High Court harmony goes missing in aliens case


For the past three years, the High Court has been one happy family. They have gone out of their way to agree with each other and there has been a distinct absence of tension or judicial dummy spits.

However, when the three most contentious areas of law over the past 30 years – Indigenous rights, immigration and citizenship – came together in the "citizen Mabo" case this week, it proved too much.

The Kiefel High Court (from left): Michelle Gordon, Patrick Keane, Virginia Bell, Chief Justice Susan Kiefel, Stephen Gageler, Geoffrey Nettle, James Edelman. Supplied

The court's 4-3 decision means Indigenous Australians – at least those who satisfy a tripartite test in the 1992 Mabo land rights case – cannot be regarded as "aliens" under the constitution, and cannot be deported even when they are citizens of another country.

There were seven separate judgments and, beyond the basic question in the case, no clear ratio. The majority justices all made references to the injustice of excluding Aborigines from the body politic. The minority – led by Chief Justice Susan Kiefel – all took pointed shots at the majority reasoning.

"Questions of constitutional interpretation cannot depend on what the court perceives to be a desirable policy regarding the subject of who should be aliens or the desirability of Aboriginal non-citizens continuing to reside in Australia," said Kiefel.

She reckoned the argument of plaintiffs Brendan Thoms and Daniel Love amounted to saying "the common law trumps or controls the constitution" and that it involved an appeal to the personal philosophy or preferences of judges.

"Mabo [No 2] and following cases proceeded concerning Aboriginal persons and the protection which the common law shall afford them. These cases were not concerned with any such question."

All four majority judges – Virginia Bell, Geoffrey Nettle, Michelle Gordon and James Edelmen – disagreed. Their basic premise was that native title created an inalienable right and that meant Aborigines could never be regarded as aliens.

Since 2014, thousands of people in Thoms' and Love's situation – a citizen of another country, who was a long-term resident of Australia but had committed a criminal offence that carried a sentence of 12 months or more – have been sent “home”.

It didn’t matter that your parents – or children – were citizens. Or that you might have nowhere to go. Or that you were a person of direct Aboriginal descent. Until this week.

Brendan Thoms with his mother Jenny: the High Court verdict led to his release after 500 nights in immigration detention. Supplied

There were howls from the usual suspects about judicial activism. Another Mabo, they said. Attorney-General Christian Porter said it was “a pretty novel decision” and the government might even look at other ways they could still deport people like Thoms.

Thoms had been sentenced to 18 months for assault and was arrested by border police on his release from jail in September 2018. He was taken to the Pinkenba detention centre on the northern outskirts of Brisbane pending his deportation to his birthplace New Zealand. The now 31-year-old had lived in Queensland since he left Auckland when six. He would spend 500 nights there, until his release only hours after the High Court verdict.

Thoms discovered another man with an Aboriginal parent – New Guinea-born Daniel Love – had already sued the Commonwealth over his detention upon release from jail in 2018. Love spent six weeks at Pinkenba before Home Affairs Minister Peter Dutton cancelled the revocation of his permanent resident's visa. He was suing for false imprisonment and arguing that his lineage meant he had a special connection with Australia and could never be regarded as an alien – or even face deportation as a non-citizen.

Since Kiefel took over as Chief Justice in January 2017, there has been a concerted effort to speak with one voice – to have a majority judgment involving at least four judges. Kiefel has talked about how they hold extra meetings in a bid to find common ground and really strive for an “opinion of the court”.

More often than not it has been Kiefel, Bell and Patrick Keane writing together and convincing one of the remaining four to join them. It led one commentator to call them the most powerful voting bloc in the High Court's history.

Two hearings

For this case, the court took the highly unusual step of having two separate hearings in 2019 as it grappled with the issues.

After the first, on May 8, it wrote to the parties saying it wanted to hear from them on whether it was possible to create a limbo category of citizenship: one that relied not on birth or naturalisation, but Indigenous lineage.

On December 5, there was another full day of argument in Canberra. The best-case scenario for Thoms – who, unlike Love, remained in detention – was that the court would effectively order his immediate release from detention.

That was only going to happen if the decision was clear cut. And it wasn't.

After the hearings, the suspicion was that Love and Thoms had three votes. Observers felt the court's newest judges, Gordon and Edelman, were a lock and they also suspected Bell was onside.

The Chief Justice and Justice Keane were put in the no column. Kiefel has always been suspicious about judicial frolics when it comes to the constitution. Keane's hobby horse is the perils of second-guessing Parliament on topics of continuing political debate.

Swing vote

Which left Justice Stephen Gageler and Nettle. They split, with Gageler siding with Kiefel and Keane and Nettle being the crucial swing vote.

Kiefel is a mild and engaging person, but one could sense the steam coming out of her ears as she wrote the judgment. She is also not used to being on the losing side. In the past two years, she has dissented only three times.

The Chief Justice saw one obvious problem with the Mabo test of Aboriginality, which relies on descent, self‑identification with the community and acceptance by that community. It was that the elders of a tribe would effectively decide a person's status. "To accept this effect would be to attribute to the group the kind of sovereignty which was implicitly rejected by Mabo."

Keane took a swipe at Nettle's contention that Indigenous people owed a "permanent allegiance" to the Crown so could never be aliens. It was "rank paternalism", he said, that imposed "limitations on the freedom of persons of Aboriginal descent to pursue their destiny as individuals".

Gageler almost apologised for his decision, emphasising that he was "not unmoved by growing appreciation of the depth of cultural connection to country and of the extent of historical dispossession of Aboriginal and Torres Strait Islander peoples".

However, he said he could not "be party to a process of constitutional interpretation or constitutional implication which would result in the inference of a race-based constitutional limitation on legislative power".

It was a riposte to Gordon, who said the constitution "does not prohibit special treatment of a race".

Edelman took issue with the minority notion that it would involve unequal treatment, saying "it would involve a misunderstanding of both equality and community".

The decision might end up being a blip on the harmony radar for the Kiefel High Court. However, last year the court also split 4-3 on whether a credit scheme at an outback general store was unconscionable.

It appears the happy family finds it hard to play together on Indigenous issues.