Mortimer J
This case concerned an application by a non-citizen that they were a non-alien for the purposes of the s 51(xix) of the Constitution by virtue of their Indigeneity. This case is one of what Mortimer J describes as a ‘cohort’ of cases responding to the High Court’s decision in Love v Commonwealth; Thoms v Commonwealth [2020] HCA 3 (Love/Thoms) which found that Aboriginal Australians could not be ‘aliens’ within the meaning of s 51(xix) of the Constitution. This reasons in this case were issued concurrently with Her Honour’s decision in Helmbright v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 647.
Background
The applicant was a New Zealand citizen and Nyul Nyul man descended from an apical ancestor listed in a determination of native title. He had lived in Australia for a number of decades on a Special Category visa for New Zealand citizens. His visa was cancelled in November 2017 after he was convicted of grievous bodily harm.
Aboriginality
Unlike in Helmbright, in this case, the applicant’s aboriginality was not contested. It was an agreed fact that the plaintiff was an ‘Aboriginal Australian’, as that term is used in Love/Thoms. It was also agreed that the Nyul Nyul PBC, who provided a letter in support of the applicant’s Aboriginal identification, was a body with authority to speak on behalf of the membership of that group and fitting within the concept of elders or other persons holding traditional authority within the group as described by the Mabo [no 2] test (being the test applied in Love/Thoms). Both parties submitted that a ‘native title approach’ to defining Aboriginality was appropriate. Drawing on her reasons in Helmbright, Her Honour rejected this, however, this was immaterial as she held that the applicant could fulfil a ‘native title approach’ test or the test she set out in Helmbright.
Form of Relief
The contested issue was the form of declaratory relief. The Minister submitted that the Court should provide relief in a particular form annexed to their submissions. This format contained a recital of the relevant facts and a statement of the relevant legal principle from Love/Thoms. Her Honour was not persuaded to give this form of relief, describing them as containing ‘an element of the abstract or hypothetical’. Her Honour noted that it appeared that the Minister was seeking to have the court lay down a set of rules to control the circumstances in which a non-citizen could contend they were an Aboriginal Australian.
The Minister’s proposed declaration also referred to the applicant being ‘not currently an alien’ (emphasis added). The Minister submitted that this was necessary given a person could be ‘thrown out’ of Aboriginal society or renounce their identity and therefore lose their legal Aboriginality. The Court rejected this as speculation that did not need to be resolved in this case.
On that basis, the Court rejected the form of relief proposed by the parties and declared only that ‘[t]he applicant is not an alien within the meaning of s 51(xix) of the Constitution’.