The High Court proposes new rules about Aboriginal societies

28th Nov 2019

Daniel Love’s and Brendan Thoms’s challenges to their proposed deportations to Papua New Guinea and New Zealand is a notable exception to the High Court’s generally speedy resolution of cases before it in recent years. The pair, who are not Australian citizens but who each have an Australian parent, had their visas cancelled after they were convicted of (separate) harmful assaults in 2018. They argue that, because each identifies and is recognised as ‘an Aboriginal man’ (respectively of the Kamilaroi and Gunggari people), they fall outside of the federal parliament’s power to make laws ‘with respect to naturalisation and aliens’ and, accordingly, the scope of a federal statute requiring their removal from Australia. After commencing their actions respectively in September and December 2018, they had cases ‘stated’ before the High Court in January and March 2019 and were the subject of a joint Full Court hearing in May. But, six months later, the High Court is yet to rule on their cases and instead has scheduled a further hearing in December 2019. Until recently, all the public knew was that Love and Thoms issued fresh notices, as required by federal law, to alert Australia’s Attorneys-General of a ‘constitutional matter’.

We have now learned that the High Court has sought written submissions from the parties on a series of propositions that, if correct, would prevent the deportation of not only Love and Thoms, but anyone else who ‘an Aboriginal society has determined to be one of its members’. The implications of the High Court’s proposed approach goes well beyond deportation, because it includes the following propositions:

  • Proposition 4: The common law’s recognition of customary native title logically entails the recognition of an Aboriginal society’s laws and customs and in particular that society’s authority to determine its own membership.
  • Proposition 5: The common law must be taken to have comprehended a unique obligation of protection owed by the Crown to an Aboriginal society, requiring it to protect each member of that society.

Proposition 4 appears to be an extension of the High Court’s recognition of customary land laws in Mabo v Queensland (No. 2) [1992] HCA 23  to every law and custom of every Aboriginal society, and in particular recognising those rules as (seemingly alone) determining the membership of every Aboriginal society. Proposition 5 appears similar to overseas holdings (and reflects the view expressed by Toohey J in Mabo) that settler governments owe a fiduciary duty (a duty to protect others’ interests ahead of their own) to Indigenous people. If correct, these propositions have potentially huge significance for Australia’s First Nations, every Australian government and Australians generally, including a number of profound (possible) legal and political ramifications.

While these matters are yet to be the subject of a High Court hearing, let alone a ruling, the underlying process is worthy of comment in several respects. First, the source of these propositions appears to be the High Court itself. Love’s and Thom’s submissions eight months ago did ‘not seek to overturn, or require substantial departure from, the established line of authority’ and only ‘urge[d] the Court to acknowledge a necessary and discrete addendum to existing principles’ on the aliens power. Court-sourced arguments aren’t unheard of – and are sometimes necessary – but also risk the High Court deciding legal questions that no-one before it wants it to decide or even cares about. 

Second, because the High Court’s letters to the parties are not part of the case’s searchable file and are not noted on its case page, the questions the High Court will hear arguments on (and the fact that the High Court itself proposed them) were not disclosed to the public until a month after the High Court put them to the parties. Other Australian governments would not have learned of them until a week later via the parties’ notice of a constitutional matter, which is also not published. Instead, they only became public knowledge because the Commonwealth repeated parts of the High Court’s letter in its submission (arguing for the propositions to be rejected), which were then published on the High Court’s webpage. It is not clear why such matters of public importance are initially treated as confidential. 

Finally, the High Court will hear arguments on these propositions on 5 December 2019, less than a month after the public first learned of them. Such speed serves the interests of Love and Thoms in quickly resolving their cases, but it leaves the public with much less time than normal to discuss a pending High Court hearing that may be as significant as Mabo. Importantly, a month’s warning is too little for meaningful intervention in the case by stakeholders beyond Australia’s Attorneys-General, notably the many Aboriginal societies whose membership and relationship with the Crown is what the High Court proposes to rule upon.

The original version of this article was published on Melbourne Law School’s High Court Blog, Opinions on High which can be accessed here.

Jeremy Gans is a Professor in Melbourne Law School, where he researches and teaches across all aspects of the criminal justice system. He holds higher degrees in both law and criminology. In 2007, he was appointed as the Human Rights Adviser to the Victorian Parliament's Scrutiny of Acts and Regulations Committee.




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: Common law Aboriginal and Torres Strait Islander people Jeremy Gans Customary law