Essay

The God of the ‘God powers’

The gaps between history and law

[The Prime Minister’s staff discuss plans for Australia Day]

Nick (senior political adviser): Who did Australian history? Murph?

Murph (director central policy unit): American.

Mel (senior media adviser): Italian Renaissance.

Vanmathy (unit office): Pre-revolutionary Russia.

Josh (unit office): British.

Nick: Am I the only person here who studied Australian history?

Theo (head of market research): The bit I really liked was pre-Federation, you know the part that comes after the gold rush and before the Boer War. Did you like that period?

Nick: I said I studied Australian history. I didn’t say I was interested.

‘A Quiet January’, The Hollowmen, ABC TV, 8 October 2008

 

‘RULES ARE RULES, especially when it comes to our borders. No one is above these rules.’ So said Prime Minister Scott Morrison – his own hopes for a quiet January dashed – in defending the ham-fisted cancellation of tennis great Novak Djokovic’s visa on his arrival in Australia at the start of this year. And, to avoid doubt about where the strength lay in the Djokovic versus Australia stand-off, the consent orders agreed in the Federal Circuit Court between the parties made clear that the Minister for Immigration’s discretionary visa cancellation powers – which Michelle Grattan described in The Age as ‘hairy-chested’, and which, ironically, are above the rules of natural justice – meant the fate of Djokovic, known for his controversial stance on vaccination, still lay in the lap of the minister and his ‘God powers’.

Law matters. History matters. So does context. And sometimes history and context make a hollow ass of both the law and those who make the law, including prime ministers. In January 2022, the world looked askance at Australia’s detention of the men’s world number-one tennis player in a grubby hotel in Melbourne, inadvertently drawing attention to the far greater scandal of Australia’s prolonged detention – for more than nine years – of many people who had sought Australia’s protection, among them twenty-four-year-old refugee Mehdi Ali, who arrived in Australia aged fifteen. In the face of this manifest injustice, it is important to reflect on the scope and origins of the heavy-hitting federal powers that ultimately led to Djokovic’s deportation. As the Asylum Seeker Resource Centre tweeted at the time:

That Djokovic has just lost before the Federal Court shows how untouchable the Minister’s God-like powers are. When a multi-millionaire tennis player can’t win against the minister, do you now understand why 70 refugees are still locked up 9 years later. He is their judge and jailer.

As The Age explained, ‘the God powers were chiefly designed for the minister to intervene to help, rather than deport, allowing people to stay in Australia on compassionate grounds’. Immigration lawyer David Prince said the outcome meant ‘my clients will have a harder time now… It shows just how extraordinarily broad and largely unfettered the minister’s powers are if you’re a foreigner.’

We do not seek here to look further at the Djokovic case itself. Instead, we go back in time and consider the role of the inaugural Chief Justice of the High Court of Australia, Sir Samuel Griffith, who had a hand (and an interest) in both making and adjudicating the scope of the Commonwealth’s ‘power to make laws with respect to aliens’ (that is, non-citizens) in a way that made the ‘God powers’ conceivable. Griffith was, if you like, the God of the ‘God powers’ that were foundational to the White Australia immigration policy and whose enduring legacy enabled Scott Morrison to be the latest to assert that ‘rules are rules’, knowing that even if they’re exercised arbitrarily the rules are whatever ‘we’ decide they are.

In challenging the unstinting veneration of Griffith – a man lauded as statesman, founding father and judicial giant by many – we can draw an analogy with another sporting giant: Lance Armstrong. This reminds us, should it be necessary, that relying too heavily on reputation can blind us to realities hidden in plain sight. And so, while we do not seek to contest the achievements of Griffith in other areas of law and politics, we challenge continued reliance on his authority on account of his role in a sorry part of our social, political, legal and constitutional history that has received very little attention.

Now the Lance Armstrong analogy goes only so far. As far as we know, Griffith has no place in history as a cycling talent – nor, of course, do we suggest he took performance-enhancing drugs! However, we do suggest that, like Armstrong, Griffith’s stellar reputation appears to have made him and his legacy ‘untouchable’, creating a blind spot resistant to more nuanced scrutiny of his record. While it’s true that tearing down tall poppies is something of a national pastime in Australia, what we are doing is not gratuitous. If there are longstanding flaws in a legal edifice on which the Executive, Legislature and Judiciary still choose to rely, we need to make them visible. Each branch of government should be impelled, through this, to own our past and its enduring injustices and imagine our future in new ways.

At one time or another, Sir Samuel Griffith represented all three branches: as premier and Attorney-General of Queensland and as Chief Justice of both the Supreme Court of Queensland and the High Court. While all are relevant, our primary focus is on his role as inaugural Chief Justice of the High Court. And we argue that the pre-eminence and reputation of Griffith – described as a ‘bright thread’ in ‘our fortunate and peaceful, but not easy, path to unification’ – should not accord him an uncritical place in Australia’s legal and political history.

Our focus is on the 1906 High Court decision Robtelmes v Brenan, which authorised the mass deportation of the Australian South Sea Islander community because, Chief Justice Griffith said, it was ‘indisputable’ that they were ‘aliens’. A product of its time, the judgement was based on a nineteenth-century ‘myth-conception’ that an absolute sovereign right to expel as well as exclude even friendly aliens was a principle of international law and properly established at common law. The judgement was also the progenitor of the ‘God powers’ and for several reasons stands as one of the most damaging decisions in our legal history, not least because the court used race and not law to define ‘aliens’, wrongly authorising the expulsion of the Islander community. ‘Barton, Deakin, Griffith – many of Australia’s founders were in it up to their necks. They must have known it was wrong,’ Clive Moore, Australia’s leading authority on Pacific Islander history, told The Monthly in 2019.

Law can often lag behind history. Extraordinarily, however, it took until 2020 for the court’s racialisation of the term ‘alien’ in Robtelmes to be acknowledged by a High Court judge – and then only one, Justice Edelman (in Love and Thoms in 2020 and Chetcuti in 2021). This development notwithstanding, the High Court (even Justice Edelman himself) has maintained reliance on both the Robtelmes case and particularly on Griffith’s judgement.

The case’s enduring influence is a paradox. Remarkably little attention has been paid to relevant Australian history, especially that Robtelmes authorised a key element of the White Australia policy. Yet the High Court continues to accept the 1906 case as ‘settled law’ without reflecting on how it became ‘settled’, the flawed reasoning that accorded the aliens power such broad scope, or on the distance we imagine we have come in expunging the toxic influence of race in our law. Instead, when it comes to our deportation and detention laws and policies, the historical influence of race remains responsible for enabling some of Australia’s cruellest and most far-reaching powers. But this is yet to trigger deeper inquiry by the High Court, whose reliance on this 1906 precedent still enables an ‘open-slather approach’ to detention and deportation by the immigration portfolio.

 

YOU DO NOT want to be an ‘alien’ in Australia. If science-fiction ‘aliens’ are scary, in law the term ‘alien’ is really dangerous – too often destroying the lives of people regarded as ‘other’ by making them subject to the law yet unworthy of its protection. And we see the unstinting reverence for Griffith as having a lot to do with that.

Let’s look first at the so-called ‘God powers’. There are dozens of these in the federal Migration Act 1958. As Liberty Victoria noted in a 2017 report:

In Australia, the Minister for Immigration has the power to play God. Many of the minister’s powers profoundly affect the lives of people seeking asylum. But he is not accountable in how he exercises them, and his decisions are often either difficult or impossible to review.

As Djokovic found out, and as refugees locked up in Australia for fleeing persecution know all too well, the minister’s personal powers under the Migration Act can be exercised arbitrarily, capriciously, illogically and unaccountably because the rules of natural justice do not apply and the evidentiary threshold, if any, for the minister’s decision is so low. While it’s still the minister who chooses whether and how to use such a power, we see the High Court as having done much to make this possible.

Sitting above the Migration Act, and the thing that should act as a constraint on it, is Australia’s Constitution. The Migration Act is made under section 51(xix) of the Constitution, which gives parliament the ‘power to make laws with respect to…aliens’. As the Act’s long title explains, it relates to ‘the entry into, and presence in, Australia of aliens, and the departure or deportation from Australia of aliens and certain other persons’. The breadth of the ‘aliens power’ as it has been interpreted by the High Court since Robtelmes builds on the ‘myth-conception’ noted above. A ‘product of a [nineteenth-century] judiciary in lockstep with legislative and societal expectations in white settler societies’, the doctrine of ‘absolute sovereignty’ has come to occupy a hallowed place we insist is ‘myth-placed’.

 

HERE’S THE PROBLEM, and here’s why Griffith’s flawed judgement in the 1906 Robtelmes case should be consigned to the judicial dustbin. The High Court says the ability of the Federal Parliament to pass laws relating to ‘aliens’ under the Constitution is a ‘plenary’ or ‘full’ power. Drawing on Robtelmes, successive High Courts have proclaimed – and we say this is the critical mistake – that the ‘aliens power’ is so broad that laws made under it, including for deportation and immigration detention, do not need to be ‘proportionate’ or even limited to what is merely ‘reasonably capable of being seen as necessary’. Strikingly, the court has considered irrelevant to their validity the fact that laws made under the ‘aliens power’ are ‘unjust or contrary to basic human rights’, breach Australia’s obligations under the International Covenant on Civil and Political Rights or infringe the common law’s ‘fundamental and ancient’ protection of personal liberty. As Chief Justice Gleeson lamented in his strong dissent in Al-Kateb (2004) – concerning a stateless Palestinian man who asked to leave Australia but could not be returned anywhere – this means a failed asylum seeker (the quintessential unwelcome ‘alien’) could be kept in immigration detention indefinitely ‘regardless of personal circumstances, regardless of whether he or she is a danger to the community, and regardless of whether he or she might abscond’. Through this, detention without trial, even if not necessary and potentially for life, was lawful.

Think about that. This, in a nation proud of its commitment to the ‘rule of law’, which – if it is to mean more than the empty catchcry it has become – carries an expectation of justice and accountability, not the arbitrary exercise of authoritarian God-like powers.

Let’s loop back to Griffith’s judgement in the Robtelmes case and its calamitous outcome for Australia’s South Sea Islander community. In Robtelmes, Griffith declared that the ‘aliens power’ in the Constitution gave the Commonwealth ‘power to make whatever laws it may think fit…with respect to aliens’. We can already hear the echoes of this in the unconstrained powers noted above. And in Pochi (1982), Chief Justice Gibbs said that ever since Robtelmes:

…it has been regarded as settled law that the parliament has power to make laws providing for the deportation [or detention] of aliens for whatever reasons it thinks fit… One would expect any sovereign legislature to have such a power, which is essential to national security. (Our emphases.)

However, this blanket, indiscriminate principle was only regarded as ‘settled’ in Australia because Griffith himself said it was in a later case, citing his own judgement in Robtelmes as authority: ever since then, its status as ‘settled law’ has been repeated without question. And it continues to provide the legal foundation for the mandatory, prolonged and indefinite detention of people such as Mehdi Ali.

Moreover, let’s think about what Gibbs was saying, namely that for the purpose of national security (our emphases follow too), parliament can decide to expel (or detain) any non-citizens or foreigners (regardless of how long and how peacefully they had lived in Australia) effectively for any reason – religious beliefs, skin colour, health condition or whatever particular cause aroused national anxiety, rational or not.

This does not withstand logical scrutiny, much less reasoned analysis. Surely it could not be legal in Australia? But that is exactly what had occurred in Robtelmes – which gave future governments a supposedly incontrovertible legal precedent to cite.

However, both Griffith (and later Gibbs, among others) had overlooked the critical common law distinction between ‘friendly’ and ‘enemy’ aliens, perpetuating a legal fiction that had been obscured in a series of US, Canadian and British cases in the nineteenth century through selective reliance on the theories of pre-eminent eighteenth-century international jurist Emmerich de Vattel. Inaccurately claiming a valid intellectual basis for the absolute power to expel (or detain) both types of aliens, the idea of ‘absolute sovereignty’ was discursively constructed as logically necessary and became crystallised as a common law doctrine. Yet Gibbs’ statement (that drew its authority from Griffith in Robtelmes) was applied by Justice Nettle in Falzon (2018), which authorised the expulsion to Malta of a man who had lived in Australia for sixty-one years (!). Likewise, in Love and Thoms (2020) – which declared Aboriginal Australians born overseas who had not formally acquired citizenship were ‘non-alien non-citizens’ who could not be deported – both Justices Bell and Edelman affirmed Griffith’s judgement in Robtelmes about the ‘absolute’, ‘inherent and inalienable’ right of a sovereign nation ‘to expel [any] alien whom it chooses not to suffer to remain’. Thus we see that the current High Court continues to perpetuate this critical oversight.

(For completeness, we note the High Court agreed that Mr Thoms, born in New Zealand, met the tripartite test for an ‘Aboriginal Australian’ set down in Mabo (No 2) (1992) (biological descent, and mutual recognition of First Nations membership by both the individual and Elders) but referred the case of Mr Love, born in Papua New Guinea, to the Federal Court to decide. As a follow-up to Falzon, the High Court in Chetcuti (2021) said another Maltese man who had lived here even longer – for seventy-three years (!!) – could also be banished from Australia.)

 

AT THE INAUGURAL Sir Samuel Griffith Memorial Lecture in 1984, Chief Justice Gibbs declared ‘There was never the slightest suspicion that [Griffith’s] judgements revealed any political, sociological or personal bias.’ But a cursory examination of Griffith’s political record would have raised suspicions about his misuse of the word ‘alien’. And we say later courts have an obligation to consider this when using his judgement in Robtelmes to validate one of the most extreme Commonwealth lawmaking powers.

What modern-day lawyers, including the High Court, have overlooked is the extent to which the word ‘alien’ had become a derogatory racial label in Australia for people of non-European origin by the late nineteenth century. For example, prominent colonial lawyer Josiah Symon QC, chairman of the judiciary committee at Melbourne’s 1898 Constitutional Convention, referred to ‘the coloured races…those whom we describe as aliens’. This racial use of the word ‘alien’ spilled over into legal usage, infecting even Quick and Garran’s iconic 1901 commentary on the new Australian Constitution. As Justice Edelman now says, it has been ‘persuasively argued’ that in branding all Australian Islanders as ‘aliens’, the High Court in Robtelmes ‘implicitly applied criteria based upon racial perceptions’. This, we say, has tainted the Robtelmes decision (and continued reliance on the case) in a way that cannot be overcome simply by imagining that a post-racial lens can be applied to it. In other words, race was integral to the decision of Griffith and his judicial brothers and the Robtelmes egg cannot therefore be unscrambled.

By 1906 Samuel Griffith’s own misuse of the term ‘alien’ already dated back three decades. As Alex McKinnon wrote in The Monthly in 2019, ‘Throughout his extensive career, legal niceties such as birthright, citizenship and British subjecthood consistently came second to ensuring the racial purity of the colonies and the Commonwealth.’ In 1877 as Queensland Attorney-General, Griffith was firmly reminded by the Imperial Secretary for the Colonies that large numbers of Chinese settlers were British subjects from Hong Kong, Labuan and the Straits Settlements. Yet Griffith refused to acknowledge their true legal status, declaring they were a race ‘alien in all its tendencies’ which should be excluded from Queensland’s goldfields. In a scathing warning to his political colleagues, not least Attorney-General Griffith, about substituting prejudice for imperial law, Legislative Council President Maurice O’Connell had observed earlier that despite its established meaning under the common law:

…from the legal knowledge which had been laid before the [parliament], it appeared that the real signification of the term alien depended not on whether persons were subjects of the Queen, but whether we liked them or not. (Our emphasis.)

In 1891 Griffith, by then Premier of Queensland for the second time and chairman of the constitutional drafting committee, first proposed what became the ‘race power’ in the Federal Constitution. He argued that a federal parliament should have exclusive lawmaking power in relation to ‘alien races’, declaring this would let the Commonwealth meet the perceived threat posed by ‘coolies from British India, or any eastern people subject to civilised powers’. Despite his leading role in drafting the Constitution, Griffith had no hesitation in labelling British Indians as an ‘alien race’ even though they were legally British subjects. Griffith also referred to the ‘burning question’ of ‘black labour’ (South Sea Islanders) in Queensland, warning that ‘the introduction of an alien race…is a danger to the whole of the Commonwealth’. Showing his consistent use of ‘alien’ in a racial, not legal, sense, he also said the proposed legislative power with respect to ‘immigration and emigration’ would enable the new federal parliament ‘to keep out Chinese, Hindoos or other aliens’.

But the apogee of Griffith’s misuse of ‘alien’ was his judgement in Robtelmes.

 

DELIVERING THE LEADING judgement in this case in 1906, Griffith said the first question was whether the Australian Islander community came within federal power to make laws with respect to ‘aliens’ in the Constitution: no judge since has questioned this starting point. But this was Mr Robtelmes’ appeal against his ‘forcible deportation’. It was a test case in that respect and should have been about him alone. Instead, the fate and status of the whole South Sea Islander ‘race’ in Australia was put under the judicial spotlight. As the Brisbane Courier noted on 2 October that year, ‘the Chief Justice said the case was one of considerable importance, and they would consider their judgement, which would very likely be given in the morning’. The next day the paper reported:

The court considered that…legislation with regard to Pacific Islanders came within the authorisation of the Constitution Act. It followed, therefore, that the order for deportation in the case in question was declared to be valid, and generally the power of the Commonwealth to deport Kanakas from Australia was affirmed.

Perhaps most damning is the fact that neither Griffith nor his fellow judges considered Mr Robtelmes’ individual circumstances, nor did they contemplate the different origins of South Sea Islanders more generally – despite this being critical to determining whether Islanders were ‘aliens’ or ‘British subjects’ under the law. As Sir John Salmond (inaugural Professor of Law at the University of Adelaide) affirmed in 1902, factors such as ‘race’ or ‘blood’ were (even then) irrelevant to British subject status – place of birth was all that mattered:

He may be by blood a Frenchman or a Chinaman, but if he first saw the light on British soil he is a British subject. Conversely if he is born beyond the boundaries of the empire, he is judged an alien, though he may be an Englishman by blood and parentage.

It is astonishing that this fundamental principle of ‘birthright nationality’ – which dated back three centuries to Calvin’s Case (1608) – didn’t rate a mention by Griffith or his fellow judges. Despite the cataclysmic consequences for Australia’s Islander community – the Commonwealth calculated that out of around 10,000 Islanders in Queensland in 1901, only 1,600 remained by 1909 – Griffith’s treatment of the issue was merely this: ‘What is the status of Pacific Islanders? What are they? They are aliens: that is indisputable.’

These sixteen words condemned the Islander community to banishment, impoverishment and intergenerational trauma. Griffith provided no evidence and cited no legal precedent to support his assertion that all Islanders were aliens. And for more than a century, lawyers have seen no reason to question Griffith. As he said himself in 1891 when President of the Federal Council of Australasia, no one knew more about Pacific Islanders and the law than he did. In his momentous work Australia & the Pacific: A History (2021), historian Ian Hoskins notes the observation of the Darling Downs Gazette in 1907: ‘Under what law or sense of justice can a person born, registered, reared and schooled in the state, be deported?’ However, Hoskins does not explore what the law was at this time, much less the Robtelmes case.

Far from being ‘indisputably alien’, there is plenty of evidence the opposite was true of Australia’s South Sea Islander population. As the first federal census in 1911 would later show, two thirds of the South Sea Islanders left in Australia were ‘British subjects’. Since British subject status did not entitle Islanders to an exemption under the Pacific Island Labourers Act 1901, it is reasonable to conclude that in Robtelmes the Griffith court wrongly authorised the involuntary expulsion under the ‘aliens power’ of many Australian Islanders who were British subjects and not ‘aliens’ under the law applying in Australia at the time. Queensland’s 1901 census recorded hundreds of locally born children of Islander descent. And a 1906 Royal Commission into the deportation of Pacific Island labourers and its impact on the sugar industry also heard evidence from Islander labourers born in Queensland – as did Queensland’s state parliament.

We also know that Islanders born outside Australia, with few exceptions, came from colonies or protectorates under British control, which should have given them strong claims to be beyond ‘alien’ status. In 1901, members of the federal parliament had asked about the number of British subjects among the Islanders. Leader of the Opposition George Reid noted that it had previously been accepted that ‘when a man of any colour gets beneath the British flag he is safe. Now, however, we must add the proviso – except he be black and born in the South Seas.’

 

AS FRANK BRENNAN and Francesca Dominello wrote in The Oxford Companion to the High Court of Australia in 2001, if racial attitudes on the part of the High Court after Federation ‘seem inhospitable…it is partly because the Justices themselves were committed to the White Australia policy that all Australian governments had maintained since the late nineteenth century’. The Robtelmes decision endorsed one of the two main planks of the White Australia policy – expulsion of South Sea Islanders. The three judges (Griffith, Sir Edmund Barton and Richard O’Connor) sat in judgement on law dealing with an issue that had been core to their previous political careers. Barton, as Australia’s first prime minister, and O’Connor, as leader of the government in the Senate, had secured passage through the new federal parliament of the Pacific Island Labourers Bill providing for expulsion of the Islander community. Together with the Immigration Restriction Act 1901 (Cth) – which focused on excluding non-Europeans from Australia, particularly Chinese and other ‘Asiatics’, using the notorious dictation test – Barton described the bill as ‘a handsome gift for a new nation’. Newspapers at the time referred to the new law as ‘Mr Barton’s legislation’. When questioned about the validity of the exact expulsion provision later challenged in the High Court, Barton said, ‘I think we have the power, and…I will take the risk. It is clear that no Pacific Islander ought to be in Queensland after 1906.’ In Robtelmes, Barton adjudicated on the legislation he had introduced as prime minister, supporting the view he had expressed in 1901 that the Commonwealth had constitutional power to expel Pacific Islanders from Australia.

As politicians, Barton and Griffith had been pre-eminent advocates of the policy behind the legislation, long supporting replacement of Queensland’s Pacific Island labourers with white workers. Introducing the Bill, Barton highlighted Griffith’s support as Premier of Queensland for abolition of Islander labour: indeed, the removal of Islander labour from Queensland had been a driving force of Griffith’s political life. Just as Henry Parkes believed that ‘inferior’ Chinese had no place in a society for free and equal people, Griffith declared in his ‘Manifesto to the People of Queensland’ in 1892, in relation to South Sea Islanders, that ‘the permanent existence of a large servile population amongst us, not admitted to the franchise, is not compatible with the continuance of our free political institutions’. In Robtelmes, Griffith returned to – and asserted the validity of – the path that he and the colonial government of Queensland had already followed for over two decades.

In another era, the three Justices may well have removed themselves from hearing Robtelmes. Quite apart from that question, however, the history and context of the case raises two serious issues. First, its continued treatment and application as ‘settled law’ tolerates a racialised interpretation of ‘aliens’. Second, this perpetuates a principle never properly established at common law – the absolute sovereign right to exclude and expel both ‘enemy’ and ‘friendly’ aliens – which was also racialised and has enabled (then and now) some of the nation’s grossest injustices. 

Shortly after Robtelmes, in Potter v Minehan (1908), the same three judges declared that Mr Minehan – a Eurasian man who had left his birthplace in Victoria as a small boy and lived in China for twenty-six years with his Chinese father – ‘belonged’ in Australia. They held that he could not be kept out using the infamous ‘dictation test’ despite not returning to Australia for a quarter of a century. In contrast to Robtelmes, Griffith applied established nationality rules, saying Minehan had acquired British nationality at birth and was a member of the Australian community as a matter of law. But there were few non-Europeans in Minehan’s position, suggesting the White Australia policy would not be undermined by his return.

To return to Lance Armstrong, and in contrast to his deception, the shortcomings of Griffith’s judgement in Robtelmes are hidden in plain sight. But Griffith’s monumental reputation as the embodiment of the ‘rule of law’ has seen this passed over by both historians and pre-eminent lawyers for over a century. Griffith’s judgement, incorrectly directed at South Sea Islanders in general and lacking analysis of their origins and hence their legal status, continues to be cited even today as foundational authority for wrong-headed, draconian federal laws that cause unconscionable long-term misery, not least for those seeking sanctuary in Australia from persecution. In our view, disregarding Robtelmes and properly acknowledging the ideologies and judicial sleights of hand that produced it more than a century ago would help put limits on the current unconstrained interpretation of the Commonwealth power over ‘aliens’.

 

HISTORY MATTERS. AND how judges do history matters too. As renowned constitutional law professor Helen Irving observed in an exploration of ‘originalism’ – or ‘whether the present should be bound by the past’ – for the Federal Law Review, ‘it would appear, indeed, that the “history” done by judges occupies a different hermeneutical space from the “history” done by historians’.

That law and history must talk to each other is a question of justice. Equally that lawyers and historians must listen to each other is integral, imperative and urgent. We know that resonances and dissonances created by a rigid system of legal precedent have created blind spots. In other areas of law, the High Court has shown a willingness to cast off precedent, rejecting previously ‘settled’ common law doctrines such as terra nullius and marital immunity to rape. There, the High Court has recognised not only that there are obvious difficulties in relying on laws built on the back of unquestioned repetition and reliance on the reputation of eminent jurists but also that the law does not remain frozen in time. Yet when it comes to the ‘aliens power’ in the Constitution, the High Court continues to rely on this race-infused common law precedent to support an interpretation that is the product of an era that law should be able to put behind us. UN Special Rapporteur on racism Professor E Tendayi Achiume reminds us that ‘racial borders’ are not only things of the past. Today they are not necessarily sustained by racist intent but by the failure to apply a postcolonial racial-injustice lens to legal and political theory – and by the practice of ‘racial aphasia’, which she summarises as ‘a calculated forgetting and unwillingness to confront the persisting and imperial operation of race in society’.

We cannot change history, but we must not forget it. We can change law, and we must not forget that either. It is a travesty that our courts (and our legislature) are yet to reckon with the racial elements of these unedifying aspects of our legal history – those that underpinned White Australia – which continue to make possible some of contemporary Australia’s grossest injustices, not least through unquestioned reliance on Griffith’s judgement in Robtelmes.

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