July 9, 2020
The High Court decision to create an effective indigenous exemption to the Migration Act amounts to a radical change to constitutional law. It highlights the risks of enshrining an indigenous voice to parliament in the Constitution and demonstrates the need to consider judicial philosophy when appointing judges to the High Court.
In February, the High Court ruled that people who meet the three-part test for Aboriginality cannot be considered aliens, regardless of whether they are Australian citizens.
This means the government is barred from deporting convicted criminals who are foreign citizens, if they are of indigenous descent, identify as indigenous, and are accepted by an indigenous community. Whatever our views on the merits of the issue, the court effectively has taken this decision out of the hands of the democratically elected parliament.
As Justice Stephen Gageler wrote in his dissent, this amounts to “a race-based constitutional limitation on legislative power”.
Gageler wasn’t alone in his criticism; all three justices in the minority were scathing in their dissents, pointing out that the court’s decision comes perilously close to granting sovereignty to indigenous communities — an idea never contemplated and unlikely to be agreed by the parliament.
By ruling that Aborigines cannot be considered aliens and then using the three-part test to determine Aboriginality, the court is granting indigenous communities the authority to make decisions that bind the Commonwealth of Australia. As Justice Patrick Keane put it, this grants them “a measure of political sovereignty”.
It would be one thing for this radical change to our constitutional order to occur after a lengthy public debate and the successful passage of a referendum. But none of this has occurred. Instead, this change has been imposed by just four judges.
Chief Justice Susan Kiefel rightly pointed out that this usurps the role of parliament. It also deprives the Australian people of their exclusive right to approve or reject changes to the Constitution in referendums.
Each of the four judges in the majority wrote separate judgments justifying their decision, but the uniting theme was the strength of the connection indigenous people have with the land.
Justices Virginia Bell and Geoffrey Nettle described this as an “an essentially spiritual connection”, with Nettle arguing it “runs deeper” than connections of birth or parentage.
Justice James Edelman claimed the “metaphysical bonds” connecting Aborigines to the land are “an underlying fundamental truth that cannot be altered or deemed not to exist by legislation”.
And Justice Michelle Gordon said this connection is the “deeper truth” underlying Mabo. Previous cases have recognised the strength of the connection Aboriginal people have with the land, but the “spiritual” and “metaphysical” nature of this connection should not exempt anyone from Australian law.
The radical nature of the Love decision highlights the dangers of proposals for constitutional reform — particularly the proposal for an indigenous voice to parliament enshrined in the Constitution.
Indigenous aspiration to be better heard in the policymaking process is entirely legitimate. But enshrining any new body in the Constitution, as proposed in the Uluru Statement from the Heart, carries with it profound constitutional risks. Advocates of a constitutionally enshrined voice have rejected the idea it would amount to an effective third chamber of parliament, with Noel Pearson calling it “ridiculous” and “dishonest”.
But it’s a lot harder to dismiss the risk of concept creep when the High Court effectively has created a new constitutional right for members of indigenous communities that even non-citizens are entitled to and that the parliament can do little about.
All constitutional change carries risk, even symbolic proposals such as the addition of a preamble.
But if this is the type of decision today’s High Court — mostly comprising Coalition appointees — makes when dealing with a conservatively drafted Constitution, it’s not hard to see a more activist court in future radically expanding the role of a voice to parliament if it were enshrined in the constitution. If the High Court simply granted the voice to parliament the role of defining indigeneity, it would transfer the partial sovereignty it has just granted to indigenous communities to the voice.
The voice would then possess, in the words of Gageler, “a constitutional capacity greater than that conferred on any state parliament”. And this is just one hypothetical example.
Controversial decisions with profound policy implications are a large part of the reason that appointments to the US Supreme Court have become such divisive and partisan battles. This is not a path Australia should go down. Yet this is exactly where decisions such as Love are taking us.
To avoid the politicisation of our courts, governments will need to pay greater attention to judicial philosophy when appointing future judges. Appointment to the High Court comes with enormous responsibility and considerable influence over our political system. During their tenure on the court, judges act as guardians of the Constitution. When judges are appointed without thorough consideration of their judicial philosophy, we are gambling with the future of our political system.
This should not be confused with an attempt to politicise the judiciary — it is not. It is irrelevant who a judge votes for and it should remain so. What matters is their judicial philosophy; particularly their views on what issues should be properly decided by a democratically elected parliament rather than the courts.
Love was a radical decision that has highlighted the risks of constitutional change and the importance of judicial appointments who will uphold our parliamentary democracy.
James Paterson is a Liberal senator for Victoria. This is an edited extract of a speech to the Samuel Griffith Society.
