Aboriginality and Alienage
Monday 7 March 2022
CCCS was pleased to host a panel discussion on Aboriginality and Alienage, addressing the issues before the High Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v. Montgomery (which is expected to be heard in early April 2022).
In Montgomery, the Commonwealth seeks to overturn the High Court’s decision in Love-Thoms v Commonwealth (2020), which held, by a 4-3 majority, that Aboriginal people could not be ‘aliens’ as that term is used in the Constitution, and accordingly, that non-citizen Aboriginal people could not be deported from Australia. Shayne Montgomery is a New Zealand citizen of Māori descent who is recognised by Mununjali elders as a member of the Mununjali people, by virtue of being culturally adopted in accordance with their traditional laws and customs. He does not know if he has Aboriginal ancestors. The Commonwealth argues that Love-Thoms was wrongly decided, and that in any case Mr. Montgomery is not an ‘Aboriginal person’, if he lacks biological Aboriginal descent.
In this panel discussion our panellists considered the implications of the Montgomery proceedings for Aboriginal and Torres Strait Islander peoples and for Australian constitutional law.
They considered, among other issues, the Commonwealth’s argument that Love-Thoms lacks a ratio and so leave is not required to re-open it, the argument that accepting the membership decisions of ‘elders or other persons enjoying traditional authority’ amounts to an improper recognition of Indigenous sovereignty, and the implications for the case of the recent retirement of two judges who were part of the majority in Love-Thoms (Justices Bell and Nettle).
This webinar was delivered as part of the Centre for Comparative Constitutional Studies Global Public Law Seminar Series.
About the panel
Tony McAvoy is a Wirdi man from the central Queensland area around Clermont and a native title holder in his grandmother’s country around Thargomindah in southwest Queensland. He is currently serving as the Northern Territory’s Acting Treaty Commissioner. Tony is a barrister and was appointed Senior Counsel in 2015. He is a native title specialist and has represented many claimants across the continent. He also practices in the areas of environmental law, administrative law, human rights and discrimination law, coronial inquests and criminal law. He was appointed as Co-Senior Counsel Assisting the Don Dale Royal Commission in 2016/17 and in January 2022 was appointed as Co-Senior Counsel Assisting the Yoorrook Justice Commission in Victoria.
Cheryl Saunders has specialist interests in Australian and comparative public law, including comparative constitutional law and method, intergovernmental relations and constitutional design and change. She is a President Emeritus of the International Association of Constitutional Law, a former President of the International Association of Centres for Federal Studies, a former President of the Administrative Review Council of Australia and a senior technical advisor to the Constitution Building program of International IDEA. She has held visiting positions in law schools in many parts of the world. Cheryl is a laureate professor emeritus and is the founding Director of the Centre for Comparative Constitutional Studies.
Kirsty Gover is a first generation New Zealander who grew up on Kati Mamoe-Ngai Tahu land. She teaches and writes about domestic and international law affecting Indigenous peoples in Canada, New Zealand, Australia and the United States. She is currently an ARC Future Fellow, working on a project that seeks to showcase written Indigenous law in theories of settler state legal pluralism, and co-directs MLS’ Indigenous Law and Justice Hub (with Dr. Eddie Cubillo). Kirsty is the author of Tribal Constitutionalism: States, Tribes and the Governance of Membership (Oxford University Press, 2011).
Photo by detait on Unsplash