Dispossession Cycles and Resistance: Historical Continuums in the Deportation of First Nations Peoples

Abstract

This article surveys the historical and contemporary context of Indigenous peoples’ entanglement in systems of criminal justice and migration control. Government attempts to remove First Nations peoples from Australia under visa cancellation provisions present a striking contemporary development in border control. Despite the High Court of Australia’s ruling that ‘Aboriginal Australians’ cannot be ‘aliens’ and therefore subject to visa cancellation provisions, Indigenous peoples continue to be targeted for exclusion and subject to the gaze of border control authorities. We use documentary research and draw on two case studies to explore the historical use of deportation to target First Nations peoples. We identify previous attempts to achieve law reform to rectify past injustices and prevent Indigenous peoples from being caught up in migration laws aimed at excluding non-citizens. We review the extensive literature on Love v Commonwealth and analyse the expanded visa cancellation provisions that have resulted in increased numbers of people being targeted for removal, and removed, from Australia. When analysed against the long shadow of colonisation, we argue that these applications of criminal and migration law represent a continuation of attempted exclusion and dispossession that has been, and continues to be, actively resisted by Indigenous peoples. In analysing the cyclical nature of dispossession and its resistance, the complex interaction of criminal and migration law can be seen to have created novel impacts for First Nations peoples in Australia.