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Common(wealth) Knowledge #6: Aboriginal and Torres Strait Islanders in constitutional law

Updated: Apr 7, 2023

Debate about an Indigenous Voice to Parliament continues.

For much of the last two weeks, Australian media has been largely dominated by discussions about the Labor government’s proposed referendum on an Indigenous Voice to Parliament. Even though this proposal is only in its early stages, it has already proven to be a contentious issue among the public. However, before even considering what an Indigenous Voice to Parliament would look like, it is necessary to look at how constitutional law defines Australian Aboriginal and Torres Strait Islander peoples.

In what is arguably the most well-known court case in Australian history, Mabo v Queensland (No 2) (1992), the High Court of Australia radically revised how Australian law approached Aboriginal and Torres Strait Islander rights issues. In particular, by a 6:1 majority, the court scrapped the doctrine of terra nullius, which did not recognise that Australia was inhabited before the arrival of the British. Thanks to this decision, Aboriginal and Torres Strait Islanders were able to claim native title over their traditional lands. Although this case did not meet all the demands of native title advocates, with a 4:3 majority finding that compensation could not be given for loss of native title, it opened the way for greater Aboriginal and Torres Strait Islander recognition in Australia. A more in-depth discussion of Mabo (No 2) is beyond the scope of this article, but I have written at length about Mabo (No 2), and the fight for native title and sovereignty, in the University of Southern Queensland Law Review, which you can find here.

Although Mabo (No 2) was primarily concerned with native title, it would have much broader implications for Aboriginal and Torres Strait Islanders. Importantly, for constitutional law at least, Brennan J, whose leading judgment was endorsed by Mason CJ and McHugh J, laid down the following test, at [83]:

“Membership 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.”

This ‘tripartite test,’ originally outlined in the context of determining who could apply for native title claims, consists of three requirements: (1) the person must be able to trace their ancestry to an Aboriginal or Torres Strait Islander person; (2) they must identify as a member of an Aboriginal or Torres Strait Islander tribe or other group; and (3) must be recognised as belonging to that group by its leaders.

Brennan J’s tripartite test was applied in constitutional law in Love v Commonwealth (2020), in the context of Section 51(xix) of the Constitution, which allows Parliament to make laws relating to ‘aliens’ and the naturalisation process, through which people become citizens of Australia. The aliens power is the authority behind Divisions 8 and 9 of Part 2 of the Migration Act 1958 (Cth), which deals with the removal and deportation of “unlawful non-citizens,” respectively. ‘Unlawful non-citizens’ includes people who have had their visa revoked or denied, under the Migration Act.

Daniel Love was a citizen of Papua New Guinea who had held a permanent residency visa in Australia, but had it revoked under Section 501(3A) of the Migration Act. That provision allows for the revocation of visas held by people who had been sentenced to more than one year in jail for a criminal offence. Brendan Thoms was a New Zealand citizen who had his visa revoked under similar circumstances, so their cases were held together. During the case, Thoms was held in immigration detention, subject to deportation, but the decision to revoke Love’s visa was later reversed, so he was not.

However, this case reached the High Court because both men were Aboriginal. They argued that because of the strong connection between Aboriginal people and the land of Australia, as recognised in Mabo (No 2), they ‘belonged’ to the land, and so could not be declared to be aliens.

Since the 5:2 decision by the High Court in Singh v Commonwealth (2004), anyone who owed allegiance to a foreign power was considered to be an alien. In that case, an Australian-born six-year-old girl was found to be an alien because she had been born to Indian citizens in Australia, and was eligible for citizenship in India, but did not meet the requirements for citizenship under Australian law. Section 10(2) of the Australian Citizenship Act 1948 (Cth), now Section 12(1) of the Australian Citizenship Act 2007 (Cth) required that either at least one parent was a permanent resident or citizen of Australia, or that she had lived in Australia for 10 years.

This was a major development in Australian immigration law, and if you want to find out more about it I highly recommend Episode 10 of the ‘Surviving Constitutional Law’ podcast.

In Love, the court, by a narrow 4:3 majority, held that Aboriginal status was a valid exception to the foreign allegiance rule laid down in Singh. In Singh, Gleeson CJ and Kirby J said that Parliament had the right to define the word ‘alien,’ as the Constitution did not define it. However, in the case at hand Bell J, at [50], affirmed the following statement from Gibbs CJ in Pochi v Macphee (1982), with whom Mason and Wilson JJ agreed:

“[T]he Parliament cannot, simply by giving its own definition of ‘alien,’ expand the power under s 51(xix) to include persons who could not possibly answer the description of ‘aliens’ in the ordinary meaning of the word.”

This opened up the way for Bell J to argue that Aboriginal people could not possibly be described as aliens. At [52], she said that not only were all Aboriginal and Torres Strait Islander persons in Australia at Federation counted as British subjects, not aliens, but the ruling in Mabo (No 2) meant their connection to the land prevented them from being counted as aliens. Therefore, Aboriginals and Torres Strait Islanders were exempt from Singh. To determine whether someone was an Aboriginal or Torres Strait Islander, the majority used Brennan J’s tripartite test from Mabo (No 2).

If the exception to Singh was accepted, then Thoms’ case was straightforward. As Nettle J explained at [231]-[234], Thoms was a Gunggari man by biological descent and recognition, and he identified as such, meaning he satisfied the test. In addition, his mother and maternal grandmother also met the tripartite test. Furthermore, all three were native title holders, under Kearns # 2 v Queensland [2012]. Nettle J, at [243], also observed that Thoms rightly said that deportation would prevent him from enjoying his native title rights, “which requires that he have access to the land and waters [that are] the subject of [the] title.”

However, Love’s case was more complicated. For example, Kiefel CJ, in dissent, did not believe that Love had proven his “acceptance by one elder of the Kamilaroi group,” at [24]. Gageler J was also unable to come to a conclusion, and Keane J didn’t find in favour of either man. Although Bell, Gordon and Edelman JJ were satisfied, the fourth member of the majority, Nettle J, could not determine Love’s case. As a result, Love’s case was remitted to the Federal Court to be resolved. At the time of writing, no answer has been provided.

Although the finding that Aboriginal and Torres Strait Islander peoples cannot be considered ‘aliens’ is a major one, the court stopped short of declaring them to automatically be citizens. The Attorney-General of Victoria, who intervened on the behalf of the two Aboriginal men, argued that being an Aboriginal or Torres Strait Islander was equivalent to being a citizen. The court did not appear to agree with this conclusion.

I hope this article will provide some clarity on the status of Aboriginal and Torres Strait Islander peoples in Australian constitutional law as the debate about the constitutional referendum continues.

Stuart Jeffery is a freelance researcher & digital editor for 6 News. His views on personal social media pages are his & his only, and do not reflect the views of 6 News or our journalists. He abides by 6 News' editorial standards relating to fairness & accuracy.

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