In 1906 Australia’s high court backed ethnic cleansing. That historical wrong and error of law must be put right | Peter Prince and (Waskam) Emelda Davis

In Robtelmes v Brenan 120 years ago, Australia’s newly established high court approved an act of ethnic cleansing. Between 4,000 and 6,000 Australian South Sea Islanders were to be forcibly expelled as “aliens”, despite the majority having full legal belonging as “British subjects”.

To this day, the high court still cites Robtelmes for the right to expel or detain non-citizens “for any reason”. Ominously, the commonwealth also argues that potentially half the permanent population of Australia are “aliens” and subject to this power.

From an Australian South Sea Islander perspective, this case is not simply a historical wrong: it is a legal wound that remains open. Many South Sea Islanders know their ancestors were “blackbirded” to Australia, built families and communities here and many were legally British subjects. Yet the decision legitimised the forced removal of an entire community under the White Australia policy.

In Blackbirding: A Reckoning with the Australian Slave Trade, Ryan Butta describes how Sir Samuel Griffith, the first chief justice of the high court, had been a leading opponent of the kidnapping of South Sea Islanders when premier of colonial Queensland. But, as Butta says, slave trade opponents like Griffith “did not object to the introduction of slaves … they objected to the introduction of black people into Queensland”.

While many Islanders returned to their homelands, a large proportion remained, forming a permanently settled community in Australia. After federation the new commonwealth parliament passed the Pacific Island Labourers Act 1901 to expel the entire Islander community in what has been described as “one of the cruellest acts in Australian history”.

Robtelmes had been recruited in 1897 from Vanua Lava in the New Hebrides (now Vanuatu). He stayed on after his initial three-year agreement, working for various employers – lastly at Mount Cotton, south of Brisbane. In 1906 Robtelmes and his employer tried to renew his expired labour agreement. Instead, he was taken before a police magistrate who ordered him to be deported. The expulsion order was suspended to allow the high court to consider the matter.

Griffith delivered the main judgment, saying the first question was whether the deportation legislation was valid under the lawmaking power over “aliens” in the constitution, asking: “What is the status of Pacific Islanders? What are they?” Citing no legal precedent, he answered: “They are aliens: that is indisputable.”

The racial stereotyping that condemned the entire Islander community to expulsion along with Robtelmes should have been recognised long ago as a profound legal error. Under common law principles, nationality and alien status had nothing to do with the colour of a person’s skin. The high court failed to consider Robtelmes’ individual circumstances or the different origins of South Sea Islanders more generally.

Far from being “indisputably alien”, the opposite was true. The first federal census in 1911 showed that more than 60% of the South Sea Islanders remaining in Australia were British subjects. Since British subject status did not entitle Islanders to an exemption under the Pacific Island Labourers Act, it is reasonable to conclude that the Griffith court wrongly authorised the forcible expulsion under the “aliens power” of Australia’s Islander community.

Legal precedents from the White Australia era that adjudicated on key elements of that policy should be treated with caution. Extraordinarily, it took until 2020 for the court’s racialisation of the term “alien” in Robtelmes to be acknowledged. In the landmark “Aboriginal belonging” case Love and Thoms, Justice James Edelman said it had been “persuasively argued” that the 1906 case “implicitly applied criteria based upon racial perceptions”. A few years later he went further, declaring that “the application of the [aliens] power to Pacific Islanders who were British subjects is a stain on the jurisprudence of this Court”.

Despite this, high court judges – including Edelman himself – continue to cite Robtelmes as the foundational authority for draconian federal power over “aliens”. In 1982 Chief Justice Harry 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.”

The high court should confront its own history and disavow a disturbing precedent made even more dangerous by the rise of populism in this country.

Australia must confront not only what happened but why the legal reasoning that enabled it continues to be relied on. South Sea Islanders survived the policy that sought to remove them; truth-telling now requires Australia to confront the law that enabled it.