The Morrison government’s plan to restore its power to deport Aboriginal non-citizens has been criticised as “disrespectful and wrong” and a “significant step backwards” in the recognition of Aboriginal societies.
Both claims are made in submissions to an appeal by the federal government to overturn the landmark Love and Thoms decision.
In February 2020 the high court held in a four-three split that Aboriginal Australians were not aliens for the purpose of the constitution and could not be deported.
In November, the federal court ordered the release of Shayne Montgomery, finding it was “not reasonable” to conclude the New Zealand citizen was not Aboriginal because, although he lacked biological descent from an Aboriginal person, he had been culturally adopted as Aboriginal.
In its appeal against that decision, the government has sought leave to overturn Love and Thoms, which has resulted in at least 10 people being released from immigration detention since it was handed down.
Montgomery’s bid to resist that has been bolstered by interventions by the Victorian government, the Australian Human Rights Commission, National Native Title Council and the Northern Land Council.
Montgomery’s lawyers submitted that the commonwealth’s claim there is no clear common reasoning between the four judges in the majority in Love and Thoms “is both disrespectful and wrong”.
They contended the point of Love and Thoms “is clear and easy to understand: Aboriginal Australians … have such bonds of attachment to this nation and its territory” that they cannot be subject to the “disabilities of aliens”, such as visa cancellation.
They argued the commonwealth was “no more than [a] disappointed litigant”, warning that the “certainty of our legal system would collapse” if the fact the four majority judges expressed their reasoning differently were used to reconsider the precedent.
“The appellants … just do not like the result which they obtained from this court.”
“That dislike gives them no claim or right to disrupt the legal certainty and authority flowing from the decision of this court.”
Montgomery’s lawyers also rejected the commonwealth’s claim that the decision threatens to confer “political sovereignty on Aboriginal societies”, arguing it does not give legislative or constitutional power to Aboriginal societies to determine who is a non-alien.
NNTC argued that it should be a matter for Aboriginal and Torres Strait Islander peoples to decide “in any context, who is or who is not an ‘Aboriginal Australian’”.
The NNTC described Love and Thoms as a protection against being found to be “aliens” and “like” the second Mabo native title decision “an important step” in the journey to recognise Indigenous connection to Australia and the “enduring authority of tradition law and custom in Aboriginal societies”.
“The appellants’ submissions, if accepted, would remove that protection, and – fundamentally – take a significant step backwards in that journey.”
The AHRC sought to intervene, warning in its submissions that restoring the power to deport Aboriginal non-citizens would “adversely affect the fundamental rights and interests of individuals” including the “serious interferences with the right to personal liberty”.
Overturning the case “may permit a larger group of Indigenous Australians to be permanently removed from Australia”, it said.
The AHRC noted the fact that Indigenous births are registered at lower rates than non-Indigenous births, suggesting that people entitled to Australian citizenship who cannot prove they or a parent were born in Australia could be found to be aliens.
The Victorian government argued the commonwealth is seeking to “make the same arguments that a majority of the court rejected approximately two years ago”.
Although two judges in the majority have retired since the decision, Victoria warned that a change in the composition of the court “is not and never has been reason enough” to overrule previous judgments.
The Northern Land Council backed Montgomery’s case that the category of non-citizen non-alien should be extended to those culturally adopted as Indigenous, because descent is determined by cultural not genetic factors in Aboriginal societies.
The NNTC also argued that, since not all Aboriginal Australians are native title holders, “some other test or standard” should be used to determine who is a non-citizen non-alien.
On Wednesday the high court heard Brendan Thoms’ case about whether his detention was unlawful, which could expose the commonwealth to claims of compensation by non-citizen non-aliens who were detained before the February 2020 high court decision.
The Montgomery case is expected to be heard in early April, although Montgomery has sought to have the case permanently stayed.