Professor Megan Davis says elements of this week’s High Court case, which found in limited circumstances Aboriginal people cannot be regarded as 'aliens', have been exaggerated.

The implications of this week’s landmark High Court ruling are narrow, and some commentary has “been exaggerated”, says UNSW Law Professor Megan Davis. The High Court, by a slim majority of four-to-three, found that Australian Aboriginal people cannot be regarded as aliens under the constitution.

The consequences of this decision have, in some instances, been grossly misrepresented, Professor Davis says, with each High Court judge – including those of the minority judgement – being cautious with their language.

“This decision is constrained by the facts of the case. In many ways, the implications of the ruling are simply business as usual, in a constitutional sense,” Professor Davis explains.

“The aliens power has never been used pertaining to Aboriginal people before. This judgement simply states that an Aboriginal person with a connection to the community and land, or at least a common law native title holder according to one judge, cannot be deemed as aliens as written in the constitution.

“This means that the aliens power in the constitution cannot be invoked through the Migration Act to deport an Aboriginal person, even if that individual is a non-citizen – which would be a very small number of people.”

Those political commentators in the media and politicians who have argued that “a new category of persons” has been created, or that the decision creates special “rights and privileges for Aboriginal people”, are exaggerating the implications of this decision, Professor Davis says.

“[The ruling] reflects a specific and narrow application of the aliens power. The implications of the decision are ones relating to policy, not the constitution.”

Reaffirmation of tri-fold test of Aboriginality

The judgement also reaffirmed the criteria for determining Aboriginality – that of descent, self-identification, and community recognition and acceptance – which has been “standard practice” in law and policy for decades.

Whilst there has been “understandable anxiety in the community” with Aboriginal identity being potentially examined by the court, the decision “reflects the status quo in this regard”, says UNSW Indigenous Law Centre manager Eddie Synot.

“The decision reflects a narrow technical legal issue, with narrow implications,” Mr Synot says. “The judgement is also not creating a ‘race-based’ provision in the constitution, but rather it is affirming an already existing recognition of Aboriginal people and determining the application of the aliens power to them.

“It is consistent with Mabo [High Court ruling of 1992 which recognised Native Title for the first time].”

Further, Professor Davis says, the ruling highlights once again that Aboriginal and Torres Strait Islander sovereignty must be dealt with in the political domain, as it will not be recognised by the High Court.

“It’s in the political arena that rights and sovereignty need to be negotiated with the Parliament. It is not a question for the Court.”

Need for 'constitution recognition is only strengthened'

The need for constitutional recognition for Aboriginal and Torres Strait Islander people is not diminished by the High Court ruling, Professor Davis says, but rather it is strengthened.

“Aboriginal and Torres Strait Islander peoples have asked the Australian people to walk with them towards substantive recognition with voice, treaty and truth. The need for the first pillar, a constitutionally enshrined Voice to Parliament, is only enhanced by this decision – as the ruling doesn’t change the fundamental relationship between First Nations people and the state.”

This constitutional need was further recognised by Prime Minister Scott Morrison in his speech to parliament on Wednesday while delivering the annual ‘Close the Gap’ report, Professor Davis says.

When delivering the report – which shows that only two of the seven targets are on track – Mr Morrison reaffirmed the government’s commitment to and respect for “the honest yearn for constitutional recognition”.

The joint committee into constitutional recognition recommended considering this matter [of the legal form of voice – constitutional or legislation] after the process of codesign is complete, and that is what we’re doing. We support finalising codesign first,” Mr Morrison said.

Professor Davis says the speech from the Prime Minister was an important pivot, with a constitutionally enshrined Voice still on the table.

Mr Morrison also confirmed the government’s support for truth-telling, as recommended by the joint committee.

“We also support recommendations about truth-telling. Australians are interested in having a fuller understanding of their history – the history, traditions and culture of Aboriginal and Torres Strait Islander peoples and also the history of contact between Aboriginal and non-Aboriginal people,” he said.

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Professor Megan Jane Davis