Aboriginality and Alienage: will Montgomery overturn Love?
04.04.2022
The below post is based on Elisa Arcioni and Kirsty Gover’s article ‘Aboriginal Identity and Status under the Australian Constitution: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Montgomery’, which will be included in the forthcoming Sydney Law Review. Online 'advance' access is available here.
In 2020 the High Court decided in Love v Commonwealth (‘Love’) that the ‘aliens power’ under s 51(xix) of the Australian Constitution does not reach ‘Aboriginal Australians’, as understood under Brennan J’s tripartite test in Mabo (No 2), so that they cannot be deported, even if they are not citizens of Australia. That is, regardless of their citizenship, Aboriginal and Torres Strait Islander people ‘belong’ to Australia and are not ‘outsiders’ to the Australian body politic. In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Montgomery (‘Montgomery’), the Commonwealth seeks to overturn Love.
The Montgomery case will be heard this week, on 6-7 April 2022. In it, the High Court will consider the Commonwealth’s arguments that:
Love should be reopened and overturned; and
that the category of ‘Aboriginal Australians’ should exclude persons who, like Montgomery, have not shown that they are the biological descendant of an Aboriginal or Torres Strait Islander person.
In this post we address two issues: first, how the aliens power is to be understood; and second, the state of play regarding tests in Australian law for determining Aboriginality.
The context: Mr Montgomery
Shayne Paul Montgomery was born in New Zealand and is a New Zealand citizen. His mother is an Australian citizen and his father a New Zealand citizen of Māori (Ngā Puhi) descent. While he has lived in Australia since he was a teenager, and was granted a visa on entry, he has never been naturalised. Montgomery identifies as Aboriginal and has been recognised as a culturally adopted Mununjali man by persons enjoying traditional authority in the Mununjali community, in accordance with that society’s traditional laws and customs. He was told by his paternal grandmother that his Ngā Puhi ancestors married into an Aboriginal clan, but he does not know if he is a direct descendant of Aboriginal ancestors, and he does not know if his Australian mother has Aboriginal ancestry.
In 2018, Montgomery’s visa was cancelled because of his criminal record and in February 2019 he was taken into immigration detention. In 2021 he was successful in a habeas corpus application in the Federal Court. The judge, Derrington J, concluded that the detaining officer’s suspicion that Montgomery was not Aboriginal was not reasonable, and that accordingly the burden of proof fell to the Minister to show that Montgomery’s detention was lawful, which the Minister had not done. The High Court case is an appeal from that decision. There have been several Federal Court cases regarding the application of Love to individuals faced with immigration detention. Montgomery is the first of the Federal Court cases to reach the High Court.
The decision in Love
It is significant that the decision in Love is the first time that a majority of the High Court has enunciated and applied a specific limit to the aliens power. The members of the majority agreed on a central proposition:
I am authorised by the other members of the majority to say that although we express our reasoning differently, we agree that Aboriginal Australians (understood according to the tripartite test in Mabo [No 2]) are not within the reach of the ‘aliens’ power conferred by s 51(xix) of the Constitution. (Love 192 [81] (Bell J).
At its heart, the Montgomery appeal is about choosing between different approaches to the meaning of ‘alien’ in s 51(xix) of the Australian Constitution and includes a challenge to the Love finding that a person’s status as an Aboriginal person is relevant to alienage.
The Commonwealth argument’s aim is to reduce the ability of the Court to limit the Parliament’s power to define alienage, by urging deference to the legislature on these questions. This is concerning because, if successful, such an approach would leave the decision of who ‘belongs’ amongst the ‘people’ of the Constitution to the whim of the Parliament of the day, without any clear limits.
In contrast, the reasoning of the majority in Love provides judicial recognition of a sui generis basis of constitutional membership through non-alienage: being an Aboriginal person. Key to the majority reasoning is the way in which the core or essential meaning of alienage was understood to be ‘belonging to another place’ or, more fundamentally, as not belonging to Australia. From that position, the majority judges concluded that Aboriginal people cannot be aliens, because by definition they belong to Australia by virtue of their unique, spiritual, two-way connection to Australian land and waters. The way in which that claim of belonging occurs through a particular recognition of Aboriginal people and their unique connection to Country, rather than simply a generic or substantive connection to the Australian body politic, avoids any conflict with existing doctrine.
However, despite providing recognition of the constitutional salience of Aboriginal and Torres Strait Islanders’ connection to Country, Love also confirms the Court’s monistic approach to the sovereignty of the Australian State, leaving no room for the judicial recognition of competing Aboriginal sovereignties.
The central proposition in Love that Aboriginal people are not aliens under the Australian Constitution can be understood as consistent with Australian constitutional law doctrine. However, if the Court upholds the central proposition in Love, it is faced with the challenging task of stating the law that determines whether a person can fit the settler legal construct of an ‘Aboriginal Australian’, if they are recognised as a member of a group by persons exercising traditional authority, but do not know or cannot show that they are the biological descendant of an Aboriginal and Torres Strait Islander person. The case implicates the inter-generational impacts of settler colonial laws and policies aimed at removing people from Country and family. It may turn on the authority of traditional law and custom to determine a person’s Aboriginality for constitutional purposes.
The test for status as an ‘Aboriginal Australian’.
As noted above, the majority in Love adopted the tripartite test set out by Brennan J in Mabo (No 2):
[m]embership of the indigenous people depends on biological descent from the indigenous people and on mutual recognition of a particular person’s membership by that person and by the elders or other persons enjoying traditional authority among those people. (Mabo (No 2) 70)
It is important to note, however, that while the majority judges in Love applied the tripartite test set out by Brennan J in Mabo (No 2), their Honours left open the possibility that this test may not be the only, or the most appropriate, test to identify a non-citizen as an Aboriginal person for the purposes of determining whether that person is an ‘alien’.
If the High Court elects to address Montgomery’s status as an ‘Aboriginal Australian’, the Court will need to consider the following question: in circumstances where a person who is not a native title holder is unaware of facts that would otherwise assist them to prove their ‘biological descent’ from an Aboriginal or Torres Strait Islander person, does that person’s self-identification as an Aboriginal person, coupled with recognition of their membership by others exercising traditional authority within the group, suffice to satisfy the Mabo (No 2) test? The answer to this question will turn on the meaning of ‘biological descent’ in the first limb of the test, and whether, as Derrington J asked, the tripartite test applied in Love ‘supplants the rights of Aboriginal people to determine by reference to Indigenous law and customs who possesses such rights’ or ‘foreclose[s] any other approach “to determining Aboriginality as the basis for those fundamental ties of political community in Australia’. The contentious question that may then arise is whether Montgomery’s self-identification and ‘recognition as a Mununjali man by persons enjoying traditional authority amongst that society’ (Montgomery (FCA)) will suffice to satisfy the ‘biological descent’ limb of the Mabo (No 2) test.
The Commonwealth argues in its Montgomery submissions that ‘biological descent’ in its ordinary sense is confined to ‘genetic relationships’, and that removing this ‘objective criterion’ from the test would make it dependent on ‘the content of traditional laws and customs regarding adoption and other forms of non-biological kinship’, so unreasonably complicating the determination of the Migration Act by rendering it reliant on matters that may be ‘difficult to ascertain’ (Appellants’ Submissions [55]). On this point, Montgomery observes that the Commonwealth remains free to ‘set in train lawful statutory or administrative steps that they consider advisable in response to the decision in Love; much as did the Executive and the Parliament in response to this Court’s decision in Mabo (No 2)’ (Respondent’s Submissions [44], [50]) Connecting Love and Mabo (No 2) in this way, and pointing to the different response of the political branches to each case, is a powerful provocation. Montgomery effectively characterises the Love precedent as one that, like Mabo (No 2), is a signal determination of the common law in response to a novel legal question.
Cases decided at the Federal Court level give an indication of the type of considerations that the High Court may consider relevant if it embarks on an inquiry into Montgomery’s status. Applied to Montgomery’s circumstances, as far as we know them, the High Court (or Federal Court on remittance) may look to earlier decisions such as Helmbright (No 2) and Hirama to support a finding that Montgomery’s self-identification coupled with the recognition of his membership in the Mununjali community (by persons exercising traditional authority in accordance with traditional laws and customs) could suffice to enable Montgomery to satisfy the biological descent limb of the Mabo (No 2) test. That may be so notwithstanding the fact that Montgomery is not (yet) aware of facts that would otherwise assist him to prove his ‘biological descent’, and, while not at issue, that the Mununjali people are not (yet) recognised as a native title-holding community.
This approach, finding that traditional law and custom can confer or recognise ‘biological descent’ in the absence of other indicia, would be consistent with questions asked by the judges of the Full Federal Court of Australia in McHugh (FCAFC) [65]. Chief Justice Alsop, for example, raised this possibility when he asked (in obiter) whether ‘biological decent’ is ‘genealogical or biological descent strictly by blood, or [could] include other features, such as adoption, that may be encompassed within (if applicable) traditional Aboriginal law or custom?’
Alternative tests of Aboriginality
Further, it is open to the High Court to consider an alternative test for Aboriginality, not involving an exercise of traditional authority, such as the ‘Tasmanian Dam test’. The Court may also have recourse to native title law recognising that native title holders can be persons culturally adopted into the community in accordance with traditional law and custom, even if they are not biologically descended from members of that community.
As to the first possibility: the tripartite Tasmanian Dam test, set out in the reasons of Deane J in the Tasmanian Dam case provides that: ‘“Australian Aboriginal” [means] a person of Aboriginal descent, albeit mixed, who identifies himself as such and who is recognized by the Aboriginal community as an Aboriginal.’ This test has been applied by the Federal Court in circumstances where it was noted that recognition by a relevant community could be ‘probative’ of descent.
As to the second possibility, in her deliberations in McHugh (FCAFC), Mortimer J noted that the issue is one of some considerable complexity. As is evident in Hirama, some native title determinations refer to the possibility of descent by adoption in accordance with traditional laws and customs, and reasoning in several important native title cases emphasises that descent from native title holders is not always required for membership of a native title holding community. The Native Title Act 1993 itself however, appears, on its face, to replicate definitions premised on the idea of an ‘Aboriginal race’. If the court ventures to comment on this area of law, it may be obliged to consider the interaction between traditional law and custom on the one hand, and the native title legislative scheme on the other, on questions of descent.
It is a distinctive feature of Australia’s legal and political history that Aboriginal societies have been characterised as racial communities, rather than as political entities. This is a mistake of fact. Requirements for biological descent as an element of a person’s ‘race’, overlaid across the vast diversity of Aboriginal polities, can be seen as an element of this mischaracterisation. When the facts are present for a properly argued case, it will be high time to reconsider the place of racial designations of Aboriginal and Torres Strait Islanders, in order to recognise the authority of traditional law and custom and to bring about further reconciliation between ‘theory [and] our present knowledge and appreciation of the facts’ in line with the central motivation for the High Court’s decision in Mabo (No 2).
The Challenge in Montgomery
The challenge in Montgomery to the decision in Love concerns the intersection of multiple fraught areas of law and policy in Australia. The concept of alienage is one that is both political and legal, determining as it does membership or exclusion from the Australian body politic. Aboriginality can be understood as a sui generis basis for constitutional belonging. The outcome in this case will depend, to a great extent, on the judicial sensibilities of each judge on the current Court and how they interpret the limits of their own role. This case will neither satisfy calls for structural constitutional reform as seen in the 2017 Uluru Statement from the Heart, and in the progress of state and territory treaties, nor prevent such reforms from taking place. It is only one case in the ongoing negotiation of the relationship between the Australian settler colonial state and First Peoples, centered on the constitutional meaning of Aboriginal and Torres Strait Islanders’ ancient connection to Country.
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Dr Elisa Arcioni is Associate Professor at the University of Sydney Law School.
Kirsty Gover is a Professor at Melbourne Law School, University of Melbourne.
