay, Lieutenant King ordered a marine to drop his pants to satisfy the Aborigines about what we may call the provenance of the white people, and he followed that by placing a white hanky on a native woman where Eve had put the fig leaf.   One informative account of the upcoming tragedy says this:

When the white people arrived to start their colony in Australia 1788, the nation that had just perfected the steam engine that would revolutionise the whole world, and confirm Britain’s imperial dominance, came into contact with people who did not know how to boil water.  The white people may as well have come from Mars.    

Well, we the white people are no longer the aliens.  Indeed, our arrogance was such that we probably never saw ourselves as aliens.  We now at least see ourselves as the native Australians, or, in the ghastly demotic of the outer, as dinkum Aussies.  And are we now to say that it is not we but they – the people of our first nations – who are the aliens in this land?  These are people whose span of time here makes ours look like a grain of sand at the base of Uluru, but we have never quite managed to suppress our feeling of superiority over them.  Can we so glibly strip them of their rights and standing here – and then just eject them from their land, a land for which they feel a spiritual bond that passes our understanding?

You may by now have divined the question that I will put and my answer to it.  Our relevant statutory law is the standard cross between a quagmire and a minefield, and I will spare you any reference to it.  As I follow what the High Court said in Love v Commonwealth, it held, by a majority, that a power of the Commonwealth to make a law about aliens does not extend to making a law about people who are obviously not aliens.  Aborigines are obviously not aliens.  Therefore that power does not extend to them.  Here is a more formal version of what I understand to be the relevant syllogism.

1. The power of the Commonwealth under the Constitution to make laws dealing with ‘aliens’ does not extend to a power to make laws affecting a person who could not possibly answer the description of ‘alien’ in the ordinary understanding of that word.
2. According to the Oxford English Dictionary, an ‘alien’ is ‘Belonging to another person place or family; esp.to a foreign nation or allegiance’ or ‘Foreign in nature, character or origin’ – in short, a foreigner. (The old judicial preference was for ‘belonging to another person or place.’)
3. An Aborigine, as found by applying the criteria in the two Mabo cases, has a connection to the land and the waters of Australia, and a history and a status under our law (at least since the Mabo cases), that entail that that person is incapable of answering the description of an ‘alien’ in the ordinary sense of that word.  In short, an Aborigine is not a foreigner.

4 It follows that insofar as the Commonwealth statute has sought to characterise Aborigines as ‘aliens’, it is beyond power and invalid.

There is no argument about pars 1 and 2 and par 4 in my view follows ineluctably if par. 3 is established.    That is, the only room for argument that I see is in par. 3.  (There may be some ellipsis about the process of reading down, but I leave that to the purists.)  The point is clearly arguable on both sides – as shown by the judgments of seven distinguished lawyers – but neither result could in my view be stigmatized as juristically untenable.  What side you determine to come down on may depend not so much on your technique in working the law, as on your view of history.

As I see it, the crux of the case may be found in these passages of the judgment of Justice Bell.

The plaintiffs’ and Victoria’s argument depends upon the incongruity of the recognition by the common law of Australia of the unique connection between Aboriginal Australians and their traditional lands, with finding that an Aboriginal Australian can be described as an alien within the ordinary meaning of that word…..

The Commonwealth’s concern, that to hold that its legislative power does not extend to treating an Aboriginal Australian as an alien is to identify a race-based limitation on power, is overstated. It is not offensive, in the context of contemporary international understanding, to recognise the cultural and spiritual dimensions of the distinctive connection between indigenous peoples and their traditional lands, and in light of that recognition to hold that the exercise of the sovereign power of this nation does not extend to the exclusion of the indigenous inhabitants from the Australian community.

If I may be permitted to say so, I regret that the Commonwealth chose to refer to a ‘race-based limitation on power’.  That kind of label is seldom helpful and always dangerous.  It is the kind of branding that you might expect from a politician or a member of the press of a certain stripe.  In the context of this case, the suggestion looks to me to be little more than a rhetorical pout at what the more intellectually challenged parts of the press call ‘political correctness’,  or to evince a fetish about that slippery term ‘equality’.  And it might have the unfortunate result of being seen as what is elsewhere called throwing red meat to the base.  (As was predictable, the line has already been claimed by the usual suspects in think tanks and the press in a display of ignorance that is only matched by arrogance.  We might divert ourselves by asking why these people, who are so sadly inane, do not proffer their opinion on how we might perform brain surgery.)

To suggest that an Australian Aborigine is not a foreigner in Australia hardly seems novel, much less controversial.  It is hard, then, to see how the minority Justices could deal comfortably with the ‘incongruity’ identified by Justice Bell. (Another Justice apparently thought that the minority view was ‘bizarre’.)  If as a matter of our law an Aborigine does belong to this land now called Australia, as his ancestors have for more than 40,000 years, on what basis would the court that gave the nation the two decisions in Mabo lend its imprimatur to the suggestion that notwithstanding that status, an Aborigine may be deprived of his rights allowed to Australians by a finding that this can be done under an act of parliament that validly reduces him to the status of an alien?

Now, I may be quite wrong in all of what I say – if the terms ‘right’ and ‘wrong’ have any real use at this level.  And if it is said that I am being emotive, I happily plead guilty.  But I clocked off some time ago after thirty years of decision-making, and at a far, far lower altitude, indeed right at the bottom of the hierarchy. And as some of the judgments show, there is a fair bit to be emotive about in this case.  And of course, I have the luxury of being allowed to be candid about matters of policy.

And what I might also say, with respect, is that when it comes to subtlety, nuance, cleverness, or ingenuity – or any other epithet that usually signals to counsel that they are a goner – honours are in my view about equal between members of the majority and minority.  Most parts of these judgments will be way above the pay level of the average lawyer, and completely indecipherable to those parts of the press I referred to before.  I for my part failed to find the spot in the judgments, or the 748 footnotes, where the Justices engaged in their version of a juristic scrum on what I see as the issue in the case – that is, whether an Aborigine is a person who is capable of being described as an alien under our Constitution.

Indeed, as I struggled on, wondering if all this was harder than Kant’s Critique of Pure Reason, including his justly celebrated refutation of the ontological argument for the existence of God, I could not help falling back on that wonderful anecdote of Ludwig Wittgenstein: ‘During the last war, the trains carried a sign: ‘Is this journey really necessary?’’

(I may add that in addition to references to ‘spiritual’,  you will find references to the ‘metaphysical’ in the judgments.  May I say that this area is tricky enough without seeking to count how many angels can dance on the point of a needle?  Given the context, I wonder if I should reconsider this passage in a book called The English Difference?: ‘In the upshot, French and German thinkers concerned themselves in the highest level of rational speculation.  It was called metaphysics.  The English think metaphysics is worthless nonsense’.  For the record, The Oxford Dictionary of Philosophy begins its discussion of the term by quoting Bradley to the effect that ‘metaphysics is the finding of bad reasons for what we believe on instinct’.  It later cites the famous denunciation by David Hume that any text on metaphysics should be ‘committed to the flames, for it can contain nothing but sophistry and illusion.’  That is the attitude that caused me to make the remark above.)

In my view, we lawyers in this country have done enough damage to our aborigines up to now.  The doctrine of terra nullius was more than a gross insult to them – it was an affront to humanity that came from the darkest side of our imperialism.  And, yes, we did adopt imperialism from the mother country, as we tamely shared the white man’s burden and docilely trundled off to help the Empress of India put down the Boers in South Africa.

The aboriginal community would surely have seen a contrary ruling in this case – by, say,  five to two – as just another kick in the head in the rough lottery of Australian colonial justice in what some may have seen as a triumph of legal formalism over ordinary human decency.  If such a prospect is said to be extraneous to the proper exercise of the judicial function at this level, I would be both surprised and saddened.  And if someone told me that these issues were not even canvassed in the corridors of power, I would be incredulous.  My understanding of the law is informed by that expressed in these very familiar observations of Oliver Wendell Holmes.

The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have a good deal more to do than the syllogism in determining the rules by which men should be governed.  The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.  In order to know what it is, we must know what it has been, and what it tends to become….And as the law is administered by able and experienced men, who know too much to sacrifice good sense to a syllogism, it will be found that when ancient rules maintain themselves in the way that has been and will be shown in this book, new reasons more fitted to the time have been found for them, and that they gradually receive a new content, and at last a new form, from the grounds to which they have been transplanted.

We do not appoint our judges to stand guard over a mausoleum.

May I, then, conclude on a note of undiluted heresy?  Yes, I know that judges have to apply the law; but they also have to sleep at night.  One of the great jurists anywhere in the world during my lifetime gave voice to a sentiment that you will not often see expressed elsewhere, if at all.

Trial by jury is a unique institution, devised deliberately or accidentally – that is, its origin is accidental and its retention is deliberate – to enable justice to go beyond that point [the furthest point to which the law can be stretched ]…The fact that juries pay regard to considerations which the law requires them to ignore is generally accepted…It is, for example, generally accepted that a jury will tend to favour a poor man against a rich man: that must be because at the bottom of the communal sense of justice there is a feeling that rich man can afford to be less indifferent to the misfortunes of others than a poor man can be.

Now, of course I would never suggest that any of their Honours in their eyrie fastness at Canberra would ever behave like mere jurors – but what I would say is that any judge who repudiates what Lord Devlin says as anathema would not be the kind of dude that you want to have at your back during tense moments in an Indian tiger hunt.  Nor would you want to leave your fingers in the opening of the trap-door to the cubby house.