ANALYSIS: Should Aboriginal people have a right to live in Australia no matter where they were born? This is why the High Court says yes
Because the common law recognises their unique connection with Australian lands and waters, they must be regarded as 'belonging' to Australia and therefore cannot fall within the meaning of 'alien' as used in the Constitution.
The Crown's obligation of protection included not casting out Aboriginal people from Australia as aliens. Justice Patrick Keane, however, rejected the notion of 'permanent allegiance' as a paternalistic approach that potentially limits the autonomy of persons of Aboriginal descent. He argued that this was not consistent with fundamental notions of equality before the law.
Chief Justice Kiefel said that"race is irrelevant to the questions of citizenship and membership of the Australian body politic".
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