University of New England
2022 Kirby Seminar series

Via Webinar: 1pm AEST Thursday 12 May 2022

Alienage, ‘Aboriginality’ and the Problem of Plural Legal Orders
Professor Shaunnagh Dorsett
 Faculty of Law, UTS, Sydney

If interested and to obtain a link, please register for this Kirby Seminar at:
https://une-au.zoom.us/webinar/register/WN_YvebXaluQoC_vwZ_QyjZ0A

In this Kirby Seminar, Professor Shaunnagh Dorsett will discuss a range of issues around alienage and aboriginality, emerging from the High Court of Australia’s decision in Love v Commonwealth; Thoms v Commonwealth (2020) 270 CLR 152. This now well-known case concerned a challenge by two Indigenous men – neither of whom were Australian citizens – to an attempt by the Commonwealth to deport them. By virtue of their Aboriginality and deep on-going connection with Country, they argued, they could not be deported. Thoms and Love succeeded by a narrow majority. But that was not the end of the matter.

In 2022 the Commonwealth seeks to have the High Court overturn its own decision in this case (or at the least to confine it) in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Montgomery (High Court of Australia, Case No S192/2021). As did Love; Thoms this case raises significant constitutional questions. It also poses a significant challenge to and for the newly constituted High Court.

This case is overtly about immigration powers, the concept of alienage and the status of ‘Aboriginality’. But it is also about much more. At heart it is, as the earlier cases, a case about plural legal orders; it implicitly contains a demand that the Court recognise that the Australian common law is not the only legal system in this country. In this paper, then, I want to approach the problem at the heart of these cases – the denial of plural legal orders – from the particular standpoint of a legal historian and occasional jurisprudent. What do these cases tell us about the High Court’s approach to the ‘problem’ of First Nations’ sovereignty and the spectre of plural legal orders? Why is the recognition of indigenous laws so confronting to our highest court? How can it be that as historians provide increasingly nuanced account of plurality, the High Court retreats further from their recognition. I hope this paper to be a (small) provocation – a starting point for a conversation about this ongoing and pressing legal issue.

Shaunnagh Dorsett is Distinguished Professor of Law and Associate Dean (Research) in the Faculty of Law at the University of Technology Sydney. She is an Honorary Fellow of the American Society for Legal History and a member of the Board of the European Society for Comparative Legal History. Her most recent book is Juridical Encounters: Māori and the Colonial Courts 1840-1852 (AUP 2017) and her forthcoming chapter in the Cambridge Legal History of Australia (Cane, Ford, McMillan (eds)) will consider this issue of plural legal orders.