Legal experts urge caution on high court ruling that Aboriginal Australians are not 'aliens'

Calla Wahlquist
Photograph: Mick Tsikas/AAP

Legal experts have warned it would be premature to jump to conclusions about the implications of a landmark high court decision that found Australian Aboriginal people cannot be regarded as aliens under the constitution.

The high court ruled in a four-to-three decision that Aboriginal people with sufficient connections to their communities and country cannot be subject to s.51(xix) of the constitution, known as the aliens power, and therefore cannot be deported.

Related: High court rules Aboriginal Australians are not 'aliens' under the constitution and cannot be deported

A Sydney University constitutional law professor, Anne Twomey, said it was too soon to know what the possible ramifications might be, particularly as, unusually, each member of the seven-person bench gave individual reasonings, creating a wealth of jurisprudence.

“Certainly from a narrow point of view it just means that Indigenous Australians who don’t have citizenship can’t be deported under the Migration Act,” Twomey said. “It might also give them a capacity to enter the country. But beyond that, in itself, in terms of the actual outcome of the decision, it is relatively narrow.”

Twomey said it would be “premature to leap to conclusions” about the impact of the decision on other kinds of rights in relation to Indigenous Australians.

The Law Council of Australia agreed, saying the case raised a number of “complex issues” and “will no doubt be the subject of much scrutiny and comment in the coming weeks and months”.

Twomey said that of four individual decisions that formed the majority judgement, only those by justices Geoffrey Nettle and Michelle Gordon appeared to raise those broader implications.

Nettle said: “The common law must be taken always to have comprehended the unique obligation of protection owed by the Crown to [Aboriginal] societies and to each member in his or her capacity as such.”

Gordon said native title was “one legal consequence flowing from common law recognition of the connection between Aboriginal Australians and the land and waters that now make up Australia”.

“That Aboriginal Australians are not ‘aliens’ within the meaning of that constitutional term in s 51(xix) is another,” she said.

Wamba Wamba lawyer Eddie Synot, manager of the Indigenous Law Centre at the University of New South Wales, said the judgement concerned a “very narrow application of the aliens power” and explicitly stated it was not a recognition of Aboriginal sovereignty.

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“More than anything for me, today just confirmed that the high court is never really going to be an environment where we’re ever going to be able to settle those original questions about sovereignty and the founding of the nations,” Synot said. “It’s going to have to be a political decision outside of the court.”

Synot said the decision had caused some angst among Aboriginal people concerned that a court was yet again appearing to decide on Aboriginal identity and belonging to country. Those concerns have been heightened in recent weeks by a request, swiftly denied, for police to investigate the Aboriginally of author Bruce Pascoe.

In his dissenting judgement, justice Stephen Gageler said he was opposed to the “judicial creation of any race-based constitutional distinction”, and that such a distinction, if it was to be created, should be created by a referendum.

But the referendum process in Australia has been paused. Nine newspapers reported that members of the Morrison government’s new peak Indigenous advisory group have been warned against making recommendations for constitutional reform.

Synot said Australia already had an “unfortunate history of race-based distinctions” under the constitution but agreed with Gageler that a referendum was required to resolve it.

“I think the worst thing that could happen out of this is that we are not able to achieve reforms either way and we end up in the high court again in 20 years with two other Aboriginal people being questioned about whether or not they belong to the country,” Synot said.