An exception to the Court’s generally speedy resolution of cases before it in recent years is Daniel Love’s and Brendan Thoms’s challenges to their proposed deportations to Papua New Guinea and New Zealand. The pair, who are not Australian citizens but who each have an Australian parent, had their visas cancelled after they were convicted of (separate) harmful assaults in 2018. They argue that, because each identifies and is recognised as ‘an Aboriginal man’ (respectively of the Kamilaroi and Gunggari people), they fall outside of the federal parliament’s power to make laws ‘with respect to naturalisation and aliens’ and, accordingly, the scope of a federal statute requiring their removal from Australia. After commencing their actions respectively in September and December last year, they had cases ‘stated’ before the Court in January and March this year and were the subject of a joint Full Court hearing in May. But, six months later, the Court is yet to rule on their cases and instead has scheduled a further hearing in December. Until last Friday, all the public knew was that, three weeks ago, Love and Thoms issued fresh notices as required by federal law to alert Australia’s Attorneys-General of a ‘constitutional matter’.

Last Friday, we learnt that the Court wrote to the parties a month ago asking for submissions on a series of propositions that, if correct, would prevent deportation of, not only Love and Thoms, but anyone else who ‘an Aboriginal society has determined to be one of its members’. The implications of the Court’s proposed approach goes well beyond deportation, because it includes the following two steps:

Proposition 4: The common law’s recognition of customary native title logically entails the recognition of an Aboriginal society’s laws and customs and in particular that society’s authority to determine its own membership.
Proposition 5: The common law must be taken to have comprehended a unique obligation of protection owed by the Crown to an Aboriginal society, requiring it to protect each member of that society.

Proposition 4 appears to be an extension of the Court’s recognition of customary land laws in 1992’s Mabo No. 2 to every law and custom of every Aboriginal society, and in particular recognising those rules as (seemingly alone) determining the membership of every Aboriginal society. Proposition 5 appears similar to overseas holdings (and Toohey J’s concurrence in Mabo) that settler governments owe a fiduciary duty (a duty to protect others’ interests ahead of their own) to Indigenous people. If correct, these propositions have potentially huge significance for Australia’s First Nations, every Australian government and Australians generally, including a number of profound (possible) legal and political ramifications.

While these matters are yet to be the subject of a High Court hearing, let alone a ruling, the underlying process is worthy of comment in several respects. First, the source of these proposals appears to be the Court itself. (Love’s and Thom’s submissions seven months ago did ‘not seek to overturn, or require substantial departure from, the established line of authority’ and only ‘urge[d] the Court to acknowledge a necessary and discrete addendum to existing principles’ on the aliens power.) Court-sourced arguments aren’t unheard of – and are sometimes necessary – but also risk the Court deciding legal questions that no-one before it wants it to decide or even cares about. Second, because the Court’s letters to the parties are not part of the case’s searchable file and are not noted on its case page, the questions the Court will hear arguments on (and the fact that the Court itself proposed them) were not disclosed to the public until a month after the Court’s put them to the parties.  (Other Australian governments would have learnt of them a week later via the parties’ notice of a constitutional matter, which is also not published.) Instead, they only became public knowledge because the Commonwealth repeated parts of the Court’s letter in its submission (arguing for their rejection), which were then published on the Court’s web page. It is not clear why such matters of public importance are initially treated as confidential. Finally, the Court will hear arguments on these issues on 5th December, less than a month after the public first learnt of them. Such speed serves the particular interest of Love and Thoms in quickly resolving their cases, but it leaves the public with much less time than normal to discuss a pending Court hearing that may be as significant as Mabo. Importantly, a month’s warning is too little for meaningful intervention in the case by stakeholders  beyond Australia’s Attorneys-General, notably the many Aboriginal societies whose membership and relationship with the Crown the Court proposes to rule upon.