The High Court and the ‘aliens’ power

12th Mar 2020

Last month, the High Court handed down its decision in Love v the Commonwealth; Thoms v the Commonwealth – the first time it has engaged in a question that relates to the ‘aliens’ power and the First Peoples of this country. The decision has animated considerable public commentary for a relatively pedestrian migration case. I say this because it is a narrow decision that most constitutional lawyers agree does not have any significant practical implications beyond the fact scenario: two Aboriginal people, not citizens, who are facing deportation. One is a common law native title holder and the other is not. Facts matter.

It is more likely that this case has excited such interest, and in some cases quite hysterical and exaggerated analysis, because it involves the terms ‘Aboriginal people’ and the ‘High Court of Australia’. Anything ‘Aboriginal’ intersecting with the Australian law animates a nation that has not yet addressed its original grievance. The annual ritual of ‘change the date’ and the Australia Day / Invasion Day / Survival Day debate is evidence of the same dearth. The opinion pieces that allude to this decision as some Mabo-esque exercise in judicial activism are so over the top that they should be dismissed. It may seem naive, but why make a mountain out of a molehill?

There are a few things that we can confidently say about this week’s decision in Love, Thoms. If we put to one side the over-egged speculation on the Court’s split decision, which in my mind is not material, it does not create a new category of person. Nor does it create special rights. The assertion that it is some judicially activist Mabo Court is absurd. Nobody reading each judgment could possibly argue such a point. The case should be confined to its facts: there are not too many blackfellas who are born overseas and need a visa to come back home.

On the key issues animating public attention – an Aboriginality test and sovereignty – close reading of each judgment reveals very careful statements. There are no majority pronouncements that change the status quo. The decision references the Shaw v Wolf decision, where the three-prong test or membership criteria was forged, but that test is generally applied subject to self-determination and is not consistently applied across the country. The Court, referring to the test as set down in Mabo, does not establish any ‘official’ or formal rules or criteria of membership.

The High Court also traverses legal issues relating to sovereignty but, in my view, emphatically reinstates its prior pronouncements on this; that is to say, such matters on sovereignty are for the parliament and the realm of politics, not the court. Each of the High Court justices was cautious in the way they framed their judgment. This reveals something about the culture of the post-Mabo High Court. After 30 years of native title, we are witnessing a court whose officers are fluent in native title and Aboriginal law. The judicial careers of its justices show they have presided over lengthy native title litigation, they have walked Country, they have yarned with traditional owners, they have heard evidence of traditional owners and anthropologists, they have presided over native title ceremonies whereby traditional owners are legally and factually recognised. These justices of the High Court have interacted with and met with and spoken with more Aboriginal and Torres Strait Islander people than most ordinary Australians.

I do not see the split judgement as a failure of the Kiefel High Court. Rather, it’s a normative development. Mabo (No 2) is no longer controversial, although some exaggerated opinions of this decision reveal a residual resentment and resistance from some to the Court’s 6–1 majority, even three decades later. If anything, last month’s decision is a confident display of seven justices who, in their own way, have been exposed in an objective and regulated manner to Aboriginal law and know how to write about it.

On the question of the implications of this case for the Referendum Council’s work and the Uluru Statement from the Heart, I believe it bolsters the argument for constitutional reform. This decision was handed down in the same week as the latest Closing the Gap report. It is evident from the prime minister’s speech that business as usual in Indigenous Affairs is over. Nationally, and internationally, it is well accepted that structural reform is the way to overcome the disadvantage that derives from structural inequality. For well over three decades, Aboriginal and Torres Strait Islander people have been saying the same thing.

A constitutional Voice is one way of obviating the High Court’s participation in policy issues.

This is an extract of an article that was first published in The Saturday Paper on Feb 15, 2020 as ‘Looking for aliens’. 

Professor Megan Davis is Pro Vice Chancellor Indigenous and Professor of Law, UNSW and is an Acting Commissioner of the NSW Land and Environment Court. Megan is currently an expert member of the United Nations Human Rights Council's Expert Mechanism on the Rights of Indigenous Peoples, and was formerly Chair and expert member of the United Nations Permanent Forum on Indigenous Issues (2011–2016). 

Megan is a constitutional lawyer who was a member of the Referendum Council and the Expert Panel on the Recognition of Aboriginal and Torres Strait Islander Peoples in the Constitution. She is a Fellow of the Australian Academy of Law and the Australian Academy of Social Sciences, and a Commissioner on the Australian Rugby League Commission. Megan supports the North Queensland Cowboys and the Queensland Maroons.

The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).

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Tags: Migration law Indigenous rights Crime Megan Davis