Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor v Montgomery

[2022] HCATrans 052

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S192 of 2021

B e t w e e n -
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Appellant
MINISTER FOR HOME AFFAIRS
Second Appellant
and
SHAYNE PAUL MONTGOMERY
Respondent

KIEFEL CJ
GAGELER J
KEANE J
GORDON J
EDELMAN J
STEWARD J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON THURSDAY, 7 APRIL 2022, AT 9.44 AM

(Continued from 6/4/22)

____________________

KIEFEL CJ: Yes, Mr Gleeson.

MR GLEESON: Thank you, your Honours. Several matters from yesterday, if I might. Your Honour Justice Keane’s question: there are authorities where habeas has been granted in the context of a deprivation of liberty not involving the criminal process through to an acquittal and so on. Just to give examples, that was the position in Home Secretary v O’Brien itself where it was detention at the informal request of a foreign government. It was the situation in this Court in McKelvey v Meagher (1906) 4 CLR 265, and interestingly it was the situation in Re Marshall [1907] VLR 206 where the court expressly applied Cox v Hakes.

Your Honour Justice Steward’s question: we have reviewed O’Toole v Charles David Pty Ltd (1991) 171 CLR 232. It is distinguishable from our proposition. It was an unusual case where, after the Full Federal Court had given its opinion on a question and remitted it to the primary judge, the removal occurred to this Court and the Court said in that context it could review the answer to the question whether or not that could be done under section 73 of the Constitution. It was subsequently determined in Mellifont (1991) 173 CLR 289 that that concern was misplaced. It does not concern the present case where the Attorney has removed the appeal and the question is whether that appeal was competent in the Federal Court.

Your Honour Justice Gageler, could I add section 476A to section 39B as the sources of authority relied upon. It is discussed in McHugh as to whether it is one or other or both.

GAGELER J: Thank you.

MR GLEESON: Your Honours, what I propose then to do is move straight to Love if I can, and then I will come back to the other issues. I will do that recognising the importance of Love to this appeal and to the exchange late yesterday. Your Honours, as to ratio, in our submission, the point is so clear I should spend little time on it, and I will leave it to Victoria to advance the argument. I will only say this, that the ratio can be discerned at the general level and the specific level.

At the general level the ratio is accurately reflected in the answers to the questions and paragraph 81 and it means that if you satisfy the three limbs of the test you are not an alien. At the specific level there is a ratio for Mr Thoms that a person who exhibits Mr Thoms’ factual circumstances, including being a native title holder, satisfies the test. For Mr Love there is no specific ratio. That awaits the remitter.

The only other matter I would say on ratio is as to both the third limb and the first limb, which is important to us in terms of biological descent. There was no argument in either Mabo or Love as to whether adoption could qualify as a relevant form of descent under the first rule. The word “biological” cannot be taken to be a decision excluding the possibility of adoption from the satisfaction of the first limb and likewise under the third limb what is meant by traditional authority for the recognition of the person will then be worked out on a case‑by‑case basis. We know what it means for a person like Mr Thoms. For Mr Love, we await the answer.

Your Honours, could I go to Li, which I do wish to say more about, as to why you should refuse leave to reopen the case, or, if you allow it to be fully reargued, which is perhaps what is currently happening, at the end of that process the Court should leave Love intact even if a number of us cannot persuade your Honours to the conclusion that it is correct in law.

When I put it that way, I wish to invoke the Second Territories Representation Case, and could I ask your Honours to go to volume 10 - it is case 64, 3882.

GLEESON J: Can you give us the CLR reference?

MR GLEESON: Yes. It is 139 CLR 585, State of Queensland v The Commonwealth.

GLEESON J: Thank you.

MR GLEESON: I wish to start with Justices Gibbs and Stephen, and then deal with Justices Barwick and Aickin. What Justice Gibbs said at the foot of page 598 over to 599 of the CLR, perhaps to 600, has a very strong resonance with this case, we would submit. His Honour reviewed all the arguments and came to the view that the previous decision was wrong. That is the foot of page 598. He then came to the question whether, notwithstanding that view, he should not seek to overturn the case, and in that context on 599, after the passage from Justice Isaacs in Federated Engine‑Drivers that may have been cited yesterday, his Honour went on to say:

But like most generalizations –

that statement, namely, it is better to be ultimately right than persistently wrong:

can be misleading. No Justice is entitled to ignore the decisions and reasoning of his predecessors, and to arrive at his own judgment as though the pages of the law reports were blank, or as though the authority of a decision did not survive beyond the rising of the Court . . . It is only after the most careful and respectful consideration of the earlier decision . . . that a Justice may give effect to his –

or her:

own opinions in preference to an earlier decision –

Now, applying that strongly prudential principle in a constitutional context, the factors that were important to his Honour at the foot of the page were the decision was recently given and by a narrow majority. It has not been followed, it involves a question of grave constitutional importance, but when it is asked what has occurred to justify the reconsideration of the judgment given not two years ago, the only possible answer his Honour could identify from the arguments was a change in the composition of the Court, which clearly cannot be a reason. Now, his Honour goes on to say:

It cannot be suggested that the majority in Western Australia v. The Commonwealth failed to advert to any relevant consideration, or overlooked any apposite decision or principle. The arguments –

were essentially the same here as before:

No later decision has been given that conflicts with –

it. Now, your Honours, we would submit that describes this case. Your Honours know the parties were given – that is, the parties in Love and Thoms – were given two extended hearings to hear all arguments, and the argument you have heard yesterday and in writing, with no disrespect to it, is essentially the same argument.

GLEESON J: Is there any conflict between Love and Thoms and Chetcuti?

MR GLEESON: No conflict at all, your Honour, because ‑ ‑ ‑

GLEESON J: You do not dispute paragraph 12 of Chetcuti?

MR GLEESON: Paragraph 12, for as far as it goes, is not trespassing into the question of what is the Pochi limit, what does it do to this exercise, and what application it has when one is dealing with indigenous Australians. So, the settled understanding, which has been built up over perhaps 30 years in this Court, that the aliens power does include within it an ability for the Parliament to pass laws which will say something about that status, that is too late to reopen. That is what is being described as settled.

But how that applies, including the argument you have heard yesterday, which is that the Parliament can take a smorgasbord which consists of any rule of alienage which was floating around in 1900 under any common law or civil law system and choose any of them – or any combination of them – at any point in time, Chetcuti did not have to deal with and did not advance. That is the critical part of the learned Solicitor’s argument that was put twice and rejected. That is the bit, we say, where Justice Gibbs is squarely in point.

KIEFEL CJ: Mr Gleeson, a very different approach was taken by this Court in Shaw in relation to Re Patterson; Ex Parte Taylor.

MR GLEESON: As your Honour ‑ ‑ ‑

KIEFEL CJ: I cannot recall how the Court in Shaw explained why it was prepared to overturn it two years later.

MR GLEESON: It explained why – this is Shaw on Patterson – it turns on Nolan ‑ ‑ ‑

KIEFEL CJ: Yes.

MR GLEESON: ‑ ‑ ‑yes. It explained why because, on analysis, each of the judgments in Re Patterson had come to, not just a different set of reasons to the same result, but a different legal principle as the result – including different dates upon which different changes occurred in who could or could not be an alien. Justice McHugh, who was ‑ ‑ ‑

KIEFEL CJ: But, on your view, there would be a ratio because you would have regard to the conclusion.

MR GLEESON: No, there was no ratio because – there was no ratio at a level of generality where every judge agrees the tripartite test is sufficient to be a non‑alien. It is worth repaying in Re Shaw both how Justice McHugh dealt with the question of the lack of the ratio - if I could just go to that. Shaw is in CLR ‑ ‑ ‑

EDELMAN J: Tab 72.

MR GLEESON: Tab 72 or 218 CLR 28, volume 12. In Justice McHugh’s judgment at paragraph 35 – referring back to Ex Parte Te - in Te:

four members of the Court agreed that there was no single strain of reasoning in the majority judgments in Patterson which contains a binding statement of constitutional principle and that there were differing views in the majority as to what were the facts material to the decision. One of those four Justices . . . concluded that Patterson had no precedent value beyond its own facts.

So, there was no agreement upon what facts would be material to the decision. In the present case, there is agreement that a person who satisfies the three limbs of the tripartite test is sufficiently declared to be a non‑alien. Your Honours, I will not go to it now, but in Ex Parte Te that matter is discussed further, including by Chief Justice Gleeson in the passages cited in the footnote (80). So, returning to the Territories Representation Case and Justice Gibbs.

KIEFEL CJ: I see that at paragraph 39 in Shaw Justice McHugh just worked through the substantive question in John - paragraph 39.

MR GLEESON: Yes. Your Honours, I will put our submission via John as well. If I could just complete the Territories. At page 600, his Honour explains why the decision has been acted on – in the sense that electors have produced representatives for the Senate. We would submit in the present case Love has been acted on. It appears that about 12 people have obtained their liberty, three through court order, nine through the Commonwealth applying Love, and that is a substantive right they have obtained and acted upon.

It is important that while that is an individual right ‑ and the Human Rights Commission in their outline will say something about this – they have also been restored to their Aboriginal societies as members of those societies with liberty, and that, we would submit, is the case being acted upon. At the foot of the page his Honour cautioned “could there be any supervening circumstances” and at the stage of the judgment he could identify none.

In Justice Stephen’s judgment, commencing at 602, at about line 35, he refers to what he calls the second principle which is “replete with adjectival qualifications”, but he regards it as decisive to the case. Then on page 603, at lines 20 to 40, he deals with three factors. The first, consistent with Justice Gibbs, a recent decision, fully argued, specifically dealt with the very point, so we have that factor. Secondly, the nature of the case was one upon which different minds might reach different conclusions. No view could be called plainly wrong or exhibiting manifest error.

The Commonwealth said yesterday that that concept of plainly wrong or manifest error is not something you take into account in the exercise, and clearly it is invidious to have to say that the judgment of previous Justices rises to that level, but there is something in what Justice Stephen is saying, that if one is in an open‑textured area of the law or the Constitution where boiling it all down – and this is oversimplified – but the question in Love and Thoms was whether one could discern from Mabo any deeper truth about either the common law or the Constitution’s approach to Aboriginal Australians as a whole. The majority said yes. The minority said Mabo, a foundational and important decision, but a decision confined to land titles.

Now, the reason perhaps the case was debated twice, apart from the letter from the Court which always terrifies counsel, and perhaps I might say the reason there are seven separately expressed judgments, is reflecting Justice Stephen’s point that different minds could reach different conclusions on an important question but an essentially open‑textured one.

The Court having now closed that issue and said from Mabo we can discern a further legal principle about status of indigenous people, perhaps at common law, certainly under the Constitution, we would submit that is the very type of issue where a later Justice, even one still unpersuaded by the previous majority’s view, could say that neither view was inherently entitled to pre‑eminence then or now, and therefore the institutional value of precedent prevails.

I hesitate to say it, but these institutional values, your Honours know how fundamental they are. We the citizens, and we the practitioners, and we the litigants depend upon this Court to answer not only all cases but the hard cases, the cases where different views were reasonably open, and Love fits squarely into that category.

So, your Honours, we would submit that Justice Stephen’s three factors, more eloquently expressed than I have just attempted to summarise them, capture this case. The third factor is it has been acted on.

EDELMAN J: Mr Gleeson, do the institutional principles and the need for stability work only in one direction? So, if, for example, the decision in Love had gone the other way - and it was a decision that at one level denied the relevance of Aboriginal Australians as a constitutional fact, but at another level also had the effect of denying liberty – would that be a significant factor which might then allow reopening, contrary to your submissions in relation to this case? In other words, what I am asking is how important is the liberty principle to which you had referred a couple of minutes ago?

MR GLEESON: Your Honour, I was referring to that in the sense of that is an example of how it has been independently acted on, but I do not think I can agree with the premise of your Honour’s question if I have understood it correctly. My point is, because the Court could reasonably have gone either way in Love as to what to discern from Mabo and because it was argued fully twice, that should be it, for better or worse, absent a showing of some larger systemic damage which Love either has done or is likely to do.

Your Honour Justice Gageler asked a question - is there anything more the Commonwealth is pointing to than the assertion really from the Bar table from the learned Solicitor and then from Mr Lenehan SC that some officers might find it difficult to apply Love; there might be a harder day at the office than otherwise. Now, that could never be a factor and, with respect, the Court has not received any clear articulation from the Commonwealth that the decision in Love is likely to have either foreseeable or predictable or adverse consequences to the entirety of our constitutional framework.

It is a small but important step in the recognition of the connection of the indigenous people of this country with the lands. I say it is small but important. It cannot undo the wrongs of dispossession. The people affected by it we know are relatively small. For them it is absolutely critical and to the extent it means this Court and therefore this Constitution has said that is a step we can take from Mabo, that is something the Court has done, and it is valuable for that to remain intact. Really, I do not wish to overstate it, but it would be a terrible thing for the Court, having taken that small but important step, to then say two years later based on the same argument, “We reverse it”, absent a showing of some systemic consequences for the Constitution.

If can just finish that, your Honours, at least in the Territories Case one can see Queensland and Western Australia – they had a real argument about the systemic features of the first decision, namely if they were right, section 122 was never a means to upset the balance struck by section 24 and section 7, and now that this balance was upset a number of the judges were concerned with, “Well, it’s now one or two, but does this mean it could be five?”, and they were the sort of factors they were looking at. We would submit Love is not in that territory – small, but important.

GAGELER J: Mr Solicitor, these submissions I am finding extremely helpful, but there is one aspect of the topic that I would like your submission on. In the Second Territory Senators Case, the Court was concerned with a pretty clear‑cut rule that had come out of the First Territory Senators Case. It had been acted upon. There was a difference in the composition of the Court, but the rule was really quite clear. It did not involve any further development or interpretation.

Now, coming out of Love we have what everyone refers to the tripartite test, but there is contest about the first part and there is contest about the third part, which you would have us work out on a case‑by‑case basis going forward. I understand that. How are we to do that, though? What are we accepting about this deeper truth? It seems to me to involve an ongoing development of the law and not just the acceptance of an existing rule.

MR GLEESON: Your Honour may be correct that after the grand debate in the Senate and the second case, one can say the end result was relatively simple. The Parliament can allow electors of the Territories to elect a representative. Now, that, in a sense, is true, but constitutional cases resolve themselves into principles at greater or lesser levels of specificity.

If one asked about the implied freedom - I do not want to go to a topic that is not today - but the implied freedom is really a classic example where the Court, in the early cases, Theophanous, ACTTV, discerned a structural implication which was expressed relatively simply in the early cases, and then there was quite a lot of litigation under that provision - as your Honours know, most cases failed for a long time. Eventually a couple succeeded, and in the course of that, there was a reworking of that test to the point where structured proportionality now holds the support of a majority of the Court.

Now, that involves a far more open‑textured level of development, we would submit, than anything that has happened with Love. What Love has said is there is a tripartite test, Justice Brennan found it useful for Mabo, it may not solve all cases, but it is sufficient unto the need to deploy that as the test. What has happened since then? The cases have gone to the Federal Court, Justice Mortimer is dealing with them in Melbourne, Justice Jagot is dealing with Mr Love’s case, they are actually proceeding in a fairly straightforward fashion. They are factual applications of it.

Now, Mr Montgomery, of course, is perhaps, one might think, at a more difficult end of this spectrum. Perhaps that is why the Commonwealth have invited us here, by command. Mr Montgomery’s case will have to be worked out, and I made that submission yesterday. I do not resile from it, that deciding whether adoption can ever satisfy this principle will be an important question, and that can be done.

The difficulties about the third limb are really quite overstated. Your Honour Justice Gordon asked some questions of the Solicitor about this yesterday. Traditional authority from elders or persons in a society give you the recognition. That is the sort of exercise that is being done within the native title context every day of the week.

So, to conjure up, as it were, some uncertainty about the third limb, and therefore say, well, throw the whole away, that, we would ask your Honours not to do. We submit that is not your role. Your role, having closed this issue, is to say the test is there, it is being worked through, it may come back to your Honours at some point, it may not, it is not causing systemic and structural damage to our constitutional framework.

Your Honours, could I just – I do need to recognise that Justice Aickin and Chief Justice Barwick took a different approach, and going first to Justice Aickin, who one might say, with respect, analysed the considerations in great detail because he was troubled by what to do with this case, but picking it up on page 625 at line 5, his Honour said that:

Generally speaking satisfaction that it is wrong has not alone been regarded as sufficient –

to reopen. He then cites from Chief Justice Dixon in Hughes and Vale, and that first paragraph of Chief Justice Dixon, which I will not read, is our case, we would submit. It is consistent with what Justice Gibbs and Justice Stephen were saying. So, after much elaboration, his Honour’s application of the test at page 630, he came up with five considerations. The first was no problem overruling if the error:

has been made manifest by later cases which however have not directly overruled it.

That is not our case.

The second is that the Court will be slow to overrule . . . cases which “go with a definite stream of authority” and do not “conflict with well established principle”.

That in fact has two limbs within it. We do not have a “definite stream of authority” by definition, but we are in a situation of no “conflict with well established principle” – and I do want to mention there, there is one footnote in Love – it is footnote (451) in your Honour Justice Gordon’s judgment – which brings together all of the cases since Mabo which have developed our understanding of the connection of indigenous people with country, the two‑way connection – which is more than physical. So, Love does not sit on its own. We submit it carries through that strand of authority to a particular conclusion. The third is whether ‑ ‑ ‑

GLEESON J: Mr Gleeson, one of the concerns that I have is that the majority in Love and Thoms appears to adopt an interpretation – what Chief Justice Gibbs said in Pochi – which is quite different from what is described as the settled understanding in paragraph 12 in Chetcuti. I wonder whether that is a reason for concluding that Love and Thoms is a case that conflicts with well‑established principle.

MR GLEESON: Your Honour, my submission on that would be this. I have accepted earlier that there is well‑established principle that the aliens power includes the ability to make laws which shape the status – that is what is well settled. Your Honour asked yesterday about what is the jurisprudential basis of Justice Gibbs’ limit. I will seek to give you an answer and I think Victoria is going to deal with that question as well. It is expressed in a – it is almost a colourful form of language – could not possibly be regarded as within the ordinary understanding of the term ‑ ‑ ‑

GLEESON J: It is almost like a Wednesbury unreasonableness.

MR GLEESON: It is, and if that is the way it is read, we would submit that is not the way to take it. Your Honour asked another question yesterday about, are we looking for the essential meaning of the word “alien” or are we looking for an essential meaning or a circumferential meaning if there is one for a power – a power over naturalisation and aliens. We would submit there is some use in looking at the Pochi limit within this idea of, what sort of laws can be made with respect to naturalisation and aliens. There will be a category of laws which can be made, within which the Parliament has choice, but it is the role of this Court to determine what are the limits of that category of laws that can be made.

The real argument you have heard – which is the one I have summarised – which I have unkindly called the “smorgasbord” – that within the limit you can choose any characteristic present in 1900, that, we submit, is inconsistent with the Pochi limit. The Pochi limit does not say you can choose – for example, at 1900, allegiance to a foreign power under some systems allowed the person to be declared an alien. The Commonwealth is saying that under the Pochi limit – which is really no limit – you could pass a law saying everyone who has dual citizenship is an alien and will be deported as soon as we can rid of 47 percent of the population.

Now, the Commonwealth’s answer yesterday was, do not worry, we will behave responsibly, we will not do that – that is obviously not answer. That is a question for this Court about the limits of that power.

GLEESON J: But you would accept, would you not, that at Federation Parliament could have passed a law which reflected the status of persons born outside the British Empire as aliens?

MR GLEESON: Subject to the understanding we now have from Mabo that a number of the legal thinkings at that time were incomplete in their recognition of the special place of indigenous Australians. So, in Singh – which I will come to – in Chief Justice Gleeson’s judgment – the way he analysed it was, you look at the particular case as to what are the characteristics of the person to whom the aliens power is being applied to deport them.

So, if the only characteristics at 1900 were you were a person with a foreign allegiance, that would be within the head of power – no doubt. But, if you were a person at 1900 who owed a foreign allegiance, whether because a foreign law had imposed it on you without consent, but who had the extra characteristic of being an indigenous Australian, our answer to that is, no, at 1900 that would have been outside the power. What the Pochi limit is doing is leaving this Court squarely in charge to determine those outer limits by reference to the set of characteristics which each person has and ‑ ‑ ‑

GLEESON J: That is not because the people – we, the people, agreed that aliens would include, potentially, someone who was born outside the British Empire but had those characteristics of the Aboriginal Australian. It must be because there is something about the common law that had yet to be discovered. Is that right?

MR GLEESON: Your Honour, we put as our first proposition in defence of Love exactly that. The common law, as we now know it, with the insight of Mabo plus 30 years, faced with an action by a State or colonial Parliament or executive to – and I use the words with hesitation because they are offensive, but it is my point – if they were to round up and deport an Aboriginal society, the common law as we now know it would have restrained that action. The reason it would have restrained it is because the connection of those people with our country pre‑settlement, post‑settlement, was so profound, so fundamental, so deep, that that invasion of liberty would be restrained. They could never be regarded as an alien in their own land.

Now, that is one of the differences between the majority and – query, I am not sure how far the minority touches on that – but it is central to our defence of Love to say this Court, looking at those parameters of the power, would say, immediately after Federation the power that was being given by the people and the colonies to the central government was not a power intended for the mass deportation of indigenous people.

GLEESON J: We all know that the Constitution was – it involved racist elements at the time of Federation. So, is what we are now saying that those racists who created the Constitution in fact actually were unsuccessful in seeking to create that racist Constitution because they did not appreciate the common law?

MR GLEESON: Your Honour, again I will try and answer carefully because any discussion of race is offensive. But what we know from the debates is that there were elements that now could only be called racist. The races power, for example, was there for a negative purpose to be able to do anything unpleasant to other races.

Most interestingly, as your Honour Justice Edelman discussed in Love, there is an express exclusion of the natives of New Zealand, and there is no reference at all to the Australian Aboriginal natives in that power. What that tells us is that the racism was qualified by the notion that this was not a power to do terrible things to New Zealand Aboriginals, and the fact that Australian Aboriginals were never mentioned at all in the races power leaves at least open a view that there was a recognition that their position, even though they got very little discussion in the debates, was such that you would never give the new Parliament an express power to impose disabilities on them, which is what people thought the races power was about. So, there is racism, but it has to be looked at through that light.

Now, what is important, because we are dealing with a constitutional head of power, is that while I embrace the common law I am not freezing our argument in the common law. Even if the common law could not be restated in that fashion, given we are building a constitutional concept which is to last for decades and centuries, even if such racist notions were there, one immediately looks at what this Court did in the Same Sex Marriage Case where the narrow argument would have been, at 1900, people thought marriage was a union between a man and a woman. There was much common law to that effect - Hyde v Hyde. The Court looked at all of that and said the essential meaning of marriage is to be ascertained at a higher level of generality, union between two people.

Now, that is an illustration of the Court today, with all of its skills and insights acquired over 122 years, giving these provisions their true meaning at a level of generality. That is why, although the Pochi limit is referred to, to come back to your Honour’s question, it is referred to and everyone says we agree there is a Pochi limit, the real debate is about what work it is doing in this exercise.

According to the Commonwealth, really, it does virtually nothing. Frankly, you can almost declare anyone an alien, because for anyone you can find a characteristic which, at 1900, under some legal system, might have made them an alien. The real vice – I will use that word, it is a strong one – the real vice in the Commonwealth’s submission yesterday is the hybrid limb, that the Parliament can choose any one, or any combination of features exhibited at Federation to render people aliens. That is why 47 per cent of the population could be rendered an alien on their argument. So, your Honours, coming back to your Honour ‑ ‑ ‑

EDELMAN J: Mr Gleeson, can I just point out one matter that seems to have been assumed in your submissions, that Love might have been the first identification of this application of aliens at a broader level of generality. The issue was, in fact, raised directly in argument in Pochi itself, and in 1982, in Pochi itself, Justice Murphy specifically asked the Solicitor‑General whether Aboriginal people could be aliens in their own land, and the Solicitor‑General appeared to concede that they could not. So, it is not – it was not a new point being raised in Love, nor was it a point that the Court had not been alive to 40 years ago when they were developing the Pochi limits.

MR GLEESON: Thank you, your Honour. I would respectfully seek to add that to our incomplete submission.

GORDON J: Can I raise one other matter about this analysis of the discussion of what is described as the Pochi limit by reference to what happened at Federation? In Ame, Chief Justice Gleeson and Justices McHugh, Gummow, Hayne, Callinan and Heydon talked about the fact that the concept of “alien” changes according to changing national and international circumstances, which itself recognises, I think, that one cannot just look to Federation and identify what might have been available then as a potential criterion and then say “therefore”. Is that part of your argument?

MR GLEESON: Yes, it is, your Honour, and it works in both directions. It means you cannot say the smorgasbord has been identified at Federation from anything used in any common law or civil law system, and then you can choose forever – that is not, that cannot be the exercise, because that is a complete surrender of the power to the Parliament.

GORDON J: Is it also inconsistent with what I think are non‑controversial exceptions, being renunciation and change in territory by reference to the underlying core meaning of “alien”?

MR GLEESON: Yes, and so when this Court had to grapple with the difficult question of what happens to people who previously would not have been aliens but because of the independence of Australia were now seen to be aliens, even though they would previously have been British subjects and therefore part of the community, they were those vital changes in the international context which required this look at what is the power permitted to the Parliament in this circumstance.

Now that is inconsistent with saying that the smorgasbord is there for all time – open for all time – take what you wish. It requires much more of an understanding of – to take your Honour Justice Gleeson’s question – what is the purpose of the whole power – the power of naturalisation and aliens – why is it there?

We know it is there in the naturalisation limb to allow people to be brought into the community even though they otherwise be aliens and it is there in the negative limb – primarily, not exclusively – but to be able to remove people from the Territory and the political community. So, what are the people who, at a level of generality, could be the subject of those benefits or disabilities?

GLEESON J: It is an expression of national sovereignty.

MR GLEESON: It is an expression of national sovereignty and then one says, are there fundamental elements in the nation – in the people that have come together in the federation which will inform who it is - who cannot be the subject of expulsion from the nation. It does take one to international developments. We have mentioned in our submissions the ICJ case in the Nottebohm (Liechtenstein v Guatemala) – which Justice Nettle picks up in Love and Thoms – because the aliens power is one of these two‑facing powers. For the Parliament to impose a disability on someone as an alien by way of deportation is to cast them into the international space, either to another country or to make them stateless. So, there are these international law considerations as well, which means you do not just have to have the smorgasbord, you have to think about the purpose and the limits of the power.

Your Honours, our point on Justice Aickin – just to finish it – is that we, on his factors, would say there are very strong institutional considerations to say the Court having considered those difficult questions fully – and having closed them – the Court should leave the decision to stand. His Honour’s fourth point was, is it:

isolated “as receiving no support from prior decisions -

What I have sought to put in Justice Edelman’s question to me indicates it is not in that negative category. Then, the final one comes back to your Honour Justice Gageler’s question, is it in some category where it is so profound to the entire systematic structure of the Constitution that for all the institutional damage of overturning it, it has to be cleared off the books because it is better now to be righted on that damage.

We would submit Love is important, but it does not raise that type of question – and it is certainly not enough to tip the balance in favour of - in effect, just enter judgment for Mr Donaghue’s submissions on the previous occasion.

GAGELER J: Mr Gleeson, what is the source of power to enact the Citizenship Act in your submission?

MR GLEESON: That question has never squarely been answered. The view which was expressed by Mr Brazil – which is the Commonwealth’s usual view – is that it draws upon the aliens power by a negative, it draws upon the external affairs power and it draws upon the controversial implied nationhood power – one or more of the above. That is the Commonwealth’s usual answer to that question.

Now, what that tends to show is - somewhere in the argument we put it as one of our later propositions about correctness. One has to work out what is the significance of the progressive development of the Citizenship Acts over the 20th century. We submit the majority in Love has accorded them an appropriate role. What we do seem to know is, for the first 50 years – that is up until the 1948 Act, there was not a comprehensive Citizenship Act. There was a Naturalization Act, there were a few other additions - 1948 – your Honours have been through this too many times – there was an attempt at a Citizenship Act but still clinging to British subject…..1984, 1987 – it takes its current form.

So, where they fit into the argument is, the majority in Love has said – particularly your Honour Justice Gordon and your Honour Justice Edelman – that they are important shapers of the membership of the community. That is consistent with what we have accepted. If one qualifies as a citizen, by birth or registration or grant, that has profound consequences as a citizen across many areas of our law, as we all know – both domestic and international. It allows you to call for protection if you are in trouble overseas – perhaps allows you to come home when there is a pandemic, or not.

But what that leaves is really this point – and perhaps it is a difference between the majority and the minority in Love, I am not sure – but do you read the Citizenship Act as containing an implied negative? Is there an implied negative that Parliament has said anyone who from time to time is not a citizen is a constitutional alien and, therefore, can have the disabilities of an alien imposed upon them. We would respectfully urge that that is not correct. There is no such implied negative. If I do not have citizenship from time to time, I do not have citizenship from time to time. Whether I can be treated as an alien is a separate constitutional question.

GAGELER J: Could I ‑ ‑ ‑

MR GLEESON: Could I perhaps finish there?

GAGELER J: Yes.

MR GLEESON: We accept that in 1984 the Commonwealth decided to reboot the Migration Act under the aliens power and that has not been challenged in this set of cases as well. But the Act which is in issue for constitutional purposes here is the Migration Act. When it comes in and says, if you are not a citizen you do not have a visa, detain you and off you go, that is the act you are testing against the aliens power. The answer is from the aliens power. The answer is not from saying the fact that you do not have citizenship is a parliamentary declaration that you are an alien.

Your Honour Justice Gordon was very strong on this about paragraph 324. We do not have a law on the Commonwealth books which says this is the list of aliens or this is the list of constitutional aliens. We have never had such a law.

EDELMAN J: Mr Gleeson, you meet no opposition from the Solicitor‑General on that point. The Solicitor‑General has, in a series of cases, accepted that there is no implied negative in either the Migration Act or the Citizenship Act because there are some people who, however narrow the category might be said to be by the Commonwealth, there are some people who are non‑citizens non‑aliens.

MR GLEESON: I only go to that topic – I hope it is not a complete diversion – just to say that we do not have grand problems about the role of the Citizenship Act raised by Love. We have that development over the 20th century. We have the Court developing the understanding of the aliens power in the face of it. Love sits comfortably within that tradition. I think I stopped your Honour asking me a question because I was scared of it.

GAGELER J: I do not need to ask it, Mr Gleeson. It is fine, thank you.

MR GLEESON: I give the answer I would have given, your Honours.

KEANE J: Mr Gleeson, the Solicitor‑General accepts that Parliament could not pass a law to the effect that indigenous people who satisfy the tripartite test could be deported. He accepts that they could not be regarded as aliens within the Pochi test. Of course, that is not what the case is about or what Love was about. It is not about whether the aliens power could support a law for the deportation of all blue‑eyed babies or everybody who meets the tripartite test. The question is – and if we take the case at Federation of an Aboriginal couple who emigrate – travel to the United States and have a child and the child becomes a United States citizen and the child returns to Australia, could the Parliament have treated that child as an alien?

MR GLEESON: Could I, with respect, add to your Honour’s question, this – that I have answered Justice Gleeson that, consistent with Chief Justice Gleeson, one must assess the whole of the characteristics of inclusion and exclusion in the example. If the example had only the characteristics you have said – which do not include that the child returned and was a full member of an indigenous society ‑ ‑ ‑

KEANE J: Assume that.

MR GLEESON: ‑ ‑ ‑ assume that, that Parliament could not have passed that law.

KEANE J: That is because of the common law connection that entitled that child to some sort of level of right that displaced the operation of the law to any other child of immigrants.

MR GLEESON: There is no displacement of the law and it is not simply a matter of right – a personal right. It is partly a personal right, but it is not simply a personal right. It is a recognition by the common law – then we say the Constitution – of the importance of the continuity of the Aboriginal societies which have been here since pre‑settlement and which, assuming they have sufficient continuity – not substantial interruption – that would be, to use Justice Nettle’s words, torn asunder by that type of use of the aliens power because, if we take the example – the parents have come back the child has come back – this Commonwealth law says that child in that Aboriginal society can be sent away.

Now, it may be – your Honour Justice Gordon dealt with this in Love – it is the logic of the Love majority that in some respects the position of members of indigenous societies is different, perhaps better, if you want to look at it as a matter of right, because of the characteristics which they and only the possess.

We respectfully adopt what your Honour Justice Edelman has written about the distinction between differentiation and discrimination. In modern parliaments the result we urge would be a legitimate response to a relevant difference. But your Honour’s example, with respect, is an important one, because we say that under Robtelmes v Brenan, had that same case arisen in 1906, and they were indigenous Australians satisfying the tripartite test, we now know the correct answer under the Constitution would have been the child could not have been deported. The reason is the connection which has existed since pre‑settlement and that to deny that ‑ ‑‑

KEANE J: Sorry, can I just ask, is that connection with the land and waters of a particular indigenous society or is it some other connection?

MR GLEESON: Well, the answer is twofold, your Honour. It does not need to be a connection to particular lands and waters that satisfies a Mabo or a native title test. It is a broader conception of a connection to country and often the two will coalesce. But there has been some discussion yesterday about the Yorta Yorta, and if I can just use that as an example.

If you have a community which has such a degree of disruption to its connection to its land and waters and country generally that the continued observance of its laws and customs has completely broken down – and the Yorta Yorta may or may not have reached that point – if one has that as a result of vast dispossession which occurred, particularly in certain parts of the eastern seaboard – if one has that then there will come a point at which there is no longer an Aboriginal society within the tripartite test that can have members.

That is what Justice Nettle, with respect, was trying to get at. He is not foreclosing the possibility that the extent of dispossession was so great that you cannot have native title and you cannot even have the benefit of this Love principle. The fact that some people – again it is disrespectful to say it – might try and resume a society from scratch if, depending on the facts, how that plays out, they may not be able to have the benefit of either of these principles.

But our central point is, in the clear case where the tripartite test is satisfied, which means you do have a society, you do have rules of membership, you do have connection to country, where you have those features the common law and then the Constitution would have restrained that act of deportation which would have torn asunder that community. Now, that is the small step that Love has taken, small but important step.

KIEFEL CJ: But you accept, I take it from what you have said, Mr Gleeson, that there will be some Aboriginal people who are citizens of another country, on Justice King’s example, who would return. But if the society has been dispersed such that it cannot satisfy the third limb, that there is no longer any society. The result would be that there will be some Aboriginal people – some people of Aboriginal descent – who satisfy the first two tests and some who cannot satisfy all three. So, we are not talking about all Aboriginal people, are we?

MR GLEESON: No. I accept completely what your Honour has said. Justice Nettle dealt with this.

KIEFEL CJ: He accepted that.

MR GLEESON: He accepted that – and this was put by the Solicitor – well, is this not a problem with this proposition that we could have different categories. We just embrace Justice Nettle’s answer to that. This is a principle which ‑ ‑ ‑

KIEFEL CJ: But his Honour had another answer for that, did he not?

MR GLEESON: His Honour had another answer and that answer is always ‑ ‑ ‑

KIEFEL CJ: Which went beyond the tripartite test.

MR GLEESON: His Honour had another answer and the other answer is always available to any perceived difficulty around this case – of which there is none. There is none. But that is why I call it small but important. It cannot deal with – it cannot right the major wrongs of what settlement has done to this country because many of those major wrongs are the complete dispossession, the complete dismemberment, the complete destruction of societies. But what it can do is deal, your Honour, with ‑ ‑ ‑

KIEFEL CJ: You are saying it is a step. But that brings you back to the question Justice Gageler asked you about - where are we with something that Love and Thoms has provided?

MR GLEESON: Yes.

KIEFEL CJ: It has provided an answer.

MR GLEESON: Yes.

KIEFEL CJ: But it is going to be the first of many. Your case itself is a request, really, for an extension of the tripartite test and there will be others which say the tripartite test does not go anywhere near what it should be. So, we are at the beginning of an area of the law that has the opportunity to develop, I think you would have to say.

MR GLEESON: And develop in accordance with the constitutional method of this Court. The developments may be small. They may be ‑ ‑ ‑

KIEFEL CJ: Would you say that Love and Thoms gives a direction as to where that goes, or it has only taken the first step?

MR GLEESON: It is far more than the first step. The beauty – if I can call it that – at paragraph 81 – and it is why we describe it as disrespectful for the Commonwealth to try and deny the ratio. What paragraph 81 is about ‑ ‑ ‑

KIEFEL CJ: It is not a very usual thing for a majority in a case to do, Mr Gleeson.

MR GLEESON: The reason it is done is to make sure there is not a problem. There cannot be a Re Patterson‑type problem.

KIEFEL CJ: It is perhaps also a recognition that there have been differences in the reasoning.

MR GLEESON: Differences in the path.

KIEFEL CJ: But you say that does not matter to what is ratio.

MR GLEESON: It does not matter to ratio because, as the general proposition, which justifies the result in Mr Thoms’ case in particular, it works perfectly harmoniously. So, if your Honours allow Love to stand it will simply work itself through in accordance with the constitutional method. At the moment, the Commonwealth has said the only case they could find to bring for you is dear Mr Montgomery. So, it is not causing revolutions. The Federal Court is working through the cases. The Department, apparently, understands the ratio of Love because they have released eight people under it and they are processing, they say, a further number of people who are in detention.

KIEFEL CJ: They could, out of an abundance of caution, be acting on the basis of paragraph 81.

MR GLEESON: But as the ‑ ‑ ‑

EDELMAN J: Mr Gleeson, it probably should not be forgotten that paragraph 81 did exactly what this Court did in Mabo.

MR GLEESON: Yes.

EDELMAN J: There was a statement in Mabo authorised by the members of the Court to the same effect – to clarify, beyond doubt, in Mabo what the ratio was.

MR GLEESON: Yes. Your Honours, conscious of the time, I said I would deal with the John factors – I said that to Justice Gageler. I hope what I have said so far as gone through those factors – through the prism of the Territories Case. So, unless your Honours had questions on the leave issue, I was going to move on to any supplementary submissions on the substantive question about Love – although I have already made some submissions on that topic.

If your Honours could just for one moment pick up our written submissions, please. What we attempted to do at paragraph 53 - and hopefully not at the risk of being too schematic – was to just identify the steps which led to the unfolding of the majority’s judgment in Love, and the first of those I have really addressed this morning in answer to questions from your Honours Justices Keane and Gleeson that that is now a full understanding of what the common law would have said to questions of status, namely that Aboriginal Australians as such, and without further inquiry into their place of birth, were members of the political communities forming in the Colonies and later in the nation and they did not have to satisfy particular common law rules of status to avoid deportation.

If your Honours have Love available, it is in volume 8. We would commend the correctness, with respect, of what your Honour Justice Gordon said between paragraphs 335 and 342, which would underpin that understanding today of the effect of settlement upon Aboriginal people, and this is the deeper truth following Mabo. We would also commend what your Honour Justice Edelman said – I do not intend to go to all the paragraphs, but just to emphasise what was said at paragraph 392, including the extract from Justice Willis in 1841 in Bonjon’s Case that, albeit in a different context:

Aboriginal people were not “considered as Foreigners in a Kingdom which is their own” -

adapting also the remarks of Lord Brougham in 1837 in the East India Case:

to have concluded at Federation that an Aboriginal person was an alien would be “almost as inconsistent with common sense as it would have been to hold the English inhabitants aliens under James I”.

GLEESON J: Mr Gleeson, the difficulty that I have trying to apply those kinds of statements is that it is far from clear that when people were talking about Aboriginal people in that context, they were talking about Aboriginal people who were born outside of Australia.

MR GLEESON: None of these statements can be overread, your Honour, because they are snippets really of history. I cannot say there is the authority. Love simply archeologically discovered the answer to the case. I can simply say that there are strands in these early recognitions which appear to be – what they appear to be doing is responding to the Aboriginal people who are resident in Australia.

The other example I was just going to give your Honours was paragraph 277 in Justice Nettle, quoting from Lord Glenelg to Sir Richard Bourke in 1837, and as he expressed it:

“all the natives inhabiting those Territories must be considered as Subjects of the Queen, and as within HM’s Allegiance.

So, it seemed to be on the basis of, without needing to show more than that, you are part of the – I apologise for the word – the natives, but resident in the Territories. You are subjects of the Queen and you are the people the common law would not have allowed to be deported.

I want to recognise that your Honour Justice Gageler, dealing with this topic, took a different approach – including at paragraphs 104, 105 and 110. At 104, your Honour perceived that in the 19th century there were two distinct rules of the common law. The first was, anyone who was an inhabitant alive immediately prior to settlement, became a British subject. So, under that first rule, there would be no inquiry as to where you were born. It is just that if you were here and you were a member of an indigenous society pre‑settlement, you were a British subject. That rule is probably correct as far as it goes.

Your Honour’s second rule is that from that date on, every person born within the Territory became a British subject by reason of birth. Your Honour cites Singh and, in turn, that is Calvin’s Case. The issue is whether what your Honour has stated there is a complete statement of the rules of status. It is correct as far as it goes but the step taken by the majority is to say, with the insights of Mabo, that second rule is too narrowly stated and you, by reason or being one of the members of the indigenous society, are a British subject – as Lord Glenelg said to Sir Richard Bourke. That is the step that we commend as correct. Can I then move to our ‑ ‑ ‑

GAGELER J: Mr Gleeson, have you read Professor Sawer’s opinion that I refer to in the next paragraph - paragraph 105, footnote (232)?

MR GLEESON: Yes. I want to say this, your Honour. Your Honour has collected, in paragraph 105, statements by eminent people. On my review of those statements – and of the wider writings of Sir Kenneth Bailey, Professor Sawer, Sir Garfield Barwick – and this is not a criticism of them – none of them anticipated Mabo. They were writing in a pre‑Mabo world. That is no criticism. It is just that what they say is incomplete. It is true but incomplete.

As with many issues in this case, there is development over time and views which, indeed, have a degree of liberality in them may, in turn, over time need further liberality applied. The propositions in paragraph 105 are very important propositions to say that if you do qualify under old‑fashioned English laws of status, you do have the same rights in law as other British subjects. It was very important for that to be said because people would have denied that – some people would have denied that. So, it was very important for Professor Sawer and others to take this step. It is just whether it is incomplete with the knowledge we now have.

I did want to refer to your Honour’s paragraph 110 where your Honour affirms, for the sake of the historical record, that Aboriginal and Torres Strait Islanders and non‑Aboriginal Torres Strait Islanders alike, became, at Federation, members of the body politic of the Commonwealth. We would agree with that proposition – just pausing there. We would say that Aboriginal and Torres Strait Australians were part of the “people” referred to in the covering clause. They were part of the people who could – subject to parliamentary regulation – elect the members of the Houses of Parliament. We would say they were part of the residence of the States protected by section 117.

Where we disagree with your Honour is in the next sentence, not that it is untrue but that it is incomplete, that they were part of the people, not just if they were born in the territorial limits, but because they were the indigenous people of Australia. That is the supplementation, we submit, the small supplementation that the majority has provided. That is why we say at Federation all indigenous Australians were part of the people. The Court has now, in the reasoning of the majority, not in the ratio, but in the reasoning, has expressed that conclusion and we submit it should stand.

Now, your Honours, that is the first proposition about the common law. Then the second proposition, at paragraph 53, I have now covered. It is the point I just made about the context. So, we embrace the view in a number of the judgments, majority and minority, that the aliens power is situated in this larger context of who are the people. We submit it supports the majority’s view.

Could I come to the third question, the question of constitutional method? We have given the Court separately a small extract from The Australian Communist Party Case 83 CLR 1, to the judgment of Justice Williams at page 222. On that page, his Honour said that where there is a challenge under the aliens power, it is the duty of the Court to be satisfied of every matter of fact or law which bears upon whether the person is an alien. In that statement, his Honour illustrates some other powers where that is in fact what the Court’s duty is. We commend that passage to your Honours, that the Pochi limit really is just this. It is the Court being satisfied of the matters of fact and law which bear upon whether the person is an alien, and the matters of law include discerning the essential limits of the aliens power.

We submit that what the Court did in the Same Sex Marriage Case, if I can use that expression, is an example of this exercise, and that is at Commonwealth v ACT 250 CLR 441, which is volume 5, tab 36, page 1605, and particularly at paragraph 33 after a careful analysis, the Court discerned the meaning of “marriage” under 51(xxi) at the appropriate level of generality as being:

a consensual union formed between natural persons in accordance with legally prescribed requirements which is not only a union the law recognises as intended to endure and be terminable only in accordance with law but also a union to which the law accords a status affecting and defining mutual rights and obligations.

That is the constitutional method that we submit underpins any Pochi analysis. It is not the case, the Court says, let us just look a smorgasbord of forms of marriage in different legal systems at 1900, common law and civil law, and then say the Parliament can choose any form or combination of forms it likes and call it a marriage. The Court, performing its constitutional function, is saying we must discern the essential meaning and the limits of the power at this appropriate level of generality. That being done in paragraph 33, then the Parliament can choose from what is available within the range, not the reverse.

So, we would submit there is a passage from Justice Williams through to this Court in the Same Sex Marriage Case and I then want to go to the Singh Case 222 CLR 322 – in the materials, it is volume 12, tab 73. In the Chief Justice’s judgment, I wanted to emphasise paragraphs 4 and 5, which discuss the Pochi limit – but importantly add to that paragraphs 10, 11 and 12 because in paragraph 10, the Chief Justice identifies that there are great many meanings – great many terms within the Constitution that have:

a legal meaning, and that are naturally understood and applied by courts with reference to their legal meaning.

In the long list his Honour gives, we have aliens, and we have bankruptcy and we have marriage. So, we have the status powers within that list, but we also have a range of other powers informed by legal usages.

So, we would submit the status powers do not sit in a separate field where the Parliament is given the almost unfettered choices – which the Commonwealth contends. It sits within a larger field where legal usages are going to be relevant to discerning the legal meaning which this Court gives to the provision. So, if one is looking at promissory notes, which is not a status power, the Court would be looking at not only what was known in law about promissory notes at the time of the Federation, but one would be looking at what those legal usages tell us more generally about what that power was intended to cover.

I wanted to emphasise in paragraph 11 – this was the passage I was referring to in answer to your Honour Justice Keane – that the Chief Justice says:

When a word is used to signify a concept, the process involves both inclusion and exclusion.

So, in every one of these cases, the ultimate question is what are the set of characteristics which the person asserts takes them outside the reach of the aliens power? Paragraph 12, where his Honour makes some observations about meaning and context, we would submit supports the notion that it is the Court’s duty to have regard to a whole range of matters. His Honour instances:

the whole of the instrument, its nature and purpose, the time when it was written . . . other facts and circumstances, including the state of the law, . . . developments, over time, in the national and international context -

All of that is what goes into this Court discerning the limits of the aliens power – it is not it has all been handed to the Commonwealth to choose anything they like from what was in existence at 1900.

Your Honours, perhaps just before the adjournment, could I say that on that question of method – and contrasting your Honour Justice Gageler’s judgment in Love – the paragraph that we would respectfully disagree with starts at paragraph 88, because at paragraph 87 your Honour has said there is no problem with the higher level principle from the Communist Party Case that of course this Court and not the Parliament answers a controversy about the scope of any head of power. But your Honour goes on to say in 88 there is no room for the more specific principle that the Court must be satisfied of the facts which are:

necessary in law to provide a constitutional basis for the legislation”.

Your Honour there references page 222, Justice Williams, and your Honour goes on in the end of the paragraph to say:

The status of a person as an alien or non‑alien can (and where put in issue in appropriately constituted legal proceedings must) be judicially ascertained.

It is the next sentence we suggest needs care:

But that status can be judicially ascertained only through the application of positive law, enactment of which inheres in the legislative power itself.

Now, the “only” in that sentence we may be taking too literally, but if the sentence were taken as meaning the role the Court is to look at, the positive law of status from time to time, which, for the first 50 years of Federation will be basically common law plus a few small statutes and then will become more comprehensively dealt with by statute, if it is limiting the Court’s role to say what is in the common law, or what is in the statute, that is the beginning and the end of an aliens case, we would submit that is not correct.

Now, I immediately recognise your Honour has not taken the “only” to its full extreme, because your Honour has said at 100 and 101 there are some constraints on the Parliament. What your Honour has recorded in 100 appears to be somewhat close to what the Commonwealth put yesterday. We respectfully submit that your Honour the Chief Justice and your Honour Justice Keane have not expressed agreement with paragraph 100, but what paragraph 100 seems to suggest is:

the Parliament is entitled at least to choose between the principal options recognised as having vied for acceptance as indicia of nationality in the second half of the 19th century, being the place of birth (jus soli) or the nationality of one or more parents (jus sanguinis), or to choose some combination of the two.

Where the difficulty with that statement arises is if that is taken to be the entirety of the exercise, that is, excluding other characteristics which may be relevant to alienage and so, again, if your Honour’s statement is taken as true as far as it goes but not exhausting the possibility of there being other characteristics that can be relevant to the alienage exercise, then the difficulty diminishes, but if what your Honour is saying is as long as you have chosen one of those characteristics or a hybrid, then, irrespective of any other circumstance which might connect the person to the country, they can be deemed a constitutional alien and deported, then we would submit your Honour is not correct, your Honour is not supported by the Chief Justice or Justice Keane because you have not committed yourself to that position, and it is simply not the case that the aliens power allows those instructing Mr Donaghue to deport 47 per cent of the persons in Australia.

KEANE J: But you are not submitting, are you, that we should be reading section 51(xix) as if it provided that the Parliament may make laws with respect to persons recognised by the High Court as aliens?

MR GLEESON: Certainly not, your Honour, and we ‑ ‑ ‑

KEANE J: It is getting a bit close, Mr Gleeson.

MR GLEESON: What we are doing is saying your duty is exactly as it was in the Same Sex Marriage Case. You look at, of course, these options floating around at 1900, but you do not simply put a stamp on that and say off you go, choose from the smorgasbord, we have no role. The role we say you do have is, having looked at them together with all the matters Chief Justice Gleeson said in paragraphs 10 and 11 of Singh, everything else, including developments, including context, to determine what are the limits of this power that has been given if that is not right it becomes, for practical purposes, an unlimited power.

The only other limits your Honour Justice Gageler identifies at paragraph 101. They are external limits and even then your Honour is just raising them as possibilities. But your Honour has – at least in express terms – identified no other limit within the power – other than what is in paragraph 100.

KIEFEL CJ: Mr Gleeson, just a point of clarification. We are in that part of your argument where you are dealing with the notion – the fact that the majority in Love was correctly – that Love was correctly decided.

MR GLEESON: Yes.

KIEFEL CJ: Are you going to apply the constitutional method to the majority’s reasons? You seem to be concerned with showing that the minority was wrong.

MR GLEESON: I take your Honour’s gentle hint.

KIEFEL CJ: Yes. Perhaps we might think about that while we have a morning break. The Court will adjourn for 15 minutes.

AT 11.16 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.31 AM:

KIEFEL CJ: Yes, Mr Gleeson.

MR GLEESON: Thank you, your Honours. Our final submissions on the correctness of Love fall into two categories. Firstly, I just wanted to give some of the references in terms of constitutional method where this Court has not frozen the inquiry into legal usages at 1900 and has carried out its task by reference to a broader conception.

There are really four in that category: first in the area of judicial power, Palmer v Ayres 259 CLR 478 at 37, where history alone did not provide a sufficient basis for identifying what is a judicial power; secondly, clearly enough in the implied freedom area; but thirdly, Cheatle’s Case 177 CLR 541 in ascertaining the essential features of trial by jury, the Court was not confined to the position at 1900 in terms of whether women could be members of the jury and it is that former analysis, we submit, is helpful here.

The final submission, taking up your Honour the Chief Justice’s question, is that on the application of that method we commend the majority, firstly Justice Bell, her Honour identifying the question around paragraphs 63 to 64 and ultimately advancing an incongruity proposition in paragraph 71, incongruity between a common law recognition of the unique connection between Aboriginal Australians and traditional lands with the finding that they could be described as aliens within the ordinary meaning of the word, so at 74 her Honour says it is outside the limits of the power to treat an Aboriginal Australian as an alien despite birth elsewhere because they cannot be said to belong to another place, picking up Nolan.

In Justice Nettle the approach has been adequately explained to you yesterday. I do not need to add to that. In Justice Gordon at the critical stage of application your Honour works through the matter chronologically – pre‑Federation, Federation, post‑Federation – and at around 357 comes to the conclusion that:

Those to whom Indigenous laws and customs give those rights and duties with respect to land and waters within the territory of Australia are, and must be recognised as being, part of the “people of Australia” and not aliens.

To relatively similar effect, your Honour Justice Edelman, particularly at paragraph 451.

Your Honours, at that point I wanted to change register slightly and move to the question: if Love is correct, what do you do with biological descent? I think your Honours have my general submission from yesterday - you do not reach that question. If Love is not correct, it is unnecessary to consider if Love is correct, you do not have the materials. That is our general answer to biological descent.

The matters that I wanted to add were relatively discrete. Your Honour Justice Gleeson asked a question – where did the tripartite test come from? The short answer is that it was developed within the public service in response to the 1967 referendum as a means to identify persons to whom benefits could now be conferred. It was then first probably taken up judicially in Tasmanian Dams by Justices Brennan and Deane, and then Justice Brennan in Mabo (No 2). That is the relatively short answer to it.

The slightly longer answer is given in four materials which are in volumes 1 and 2. If your Honours will forgive me if I just give you the references and not take you to them, but they explain the full history. The history starts with the article by Ms Lippmann, which is volume 22, tab 146, which establishes that in fact it was being devised in the 70s by the public servants, and it was intended as an act of liberation – liberality.

What was perceived was that the old‑fashioned use of the terrible term “blood quotients” which in fact had been an instrument of considerable discrimination and repression, needed to be improved upon, and so the first limb in many of these materials is described simply as descent. It is not even described as biological descent in some of the material. It is to capture what had been done though those earlier offensive notions, but in a softer fashion which paid closer attention to the norms of the society. So, descent was there as the first limb and then the second and the third were added.

The second reference is the article by Gardiner-Garden in 2003, which is volume 21, tab 140, accompanied by the ALRC report in that year, 21, tab 125, which explained that progression. There is an important article by De Plevitz in volume 21, tab 133, which explains why the idea that there could be a genes test is unscientific in science, and Mr Lenehan has accepted that, and so that is not being urged upon you.

So, through that process, it was developed - what appears to be the position from the material is that although adoption in Aboriginal societies had been observed by the anthropologists since the 1890s, it was never considered as to how it sat with the tripartite test as it was emerging. It just was not on the radar as something that needed to be framed within or without the first limb. That is the general position.

After Mabo, the courts were immediately concerned in the native title context with precise factual cases which did involve adoption. The earliest statement is in Ward in the Federal Court which is volume 20, tab 124, page 7588, where – and this part of Ward was not brought before this Court. So, at the moment it stands as authority.

EDELMAN J: Sorry, Mr Gleeson, what tab was that?

MR GLEESON: It is tab 124.

GORDON J: Sorry, what page was it?

MR GLEESON: It is page 7650, paragraphs 229 to 235 of the judgment. Justices Beaumont and von Doussa, in these paragraphs, had very little difficulty reaching the conclusion that the correct way to view biological dissent in Mabo (No 2), was a:

broad understanding of the notion of descent –

and they explained why biological descent should not be read narrowly – particularly because it is a summary of some statements his Honour had made earlier at page 61, where his Honour was emphasising that these:

are matters to be determined by the laws and customs –

of the group. So, if the law and custom includes adoption – and regards it as conferring full membership – that ought to be recognised by the law. So, at paragraph 232, their Honours say that. Paragraph 233, this was a case where there was extensive evidence of adoption or growing up and:

the reference . . . to “biological descent” was not intended to exclude such people from membership of the community.

At 235, what was critical was that the traditional laws and customs:

did not impose a requirement of strict biological descent . . . as a prerequisite to membership.

So, while the majority in Love did not need to explore these questions of adoption, one can already see that the courts – 30 years ago – have understood that the statement should not be taken narrowly because the critical test is, what is it under the laws and customs that makes you a member?

The full argument that would be presented on biological descent is, when one understands the purpose of Love – if it is correct – the purpose being to respect this fundamental connection between traditional societies and the land and waters under their laws and customs, traditionally so – if the customs do, in fact, provide exactly as they did in the Ward Case, you would be denying the entire premise of Love if you said, we will recognise some of your society as protected and others not.

KIEFEL CJ: Mr Gleeson, to what extent and how do you ask the Court to deal with these matters of law? I understand your argument that the Court should not proceed to determine the factual outcome ‑ ‑ ‑

MR GLEESON: Yes.

KIEFEL CJ: ‑ ‑ ‑ but are you asking the Court to deal with matters of legal principle and state them?

MR GLEESON: No, your Honour, it is a bridge too far in this case. We are really seeking to ‑ ‑ ‑

KIEFEL CJ: You are leaving it for the Federal Court to deal with?

MR GLEESON: Yes. It is a negative exercise we are seeking to engage in ‑ ‑ ‑

KIEFEL CJ: I see.

MR GLEESON: ‑ ‑ ‑ to say that – in short, there is available material of fact that I am going to come to and an available legal proposition based on what the Federal Court has identified over X years to suggest that you simply look at whether adoption is recognised under the laws and customs of the group and is it recognised in such a way that it makes the adoptees the full equivalent of a person who might otherwise have strict biological descent. If it does, then in a fact case that would be held to satisfy the first limb. So, we do not think we can ask your Honours to go any further than that. We do not need to for the purpose of responding to Mr Lenehan’s argument.

Your Honours, the other reference – just to complete it – is Dr Kingsley Palmer who you know from other cases – is in volume 22. I should, perhaps, just ask your Honours to go to that. It is volume 22, at tab ‑ ‑ ‑

GORDON J: Is this tab 145?

MR GLEESON: Yes. So, just at pages 8337 to 8338 of the book, he really captures the entirety of the issue from the anthropological perspective – that one looks to the normative system of the group and particularly on the second of those pages, 8338 about line 15:

the normative system that is relied upon to determine rights to country is one based on descent from a named ancestor and the filiative links to ego’s parents and grandparents. These filiative links generally rely on consanguineal ties. But in some cases they must rely on other forms of filiation, such as adoption. Transforming adoption into descent with recognition of filiation requires the transformation of a baby (or child) into a son or daughter. That . . . requires community acceptance.

and so on. Mr Palmer then explains the sort of exercise you would have investigating the laws and customs to see whether the idea of adoption is recognised in the community. So, that is the body of law in fact available.

EDELMAN J: Mr Gleeson, if we were to get to this issue, does it really not come down to anything more than saying that “biological descent” is just a slightly unhappy term, but really the more accurate expression would be “descent”?

MR GLEESON: That is correct, your Honour, it is descent in accordance with the laws and customs of the group.

KIEFEL CJ: Is that not really just to merge 1 and 3 of the tripartite test?

MR GLEESON: No, that is Mr Lenehan’s point, not because what the adoption does, if proven, is bring you into the line of descent at a certain point of time at a certain age. That is as if you satisfy the bloodline. You still then need to self‑identify – and you still need to be recognised by the appropriate elders at the time of the inquiry.

KIEFEL CJ: But if you remove biological descent apart from self‑identification, it is left entirely to an Aboriginal group to identify who is going to be a member of the body politic of Australia.

MR GLEESON: We would just put that the other way around, your Honour. This Court will have, via Love, established the legal parameter by which a person cannot be an alien and then the application of that parameter will pick up the decisions made under the laws and customs of the group, correctly so.

KIEFEL CJ: The laws and customs are capable of evolution.

MR GLEESON: The very issues dealt with through the entirety of the native title jurisprudence. We have respectfully said that, when the Commonwealth say you do not have to worry about the implications for native title, that is really is a little superficial with this problem. Every native title case – Mr Glacken can tell you about this – critically involves questions of how you define the group and whether adoption within the group can constitute membership. It is the sort of the question just being dealt with every day of the week in those cases. It is not a question, we would submit, that requires the whole of Love to be questioned or revisited, it would just be worked through.

Your Honours, in our written submissions, we have given the references to the balance of the native title cases which have dealt with adoption – I do not need to go to them. Your Honours, I did want to – concluding this point – just say ‑ ‑ ‑

KIEFEL CJ: What you have said though about a group in our discussion points up a potential question about Love, which might be relevant to reopening, and that is whether or not what is said in Love is consistent with what is said in Mabo about sovereignty.

MR GLEESON: Your Honour, we submit it is completely consistent with Mabo. Can I leave that topic to Mr Walker to deal with ‑ ‑ ‑

KIEFEL CJ: Yes.

MR GLEESON: ‑ ‑ ‑ if he is willing to.

KIEFEL CJ: Yes.

MR GLEESON: Your Honours, in the cases that have followed Love, there has been some discussion of adoption. Could I give your Honours the examples? Firstly, Hirama, which is in volume 17, it is case 101 at page 6616. This was a case where – I am sorry, your Honours, it should be at page 6616. It is a case where you will see from the orders that a declaration was made that:

The applicant is not an alien within the meaning of s 51(xix) –

and it was by consent, and her Honour was satisfied that the consent of the Commonwealth and the applicant was appropriate to establish the tripartite test. So, it is one of the illustrations of the situation working itself through fairly smoothly. At paragraph 32, the descent limb was satisfied on the agreed fact that the applicant was descended from a Nyul man named Malambor, who was an apical ancestor in certain determinations of native title. You will see at 33 over the page that the native title holders include persons by adoption who are descendants of, relevantly, Malambor, and at 34, that Malambor, the descent from him was traced through:

Matthias Dann, who was culturally adopted by Malambor’s son.

So, the Commonwealth has had no difficulty in recognising, in an appropriate factual case, that adoption can play a role in the chain of descent. The Commonwealth says perhaps Mr Montgomery is a different form of adoption, they are the factual issues to be worked through, but it shows there is no great problem in adoption being accommodated within the tripartite test.

The other example, I will not ask your Honours to go to it, but in McHugh in the Full Court, Chief Justice Allsop and Justice Mortimer have again discussed that adoption may be an appropriate way of satisfying the first limb, depending upon the normative standards of the group.

So, your Honours, that concludes that part of our submissions, which is to say that if Love is correct, then its application to Mr Montgomery should safely be left for another day, in part because there is a plausible legal argument that adoption can be accommodated within the first limb. It is also because he has available to him factual evidence to suggest his adoption did satisfy traditional law and custom so as to make him a full member of society.

Now, at this point, your Honours, I am moving, if you will permit me, to the notice of contention. I am working in reverse order back through the remaining issues. The notice of contention is important to our argument, because it centres around the fact that Mr Montgomery had the evidence of Dr Powell, which was available to be led in an appropriate case, and that evidence, if I could summarise it first and then just take your Honours to the key parts of it, the effect of the evidence is that there was a possibility of biological descent in the strict sense, on his father’s side, from Aboriginal persons, which could not be directly established yet, but could not be ruled out because of evidence of a number of unions between Maoris and Aboriginal Australians in the relevant part of Queensland.

The second proposition it establishes is a prima facie case that Mr Montgomery was welcomed into the family group and into the Mununjali clan. He was initiated, adopted and the connection was strengthened by marriage and the rearing of Aboriginal children.

The third proposition is that under the traditional law and custom of the group he is now taken to be descended from the ancestors in the clan. What that will mean for the notice of contention is that, had the officer informed herself of this evidence and informed herself of the broader legal matters I have identified which indicate adoption can sit comfortably with descent, there was a real possibility that he qualified under the first limb, and conversely it was unreasonable to form the suspicion that he was not an Aboriginal Australian. So, it goes ultimately to the reasonable suspicion argument, but it is the additional plank which her Honour felt she did not need to reach.

Your Honours, they are the summary propositions. Could I just show you how that comes about. Your Honours will need volume 1 of the respondent’s book of further materials. To understand the evidence your Honours’ associates will have a blown‑up version of the family tree that Dr Powell deposes to. On that family tree, if your Honours have it, and in terms of the ancestors of the group, in the middle of the page, the union between Harry Monsell Snr and Minnie Monsell recognises relevant ancestors.

It looks like on the current material, Harry Monsell Snr, who is referred to as “King Harry”, was probably a Zulu African who came to Australia and was accepted into the community. Going down to about the middle, your Honours might pick up a reference in green to Merle Bundi, nee Monsell. She is described as “Gamma Merle” in the evidence. She, through the adoption, is the mother of Mr Montgomery. She is the elder who designated him for initiation.

The other critical female elder is further along that line to the green, Eileen Mitchell. She is described as “Gamma Eileen”. Beneath that, Robert Mitchell, Uncle Robert, he is important in the proposed evidence. At the far right‑hand side, Athol Goltz ‑ ‑ ‑

GLEESON J: What do the little pink rectangles mean?

MR GLEESON: Deceased, your Honour.

GLEESON J: Thank you.

MR GLEESON: The red circles are the people who are most significant in the story of adoption. Uncle Athol Goltz, who is on the far left‑hand side, is an uncle of Mr Montgomery under the traditional law and custom. In the middle bottom of the page, Danny Bundi, he is the grandson of Gamma Merle, who helped take Mr Montgomery in when he was abandoned by his mother.

Over the right‑hand side, Bronwyn Garcia, is an important figure, and she is a mother to Shayne Montgomery even though she is also the mother of Elizabeth Garcia, who was his first wife. They have three Aboriginal children - Tyleia, Anthony and Torrell. His second wife is Marion Ivers who is Aboriginal and they have an Aboriginal child, Sapphire Montgomery. His third partner was Jessie Wilkins, which makes up his fifth child.

So, in Dr Powell’s report you will see a helpful summary of the report in section two, which goes from page 46 of the book through to about 53, and then that is elaborated on in the balance of the book. At 46 in paragraph 8 she says:

is a member of the MMB Family Group –

That is made up of what is described as multi‑generational, multi‑branched related persons in several dwellings and so on. They are the descendants of Florence Edwards and Harry Monsell and the various branches.

Paragraph 9 identifies Eileen Monsell as an elder with authority. Paragraph 14 indicates that there is a native title claim which concerns this group and includes claimants by adoption, so that there is an overlap of the issue. At paragraph 15 she identifies that it is part of the law and custom to give:

shelter, sustenance and protection . . . to those in need –

Paragraph 17 is the paragraph where she identifies that there are records of Maori Australian unions, which means there is a possibility that he may have biological descent on his father’s side. The details of those unions are found at paragraph 65, from the 1938 Norman Tindale genealogies, and they concern a number of places in Queensland where those unions are recorded.

So, when her Honour said the time had not yet come for Mr Montgomery to present his full case on whether he had strict biological descent, her Honour was in fact correct for the additional reason that it is borne out by this material which the officer never considered.

Returning to page 49, paragraph 18, this is the key summary point about:

The processes by which a person without proven blood‑line descent can be accorded membership –

Discussed further at 80 to 88. They:

include being “taken in” . . . by clan Elder into his/her household and initiation –

into the clan and the country, strengthened by marriage and “the begetting of children”. So that is the essence of what the case will be. Paragraph 19 refers to the practice of “welcoming in” or “rearing up” children.

All of this is important material, but I will just pass over it ‑ paragraph 28 is his initiation. Paragraph 31 says on the basis of his evidence and her broader findings he has been adopted into the group. A paragraph like 37 indicates evidence from Athol Goltz that he is a nephew, and from Bronwyn Garcia he is a son, a son/mother relationship. So, this is affiliation by descent which Kingsley Palmer speaks of.

There is further evidence of mother in paragraph 39. Passing over some material, at paragraph 49 there is anthropological evidence as to how descent operates in south‑east Queensland and that it depends upon a series of links which can be:

consanguineous, classificatory, affinal, nurturing or fictive connections.

So that is the range under the laws and customs. Paragraph 54 explains where the records historically are of the Mununjali country, and then critically at the bottom of page 77 the analysis commences as to why proven blood descent is not a necessary condition under this society. The author refers at 74 to the taking in of abandoned children; at 75, that is what happened with Mr Montgomery. At 77, this is the basis upon which he is part of the family. I just emphasise there, apart from Bronwyn Garcia in 77, in 78 Mr Athol Goltz’s view, paragraph a), is that:

“Shayne’s bloodline is Mununjali –

being brought in and reared up. So, the adoption gives him, on the evidence, the bloodline. Your Honours might just observe 79 b). The material from Mr Goltz is that:

“Ideas of biology have no place in this – they never did. This is an idea that was brought to us by outsiders. This has nothing to do with our culture or our lore. Shayne is Aboriginal according to our culture and our lore.”

At 82 – I am just about finished – the expert’s view will be that on this range of material, he has what is described as:

a consubstantial connection with Mununjali country and people –

and you will see that explained in the footnote, it is a connection of the same essence as other members of the group. Just finally, at the foot of that paragraph 83, another extract from Mr Goltz that, through the process, Mr Montgomery is spiritually Aboriginal, and his family has:

given him this connection from what we have. Our family is spiritually connected to our ancestors . . . This is what I mean about him joining the line, through our stories he is part of our ancestral line now”.

That is a plausible case of descent, and 86 explains the broader history of the taking in of abandoned children. So, your Honours, if I could draw together what we say on the notice of contention, it is that this material was presented to the Department. It is not actually the fault of Mrs McBroom, because she was never given it, but the Department had it for over 100 days, and when this material was taken together with the broader material indicating that adoption could well satisfy the first limb of the test, it was unreasonable for suspicion to be formed that he was not an Aboriginal Australian. Your Honours, that leaves me then finally to go back to paragraphs 61 to 68 of the reasons.

EDELMAN J: Just before you do, Mr Gleeson, could you assist me with whether there is any difference or…..difference between the ceremony of cultural adoption and the initiation? Would it be right to understand one as concerned with the first limb and one as concerned with the third limb, or are they the same concept, or are they different?

MR GLEESON: As far as this material goes, it suggests that the initiation was central to the first limb, as in, that was the step by which he joined the bloodline, and the broader proposition focuses on the welcoming in, the initiation, the strengthening by marriage, the rearing of children, and that clearly satisfies the third limb. So, it is an illustration that we are not collapsing one into the other, they each have a role to play. The initiation was because Gamma Merle decided he was appropriate to be put through that ceremony with the Merle elders.

If your Honours could go back then to the cause removed book please to paragraphs 61 to 68. Her Honour had three strands to the argument that the Commonwealth had failed to discharge the onus that was placed upon it. The first strand in paragraph 61 was only partly addressed by the Commonwealth. The Solicitor put the submission based on the last sentence that paragraph 61 is all about Mr Montgomery’s team asserting uncertainty in the ratio of Love.

If your Honours read the previous long sentence, what her Honour in fact was saying that in the Department’s letter – where it gave what was only a preliminary position – it did not foreclose approaches to determining Aboriginality – which might be different to strict biological descent – or which supplanted the rights of Aboriginal people to determine by reference to indigenous law and customs who possesses such rights. Her Honour there referenced two paragraphs of Love, 458 and 357, to say these were matters which were not even foreclosed by the Department – so that is a starting point in assessing reasonable suspicion. At 62, her Honour says in the middle:

Nevertheless, the justification for Mr Montgomery’s detention depends on proof of his detainer’s state of mind judged reasonably. Mrs McBroom must be taken to have had access to the correspondence . . . understood at least that there was a view that Love might not be confined -

That is the first set of parameters. The second, which is 63, concerns the possibility of biological descent. Her Honour says:

Whilst it seems unlikely that further evidence as to Mr Montgomery’s ancestry may be uncovered, the time for him to be put to proof on that question has not yet arrived ‑ ‑ ‑

that time being the High Court on the reserved questions:

Nor has the time arrived for the High Court to decide the determinative normative standards by which the question of biological descent, at least with respect to the Mununjali People, is to be assessed.

So, the type of reasoning her Honour is engaging in is in the very particular procedural context of this case where this whole issue was not before her Honour – was removed to the High Court – and where there was a possibility still that the biological descent in the strict sense might be strengthened but also the possibility that, on a proper view of the normative standards, adoption might be sufficient. At this stage it was not reasonable to form a suspicion he was not an Aboriginal Australian.

Her Honour then bolsters that with paragraph 64 by saying she knew he was adopted but then quotes what Chief Justice Allsop had observed in McHugh at [65] – and McHugh was available at the date of this judgment – it was given in December 2020 – that:

even for the purposes of the tripartite test itself, it remains unclear by what relevant normative standard or standards the question of biological descent is to be assessed. His Honour asks rhetorically, ‘is it genealogical or biological descent strictly by blood, or does it include features, such as adoption, that may be encompassed within (if applicable) traditional Aboriginal law and custom?’

Her Honour correctly observes it may well be there was no single answer across all societies and, therefore, these are questions which are still alive and at this stage it is not reasonable to suspect he is not an Aboriginal Australian. That is the second strand.

The third strand, which the Commonwealth dismisses, is he had been treated by government authorities as Aboriginal. Yes, he was taken there by the elders. He was accepted by government authorities in the social service area as Aboriginal - over quite a few years, was the evidence, including health services.

What her Honour then engaged in was a form of reasoning which is completely consistent with Goldie’s Case – Goldie is set out in paragraph 67 – that the officer may be aware of facts which conflict with the suspicion which the officer has formed and in that event reasonableness requires proper inquiries to determine what to make of those conflicting facts.

So, in this case, we do not know what the inquiries of the government services would have revealed. Would it have revealed information about why they were prepared to accept he was Aboriginal? Perhaps, yes. This is where the onus is absolutely critical, the onus being on the detainer, the detainer having this information potentially within its grasp, and not looking for it.

It may well be, as we are here today, there is evidence in the government files which makes his case under the first limb straightforward. Now, that being the onus, it not being satisfied, one can understand why her Honour said, I am granting liberty at this point in time – not for all time – I am granting liberty only on the cause that is before me. The High Court will review the larger question of liberty, but at this stage the Commonwealth has failed.

GLEESON J: Mr Gleeson, I do not understand that because surely your client would be – the question of his descent is a question that is peculiarly within his knowledge. Why would it be that the Commonwealth would have any better knowledge than him?

MR GLEESON: I cannot say the Commonwealth would have had better knowledge than him, but what I can ‑ ‑ ‑

GLEESON J: But why could they have?

MR GLEESON: Why could they have is because the Commonwealth had for many years on this evidence accepted him as Aboriginal. Now, why they did that ‑ ‑ ‑

KIEFEL CJ: That is on the representation of others.

MR GLEESON: The point is to know why they did that. The answer lies in their records. It may be what your Honours said; it may be that plus more. What her Honour here is saying, in these circumstances where that is a body of potential knowledge, the person who has the control of that is the detainer and what needed to be done was to close of that possibility. Now, it may have been very easily been closed off. But her Honour’s reliance upon Goldie’s Case is the failure to inquire about their own records is what renders the suspicion at this stage the suspicion unreasonable. So, your Honours, paragraph 68 is the drawing together of all of those threads, and so for the reasons that I have given ‑ ‑ ‑

KIEFEL CJ: The onus is to show that he is not Aboriginal in fact? Is that the onus?

MR GLEESON: No. The way we put it is, the onus was to show it was reasonable to hold a suspicion that he was not an Aboriginal Australian within the tripartite test in circumstances where the ultimate answer to that question was going to depend upon law and fact in this Court. So, your Honours, that is our defence of everything leading up to 68, and then it just leaves 66, which was the notice of contention paragraph.

The last sentence does a little injustice to the evidence of Dr Powell, which I have shown you. It ignores the balance of paragraph 17 and paragraphs 63 to 66 and, really, had the officer looked at and read that evidence – and it is supported by a vast bulk of annexures that I have not had time to go – the only reasonable course to say here would be, I cannot today reasonably suspect he is not an Aboriginal Australian within the tripartite test.

Your Honours, in terms of other matters - fortunately, or not, there are very few left. The leave question I have not made submissions on orally. We rely upon the written submissions. I do submit that when you review the cases we have referenced, it will be clear that the dispensation of the need for leave is only where it is the subject affected by the court order that is seeking to appeal and, were it otherwise, there is a complete tension between the general proposition – no appeal from habeas corpus – and a supposed provision saying you can appeal as of right if you are the detainer.

KIEFEL CJ: Just on the question of habeas corpus, could her Honour have made an injunction requiring Mr Montgomery to be delivered up? Is that an alternative order available to her Honour?

MR GLEESON: Could you just pardon me for a moment? If your Honour means delivered up to the Court, if the order was ‑ ‑ ‑

KIEFEL CJ: Or, an injunction requiring his release, however it is framed.

MR GLEESON: His release, yes.

KIEFEL CJ: However one frames it.

MR GLEESON: The reason I am hesitating, is that ‑ ‑ ‑

KIEFEL CJ: A mandatory injunction or a positive injunction.

MR GLEESON: ‑ ‑ ‑had it been asked for, probably, yes.

KIEFEL CJ: Does that affect your argument about habeas corpus?

MR GLEESON: Not for this reason, your Honour. The “no appeal against habeas” principle – as you have seen from history – has grown up at a time when ‑ ‑ ‑

KIEFEL CJ: But it is peculiar to the writ of habeas corpus.

MR GLEESON: It is peculiar to the writ of habeas corpus.

KIEFEL CJ: The order for an injunction would have been appealable.

MR GLEESON: The question your Honour raises, with respect, is a good one. We need to have an answer to it. It does not arise on the facts of our case, but it does arise at a level of principle – can you get around this proposition by seeking a differently framed order? Were that question to arise, there are different ways the Court could answer it. The primary way which we would commend is that if the order, in substance, is a habeas order – even if framed as a mandatory injunction – the preclusion principle should apply. So, it should not depend upon mere technicalities of the forming of the order.

KIEFEL CJ: But it would not apply in every case involving an injunction. It would apply where there were considerations of double jeopardy – which were the basis of the application of the preclusionary rule.

MR GLEESON: So, it may depend upon the precise case one is dealing with.

KIEFEL CJ: Yes.

MR GLEESON: The better view, we would submit, would be in substance over form if it is, in truth, habeas, the same principle should apply because it is so fundamental to the common law.

Your Honours, we have, at the end of our submissions, made an application in the Court’s discretion that two things would happen on costs. One, is that whatever the Court does it would not disturb the costs order below in favour of Mr Montgomery’s representatives. The second is that whatever happens, the Court would, in its discretion, order the Commonwealth to pay the costs of Mr Montgomery’s representatives in this Court.

The reason that we ask for that is that at the core of the Commonwealth’s application is its attempt to overturn a recent authority of the Court and, upon that matter, it has been necessary for the Court to have such assistance, limited or otherwise, as we can provide and that is appropriate to reflect it in the Court’s orders. Unless your Honours have questions, they are our submissions.

KIEFEL CJ: Thank you, Mr Gleeson. Solicitor‑General for Victoria.

MS ORR: If the Court pleases. Victoria intervenes in respect of grounds 1a and 1b of the notice of appeal only. In these oral submissions, we will focus on developing three submissions in support of the respondent on those grounds. First, that there is a clear ratio for the decision in Love and Thoms, so that the appellants require leave to reopen it. Second, that leave to reopen Love and Thoms should be refused and, third, if the Court does revisit its decision in Love and Thoms, the decision should be confirmed.

Could I start your Honours with the submission that there is a ratio that emerges from Love and Thoms. At the outset, we say it is important to be clear about what is being referred to when we refer to a ratio of a decision. In Woolcock Street Investments v CDG Pty Ltd, which we refer to in paragraph 2 of our oral outline, we give the explanation given by Justice McHugh that the ratio of a case is the general rule of law that the court propounded as its reason for the decision. There is a clear ratio of the decision in Love and Thoms, and it appears ‑ ‑ ‑

KIEFEL CJ: Could I just ask about that? What do you say about the authorities and text to which the appellant referred, in relation to what is a ratio? Are they wrong?

MS ORR: The formulation that the appellants give in their submissions for a ratio is a legal proposition that is common to all four of the majority Justices that, when applied to the facts of the case, is sufficient to explain the result in the case. That is referred to at paragraph 14 of the appellants’ submissions. We say whichever of those formulations you apply, the result is the same. There is a rule of law – a general rule of law – or a legal proposition that is common to the majority Justices that, when applied to the facts, is sufficient to explain the result in the case.

Can I make good that proposition by referring to the result in Love and Thoms. That result can be found in the answers to the stated questions. In the proceeding brought by Mr Thoms, the Court answered the question of whether Mr Thoms was an alien, within the meaning of section 51(xix), in this way:

Aboriginal Australians (understood according to the tripartite test in Mabo v Queensland [No 2] . . . are not within the reach of the “aliens” power conferred by section 51(xix) . . . the plaintiff is an Aboriginal Australian . . . and therefore –

the answer is no. The legal proposition, or general rule of law, that explains the result that Mr Thoms is not an alien is expressly identified in the answer. It is expressly identified in precisely the same way in paragraph 81 of the reasons for judgment of Justice Bell.

The result in the proceeding brought by Mr Love was that the majority was unable to agree on whether Mr Love was an Aboriginal Australian on the facts stated in the special case. That lack of agreement does not detract, we say, from the identification of a ratio. The Court’s answer to the question posed in Mr Love’s proceeding still included expressly the same general rule of law – or statement of principle – that Aboriginal Australians understood according to the tripartite test are not within the reach of the aliens power.

As Justice Bell explained, with the authority of the other members of the majority, in paragraph 81, the difference of approach in relation to Mr Love was one of:

proof, not principle.

Since Love and Thoms, multiple judges of the Federal Court have treated the general rule – or on the appellants’ formulation, the statement of principle – reflected in both the answers to the state of questions, and paragraph 81 of the judgment, as containing the ratio of the decision.

The approach taken by Justice Mortimer in identifying the ratio in the Helmbright decision we say is instructive. I will not take the Court to that decision – it is at volume 17, tab 100 – but could I direct the Court’s attention to paragraphs 105 to 108 where Justice Mortimer in finding that the ratio of Love and Thoms was that

Aboriginal Australians (understood according to the tripartite test . . . are not within the reach of the “aliens” power -

emphasised that that statement was common to the answers to the stated questions in each proceeding and mirrored the statement at paragraph 81 of Justice Bell’s judgment. At paragraph 238, her Honour described this statement as the Court’s:

declaration on the “issue of law” -

in the proceedings, and the further part of the answer given by the court in Mr Thoms’ proceeding, as the way in which the court had given effect to the legal rights of the parties:

“irrespective of the steps by which each of the Justices in the majority reaches the conclusion” -

At 242, her Honour explained that:

The Court’s order in respect of Mr Love made it clear the majority justices could not agree on how the agreed legal principles applied in fact to Mr Love’s circumstances.

Could we make two further observations about paragraph 81 of Justice Bell’s judgment. The first observation is that the reference Justice Bell made to the statement in that paragraph as being:

authorised by the other members of the majority -

is not novel. The device of the most senior judge who forms part of a majority using their reasons for judgment to express the position of the majority judges as a whole in a case where the majority judges have written separately has been used by this Court on other occasions. We drew the Court’s attention in our submissions to two examples of that, one of which Justice Edelman has referred to earlier today. The first example is the Mabo decision, and again I will not take the Court to the decision, but if I could direct the Court’s attention to pages 15 to 16 of that decision.

At page 15 Chief Justice Mason and Justice McHugh writing in the joint judgment, stated that they agreed with the judgment of Justice Brennan and the relief that his Honour proposed. They then went on to record what the six‑member majority could be understood to have agreed to. Their Honours said:

In the result, six members of the Court (Dawson J. dissenting) are in agreement that the common law of this country recognizes a form of native title which, in the cases where it has not been extinguished, reflects the entitlement of the indigenous inhabitants, in accordance with their laws or customs, to their traditional lands –

KIEFEL CJ: Ms Solicitor, would a statement such as paragraph 81, or what was said in Mabo, would that bind - as a matter of precedent bind following courts?

MS ORR: It is the ratio, and thus does, we say, bind as a matter of precedent ‑ ‑ ‑

KIEFEL CJ: Following courts would not be able to scrutinise the reasons for themselves and come to a different view?

MS ORR: It is not, we say, your Honour, that the reasons fall away and become irrelevant, but the reasons must be understood by reference to the express authorisation given by each member of the majority to that common principle or rule of law.

KIEFEL CJ: I do not have any difficulty with the purpose of such a – as you call it, a device – it is for assistance when there might be thought to be, perhaps, some doubt and it is useful for that purpose. But I am really just a little concerned that a following court would not be able to determine for itself what the ratio is.

MS ORR: Well, it is a device designed to assist the court in understanding what the ratio is and what we say here is that what the majority did by agreeing to that statement in Love and Thoms is relieve courts below, and practitioners, of the burden of otherwise attempting to construct by reference to each of those reasons, a general rule of law that had been embraced by the majority. That is not a task that is necessary because of paragraph 81 and the answers to the stated questions in this case. That will not always be the case.

EDELMAN J: Ms Solicitor, you have to add a little bit to that, though, do you not? You would have to say that it would assist lower courts to identity the ratio at that level of generality, but it does not necessarily preclude lower courts from saying that a broader and more specific and wider ratio could exist?

MS ORR: Yes, of course, your Honour, and it might be that in the workings out of the consideration of the decision in years to come, a decision is made that the ratio, in truth, reflects something different. But at this stage it is the stated general rule of law adopted by each member of the majority, and thus represents the ratio.

GAGELER J: Ms Solicitor, by taking us to Justice McHugh’s language in Woolcock Street, are you meaning to pick up his Honour’s discussion and distinctions in that case?

MS ORR: That follow the passage that I have cited, your Honour, between ‑ ‑ ‑

GAGELER J: That are part of the analysis that leads to that statement. His Honour seems to distinguish between the holding, the rule and the ratio.

MS ORR: Yes, he does, your Honour.

GAGELER J: For my own part, I have never used those words in that way. His Honour gives no citation for that distinction.

MS ORR: Yes, I understand, your Honour. But what his Honour does go on to do is make clear that, although he has identified those three categories of concepts, prima facie two of them will always be the same. His Honour says:

Prima facie, the ratio decidendi and the rule of the case are identical –

He goes on to make the point which I have just attempted to make to Justice Edelman – which is that if later courts take the view that the rule of a case was different from the stated ratio – because that is what we have here – we have a stated ratio- so, later courts might take the view that the rule of the case was different from the stated ratio and then they can dismiss the stated ratio as mere dictum, or qualify it, to accord with the rule of law – as the case is now perceived to hold.

So, we do not say that that distinction between those three concepts has been applied, subsequently, and we do say that the ratio and the rule of law will, almost inevitably, be the same thing. We say that that is what is stated here – the rule of law that is the ratio.

GAGELER J: If anything was going to be binding, I would have said that it was the holding, in the case. Be that as it may, we ‑ ‑ ‑

MS ORR: We say the binding is also – sorry – the holding is also binding, your Honour, because the holding here is at the more specific level in relation to Mr Thoms and Mr Love.

EDELMAN J: I think you may be taking those three concepts not word perfect from Sir Rupert Cross.

MS ORR: Yes, that may be so, your Honour. Could I return to Mabo? I did just want to complete the analysis of what the Chief Justice and Justice McHugh said there because the parallels, we say, are significant because I had got to the point of explaining what Chief Justice Mason and Justice McHugh had resolved was agreed between the members of the majority. But they then went on to acknowledge – as Justice Bell also acknowledged in Love and Thoms – that there were differences in the reasoning of the members of the majority. They described the main difference as being that they – Chief Justice Mason and Justice McHugh, and Justice Brennan, did not agree with Justices Deane, Toohey and Gaudron, that:

extinguishment of native title by the Crown by inconsistent grant is wrongful and gives rise to a claim for compensatory damages.

So, having identified what the majority could be understood to have agreed – and the main point of difference in between them – Chief Justice Mason and Justice McHugh said, at pages 15 to 16:

We are authorized to say that the other members of the Court agree with what is said in the preceding paragraph about the outcome of the case.

The other example that we thought might assist the Court to draw your attention to – what I have been referring to as a “device” being used – is Parker v The Queen – which is at volume 10 of the joint book of authorities, tab 60. In that case, Chief Justice Dixon explained, at page 632, his view that certain:

propositions laid down –

in a particular recent judgment of the House of Lords were:

misconceived and wrong . . . should not be used as authority in Australia at all.

Your Honours will see that towards the lower part of the large paragraph that appears on page 632. Then, Chief Justice said, at 633, over the page:

I am authorized by all the other members of the High Court to say that they share the views expressed in the foregoing paragraph.

Important views – that it was important for other courts, practitioners and members of the public to understand the Court’s position because they represented a departure from, and criticism of, a recent criminal judgment of the House of Lords.

KIEFEL CJ: That is not a statement of the ratio, though, is it?

MS ORR: No, no, I do not suggest that that is ‑ ‑ ‑

KIEFEL CJ: It is just identifying a consensus.

MS ORR: Yes. It is used for a different purpose, which I have attempted to articulate in that case, because, we say, of the significance of the proposition, the controversy, perhaps, that sat behind the position that Chief Justice Dixon was articulating, and the desirability of indicating that that was a position that was agreed to by other members of the Bench. So, we say that in Love and Thoms that same device was helpfully used by the majority to make clear what the common rule of law or statement of principle regarded by each of the majority judges as the reason for the decision was, and we say that paragraph 81 should not be ignored.

The second observation that we want to make by reference to paragraph 81 is one that I have already adverted to, which is that whilst we do not contest that the task of identifying a ratio ordinarily requires consideration of the reasoning of each of the judges in the majority in order to assess what general rule of law they have embraced, paragraph 81 is a sparing of us of that task.

The appellants ask this Court not to focus on paragraph 81 but instead to look at the differences between the reasoning, particularly of Justices Bell, Gordon and Edelman on the one hand, and Justice Nettle on the other hand, and they seek to use those differences to persuade the Court to treat paragraph 81 as reflecting something other than the general rule of law that explains the decision.

In making that submission, they ask this Court to disregard the clear statement in paragraph 81, but more than that, they ask this Court expressly to interrogate and look behind the authorisation that Justice Nettle in particular gave to Justice Bell to state that his Honour agreed with the other members of the majority about that general rule of law.

In their reply submissions, the appellants at paragraph 2 ask this Court to draw inferences about the meaning that Justice Nettle gave to the form of words that his Honour agreed to in that paragraph, and we say that the Court should not do any of those things.

The fact that Justice Nettle expressed his reasoning differently to the other members of the majority does not change the fact that his Honour chose to agree with the other members of the majority as to the general rule of law that explains the decision. There is no requirement for uniformity in the path of reasoning in order to identify a ratio, and to adapt the language used by your Honour Justice Edelman yesterday, interrogating differences in the reasoning that led each of the majority Justices to adopt the stated general rule of law in paragraph 81 is to descend to a level of specificity that is inconsistent with the process for identifying a ratio.

Whatever differences emerge from the path of reasoning adopted by Justice Nettle, those differences, we say, cannot overcome or displace his agreement to the rule of law expressed in paragraph 81. That is not to say that there was not a significant degree of commonality in the reasons of each of the majority Justices, because there was, and we will return to explain what we say is a critical common strand of the reasoning across the majority judgments, but of course, if Justice Nettle did not wish to convey that he agreed with the other members of the majority about the general rule of law, his Honour would not have authorised Justice Bell to make that statement on his behalf.

We say the Court should reject the appellants’ invitation to treat paragraph 81 and the answers to the stated questions in Love and Thoms in any way other than their terms demand, which is a statement of agreement by each member of the majority to a general rule of law that is the reason for the Court’s decision. Given that there is, therefore, a ratio for the Court’s decision, the appellants require leave to reopen it.

Could I turn to the leave application, and I will be brief in relation to the leave application. For the reasons that we have given in our written submissions at paragraphs 14 to 16, Victoria’s position is that leave to reopen should be refused. Could I just emphasise a series of short points? First, we echo the respondent’s submission that the appellant should not be permitted to rerun the same arguments that were subject of detailed consideration before this Court just two years ago. Of course, a change in the composition of the Bench is not, and never has been, a sufficient reason to overrule a previous decision of the Court.

In relation to the factors referred to in John v Commissioner of Taxation, the first John factor directs attention to whether the relevant principle was carefully worked out in a significant succession of cases. There is good reason for the fact that the principle in Love and Thoms was not carefully worked out in a significant succession of cases. As the Commonwealth Solicitor‑General submitted yesterday, and it is not in contest, the question of whether Aboriginal persons can be aliens had not previously arisen, and we say that in those circumstances pointing to the absence of previous cases, or a series of previous cases in which the principle has been worked out, is of no assistance to the appellants.

KIEFEL CJ: But it remains the fact that it has not been carefully worked out in a series of cases.

MS ORR: It does, your Honour, but we say that that is no more than a neutral consideration, given the novelty of the question that was decided in Love and Thoms.

KIEFEL CJ: But the novelty just explains why it has not been carefully worked out.

MS ORR: That is right.

KIEFEL CJ: But it is at the beginning of what is going to be worked out if it remains.

MS ORR: That may be so, your Honour, but we do not say that ‑ we say that the absence of a succession of cases that have created a working out of the principle is really not in the circumstances here a matter that assists the appellants, because it is explained by the novelty of the question. But we also say that the absence of a succession of cases where the principle was worked out does not mean that the principle in Love and Thoms came out of the blue. It is a principle that can be understood as preceded by and grounded in decisions of this Court in which it has recognised the unique connection that Aboriginal persons have with the country that makes up Australia and the legal consequences of that connection.

We refer to those decisions in our submissions at paragraph 14, and we say that the decision in Love and Thoms should be understood as the latest manifestation of this Court’s acknowledgment of the sui generis status of Aboriginal persons by reason of their connection to country, this time in an alienage context. It should be seen as the latest articulation by this Court of the legal consequences that flow from that understanding, which now include the principle that Aboriginal Australians are not alien to Australia.

Could I deal briefly with the second John factor, the differences between the reasoning of Justice Nettle and the other members of the majority. We say that those differences do not rise to the level of warranting reconsideration of the decision. While there are, of course, such differences – and, as I said, this was expressly acknowledged by Justice Bell in paragraph 81 of the decision – there is, nonetheless, commonality, important commonality, to the approaches that were adopted by each member of the majority.

An important plank in the reasoning of each of the members of the majority was the recognition of the unique position of Aboriginal Australians as indigenous inhabitants of this country. The importance of indigeneity and the associated distinctive connection that Aboriginal peoples have as indigenous inhabitants with the land and waters of this country was critical to the reasoning of each member of the majority, including Justice Nettle, and we have extracted in our submissions portions of each majority judgment demonstrating the significance of those matters to the majority judges at paragraph 18.

Could I move, given the time, to the third and final submission that we wish to develop today, which is the submission that the decision in Love and Thoms that Aboriginal Australians are beyond the reach of the aliens power, is correct and should be confirmed.

Can we explain it this way. As we said, there are two key matters that underpin and explain the conclusion in Love and Thoms. The first is this Court’s longstanding recognition that the aliens power does not support laws with respect to persons who could not possibly answer the description of aliens in the ordinary understanding of the word – the Pochi limit.

The second – which I have already spoken of – is the unique connection or relationship between Aboriginal peoples and the land and waters that now make up Australia, which arises from – and we say is inseparable from – the position of Aboriginal peoples as indigenous – as the first inhabitants of this country.

We say that it is the combination of those two matters – the Pochi limit and that understanding of the importance of indigeneity and connection – that necessitates the conclusion that Aboriginal Australians are beyond the reach of the aliens power. It is because of the uniqueness of their indigeneity and the significance of their connection to land and waters that Aboriginal Australians cannot possibly answer the description of “alien” in the ordinary understanding of the word.

Could I say a bit more about the Pochi limitation, which has been the subject of much interaction between the advocates and the Bench so far. Victoria accepts that the aliens power involves a power to define the circumstances in which a person will have the legal status of alienage – that is the paragraph 12 Chetcuti articulation of the first part of the settled understanding of the aliens power.

But what is critical is that that power is – and the appellants expressly accept this, as they must – subject to the Pochi limit. As your Honour Justice Gordon suggested yesterday, the Pochi limit can be understood by reference to the well‑established principle that Parliament cannot legislate itself into power. By the Pochi limit, this Court has recognised a boundary on legislative power that is marked by the ordinary understanding of the term “alien” – which it is this Court’s role to police – to police that boundary.

The appellants’ position appears to be that if Parliament selects an historically recognised criterion or criteria for alienage – such as place of birth or descent – the law will necessarily be valid and cannot contravene the Pochi limit. We say that proposition should be rejected. We say it is an impermissibly narrow approach to the Pochi limit on legislative power.

The Pochi limit does not cease to have relevance at the level of the criteria chosen by Parliament to determine the status of alienage. It can also require consideration of whether the application of those criteria – those chosen criteria – can result in persons who could not possibly answer the description of “alien” in the ordinary understanding of the word being treated as aliens.

It is worth, we think, pausing to recall that the formulation of the Pochi limit, articulated by Chief Justice Gibbs, recognises in terms that there is an ordinary understanding of the word “alien”. Consistently with that recognition – on numerous occasions since Pochi – the Court has had regard to that ordinary or essential meaning in determining the scope of the aliens power.

It is that ordinary understanding as I have said that, we say, sets the boundaries for Parliament’s treatment of people as aliens, and allows and requires the Court to determine whether in treating a particular person as an alien, Parliament has exceeded the limits of its power. Each of the majority judges in Love invoked the Pochi limit.

We say the decision can be understood as an application of that limit to legislative power. In our submission, where a law is challenged on the basis that it infringes the Pochi limit, the task for this Court is to consider not just the criteria that have been selected by Parliament, but whether the impugned law treats as an alien a person who cannot possibly answer the description of alien in its ordinary understanding. In other words, does the impugned law in its application capture people who could not possibly fall within that ordinary understanding, even where it does that by using an historically recognised criterion for alienage?

GAGELER J: So, apart from what we might call the Love category, is there another category of persons?

MS ORR: We have not identified one in preparing for this appeal, your Honour. I do not want to suggest that there are not. There may well be.

GAGELER J: Well, there were, for about two years.

MS ORR: Of course.

GAGELER J: But that has gone. Now, it is just Love – we are concerned with the sui generis category.

MS ORR: That is right. But I do not want to suggest to your Honour that the Court could not ‑ ‑ ‑

EDELMAN J: You would not disagree, Ms Solicitor, with the position the Commonwealth has taken for the last few years that another category would be people who are born in Australia to – at least, people who are born in Australia to two Australian parents and, on the Commonwealth’s view, do not have dual citizenship.

MS ORR: Yes, that is right. I would not disagree with that, thank you, your Honour.

EDELMAN J: And there might be more.

MS ORR: There may be more, and we have not attempted to identify all categories of people that might fall within that category. What I want to demonstrate is that this Court has identified a category of people that do fit in that category in Love and Thoms, that this is an application of the Pochi limit. We noted the concession by the Solicitor‑General yesterday that a law that declared Aboriginal Australians according to the tripartite test to be aliens would be invalid, but ‑ ‑ ‑

GLEESON J: Ms Orr, do you disagree with what Chief Justice Gibbs said in Pochi, that the Parliament could treat as an alien any person born outside Australia whose parents were not Australian and who has not been naturalised as an Australian?

MS ORR: Well, his Honour did not have in mind, and was not asked to consider at that point of time, the category of Aboriginal Australians ‑ ‑ ‑

GLEESON J: But subject to that.

MS ORR: Subject to that, I do not have any reason to dispute that proposition, but “subject to that” is very important in this case.

GLEESON J: Yes.

MS ORR: But what I wanted to say by reference to the concession made yesterday that Parliament could not pass a law that says Aboriginal Australians according to the tripartite test are aliens is that it seems to us that the consequence of that is that if a law treats Aboriginal Australians according to the tripartite test in its application as aliens, it must also be invalid in its application to those people. The use by Parliament of historically recognised criteria just cannot guarantee the validity of the law. It cannot be the end of the inquiry.

Could I just refer briefly to Koroitamana, which is a decision that Chief Justice Kiefel, Justice Keane and Justice Gageler each referred to in Love and Thoms. Each of your Honours referred to the judgment of Justice Kirby in that decision, and Justice Kirby referred to place of birth and descent in paragraph 62 as the two generally recognised criteria for nationality at the time of Federation, and he went on to say:

consistent with the accepted norms for the construction of the Australian Constitution, notions of alienage and of nationality could adapt, as Parliament provided, by reference to one, both or a mixture of these competing approaches, so long as the persons designated as “aliens” truly answered that description in accordance with the judgment of this Court.

That final qualification in that passage we say is critical and reflects the Pochi limit that persons designated as aliens by criteria derived from one or both of the two theories of alienage at the time of Federation must still be persons who the Court assesses truly answer the description of “alien” for the law to be within power.

This Court has an important role in enforcing the limit on the aliens power recognised by the Court in Pochi and it can, we say, and should, undertake that task by reference to the ordinary, or essential, constitutional meaning of “alienage”, which is a person who belongs to another place.

Could I develop briefly, after the luncheon adjournment, the final part of our submissions, which is to explain why Aboriginal people who satisfy the tripartite test fall within the category of persons that is incapable of meeting the term “alien” in its ordinary understanding.

KIEFEL CJ: Thank you. The Court will adjourn until 2.00.

AT 1.00 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.00 PM:

KIEFEL CJ: Yes, Ms Solicitor.

MS ORR: If the Court pleases. Could I turn to the final point in our oral submissions, which I can make quite briefly. That point is that it is the indigeneity of Aboriginal peoples, their status as the First Peoples of this country – the original inhabitants – that supplies the reason that they cannot possibly answer the description of “aliens” in the ordinary understanding of the word.

To be indigenous to a particular place is to belong to that place. In the case of Aboriginal Australians, their status as indigenous peoples of this country involves – and indeed is inseparable from – the distinctive relationship or connection that they have with the lands and waters that now make up Australia. By reason of that connection, Aboriginal Australians belong to this country. They are part of it. Together with the lands and waters of the Territory they form an indissoluble whole.

GLEESON J: Can they renounce the status?

MS ORR: I think that the matters that have been discussed previously that relate to a society ceasing to exist will mean that there are Aboriginal Australians who are unable to satisfy the tripartite test and because that supplies the mechanism for identifying Aboriginal Australians for the purposes of being alienage power, in those circumstances, then I think yes – the answer to your Honour’s question is yes. If that society dissolves, with the result that a person can no longer satisfy the requirements of that test ‑ ‑ ‑

KEANE J: But that is not renunciation, that is just the connection ceasing to exist. Can they choose to repudiate their allegiance, in terms of Justice Nettle’s judgment?

MS ORR: With respect, we think those concepts of renunciation and repudiation of allegiance are not apt when we are talking about the criteria ‑ ‑ ‑

KEANE J: Quite, and insofar as they are not apt, what does that say about Justice Nettle’s judgment insofar as he regards permanent allegiance as an aspect of the basis on which he concludes?

MS ORR: Yes. In the Justice Nettle framework, that aspect can be repudiated – the permanent allegiance.

EDELMAN J: But, Ms Solicitor, on the test of all members of the majority, it would be open for any Aboriginal person to cease to self‑identify as an Aboriginal person.

MS ORR: Of course. Of course, your Honour, and that is another way that the tripartite test would not be satisfied in addition to the way that I have identified in answer to your Honour Justice Gleeson’s question by reference to really particularly the third limb of the tripartite test. But yes, I accept, your Honour, that that would be another way that a person would cease to satisfy the criteria identified by this Court for determining aboriginality for the purpose of non‑alienage.

KEANE J: So, that membership of the Australian body politic depends upon one’s own subjective view of oneself?

MS ORR: No, your Honour, one’s own subjective view is an input into – it is a factual input – into a test that has a factual outcome, which is that a person is identified as Aboriginal for the purposes of the test of non‑alienage.

GORDON J: I must say, at paragraph 372 of my decision in Love, I expressed a probably different view and that was it was possible for them to renounce.

MS ORR: Yes.

GORDON J: It seems to me that if you take legislative head of power as alien subject to two, as I understood, incontrovertible exclusions – and they are renunciation and changing territory – then it seems to me that, not being the subject of argument, but I expressed that view at least at paragraph 372.

MS ORR: With respect, your Honour, we would say that that is another way of looking at it. But what we say – and this picks up on your Honour Justice Keane’s question – is that the connection that I have been referring to is what also renders Aboriginal Australians part of the body politic, because, as your Honour Justice Edelman observed in Love and Thoms, a body politic necessarily has a territorial dimension, being made up of, as your Honour Justice Edelman put it:

intertwined dimensions of territory, permanent population, and government.

The Territory, we say, therefore cannot be divorced from the body politic, and as part of the indissoluble whole with the land and waters that make up the Territory, Aboriginal peoples are therefore inseparably tied to both the Territory and the political community of that Territory. The distinctive nature and significance of the connection, we say, cannot be ignored, but nor can the legal consequences that flow from it.

One of those legal consequences, of course, is the recognition of native title as explained in Mabo, and another legal consequence is the recognition that Aboriginal Australians are not and cannot be alien to this country within the meaning of that term in section 51(xix).

By the decision of this Court in Love and Thoms, this Court, we say, has continued to do what Chief Justice Gleeson and Justices Gaudron, Gummow and Hayne referred to in Western Australia v Ward, namely the translation, the translation of the spiritual or religious connection that Aboriginal peoples have with the land and waters of this country, the translation of that into the legal. For those reasons, we say the decision in Love and Thoms should stand, and those are the submissions we wish to make.

KIEFEL CJ: Thank you, Ms Solicitor. Yes, Mr Walker.

MR WALKER: May it please the Court. Your Honours, the National Native Title Council unites, by way of being an umbrella organisation, organisations over 40 in number whose principal concern, as the title suggests, is with native title, but native title, obviously, is based with respect to its recognition by common law, Mabo, its working out of that recognition under the Native Title Act by reference to a body of factual material, factual material social in nature, that may be called traditional law and custom.

Your Honours appreciate that, being an umbrella organisation with various connections to different parts of the continent and the islands in question, one thing that we would seek to impress upon the Court, particularly in relation to the need for a concrete factual case before certain issues of law may be reached properly, is that it not only cannot be assumed that there is homogeneity as to cardinal features of traditional law and custom throughout all the territory in question, it is positively to be understood now from the plethora of native title determinations, as well as land rights cases, that there is very great diversity and variety.

One adds to what we call that horizontal diversity the vertical changes that happen through time by the permitted kind of evolution, that it is common ground is permitted without fracturing the continuity necessary, in particular, for native title ‑ ‑ ‑

GAGELER J: Mr Walker, there is a factual question that I would be interested in asking you. Are you able to say, just in terms of numbers or percentages, how native title holders as a group stand against persons who identify as Aboriginal Australians?

MR WALKER: Very generally, about half.

GAGELER J: I see.

MR WALKER: That, I suspect, is a very contestable proposition, even as a generalisation, because it involves in the second part of your Honour’s comparison, questions of identity including recognition by others who may not always be, of course – how shall I say – in the same cause.

GAGELER J: Thank you.

MR WALKER: But, generally speaking, it is of that order. In other words, neither of those two halves that your Honour has asked me to compare would be regarded as insignificant compared to the other.

KIEFEL CJ: Would that figure alter substantially because native title claims are still pending in the Federal Court?

MR WALKER: Yes. It may be that that rough parity that I have proposed represents an institutional optimism on the part of my client and its members as to the completion of a process by no means complete. So, there are claimants as well as successful claimants - those who seek determinations as well as those who benefit from them. Of course, happily, both groups are multiplying. So, the numbers are themselves dynamic. But, on any view of it – and I hope I capture correctly at least part of the gist of Justice Gageler’s question – on any view of it, those who do not benefit from native title for the number of different reasons that may occur, but who may, on any view of it, be regarded as Australian Aboriginals – to use the constitutionalised term – are very considerable.

Now, your Honours, it is against that background that we submit that, in a case where it might fairly boil down to the following question, there is a need for concrete bases in fact joined as issues to be adjudicated in the familiar way before some of the matters that have been canvassed in argument before your Honours between the parties should properly be reached at all.

Boiled down, it may well be that one characterisation of the controversy in which at least my client is interested to intervene, is whether or not Mr Montgomery is a person who, on a case not yet presented let alone adjudicated, but containing assertions concerning membership of a designated Aboriginal group, is thereby, one, an Australian Aboriginal for the purposes of the constitutional discourse, and, two, thereby a person whose description is the antonym of “alien” within the meaning of 51(xix).

Now, boiled down in that fashion, it is, in our submission, plain to demonstration – Mr Gleeson has laid out the chapter and verse – that there simply is not a basis upon which there can be a statement concerning the membership of a group which itself is undoubtedly, as a matter of ordinary English, to be described as an Australian Aboriginal group, let alone to plumb the detail of whether or not it can be supposed that according to traditional law and custom, a person can be a member of such a group without himself or herself also being Australian Aboriginal.

Now, that is not a merely hypothetical possibility. Your Honours are familiar, I think, with some of the findings that have been made over the years concerning traditional adoption whereby, and this is not confined to the Australian continent or islands – it is historically known around the world – there can be adult adoption, that is, adoption of adults, raising questions as to whether there are classes of adoption, some of which would make you a member of the group for all purposes, some of which would only make you a member of the group for some limited purposes, let alone, of course, then going into the details of how, translated on the ground in Australia, that would produce issues necessary to be decided concerning whether a person claiming and being accorded membership of the group by such a means may nonetheless not be Australian Aboriginal, or must, notwithstanding lack of so‑called biological descent, be regarded as Australian Aboriginal. All those are factual. That is, they are not contained within legal propositions a priori to be extracted from the word “alien” in the Constitution.

In our submission, on matters that we do not seek to be heard as an intervener, if the basic framework of the reasoning in the majority of Love be correct, then there remains to be worked out in Mr Montgomery’s case what, if any, adaption by reference to the facts yet to be proved and adjudicated in his case, might be regarded as a supposed extension of what is called the first limb of the three‑part test.

We should not be understood as proposing that any extension is necessary – for reasons I will come to very briefly. But the point that we do wish to emphasise – given our interest in preserving the diversity and factual richness of the differences between different peoples – Aboriginal peoples around the country – we do wish to preserve the integrity of decision‑making about a constitutional question as requiring a concrete foundation in facts upon which issue has been joined and upon which a conventional adjudication has been carried out by a court, obviously, ultimately, at the appellate level by this Court.

It is for those reasons, in our submission, that one can say, as I say, with great confidence – looking at the biography of these proceedings – that there simply is not the concrete foundation by which your Honours could answer a question about Mr Montgomery and along the way pronounce by way of a rule that there cannot be ever for anyone who claims to be Australian Aboriginal that status derived from the application of traditional law and custom that recognises, say, a mode of adoption.

To put it another way, you will not find from “alien” in 51(xix), you will not find from binding legal propositions about what it means to be an Australian Aboriginal, a refutation of the possibility for all people and all territory of adoption as a means by which one becomes (1), a member of the group and, (2), with or without other qualifications – positive or negative – therefore, also, an Australian Aboriginal for the purposes of the constitutional discourse.

That is the first proposition to which we draw attention in our outline. In deference to some of the matters that have just been raised with my friend, the Solicitor for Victoria, can I make it clear that the working out of the means by which somebody would claim to be a member of a group – the group undoubtedly being Australian Aboriginal and whether membership bestows on that individual, also, Australian aboriginality for the purposes of the constitutional discourse – would necessarily involve actual, factual exploration of, in particular, the nature of the adoption and of the acceptance in to membership of the group under the so‑called third limb.

That necessarily brings us, of course, to what we put in our second proposition. The tripartite test is, with respect, not to be regarded as constitutionalised. Its first proposed judiciary, on our understanding of the history, for the purposes of understanding an expression in the heritage statute. It is next used, famously, in Mabo (No 2), a common law decision concerning the overturning of the false doctrine of terra nullius, where it was not necessary to explore either the margins or, indeed, the interstices, of who it was that would benefit from that rediscovery of true law.

Then, of course, there has been a legislated version in the Native Title Act, but the legislated version of the Native Title Act does not alter the Constitution and certainly does not, with respect, therefore supply the content – by posing tests to be satisfied – for Australian aboriginality for the purposes of the constitutional discourse, that is, the antonym of “alien”.

In our submission, that again emphasises our main first point, that it is critical there be a concrete foundation in fact relevant to the individuals before the court before there be the pronouncement of rules that would then purport to apply to all individuals caught within the generality of the rule. To propose, I hope, by way of a scare example only, to propose a rule that says no adoption of any kind in any Aboriginal community can ever bestow membership of the group so as to render the adoptee an Australian Aboriginal would, in these proceedings, be a decision bereft of any factual foundation, and it would not flow from anything upon which factual issue had been joined, or evidence, lay or expert, had been considered, weighed and adjudicated.

GAGELER J: Mr Walker, do I understand you to be saying that the relevant constitutional conception, for the purposes of understanding Love, should be cast at the level of an Aboriginal Australian?

MR WALKER: Yes. Now, you can use synonyms, I think synonyms such as “indigene”, to use a very old‑fashioned form of it, because that is how you get antonym of “alien”, obviously.

GAGELER J: Yes. We should not regard the tripartite test as necessarily indicative of an Aboriginal Australian, is that what you are saying?

MR WALKER: Somebody who satisfied the tripartite test, I think it would be underselling the situation to say merely indicative, one would have thought that would be all one would need. But sufficiency is not the same as necessity, and marginal cases, exceptions that prove the rule, are well within our understanding of how to construct the membership of a category, and no case has ever been framed or fought or determined about adoption.

In fact, this is not that case, because we do not have the concrete basis upon which to explore it and, in particular, the notion that you have in the third limb, as your Honour the Chief Justice noted in referring to Justice Brennan’s famous description of it - and this is in your Honour’s paragraph 23 in Love, what Justice Brennan said was that membership depended:

upon recognition by the Elders or other persons having traditional authority amongst those people.

That is a factual inquiry, just like it is a factual inquiry as to what the content of foreign law is when an Australian choice of law rule requires knowledge of that. So that factual inquiry needs to have been conducted upon issues joined between parties in a justiciable controversy where, here, the Australian aboriginality, the indigeneity, is the constitutional quality, being the antonym of “alien”, which would give rise to reading down, presumably, provisions of a statute based upon the aliens power from which the individual claimed unjustifiably to be suffering.

Now, that, in our submission, means that without anything before the Court concerning persons having traditional authority – that is by traditional laws and customs deriving from pre‑settlement – factually shown – because none of this is anything other than a factual inquiry – factually shown to have been understood and deployed or administered, if you like, with the outcome that the individual in question is recognised as a member of the society because, for example, adoption stands for descent – as it does in many cultures over many centuries, in different ways - without that, in our submission, this Court should have nothing to do with pronouncing a rule against adoption producing Australian aboriginality. It may well be ‑ ‑ ‑

EDELMAN J: Mr Walker, can I just understand this submission in light of Love? I do not understand you to be saying that Love, either in the manner in which it was argued or in the manner in which it was decided, was incorrect to have posed a threefold test from Mabo (No 2) as sufficient for somebody to be established as an Aboriginal Australian ‑ ‑ ‑

MR WALKER: Quite so, your Honour.

EDELMAN J: The only question then is whether, in circumstances in which the point had not been argued – either in Love or, it seems, in detail in Mabo (No 2) – that the questions of necessity that might raise very troubling issues about whether membership of a social group is to be limited to biological criteria are matters upon which this Court should adjudicate without facts.

MR WALKER: Yes, that is right.

EDELMAN J: Is that the extent of your submission?

MR WALKER: Yes. But, in our submission, it is a fundamentally important one concerning the task the Court sees it before it – and I do not mean this flippantly – and the task that it may therefore leave for a future court, if there is ever a case that raises this properly constituted.

For my client, or the members of my client, given the evident diversity of traditional laws and customs and the evident difference of approaches that may be taken to membership of the group – and characteristics of that come with the membership of the group – your Honours, I hope, will appreciate how urgently important it is for us that this not be determined in the abstract without a familiar judicial requirement for concrete facts.

GORDON J: Mr Walker, is it anything more to say - given what you have just answered Justice Edelman - it was recognised by at least some of the majority in Love – that we have not got to the point where we are identifying the metes and bounds of it?

MR WALKER: No, and that is right and that does not make this peculiar – and does not make the majority held in Love infirm to the slightest degree – it is the judicial method. Decide the case before you, recognising during arguments the consequences which would include hypotheses but never, ever treating all those hypotheticals – this is having been concluded by the pronouncement of a general rule where there was nothing concrete to render them anything other than hypothetical.

It is for those reasons, in our submission, that it is unremarkable – indeed a good thing – that there is left for a case in which it arises the case of a person who renounces, who was within otherwise the class that the Commonwealth understandably and, with great respect, correctly, asserts – it is not a concession – asserts could not on the ordinary understanding of the word “alien” be regarded as such, thus potentially invalidating pro tanto any statute that purported to do so.

I mean there of course the case which would be true for a lot of the members of my client’s members, namely persons who are born in Australia of Australian parents who, by reason of their parentage and the other relevant circumstances, not only self‑identify but are accepted by the relevant group as members of a group – serving double purpose. If they are fortunate enough to be living at a time and place when there might be native title viably sought, so be it. But the other double purpose is of Australian aboriginality.

Now, the Commonwealth concedes that is not a group that can be deported using the aliens power. But, as your Honours have already raised, and we assert must be so, that raises questions which, if they ever arise in a concrete case, will need to be answered, and perhaps they should be explicitly noted as not capable of being answered in these proceedings.

One of them obviously, bearing in mind the intellectual process of posing an antonym of “alien”, must be the case of somebody who declares that they owe allegiance to an enemy of Australia, which one would have thought, in the ordinary understanding, would be a prime candidate to be regarded as an alien regardless of some original quality of Australian aboriginality. But we do not have such a case.

We do not have an Aboriginal William Joyce before the Court, and so, in our submission, what is really important is that the Court familiarly recognise there are unchartered waters and so each step needs to be taken according to a principle which has a safe anchoring in concrete facts, and we do not have any facts about ‑ ‑ ‑

GAGELER J: Nevertheless, Mr Walker, the very methodology that you are proposing involves the Court making a factual inquiry case by case, person by person, into the status of that person ‑ ‑ ‑

MR WALKER: Yes.

GAGELER J: ‑ ‑ ‑ under customary Aboriginal law that then provides the answer to the question of whether or not a person is an alien within the meaning of the Constitution.

MR WALKER: My answer is yes, and there is more. That brings me to the second part of what, given the interests of time, I need to come then to the second and last point I want to make. It is, of course, in native title now statutory – briefly, just common law – the case that for an individual claiming to enjoy native title or any of its incidents, there has to be a case‑by‑case determination. Mercifully, the statute and procedures under the statute have tried, mostly successfully, to ensure that everything is done at once – although I suspect future generations of Australian lawyers will wonder how successful that was. But there needs to be a determination, which includes names of individuals and descriptions familiar to anyone who has ever done a next of kin inquiry, concerning the identification, ultimately, of individuals to enjoy rights.

So, it cannot be an objection to an approach that when one is talking about the status of an individual who protests against threatened deportation, that the argument requires examination of his circumstances particularly. That is the judicial measure. That is the rule of law, not to be treated as part of some generality.

Now, that being the case, one asks how or why, because this is a status which will provide the quality of antonym to “alien” with the constitutional outcome by reason of the so‑called Pochi limit or exceptional qualification, how can it be said that the factual inquiry concerning the operation of traditional law and custom with respect to an individual cannot be countenanced simply because it feeds into a constitutional outcome, when this Court completely accepts, and courts below this Court are almost daily applying the proposition, that the adjudication of the operation of traditional law and custom for an individual will produce native title rights.

KIEFEL CJ: But they are property rights, not immigration status. It is the consequences for immigration status which point up a problem with sovereignty.

MR WALKER: I suppose what I am challenging, Chief Justice, is that that is a sufficient discrimen to say that this method is admissible when it comes to something as important as property and something as evocatively important as native title, on the one hand, but the method becomes unsuitable or indeed inimical to a proper enforcement of your rights in relation to the exercise of the alien power.

EDELMAN J: I suppose, Mr Walker, you might say that courts, at least for some time being after the “absorption into the community” test was adopted for the immigration power, had to apply that on an individual basis until it became sufficiently clear that it could be applied almost mechanically.

MR WALKER: Yes. that is exactly so. In our submission, the importance of the status question is thrown up by an example that I think everyone has touched, and we have written about in our submissions. It can be briefly touched upon. As your Honours are aware, the fate of the Yorta Yorta with respect to native title is certainly not argued by the Commonwealth to say that they are not a recognisable group with traditional laws and customs deriving from pre‑settlement capable, for example, we would add, of regulating membership of the group, and one can simply see the way in which the Commonwealth, or the appellants, argue that in paragraphs 51 and 52 and their footnotes 101 and 103 of their written submissions.

It is unthinkable that the dispossession which produces the interruption that defeats a native title claim by a group who, during the dispossession, did not lose identity, though they suffered an interruption in the observance of traditional laws and customs for the enjoyment of the territory from which they had been dispossessed, it is unthinkable that they would thereby suffer the incapacity to assert, factually, and, wherever it mattered, constitutionally, that they were Australian Aboriginals.

Now if that be true, in our submission, it seems odd that, looking to the determination of those with traditional law and custom authority derived from pre‑settlement in accordance with the third limb of the so‑called tripartite test will be de rigueur for property, including to defeat property claims under native title, but apparently cannot be looked at by a member of the Yorta Yorta people who claims that he or she cannot be deported as an alien.

One has to be very careful about these marginal examples, because unless something concrete arises, it is not immediately obvious how many such people there ever will be, and it is for those reasons that, in our submission, returning to our main theme, it is of the first importance, given the diversity of the traditional laws and customs and their differential evolution, permissibly, while still being derived from pre‑settlement, that there be a concrete basis before the court embarks on something as programmatic as saying there cannot be adoption, in particular, there cannot be what is called in the Torres Strait “traditional adoption”.

It is for those reasons, in our submission, that this is really no more different in terms of method, about which the Chief Justice asked me, this is no more different from what happens when an Australian choice of law rule, an Australian choice of law rule, says that a dispute as to property will be determined according to foreign law where the factual inquiry – and it is all factual – obviously looks to the sovereign acts of someone else, a foreign power who makes their law.

There is no reflection upon the sovereignty of Australia by the outcome of that justiciable dispute being determined by the judicial power of this country nonetheless being determined as to its content by reference to the foreign sovereign acts that made that foreign law which is being applied by our choice of law rule. That entails no diminution of sovereignty.

To the contrary, it is a manifestation of our sovereignty to have that choice of law rule, just as it is a manifestation of our sovereignty to have the traditional laws and customs administered by those with authority to do so according to those traditional laws and customs derived from pre‑settlement as the means by which, in the third limb of the so‑called tripartite test, membership by acceptance into a group can be accomplished.

When the case comes – it may be this case depending upon the outcome – to examine whether, in truth the third limb – for some societies – can envisage, in place of biological descent, forms of adoption, then there will be further questions – such as the one that the Commonwealth is emphasising as to whether that suffers from the defect of the first limb being swallowed by the third limb – to which, we would say, that will require facts and details in order to understand the nature of that. It cannot be adequately dealt with at that abstract level and, in any event, the three limbs are not factual findings about traditional law and custom – neither are they constitutional doctrine and they ought not to be treated as exhaustively the only way in which one can be an Australian Aboriginal.

It is for those reasons, in our submission – precisely because of the marginal nature of such cases – that they positively require a concrete

setting in which the court can then adjudicate by due regard for the content and operation of the traditional law and custom found as a fact. May it please the Court.

KIEFEL CJ: Thank you, Mr Walker. Yes, Mr Glacken.

MR GLACKEN: May it please the Court. The Court might well appreciate, from our written submissions, that the NLC seeks to resist the contention by the Commonwealth of the nature of descent by which one belongs to an Aboriginal community or society and by which rights and duties attaching to that relationship of belonging is some uniform legal standard confined to what the Commonwealth calls a genetic relationship between Aboriginal persons and their forebears.

The implication of this contention to recognition of the traditional title of Aboriginal peoples to their country is fairly evident, given that the inheritance and transmission of these titles is by descent and that the statutory concept of native title, in section 223 of the Native Title Act, – is drawn from what Justice Brennan wrote in Mabo (No 2) at page 70 and then picked up in Love in the ruling of the special cases.

The Commonwealth contention as we apprehend things – and this is apparent from its reply at paragraph 15 – is that the phrase “biological descent” – which is two words of a paragraph from a very long judgment but appearing in Justice Brennan’s reasons, and applied in Love – must have a legal meaning. Then, in their submissions in‑chief at paragraph 55, it is said that whatever be the content of this legal meaning of biological descent, it must have a uniform or invariable meaning.

May we say that there at least three immediate flaws in the premises to the Commonwealth’s case. The first is that Mabo (No 2) did not lay down some invariable requirement for strict biological descent or blood ties. The second, is that the so‑called “three limbs” of the so‑called “tripartite test” interact with each other. They are not discrete and severable elements. It is a fundamental mistake to treat one limb, such as descent, in isolation from the other two.

The third point we wish to make – which is a variation on what you have heard already – is that what it is to be an Aboriginal Australian – and the nature of descent that qualifies one’s belonging to an Aboriginal community – are questions of fact which are not being agitated in this case – owing to the procedural history and at the time did not arise for that question so far as it concerned Mr Montgomery.

We adopt what has been said that it is a bridge too far. It is a matter for future decision. But we wish to explain that there is a conceptual fault with the way the Commonwealth raises this – which is a misreading of what Justice Brennan said in Mabo (No 2).

Now, if the bridge is then crossed, what we submit is that if the legal status of Aboriginal peoples is to depend upon an element of descent, then that must be understood as capturing principles of descent recognised by the Aboriginal peoples concerned in accordance with their customs and traditions. We take a cue from the rhetorical question posed by Chief Justice Allsop in McHugh v Minister for Immigration. We set out the passage at 23 of our written submissions, that the question of descent:

is to be posed and answered using the correct frame of reference or normative standard.

We submit that the customs of the people concerned governing issues of descent provides the relevant frame of reference because the limitation in section 51(xix) identified in Love arises from, or at least follows, the common law’s recognition of the unique nature of the connection Aboriginal peoples have with country, and that connection we well know is to be framed by the customs and the traditions of the peoples concerned.

It has been said today that it is a small but important step in the recognition of Aboriginal peoples, that is, an act of respect, and it is a development of the law as has occurred since Mabo. It follows the line of cases collected by Justice Gordon in Love at footnote (481), and it follows what Justice Nettle at 269 of Love referred to as the “logically anterior” recognition of Aboriginal societies bound by laws and customs drawing upon what was said by this Court in Yorta Yorta.

These normative standards are also the relevant frame of reference, given the statement of Justice Brennan in Mabo, adopted in Love, concerned the inheritance or transmission of rights and duties in accordance with the traditional laws and customs of the people concerned.

Now, your Honours, could I ask the Court to turn up Mabo, which is 175 CLR, it is in the joint book volume 8, page 50. If your Honours could first go to page 69 in the judgment of Justice Brennan, at about point 6 his Honour commences, before the numbered paragraphs:

After this lengthy examination of the problem, it is desirable to state in summary form what I hold to be the common law of Australia with reference to land titles:

Then on page 70, point 6 is where the so‑called tripartite test is to be found, but it is within the context of the opening sentence that:

Native title to a particular land –

and I emphasise:

its incidents and the persons entitled thereto are ascertained according to the laws and customs of the indigenous people who, by those laws and customs, have a connexion with the land. It is immaterial that –

there have been changes, and then in the next sentence refers to:

Membership of the indigenous people depends on biological descent from the indigenous people and on mutual recognition of a particular person’s membership by that person and by the elders or other persons enjoying traditional authority –

Now, I will develop what else occurred in the judgment in Mabo, but when his Honour speaks of biological descent from “the indigenous people”, his Honour is referring to a collective, and that must be understood as referring to descent from a grouping of persons and who may well include persons adopted or incorporated. It would equally include a person immediately so adopted or incorporated as well as those so adopted or incorporated at an intermediate level just as much as it would include those incorporated by marriage and so forth.

What biological descent speaks to, in the context of belonging to a community and the judgment in Mabo is simply a sense of common origin. It does not deny marriage or adoption any more than it accepts both death and birth as elements in lines of descent that tie a community of persons together. Just to elaborate upon that, if your Honours then go to page 61, and I will not read the passages, but what we find at page 70, point 6 is the shorthand summary of what appears at page 61 commencing at about line 4 or 5 where his Honour refers on the right‑hand side:

The incidents of a particular native title relating to inheritance, the transmission or acquisition of rights and interests on death or marriage, the transfer of rights and interests in land and the grouping of persons to possess rights and interests in land are matters to be determined by the laws and customs of the indigenous inhabitants –

et cetera, et cetera. Now, what we take from that is that what his Honour is doing is his Honour is referring to a generalisation about traditional laws and customs. Because they are not common law rules – the common law merely recognises those traditional laws and customs – his Honour is essaying matters of fact. A similar process appears in the joint judgment of Justices Deane and Gaudron, at page 100, where their Honours refer to “generalizations” – and then at 110, point 2, refer to laws about those peoples who are entitled to such rights. Justice Toohey at pages 191 to 192 may have a similar theme, but his Honour took a very different approach to the notions of traditional title and possessory title.

Now, the reading of Mabo by the Full Court in Western Australia v Ward – and Mr Gleeson went to the passages – is not presently distinguishable in this context today because what Mabo deals with are rules of inheritance and transmission that operate as part of a wider normative system that goes to defining Aboriginal status or membership being the broader concept underpinning the Love majority.

Might we say – and perhaps to take up the invitation by Mr Gleeson earlier – your Honours may appreciate it is common for determination of native title to include adoption when describing the persons who hold native title, because that reflects the nature of Aboriginal customs being matters of fact.

To take one example in the Timber Creek Case in this Court, the native title holders are the Ngaliwurru Nungali persons who are members of certain estate or country groups by reason of descent through one’s father’s father, one’s mother’s mother, and similar lines, all – and I emphasise – by reason of having been adopted or incorporated into such descent relationships. It does not appear from the High Court’s judgment that the trial judge, Justice Mansfield, at 337 ALR 362 at 71 sets out that matter.

Can we also say – getting back to what I take to be the concept of biological descent – referred to by Justice Brennan as a matter of fact as referring to what might be called broad ancestral links – which is the way I think was put by the Full Court in Ward – that it is equally implausible to suggest that the use of the word “biological” in that summary point form means that his Honour was laying down some strict requirement in exclusion of any other customary principles. Given that his Honour had earlier referred to the findings of Justice Moynihan on remittal – and if your Honours go to page 18 – the quotation starts at page 17 – it is from page 111 of Justice Moynihan’s findings – at the top of page 18, the fourth line, Justice Moynihan found:

Marriage and adoption involved the provision or exchange of considerable quantity of produce. Surplus produce was also required for the rituals associated -

and so forth. We have provided separately findings of Justice Moynihan on remitter and the Court should have – and hopefully the judges appearing remotely have as well – and there is an extract of page 145 of the findings on the remitter. There is a heading, “L – Adoption”:

The plaintiff Eddie Mabo claims entitlement to certain lands in issue in these proceedings by inheritance as the adopted son of Benny and Maiga Mabo.

So, Justice Moynihan had to consider the significance of this claim to descent. His Honour then goes to consider the evidence about fostering or adoption arrangements – and I will just summarise, but at about point 6, Justice Moynihan refers to:

The first class of arrangement he described as “an arranged adoption”

That, at the bottom of the page:

is referred to as “traditional or island or unclaimed adoption”.

At 147 his Honour refers to “a second class of arrangement”. He then refers at point 4 to a “third arrangement” and at about point 6 to a further – that is, fourth – arrangement of adoption. Can I draw your Honours’ attention to the second‑last substantive paragraph where Justice Moynihan records:

It is not suggested that the Islanders consciously analysed the practice of fostering and adoption in terms of such categories. Some spoke of just bringing up to distinguish fostering from adoption. Doctor Beckett –

That is Jeremy Beckett, the anthropologist engaged in the case:

was adopted with a family to give him an acceptable or recognisable position in Murray Island society so as to facilitate his work. It has not been suggested that this gave him any standing to inherit from his adopting parents ‑ at least not yet.

The possibility was left open. Then tantalisingly – I am sorry, but the library copy misses page 148 - there are two pages 149, but for my purposes page 149 suffices. If you go to the middle of the page, Justice Moynihan is summing up, if you like, where he says:

One of the points of complete traditional adoptions seems to have been in order that the adopted child might inherit the adopted parent’s land. The point of this was that in return for a place in the adoptive family and getting the land the adoptive child would look after the adoptive parents in old age . . . It may also have served as a way of redistributing population or land -

Then it is noted in the next paragraph:

It seems that adopting parents had a preference for blood relationship albeit very slight but it was not regarded as essential at any time to which the evidence related . . . If Dr. Beckett is to be accepted the reason for favouring the blow –

I think that means “blood”:

has come ultimately to be pragmatic.

Now, there are then findings about the status of Eddie Mabo’s adoption, which are not relevant for matters of principle, but ‑ ‑ ‑

GORDON J: Mr Glacken, are you taking us to this for any more than to establish that in a sense what Mr Walker put to us, and that is that there is an extreme – there is no one rule, there is diversity, it is a factual inquiry, we do not have the facts?

MR GLACKEN: Two points. That is one.

GORDON J: Well, it was maybe three or four, but I will take it as one.

MR GLACKEN: The other is how to read “biological descent” in what Justice Brennan says. His Honour is referring to a sense of common origin and in no way excludes a line of descent acquired by adoption. Can I say, for completeness, this goes on. We have circulated an extract from Justice Finn’s findings in Akiba. I will not go to it, but it is 204 FCR 1 at page 62, paragraphs 196 through to 200. Justice Finn in the Akiba native title claim made similar findings, noting it was a pre‑sovereignty custom and practice and noting that:

apart from adoption by close blood relations, it was also a traditionally‑sanctioned means of incorporating strangers and of population recruitment –

That is at paragraph 200. Now, what we take from that – which is a variation on the theme that has gone before – is that these are matters of fact, the content of law and custom. The description by Justice Brennan at page 70 of rules of membership is an essay of matters of fact. It is not a legal standard. To answer Justice Gageler’s question, for the purpose of section 51(xix), it identifies, if you like, a core of the group of Aboriginal Australians so protected, and then maybe those in the penumbra, but it does not do so as some formal uniform legal standard. Now, there are other points that we would ‑ ‑ ‑

GAGELER J: Mr Glacken, I will ask you the same question as I asked Mr Walker. What you are postulating is that it involves an inquiry into the status that an individual holds under customary Aboriginal law analogous to an inquiry that a person might hold under a system of foreign law. In both cases you can say they are questions of fact, but the question of fact is as to a status under another system of law. Correct?

MR GLACKEN: Yes, and can I say they are analogous to what we have been doing since 1992 following Mabo.

GORDON J: The system of law has been ‑ ‑ ‑

GAGELER J: Of course, in a native title context – I am sorry.

MR GLACKEN: Yes.

GORDON J: A system of law recognises to exist.

MR GLACKEN: Sorry, I do not quite follow.

GORDON J: A system of law recognised in 1992 to exist.

MR GLACKEN: Yes, and the instants of which are governed by the particular traditional law and customs concerned, and it was repeated in Ward that they are inquiries of fact, and my point that I ultimately come to is what Justice Brennan says at page 70, is part of that inquiry of fact not some formal legal standard.

EDELMAN J: Mr Glacken, it would be, would it not, impossible under the Constitution to avoid that inquiry of fact for so long as the Constitution mentions, anywhere in it, the words “Aboriginal” or “Aboriginal Australian”. So long as there is acknowledgement that Aboriginal Australians have any form of constitutional status, that factual inquiry is essential, is it not?

MR GLACKEN: That would be so. I think – picking up from what the Chief Justice said earlier this morning – it may well be, as Mabo was, Love represents a start of a line, although it does rise from a string of authority that Justice Gordon collects, but it may be a start of a working out in the same manner that has occurred since 1992.

GAGELER J: Mr Glacken, I interrupted you moments ago - can I continue my interruption?

MR GLACKEN: Yes, because I have basically finished, I think.

GAGELER J: You have a couple of references to Yorta Yorta right at the end of your outline. If you take the findings of facts that were accepted by this Court in Yorta Yorta – that you have a functioning society, but it is no longer observing traditional laws and customs – is a member of that society an Aboriginal Australian within the meaning of that expression as used in paragraph 81 of Love?

MR GLACKEN: Can I just say two things. The first is that might not necessarily represent what Yorta Yorta holds, exactly. Yorta Yorta was a case where there was, if you like, a substantial interruption in the possession of rights relating to land, not necessarily a substantial interruption in other laws and customs such as membership. Now, I am not professing to essay all of the findings in Yorta Yorta, but that was the natural point – sorry, that was the natural focus of what was decided.

Another good example is Risk v Northern Territory – I think it is 240 ALR, Full Federal Court concerning the Larrakia people of Darwin – where Justice Mansfield found that they were a continuing rich society bound by customs but found there had been a substantial interruption in the post‑war period in their exercise of rights to land. Now, putting aside that nuance, the answer would be yes.

GORDON J: Mr Glacken, it is not a nuance though, is it? I mean this is the whole point of what Mabo establishes and the cases have flown through and we saw it in Griffiths as well in this Court, that the connection between the indigenous and the land and waters of this country – to pick up Mr Walker’s words – are diverse, and we can have extinction of some but not all. We can have extinction of – in terms of native title considerations. The factual inquiry is about the nature of the connection and that is why it is a factual inquiry.

MR GLACKEN: Yes, I am just not to be taken to necessarily accept that a finding that native title no longer exists because of substantial interruption necessarily means that that group of people do not have the attributes to function with the tripartite test.

GORDON J: That is my point. But that is exactly – that is the argument. That is the answer. It is a different inquiry.

MR GLACKEN: Yes.

GORDON J: We saw it in Griffiths where we had the holes in the painting. We can have connections, which may number from one to 20 and you may have destruction of connections 17 to 20. That raises a separate question about connections one to 15 or 16.

MR GLACKEN: Yes.

GORDON J: And whether or not they are sufficient to satisfy the tripartite test because we recognise that the connection can change over time, but certain things can remain.

MR GLACKEN: I do not disagree with that. Can I just say one other thing about Yorta Yorta? It recognises that customs go to define an Aboriginal community or society and it also recognises that chief amongst those customs are rules of transmission that are capable of adaption and alteration and evolution. What we take from that is another variation on the theme, if you like, is that these matters are not some legal standard and that if there be a relevant normative standard, it is a factual one that lies in the normative standards of the groups concerned and, as I said, we take our cue from what Chief Justice Allsop said in McHugh, for that reason. They are the points I wanted to make orally, chiefly, the point about a proper understanding was written in Mabo.

KIEFEL CJ: Mr Glacken, native title cases - some of the difficulties in native title cases in particular areas in Australia point up the problem that some people – although Aboriginal by biological descent – whichever way one refers to that – are not able to identify themselves as a group with shared laws and customs because they have been dispersed and a lot of the knowledge has been lost. Would you agree with that?

MR GLACKEN: It has occurred and occurs in most ‑ ‑ ‑

KIEFEL CJ: That would not prevent someone from saying that they were an Aboriginal Australian though.

MR GLACKEN: That is so.

KIEFEL CJ: The point of Mabo is to identify certain Aboriginal Australians as persons who can hold native title. That is the point of Mabo.

MR GLACKEN: Yes.

KIEFEL CJ: Thank you.

MR GLACKEN: If the Court pleases.

KIEFEL CJ: Mr Keim.

MR KEIM: Your Honours, in seeking leave to intervene, in our written submissions we outline three areas in which the Commission sought to make submissions, namely, the principles governing when it is appropriate for the Court to reopen and overrule one of its prior decisions, to address the criticism that the majority’s approach in Love and Thom v Commonwealth is grounded in illegitimate racial distinctions, and thirdly, an appropriate understanding of the biological descent limb of the tripartite test, formulated by Sir Gerard Brennan in Mabo.

I will start with our first submission – in fact, on fundamental rights of our relevant consideration in determining whether to overrule a previous decision. The Commission’s primary submission, in addressing the first topic, is that a crucial factor militating against a decision to reopen arises where overruling the previous authority would adversely affect the fundamental rights and interests of individuals.

We have set out in paragraphs 13 and 14 of our submissions the principles in the authorities which require that the discretionary decision to reopen a previous decision be approached with caution. The judgment of Sir Harry Gibbs in Hospital Contribution Fund (1982) 150 CLR 49 – the passage is at 56, the case is at tab 37 in volume 5, at pages 1644 to 1646 - in that passage the Chief Justice identified four non‑exhaustive factors that the Court found relevant in that case.

In that context, the Commission urges the recognition by the Court as a factor militating against a decision to reopen and overrule an earlier decision of this Court, a circumstance that doing so would adversely affect the fundamental rights and interests of individuals. Recognition of this factor is appropriate and in accord with principle.

We advance a number of reasons why this is so. First, the consideration forms a subset of the third factor mentioned at 57 of the judgment, page 1645, the question whether the decision under consideration has achieved no useful result. The protection of rights is a fundamental concern of our system of law. It follows that recognition of individual rights through the operation of law is a useful result.

Potentially it also forms a subset of a fourth factor mentioned at pages 57 to 58 of the report, 1645 to 1647 of the joint book, that the decision has been acted upon, we would say, where some step has been taken in recognition of, or reliance on, the previous decision that impacts upon rights and interests.

Contrary to what the Commonwealth says in its reply at paragraph 5, this can be executive action undertaken in reliance upon the earlier holding. For example, as we have seen, restoring the liberty of individuals that had previously been detained. Victoria’s submissions at paragraph 26(3) set out some of the actions that have been taken, and this has been supplemented by Mr Solicitor in his oral remarks.

Secondly, the consideration is supported by the reasoning of two justices in the Second Territories Case (1977) 139 CLR 585, at tab 64 of the joint book in volume 10. The first passage I will take the Court to is at page 3897.

GAGELER J: Mr Keim, is there somewhere in your submissions where you identify with precision the fundamental rights that you are referring to?

MR KEIM: I will go to that, your Honour, I will go to the particular ways in which people have been affected ‑ ‑ ‑

GAGELER J: No, no, I mean the source of the fundamental rights. What are the fundamental rights?

MR KEIM: I do not think we have identified fundamental rights, using that as a strict term, but what we say is that classification of a person having a status – as a person, having a status of “alien”, immediately puts in jeopardy the person’s right to liberty ‑ ‑ ‑

GAGELER J: I see.

MR KEIM: ‑ ‑ ‑ and the person’s right to connect with land.

GLEESON J: I think, Mr Keim, you are referring to the rights that you describe at 3(a) of your oral outline. That is the way I read it.

KIEFEL CJ: That is exclusion from community, amongst other things.

MR KEIM: Yes, yes.

GAGELER J: So, you are really talking about profound practical effects, rather than some notion of rights drawn from any international instrument ‑ ‑ ‑

MR KEIM: Yes, I am not talking about – I am not talking of the Universal Declaration or anything like that in particular, although they are reflected in the common law and they are reflected in international instruments as well.

GAGELER J: Thank you.

MR KEIM: As your Honour Justice Gleeson pointed out, in the oral submissions we have – this has particular cogency with regard to indigenous Australians for the reasons that we have set out there.

EDELMAN J: Mr Keim, is the point that you are making any different from the one that Justice Gageler quite eloquently made in Smethurst, that:

The principles of constitutional liberty and security carried forward from Entick v Carrington are part of our common law inheritance.

MR KEIM: No, your Honour. No, your Honour, but as I indicated, they not only originate in the common law, they are not only described in some detail by Blackstone in his first volume, but they have been recognised since the end of the Second World War in a number of international instruments as well.

KIEFEL CJ: Mr Keim, what you refer to in 3(a) are simply the consequences of being held to be an alien.

MR KEIM: That is correct.

KIEFEL CJ: The question, though, is how does one determine whether a person is an alien?

MR KEIM: Yes, your Honour.

KIEFEL CJ: I mean, some aliens who are deported obviously will lose their liberty in that process, and they also belong to family and communities.

MR KEIM: Yes.

KIEFEL CJ: They are factors which have to be taken into account in determining whether to, for instance, cancel a visa and give rise to deportation.

MR KEIM: Yes, your Honour.

KIEFEL CJ: So, I am not sure that the consequences are very helpful in relation to the topic that you are dealing with in argument.

MR KEIM: Well, the point is that where the consequences of a particular decision of this Court are that the fundamental rights of individuals are affected, that is one of the factors to be taken into account in terms of exercising the discretion.

KIEFEL CJ: But you have accepted they are not fundamental rights. We are not really dealing with fundamental rights as such.

MR KEIM: Well, what I am saying is that the rights to liberty and the rights to connect with one’s country and the rights to stay in the country which - what has become associated with - are fundamental rights, and, in fact, one of the – I will go to one of the Human Rights Committee decisions in that regard ‑ ‑ ‑

KIEFEL CJ: Could you assist me? I am having difficulty understanding 3(b). What are you saying there?

MR KEIM: Yes, I will go to that, and it picks up a passage in your Honour Justice Gordon’s judgment in Love. But what I am saying there does get away from fundamental rights but is a practical consequence. There is a degree of scholarship that says that indigenous Australians are much, much more likely not to have their birth registered and, therefore, in terms where they are not protected from deportation by their aboriginality, the difficulty of proving their birth and the difficulty particularly with regard to indigenous Torres Strait Islanders in the islands in the Torres Strait, obviously – the difficulty of being able to prove when they were born and where they were born becomes an additional difficulty were Love to be overturned, and they might also be susceptible to deportation.

KIEFEL CJ: That would not be a consequence of overturning Love. It is just a difficulty that exists that is well documented.

MR KEIM: It is a practical difficulty that is given more practical effect by overturning Love, is what we say, your Honour. If I can just go back to the Second Territory Senator’s Case, your Honours will be well aware that it considered the validity of Commonwealth legislation providing for the election of members to the House of Representatives for the ACT and the Northern Territory.

Two years earlier in Western Australia v the Commonwealth, the Court had decided a case raising the same constitutional issue, but in a challenge to legislation providing the territorial representation in the senate. In that prior case the majority upheld the legislation’s validity under section 122 of the Constitution, and it was in that decision Chief Justice Gibbs and Justice Stephen had dissented. In Queensland v Commonwealth ‑ ‑ ‑

KIEFEL CJ: I think this point has been dealt with in argument, Mr Keim.

MR KEIM: Yes, your Honour. The passage that I wanted to take the Court to is at page 597 of the – sorry, at page 600 of the judgment at page 3897 of the report, and it is the passage in the judgment of Justice Gibbs commencing at about line 10, where his Honour says:

Moreover, the decision has been acted on ; senators for the Territories have been elected under the legislation there held valid. To reverse the decision now would be to defeat the expectations of the people of the Territories that would be represented, as many of them believed that they ought to be represented, by senators entitled to vote–expectations and beliefs that were no less understandable because in my view they were constitutionally erroneous, and that were encouraged by the decision of this Court.

Then the second passage that we wanted to take your Honours to - and neither of these have been – the Court has been taken to in argument – it is at pages 603 to 604 of the report, starting at page 3900 of the JBA. The passage starts at about line 25, on page 3900. His Honour Justice Stephen says:

The third matter concerns the consequences involved in a reconsideration. As a result of Western Australia v. The Commonwealth the people of the Territories have now attained representation in the Senate. To deny to these citizens of Australia the right to representation in the national Parliament was a course to which I considered that the words of the Constitution compelled me when writing my judgment in that case. I also recognized that the effect of my judgment might be to jeopardize their existing rights of representation in the House of Representatives. These considerations made more difficult the task of arriving at a decision in that case.

But his Honour identifies the difference where – if the question of exercising his discretion – as he goes on to say:

But it is one thing to contemplate such consequences as flowing from one’s perceived operation of the mandatory effect of the Constitution; it is quite another to regard them as the acceptable price of a personal decision to treat a particular precedent authority as appropriate for reconsideration. The force of this consideration is not, I think, diminished by an appreciation that continued Territory representation in the legislature involves a corresponding dilution of the strength of the representation of peoples of the States in that legislature.
These are the principal reasons which have led me to conclude that I should regard myself as bound to follow the precedent . . . this despite the fact that the arguments of counsel in the present cases would not have led me to decide that case at all differently.

That is what we take as being important from the judgment of those two Justices. They found that the Court should not revisit its previous decision – relying, in large part, upon the consequences of doing so for the rights of representation of Territory residence.

In its reply on page 4, the Commonwealth seeks to meet the submission on our part by asserting that overruling Love would not affect rights and interests of individuals because the question is whether those rights were correctly held to exist. This response fails to come to terms with the passage to which we have taken the Court in Justice Stephen’s reasons.

His Honour drew a distinction between the consideration of rights at a time when the constitutional question is being addressed for the first time and the situation and the rights have been recognised and given effect. At that later point, the immediate question is not one of constitutional construction but a personal decision whether to treat a particular precedent authority as appropriate for reconsideration, having regard to those rights. That is the second reason for the proposition.

The third is that recognition of this consideration would align the Court’s approach to the exercise of this discretion with the principle of legality. In paragraph 17 of our submissions, we have set out cases which indicate the broad role that the legality principle plays beyond just construction of statutes in achieving the rule of law.

In paragraph 18 of our written submissions, we identify the practical effect of the rights and interests of individuals which would arise if Love were overruled - individuals who were detained and threatened with removal and who have been released and comforted with the knowledge that they will not be removed or again face detention and removal. Individuals whose visas were not yet cancelled and whose fate of likely removal was lifted will once again face that threat.

At paragraph 19 of our written submission, we deal with the unintended consequence of the reopening and overruling of Love which your Honour the Chief Justice asked me about – namely, the impact on indigenous Australians who mainly, through family and generational disadvantage, are born in Australia and whose births are not registered with State and Territory birth agencies.

I will not take the Court to particular pages of that scholarship, but the New South Wales data is contained in tab 164, in volume 22. The Queensland data is contained in tab 155, in volume 22, at page 8430 of the JBA. There is other scholarship to indicate that the same is true for other States. The details in Queensland is that the difference is 15 to 18per cent of non‑registered births to indigenous mothers, to non‑indigenous mothers the level is only 1.8 per cent.

We want to deal with the proposition that the decision of Love is not grounded in illegitimate racial distinctions. We have drawn attention in our written submissions at paragraphs 21 and following to the way in which recognition is given to the indigenous status of Australia’s first peoples. We have mentioned legislation such as the Aboriginal and Torres Strait Islander Peoples Recognition Act ‑ ‑ ‑

GAGELER J: What is the source of power to enact that?

MR KEIM: Well, it would be the race power, your Honour, among other things, but the Recognition Act intends to set up a process by which, in time, specific recognition can be given in the Constitution, so the power probably also derives from Parliament’s role in the Constitution in amending the Constitution, but the point that we make is that indigenous Australians are given recognition for their indigeneity in a way that is not regarded as making distinctions on the basis of race by the Parliament ‑ ‑ ‑

GAGELER J: We may not like the terminology now, but the whole point of the 1967 referendum was to allow the races power to be used in these beneficial ways for the benefit of Aboriginal Australians, was it not?

MR KEIM: Yes. So, one can put our argument slightly differently, that even if one was to categorise, as our learned friend the Solicitor‑General yesterday categorised, the decision of the majority in Love as being in part based on race, that is not, we say, any legitimate basis for criticism for the reasons that your Honour has just articulated. But the other point that we make with regard to that, and we have referred to both the decision of Judge Tanaka in the South West Africa Cases; Second Phase, an International Court of Justice case, and we have set out the passage from his judgment ‑ ‑ ‑

KIEFEL CJ: Mr Keim, forgive me for interrupting you, but when the Court granted the interveners leave, it was on the basis that they were to be held strictly to time. There has been a bit of slippage, and I have not been clocking correctly, but I am concerned that the appellant has sufficient time to reply.

MR KEIM: Yes, your Honour.

KIEFEL CJ: Will you be much longer?

MR KEIM: I will not be much longer, your Honour.

KIEFEL CJ: Are you able to rely on your written submissions substantially?

MR KEIM: Yes. Can I just look closely at my notes and see if there is anything further I need to say.

KIEFEL CJ: Yes, thank you, Mr Keim.

MR KEIM: Your Honour, my learned junior has been clocking me very closely, so I was aware of the clock.

KIEFEL CJ: Good.

MR KEIM: I have been trying to deal with it. The point we make with regard to indigeneity and race is that in discrimination law, as appears from the passage from Street’s Case, but generally in discrimination law, one looks at effective causes, and both as stated by the majority in their respective reasons in Love and looking at it in reality, the effective cause for that decision in the majority is not race per se, but the characteristics associated with indigeneity, including long connection with the land.

Your Honours, the issue of biological descent has been addressed fairly closely by a number of the interveners, but we just wanted to make this response to Mr Lenehan’s thesis yesterday. He spoke at some length of reasons why aboriginality may be given different meanings in different social contexts.

It is important to remember however that on the assumption that Love was correctly decided – which is the basis on which he was making his submissions – it is Sir Gerard Brennan’s formulation of the test that the question is addressed to. The native title cases are addressed in that formulation – be it mediated through the Native Title Act, and the statutory language in Hackett, which we have referred to in our written submissions and which Mr Lenehan referred to, uses very similar language.

The wider discussion – or the wider analysis of discussion of the social context is really of no assistance to the Court when the first limb of the tripartite test adopted in Love is the question and its meaning is the question.

Your Honours, we rely on our submissions and our outline of oral submissions. Thank you.

KIEFEL CJ: Thank you, Mr Keim. Mr Solicitor, the Court can sit until 4 o’clock to accommodate a reply.

MR DONAGHUE: Thank you, your Honour, I was wondering if 3.45 was a hard limit – I will go as quickly as I can.

KIEFEL CJ: Yes.

MR DONAGHUE: There are six points that we seek to address in response. The first concerns the relationship between the majority decision in Love and the settled understanding identified in Chetcuti. Your Honour Justice Gleeson observed to my friend, Mr Gleeson, this morning that the majority in Love appeared to interpret Pochi quite differently to the settled understanding in Chetcuti. In our submission, your Honour was quite right to identify that inconsistency and it is that inconsistency that formed the focus of our written reply in paragraphs 6 to 8 as a major doctrinal reason why this Court should reopen and reconsider and overrule Love.

It is that inconsistency that is the reason that you find a direct attack on the settled understanding in paragraphs 70 and 71 of our friend’s written submissions – the respondent’s written submissions. It is for that same reason that you heard an oral attack on the settled understanding from Mr Gleeson who originally said his submissions were consistent with it, but you then heard some rather pejorative characterisations of our contentions as a smorgasbord approach.

That submission then encountered the problem that when one goes to Justice Gageler’s reasons at paragraph 100 in Love – as Mr Gleeson properly accepted – one sees there an expression of the applicable legal principle in very much the terms in which we have put it to your Honours.

Now, Mr Gleeson orally then sought – if I could characterise it this way – to isolate what your Honour Justice Gageler said in paragraph 100 – and said your Honour said that and we contend it is wrong, but your Honour the Chief Justice and Justice Keane were said not to have associated yourselves with that idea. With respect, in our submission, if one looks at what your Honour the Chief Justice said in paragraph 5 and what your Honour Justice Keane said in paragraph 172, you very much did associate yourselves with that idea. For example, your Honour Justice Keane said:

The legal status of an alien in Australian law is now derived from the statutory description of citizenship. It reflects the ordinary meaning of “alien” as a person who is not a citizen of Australia -

and a few lines later, you talk about:

citizenship and its antonym alienage.

Your Honour the Chief Justice in paragraph 5, says:

Section 51(xix) gives the Commonwealth Parliament power to choose the criteria for alienage . . . to attribute to any person who lacks the qualifications for citizenship the status of alien. It is now regarded as settled that it is for the Parliament, relying on section 51(xix), to create and define the concept of Australian citizenship and its antonym, alienage.

Your Honour Justice Gageler and the Chief Justice and Justice Keane in Love, and then the three of your Honours and your Honour Justice Gleeson in Chetcuti identified that proposition consistently with the way that we have articulated it here as a settled understanding of 51(xix).

EDELMAN J: Mr Solicitor, I do not want to interrupt you very long, but do you make any submission that paragraph 11 of Chetcuti is to be given any weight, in particular the acknowledgment that there may be circumstances in which the application of alien by Parliament may require disapplication?

MR DONAGHUE: Disapplication, your Honour, in some circumstances, if the definition involves constitutional overreach, but my proposition is that when one looks at Pochi and the limitation it is quite deliberately – it was quite deliberately framed by Chief Justice Gibbs in very wide terms of people:

who could not possibly answer the description of “aliens” in the ordinary understanding of the word.

So, where Parliament describes people as aliens, taking criteria being birth outside Australia, it is not treating anyone as an alien who cannot possibly answer a description, because it is using the common law, 400 years of common law since Calvin’s Case to inform the understanding of alienage that it adopts. So, the Pochi limitation is there but not engaged by the laws that Parliament has made here.

To make sure I have not been misunderstood, the example that I gave your Honours in‑chief of the invalidity of a law that says if you are a person who satisfies the tripartite test you are an alien, that law is invalid because it adopts illegitimate criteria, and because it adopts – your Honour Justice Keane made this point, I think, in the exchange with Mr Gleeson, because it adopts invalid criteria, it treats a class of people who have no connection with any other country, were born here, Australian parents, no foreign citizenship, they are the reasons that that example is invalid, and it is quite wrong, as my learned friend for Victoria did, to say well, we can apply that same question at an individual level, because that just ignores the fact that one has to, on the settled understanding, come at this through the lens of whether the criteria violate Pochi. That is the first point.

The second point is, taking that settled understanding as our starting point, one sees that, as a general rule, a non‑citizen is an alien. If Love is correct, then what Love did was create a sui generis exception to that general rule. So, generally speaking, if you are not a citizen, you are an alien. But there is an exception. What are the parameters of the exception? Unless you know what the parameters of the exception are, you do not know whether you apply the general rule or the exception, so you have to be able to identify who has been carved out of the generally‑accepted proposition, and that is a question of law.

It is a question of constitutional law. What is the limit on the power under section 51(xix)? It was not, in paragraph 81 of Love, a conclusion based on evidence, in that case, or in Mabo. It was a proposition of law that identified a limit on Commonwealth power that took people outside of the settled understanding.

Now, and indeed, your Honours have heard from the respondent and Victoria that it is said that it is part of the ratio of the case, that paragraph 81 is part of the ratio of the case. Well, it cannot be part of the ratio of the case if it is not a proposition of law able to be binding upon other courts.

True, the application of that proposition of law will depend on evidence, but one needs to work out what the content of the legal limit is first. As a matter of law, it could be the case that the meaning of the words “biological descent” depends upon an inquiry as to the traditional law and custom of each Aboriginal society, just like the third limb does. So, it is possible that the Australian legal constitutional rule directs you to inquire into the content of the traditional law and custom, and the acceptance rule under it, but your Honours have not yet held that that is the legal content of the first limb.

Your Honours are being asked in this case to say “biological descent” does not mean what the words seem to mean, “biological descent” means membership according to traditional law and custom varying from group to group. If that is right, then it is true that you would need more evidence before you could decide on the actual application of the tripartite test of Mr Montgomery, but if that is wrong, as a matter of law, and the legal limit that was carved out and identified as a restriction on 51(xix) is a legal limit that says you must be biologically descended in the sense of some genetic connection to the original inhabitants of Australia, then the whole question of the further evidence falls away, because, on a correct understanding of the legal limit of power, you do not need to know about the evidentiary position to answer the question.

GORDON J: It presupposes that you do not have middle ground.

MR DONAGHUE: It presupposes that one needs to identify the legal content of the rule and work out whether that requires reference to further evidence. If it does require reference to further evidence, then, of course, one needs to go to the further evidence. But if it does not require – and there is a legal answer – a correct legal answer – to the framing of the limit on power. So, much of what has been put to you about why you should not get to this question, assumes that the limit on power does depend on the content of traditional law or custom – not just on limb three but also on limb one. We submit that there is no proper basis for that assumption.

But, perhaps more fundamentally – and more immediately – for the purpose of the disposition of this appeal, your Honours are – to come back to where I was earlier in our submissions in‑chief – ultimately, concerned with an appeal against a finding by Justice Derrington that the officer’s suspicion was unreasonable. The officer suspected that the words in paragraph 81 of Love mean what they say.

So, your Honours might say it was reasonable for the detaining officer to suspect that “biological descent” means biological descent and, therefore, that her Honour was wrong. That would amount to a holding that detaining officers can detain people who are not biologically descended from a first inhabitant of Australia – unless and until a court says that is not what the first limb means.

It may be that the Court might say that in a future case that requires – if Love is upheld – and if we end up with a proceeding seeking declaratory relief that requires final determination of the meaning of the first limb – that might arise. But our main proposition is that your Honours should not accede to this notion that the meaning of the tripartite test is just a question of fact. It might be in other contexts but in the context of Love, it is a constitutional limit of power – it is a question of law. That is the second point.

The third point is reopening. All I want to address on this topic is Mr Gleeson’s invitation to your Honours, in effect to say, do not reopen Love even if you think it is wrong – because that was part of what was put to your Honours. On the basis of the Second Territory Senators Case, he said, even if you think it is wrong, let it be.

In our submission, your Honours should not accept that submission because quite unlike the Second Territory Senators Case, this is a matter where your Honours are confronting a constitutional limit where the argument in this case shows – and indeed in other cases in the Federal Court shows – that there is evident room for argument about the boundaries of the principle – which our friends put against us as a positive thing – will require the ongoing elaboration, development, refinement by the Court over a period of time.

If Love is not overruled, then your Honours are, in this case, at the start of what is likely to be a long journey. That is important – not because a long journey in and of itself effects it – but it is important because if the premise is wrong, if your Honours are persuaded that the premise is wrong, then you do not have a clear illuminating or guiding principle to guide the development or refinement of the law. You just have a flawed premise that you would have decided to accept on Mr Gleeson’s submission and then are all at sea in terms of working out how the principle moves forward.

Not only that, but you would be at sea in an area where – to pick up Chief Justice French’s observations extrajudicially that Mr Lenehan took you to yesterday – you would be operating in an area where – as the then Chief Justice put it – courts of law are not good places to decide aboriginality.

But that is what you would be doing. You would be in an area where you would be forced, as a matter of constitutional doctrine to develop legal principles that put some people in and some people out and you would be doing it in a context where – as, I think, some of our friends have put it – Mr Gleeson, indeed, I think, accepted, in effect, that Justice Nettle – 282 analysis – which is the invidious consequence that some people who clearly identify as Aboriginal people and are accepted by their communities as Aboriginal people, will not get the benefit of this rule.

So, the Court would be forced to develop principles line drawing within communities of people who self‑identify as Aboriginal people. That, in our submission, is not something that your Honours should do. It ultimately involves courts developing criteria for immutable membership of the Australian body politic and doing so in a way that is beyond the reach of Parliament to do anything about. If Parliament disagrees with the way that the rules have been developed, the Court just is becoming the arbiter of these membership rules as the body of law develops over time.

A much closer analogy to this case and Second Territory Senators is Shaw. Shaw just applied the John criteria at paragraph 39. It did not require the Commonwealth to say we have a completely new argument that is different to the argument that we put in Patterson. It just recognised as soon as possible after the first decision that the Court had gone wrong, and it overruled the decision for that reason.

Here it said well, applying the John criteria, do not worry about the fact that the matter was not worked out over a significant period of time – but obviously it was not - and it is true that there is a good reason for that, but the fact remains, Love was the first go at this principle.

There is obviously a division of opinion in the majority reasons and to point, as Victoria did, to the fact that there are some common threads is really not to the point. The fact is there are significant divisions as well. Critically, and again picking up from Shaw at paragraph 35, one of the points made there in favour of overruling was there was no agreement between the majority as to the material facts to answer the question. Well, if one goes to the answer given in Love, with respect to Mr Love himself, the answer records that there was no agreement between the majority as to the application on the facts of that principle.

GLEESON J: Mr Donaghue, I am assuming, perhaps wrongly, that the number of people who identify as Australian Aboriginal who have been born outside of Australia is relatively small. Is not the eager concern and developing legal principles for deciding aboriginality developing legal principles for deciding what people who are born outside of Australia are nevertheless not alien?

MR DONAGHUE: Well, your Honour, in our submission, that is a question for the Parliament.

GORDON J: Sorry, I missed that. What did you just say then?

MR DONAGHUE: That is a question for the Parliament - to decide what people born outside of Australia are alien because that is – until Parliament legislated in this area, everyone born outside of Australia was an alien. That was the common law rule. In Britain it started to be eroded over time, and then in Australia developed and picked up those erosions to include people who were born to Australian parents, et cetera.

But the starting position was that everyone was born outside, and, in our submission, it is within Parliament’s power to make rules that – and indeed the default rule in Australia is that with very limited exceptions that you can see listed in 11A of the Citizenship Act – the default rule is if you are born outside of Australia you are not a citizen. But then there are a number of pathways that allow you – some easier than others – to register or to apply for citizenship. But the default law is you are an alien unless and until you take those further steps. That, we submit, is within 51(xix).

Very briefly, your Honours, on the ratio – this is my fourth point - Victoria starts by saying paragraph 81 is a ratio, but then acknowledges under questioning that subsequent courts might find that it was not the ratio. That reflects the reasoning of Justice McHugh in the paragraph immediately following the paragraph that my learned friend relies on in Woolcock, who makes those same points. Courts do not get in their own reasons to authoritatively and for all times determine what the ratio is. That is the task for subsequent courts, and the acknowledgment by Justice McHugh and by our friend, that paragraph 81 may turn out not to be the ratio, reflects the fact that close attention to the reasons given by the Justices in the majority is a permissible and proper exercise upon which the interpreter may engage.

That is what we attempted in relation specifically to Justice Nettle’s reasons, and we were not, in doing that, ignoring paragraph 81, of course, we were developing an argument that when his Honour authorised Justice Bell to say what she said in paragraph 81, he did so with a particular understanding of what the tripartite test means.

Without dwelling on this at any length, your Honours, can I ask you to go to one case, Chetcuti at first instance, which you will see in volume 16, tab 87. It is (2020) 95 ALJR 1, and if your Honours could go to paragraphs [39] and [40] in Chetcuti ‑ ‑ ‑

GORDON J: What tab is this?

MR DONAGHUE: Sorry, it is tab 87, volume 16. What you see in paragraphs [39] and [40] is Justice Nettle explaining what he thinks the majority in Love decided. You see, interestingly, no reference to the language of – I perhaps should not overstate it, but he does not give that explanation in terms of paragraph 81 of Love. He says, a few lines down in paragraph [39]:

Properly understood, Love decided no more than that, because the common law of Australia recognises, and is taken always to have recognised, Aboriginal societies who have remained continuously united in their acknowledgment and observance of laws –

So, they are the words we emphasise from his judgment not found in paragraph 81, and:

such a society is to be determined . . . each resident member of it attracts a Crown obligation of permanent protection and owes a correlative obligation of permanent allegiance that is the antithesis of the ordinary understanding of alienage.

One sees a lot of Justice Nettle’s reasons in there, but perhaps less of the other members of the majority, and then in paragraph [40] his Honour says, admittedly, there are differences:

But common to all was the essentiality of the common law’s recognition of the membership of an Aboriginal society continuously united –

by observance, et cetera. So his Honour was obviously understanding what the majority in Love decided as totally consistent with his own analysis, but that understanding, informing his agreement to paragraph 81, does not mean that one can then just say, well, apply 81, we can ignore what Justice Nettle said in his extensively and closely‑reasoned judgment and come up with the ratio in that way.

Fifth point, the role of the common law. Your Honour Justice Gleeson has asked a number of questions about this. My learned friend, Mr Gleeson, developed a submission by reference to paragraph 53(a) of his written submissions to the effect that Love involved the development or evolution of the common law in relation to status. In our submission, you see nothing in Love to support that argument. Love was about identifying a constitutional limit on power, not a change in the common law, and the passages that Mr Gleeson cited to your Honours were passages that recognised, at various historical points in time, that Aboriginal Australians were not aliens.

That was historically true for the large majority of Aboriginal Australians, but your Honour Justice Gleeson was quite right to say to Mr Gleeson, when you were being quoted those passages, but it is not clear that they were talking about Aboriginal people who were born overseas. We entirely embrace that point, your Honour, because the reason that those statements could be made as they were made is that there were common law rules governing the status of Aboriginal people, just like everybody else, which said that if you were born in Australia you were a British subject. So, people born in Australia were not aliens.

That common law body of rules was explained by Justice Brennan himself in Mabo. Mabo was not changing those rules, Love did not change those rules. Your Honour Justice Gageler explained those rules, and in paragraphs 104 and 105 of your judgment, in terms that we respectfully submit are entirely consistent with what was said in Mabo and with the correct understanding of the common law position.

So that the role of the common law here is not that it is somehow developed in Love and then elevated from a normal common law rule to one that trumps not only statutory modification but that trumps the Constitution itself that operates as a limit on legislative power. The role of the common law is to inform who could possibly answer the description of an alien, and here, used in that way, there is no basis to say that people born outside of Australia could not possibly answer the description of an alien.

Finally, your Honours, the sixth point and final point. Your Honour the Chief Justice asked the question to my learned friend about whether the Court could have ordered release – could have just given – ordered an injection and ordered release. Can your Honours go back to the cause removed book at page 9. Your Honours will remember we have appealed against three orders - order 3, a writ of habeas corpus; order 4, an order in the nature of habeas corpus; order 5, the applicant be released from detention forthwith. So, there was actually an order very much in the terms that your Honour the Chief Justice put to my friend.

Order 5 was plainly based on section 23 of the Federal Court of Australia Act and, as we now know post the Full Court’s decision in McHugh, order 3 was likewise based on section 23 of the Federal Court Act, the Full Court now having held that the power – the wide power in section 23 extends to the power to grant a writ of habeas – you see that ‑ ‑ ‑

KIEFEL CJ: Mr Solicitor, are you saying that paragraphs 3 and 4 are surplusage - orders 3 and 4, I should say?

MR DONAGHUE: Well, 4 and 5 seem to be surplusage – they all seem to do the same thing.

KIEFEL CJ: Yes.

MR DONAGHUE: One could understand 3 and 4 – which was what happened in Ruddock v Vadarlis as I recall – because it was not clear – there was uncertainty as to whether the Federal Court could actually order the writ, so it also said we will order an order in the nature of the writ. Why 5 was added I am not sure, but I think it was sought by our friends, I think is the answer for that.

But where we end up is that the objection to competency says the Federal Court did not have jurisdiction to hear an appeal against any of these three orders, which in substance do the same thing, even though they were made under section 23 of the Federal Court Act, and even though those orders – plainly, in our submission – do not engage considerations of double jeopardy of the kind that animate Thompson v Mastertouch or Davern v Messel. Particularly that is so because here habeas was issued in the context where 189 of the Migration Act imposes an ongoing duty to detain if it is engaged – unless the person is an alien. So that ‑ ‑ ‑

EDELMAN J: Mr Solicitor, if you are wrong about that primary submission about the construction of section 24 in its application to habeas,

do you say that then one could avoid the effect of that construction simply by calling the writ of habeas an injunction?

MR DONAGHUE: Your Honour, there becomes a question as to where the “form over substance” or the “substance over form” principle properly bites there. So, if, as a matter of substance, the rule against an appeal in habeas is thought to be applicable in the present circumstances, then I can see force in what your Honour puts to me. But on the other hand, if the principle against appealing habeas is really understood in its historical context as a rule designed to protect the substantive principle against double jeopardy, then there would be no reason to extend that rule into the injunction‑type context.

That is my submission, that, looking at Thompson v Mastertouch and Davern, that we are there concerned with an application of the principle of legality to a generally expressed conferral of appellate jurisdiction and it is said the general words are not good enough to interfere with the substantive principle of double jeopardy. But here, for the reasons I have just touched on, there is no substantive principle of double jeopardy engaged – no basis for the principle of legality to apply.

EDELMAN J: If you are right about that, then you are right on the habeas point.

MR DONAGHUE: That is right. That is true. I really drew attention to it principally so as to ensure that the Chief Justice was aware of the fact that the question has a factual underpinning. I have done that quickly your Honours but if the Court pleases, those are my submissions.

KIEFEL CJ: Yes, thank you, Mr Solicitor.

The Court reserves its decision in this matter and adjourns to 9.30 am tomorrow.

AT 3.59 PM THE MATTER WAS ADJOURNED

[2022] HCATrans 52

Key Legal Topics

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Administrative Law

Immigration

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