Aboriginal Identity and Status under the Australian Constitution: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Montgomery

Abstract

In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Montgomery (‘Montgomery’), the High Court of Australia is faced with a challenge to the significant, but controversial, decision in Love v Commonwealth. That decision held that the aliens power under s 51(xix) of the Australian Constitution does not reach Aboriginal Australians. As a result, they are not vulnerable to the removal powers contained in the Migration Act 1958 (Cth) regardless of their statutory citizenship status. In Montgomery, the Commonwealth seeks to reopen and overturn Love v Commonwealth, or to confine the category of Aboriginal Australians in a way that excludes persons like Montgomery, who have been culturally adopted into an Aboriginal society, but have not shown that they are the biological descendant of an Aboriginal or Torres Strait Islander person. Montgomery highlights the challenges entailed in efforts to determine the scope of the Australian Parliament’s power to determine membership of the constitutional polity, and appropriately describe Aboriginal Australians in a way that respects the complexities of Aboriginal and Torres Strait Islander identity and membership.