Australia seeks to overturn law that bans deportation of Aboriginal Australians
The case involves a N.Z. man who was adopted by an Aboriginal family and was ‘treated as a member of that family’
The Australian government is looking to overturn a ruling made in the country’s highest court that Aboriginal Australians cannot be aliens and cannot be deported.
The Love and Thoms case from Feb. 2020 became the High Court of Australia’s “most significant constitutional decision in recent years,” writes Paul Karp for the Guardian, but its narrow 4-3 ruling invited calls from some conservative politicians to appoint stricter judges.
The court’s composition has since changed and the Commonwealth of Australia is now challenging that precedent after it was invoked by a man under threat of deportation.
Shayne Paul Montgomery’s legal argument, in part, involves convincing the court that the category of “non-citizen, non-alien” should extend to people adopted as Aboriginal by custom, even if they claim no Aboriginal biology.
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The high court has agreed to hear the federal government’s argument that “Montgomery fails the three-part test for Aboriginality, despite being recognized by Mununjali elders as such,” according to The Saturday Paper. This allows them to relitigate Love and Thoms, writes Karp.
Montgomery was born in 1981 in New Zealand before coming to Australia in 1997, where he lived with his mother and stepfather. The commonwealth has acknowledged that when he lived with an aboriginal family from 1998 to 2006, he was “treated as a member of that family.”
Now, a year and a half since the opinion on Love and Thoms was rendered, there’s “a significant possibility that the decision could be overturned in the event of a challenge,” according to a study by Amanda Stoker, the current assistant attorney general.
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The three dissenting judges in the Love and Thoms case — chief justice Susan Kiefel and justices Stephen Gageler and Patrick Keane — are now the court’s most senior judges. Two of the four judges who voted in the majority have since retired and been replaced.
According to the commonwealth’s submission obtained by the Guardian, immigration minister Alex Hawke and home affairs minister Karen Andrews are taking leave “to the extent necessary, to argue that Love was wrongly decided.”
Montgomery’s legal team noted the case, which is to be heard in federal court on Oct. 27 and 28, concerns a non-constitutional question, raising the issue of whether hearing it in High Court is “premature or unnecessary, posing a constitutional question that may not otherwise be necessary to answer.”
