New concerns surround the government’s increased use of legislative powers to bypass the parliament and create laws that cannot be amended or overturned. The federal government has embedded special powers in new Covid-19 laws to make unilateral changes to non-pandemic-related legislation, using what are known as ‘Henry VIII clauses’ – named for the unchecked power they involve.
The High Court and the “aliens” power
The decision by the High Court of Australia this week on the “aliens” power cast my mind back to my work in 2011 on the prime minister’s expert panel on the recognition of Aboriginal and Torres Strait Islander peoples in the Australian constitution. Unlike the Referendum Council’s recent work, the consultation with communities was relatively unstructured and certainly absent of the educative civics process that distinguishes the work of the Uluru deliberative dialogues.
Even so, in 2011 as we travelled Australia, we would hand out copies of the constitution to whoever attended our consultations. I can vividly recall the elegant Aboriginal women of Cherbourg, the former Aboriginal reserve in Queensland, partly because my grandmother and grandfather were removed to the Barambah reserve but also because of the beautiful winter’s day when we sat in the Queensland sun and yarned about the constitution on the verandah of the ration shed. The ration shed is the reclaimed building that is the symbol of the brutal protection era where porridge, peas, flour, sugar, salt and rice were rationed out to Aboriginal people.
I can still see the grand matriarch, Aunty Beryl Gambrill, sifting through the text of the constitution as we discussed the race power and the constitutional provision that was amended in 1967. She was an old Aboriginal woman who campaigned for the “Yes” vote in the 1967 referendum. By 2011, amending or deleting the race power was on the expert panel’s list of reform proposals for discussion with the “Australian community”. In these discussions at Cherbourg, we paced through the constitution, starting with the preamble. This preamble is, in fact, located in the British act that encases our native constitution – a fact that shocked virtually all Australians we consulted on these travels. At Cherbourg, before we could arrive at section 51 (26), the power altered in the 1967 referendum, the inquiring minds of my elders landed on section 51 (19) and a striking word: “aliens”.
I distinctly remember, as a junior constitutional lawyer, becoming mildly frustrated with my elders as I tried to explain there has been no interaction between the “aliens” power and Aboriginal peoples in any constitutionally significant way. Even so, the “aliens” power stood out for these women. The requisite joke, well-rehearsed by first-year law students, is reference to Men in Black or tiny men in UFOs. But these women, raised on a reserve subject to the draconian racial segregation laws of the state of Queensland, wanted to know who are the “aliens” – us or the arrivals? I have always cherished that conversation; it has remained with me since.
I revisited it this week, as the High Court handed down its decision in Love v the Commonwealth and Thoms v the Commonwealth – the first time it has engaged in a question that relates to the “aliens” power and the First Peoples of this country. The decision has animated considerable public commentary for a relatively pedestrian migration case. I say this because it is a narrow decision that most constitutional lawyers agree does not have any significant practical implications beyond the fact scenario: two Aboriginal people, not citizens, who are facing deportation. One is a common law native title holder. The other is not. Facts matter.
It is more likely that this case has excited such interest, and in some cases quite hysterical and exaggerated analysis, because it involves the terms “Aboriginal people” and the “High Court of Australia”. Anything “Aboriginal” intersecting with the Australian law animates a nation that has not yet addressed its original grievance. The annual ritual of “change the date” and the Australia Day/Invasion Day/Survival Day debate is evidence of the same dearth. The opinion pieces that allude to this decision as some Mabo-esque exercise in judicial activism are so over the top that they should be dismissed. It may seem naive, but why make a mountain out of a molehill?
The High Court’s 4-3 majority finding last year against the Australian Securities and Investments Commission over the book-up system of credit in Aboriginal communities, notably, in Anangu Pitjanjatjara Yankunytjatjara (APY Lands), should have elicited more outrage from the “fairness” and “formal equality” crowd. Clearly, that decision created a second-class citizen of Aboriginal people. Here, as argued by the regulator, Aboriginal people in remote communities should be entitled to the protection of consumer law. ASIC argued a shopkeeper on APY Lands should not be able to withdraw funds from customers’ accounts to pay off debts using their debit card and PIN information, which he held on file. The court’s majority did not agree.
The culture of “humbugging”, or “demand sharing” as the anthropologists call it – a practice former prime minister John Howard and his policies, including the Northern Territory Intervention, sought to eliminate – is entrenched by a majority of the High Court who argued that the respondent’s retention of people’s entire bank accounts was okay because it was cultural to share with kin. In this case, Justice Edelman dissented, called this out for what it is: “unacceptable in mainstream Australian society”. The decision is outrageous. And Chief Justice Kiefel was in the majority.
The point here is not to demonise individual judges, especially our most senior judges; it is that some simplistic assessments of this week’s decision pit the minority against the majority. But in the ASIC case, most Aboriginal people, and I suspect most Australians, would regard such conduct as falling foul of the consumer regulatory system.
There are a few things that we can confidently say about this week’s decision in Love, Thoms. If we put to one side the over-egged speculation on the court splitting on this decision, which in my mind is not material, it does not create a new category of person. Nor does it create special rights. The assertion that it is some judicially activist Mabo court is absurd. Nobody reading each judgement could possibly argue such a point. The case should be confined to its facts: there are not too many blackfellas who are born overseas and need a visa to come back home.
On the key issues animating public attention – an Aboriginality test and sovereignty – close reading of each judgement reveals very careful statements. There are no majority pronouncements that change the status quo. The decision references the Shaw v Wolf decision, where the three-prong test or membership criteria was forged, but that is generally applied subject to self-determination and not consistently applied across the country. The court, referring to the test as set down in Mabo, does not establish any “official” or formal rules or criteria of membership.
The High Court also traverses legal issues relating to sovereignty but, in my view, emphatically reinstates its prior pronouncements on this; that is to say, such matters on sovereignty are for the parliament and the realm of politics, not the court. Each of the High Court justices were cautious in the way they framed their judgement. This reveals something about the culture of the post-Mabo High Court. After 30 years of native title, we are witnessing a court whose officers are fluent in native title and Aboriginal law. The judicial careers of its justices show they have presided over lengthy native title litigation, they have walked Country, they have yarned with traditional owners, they have heard evidence of traditional owners and anthropologists, they have presided over native title ceremonies whereby traditional owners are legally and factually recognised. These justices of the High Court have interacted with and met with and spoken with more Aboriginal and Torres Strait Islander people than most ordinary Australians.
I do not see the split judgement as a failure of the Kiefel High Court. Rather, it’s a normative development. Mabo (No 2) is no longer controversial, although some exaggerated opinions of this decision reveal a residual resentment and resistance from some to the court’s 6-1 majority, even three decades later. If anything, this week’s decision is a confident display of seven justices who, in their own way, have been exposed in an objective and regulated manner to Aboriginal law and know how to write about it.
On the question of the implications of this case for the Referendum Council’s work and the Uluru Statement from the Heart, I believe this bolsters the argument of constitutional reform. This decision was handed down in the same week as the latest Closing the Gap report. It is evident from the prime minister’s speech that business as usual in Indigenous Affairs is over. Nationally, and internationally, it is well accepted that structural reform is the way to overcome the disadvantage that derives from structural inequality. For well over three decades, Aboriginal and Torres Strait Islander people have been saying the same thing.
A constitutional Voice is one way of obviating the High Court’s participation in policy issues. This was the thinking of the Uluru dialogues. The expert panel’s proposal for a racial non-discrimination clause in the constitution was rejected for this very reason.
This week, the prime minister did what prime ministers should do: lead. Scott Morrison has delivered shape to a messy and incoherent process post-Uluru as set down by the minister for Indigenous Affairs. After five taxpayer-funded processes and eight public reports in nine years from 2011 to 2020, Ken Wyatt sought to pursue a reform that no person or entity had pursued, a symbolic statement of recognition and a Voice to Bureaucracy, not Voice to Parliament. These are two very different things.
To make matters worse, Wyatt set a referendum deadline for mid-next year. This is something no minister or prime minister has done in Australian history. Scott Morrison in his Close the Gap address has said that the legal form of the Voice to Parliament will be determined after the design of the Voice, led by the minister. The High Court’s decision this week arguably supports the policy and legal argument for a constitutionally enshrined Voice to Parliament. The Aboriginal women of Cherbourg expect nothing less.
This article was first published in the print edition of The Saturday Paper on Feb 15, 2020 as "Looking for aliens".
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