legal

Government accused of ‘shirking responsibility’ in bid to overturn ruling against Aboriginal deportation


The lawyer for two men who won a landmark high court case preventing deportation of Aboriginal Australians has accused the Morrison government of attempting to “shirk responsibility” by seeking to have the decision overturned.

Claire Gibbs, a senior associate at Maurice Blackburn said the move, revealed by Guardian Australia on Thursday, is “distressing and concerning” – particularly as it leaves one of the men, Daniel Love, “vulnerable to deportation”.

Conservatives have welcomed the potential to overturn the court’s Love and Thoms decision, particularly after two judges in the narrow majority decision departed the bench.

But some academics have warned that is not a good reason to revisit the case – and said that the court has previously been hesitant to reconsider past judgments in such circumstances.

In February 2020 the high court held in a narrow four-three split that Aboriginal Australians cannot be aliens within the meaning of the constitution and cannot be deported.

In a case before the federal court Shayne Paul Montgomery, a New Zealand man, is seeking to fight deportation by extending the category of non-citizen non-alien to people who have been culturally adopted as Aboriginal, although they have no Aboriginal biological descent.

The commonwealth rejects that argument, but has also said it will argue for the original decision to be overturned.

Gibbs told Guardian Australia that Love and Thoms was “such an important decision recognising the unique and special standing of all First Australians”.

“By bringing this on, the commonwealth is seeking to drag us back to a situation where an Aboriginal person could be an alien in their own country,” she said.

“Our clients have already been through … a very stressful time … We get the answer, the right answer … and now the government is trying to shirk responsibility and find a loophole around it.”

The home affairs department has revealed that, as of April, nine people have been released from immigration detention as a result of the decision and satisfying the three-part test of Aboriginal descent, self-identification and community recognition.

Those include Brendan Thoms, whose case will be back before the high court in the new year, to determine whether the commonwealth is liable for holding him in detention. A further 20 people in immigration detention are having their claims assessed.

The original decision was a controversial one, leaving three of the court’s most senior judges – chief justice Susan Kiefel, justices Patrick Keane and Stephen Gageler – in the minority and prompting calls from Coalition MPs to appoint more black-letter judges to the bench.

In her minority judgment, Kiefel warned it was up to parliament to determine who is an “alien” and the court should not “usurp” that role by adopting an interpretation based on what it “perceives to be a desirable policy”.

Allowing Aboriginal Australians’ legal status as non-aliens to be determined by elders with traditional authority “would be to attribute to the group the kind of sovereignty” rejected even in the landmark Mabo native title cases, she said.

Race is “irrelevant to the questions of citizenship and membership of the Australian body politic”.

If belonging to the Australian polity were not determined by parliament but by “a higher principle of which natural law might conceive” then judges would not be guided by “constitutional theory” but rather “personal philosophy or preferences”, she said.

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In a hearing on Monday the solicitor general, Stephen Donaghue, described the three dissenting judgments as “powerful” and indicated the commonwealth would argue the case had been wrongly decided.

Two judges in the majority – Virginia Bell and Geoffrey Nettle – have since retired, replaced with justices Simon Steward and Jacqueline Gleeson.

In June 2020 Amanda Stoker, now the assistant attorney general, argued in a research paper the Love and Thoms decision was “entirely unsatisfactory”, characterising the decision as “dividing those who reside in Australia along racial lines”.

Stoker noted that given the two retirements “there is a significant possibility that a reconstituted bench would reconsider the decision in the event of challenge”.

Xavier Boffa, the executive director of the Samuel Griffith Society, told Guardian Australia the Love decision “came as quite a surprise to many in the legal community, introducing a controversial new notion of nationality detached from birth or naturalisation”.

“The high court has never been bound by its past decisions and should not be discouraged from reconsidering them when it deems appropriate,” he said, describing Stoker’s arguments for revisiting the case as “compelling”.

Constitutional expert professor George Williams said that “changes in the membership of the bench are not by themselves a good reason for departing from an earlier decision”.

“To do so would introduce instability into court decision making, and also invite strategic appointments to overturn earlier decisions,” he said.

“The high court has reaffirmed earlier decisions when there has been concern that reopening has been argued only because of changing membership of the court.”

Prof Andrew Lynch, the dean of the UNSW law faculty, said the fact the majority in Love “gave different reasons for the result” means the conclusion “is more vulnerable” than if they had spoken as one.

Another factor is “the extent to which the earlier decision has been relied upon”, he said. “This does not necessarily require the decision to have stood for a long time, but in this instance, the fact that Love is so recent suggests reliance on it has been limited.”

University of Melbourne professor Cheryl Saunders said there are “several reasons” against reopening the Love and Thoms case, including that it would be “unconscionable to take advantage of the changed composition of the court to reverse a decision of this kind”.

“The [high court] has resisted such opportunism in the past and for good reason,” she said.

The legal issues “were fully argued” the first time, she said.

The high court has agreed to hear Montgomery’s constitutional arguments in 2022, with leave to overturn Love and Thoms to be decided at the same time.



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