On 11 December 2020 the Full Court of the Federal Court delivered judgment for Mr McHugh. Mr McHugh claimed that he was being held in immigration detention unlawfully despite being Aboriginal, though he could not prove his biological descent because he was abandoned at birth. He applied to the Federal Court for habeas corpus. The primary Judge (Anderson J) dismissed his application. The Full Court (Allsop CJ, Besanko and Mortimer JJ) allowed his appeal against that dismissal, issued a writ of habeas corpus, and ordered that Mr McHugh be released from detention forthwith.
The Full Court’s decision is noteworthy for two reasons. First, it provides authority that the Court has the power to issue a writ of habeas corpus, so long as it is otherwise seized of a matter within its jurisdiction: contra Ruddock v Vadarlis (2001) 110 FCR 491 at -. In this post, I contrast the Full Court’s reasoning with a recent decision of Edelman J in Mokhlis v Minister for Home Affairs  HCA 30 which suggests there is original jurisdiction in matters where a writ of habeas corpus is sought.
Secondly, the Full Court considered two practical issues arising from the High Court’s decision in Love v Commonwealth (2020) 375 ALR 597 that people who are Aboriginal according to a tripartite test, involving self-identification, group recognition, and biological descent, are not within the reach of the “aliens” power conferred on Parliament by s 51(xix) of the Constitution so cannot be treated as unlawful non-citizens of Australia. Those practical issues involve: (i) how to prove that the detention of a person who identifies as Aboriginal is justified, if indeed it is ever justifiable; and (ii) how to prove Aboriginality by biological descent. I will discuss these issues and suggest tentative solutions.
Mr McHugh was born in 1968 in the Cook Islands, making him a New Zealand citizen at birth. He never knew his father. He was abandoned by his mother. Another Cook Islander woman raised him until her death in 1974. That woman’s daughter and her husband, the McHughs, took him into their care. The family moved to Queensland in 1975. In 1976, Mr McHugh was formally adopted, and his birth was registered in the General Registry for Queensland. He did not learn that he was adopted until his father told him in 2013. In 1987, he voted in a federal election. In 1990, he began living with his first wife, a woman of the Ardyaloon Aboriginal community of the Bardi Jawi people. He was initiated into the law of the men of that community. He participated in traditional ceremonies, has a Bardi Jawi name and speaks some Bardi. He separated from his first wife in 2001 but married another Bardi Jawi woman whom he lived with until 2008. He has seven children who are all Bardi Jawi. In 2015 and 2016, Mr McHugh travelled with a Gidja woman, painting and selling Aboriginal artwork. In 2017, he was issued an Australian passport, possibly on an erroneous understanding of his birth registration. He identifies as Aboriginal and has been identified as Aboriginal by a Bardi Jawi elder. He does not know whether his biological parents were Aboriginal.
Mr McHugh has a substantial criminal record. In December 2005, he was sentenced to 16 months’ imprisonment for possessing a prohibited drug (cannabis) with intent. In February 2018, he was sentenced to four months’ imprisonment for other offences. At that time, the Department of Home Affairs formed the view that he was a non-citizen who held an absorbed person visa by operation of s 34 of the Migration Act 1958 (Cth) (“the Act”). His visa was cancelled pursuant to s 501(3A) of the Act and his passport was cancelled. In May 2018, following his sentence, he was transferred into immigration detention under s 189(1) of the Act. He made representations to the Minister that he was an Australian citizen and Aboriginal man. In August 2019, the Minister personally refused to revoke the cancellation of his visa. In October 2019, Mr McHugh applied to the Federal Court for relief. Upon obtaining legal representation, he filed an Amended Originating Application seeking an injunction and “relief in the nature of a writ of habeas corpus”.
In February 2020, the High Court delivered judgment in Love. The Court decided that an Aboriginal person according to the tripartite test suggested by Brennan J in Mabo v Queensland [No 2] (1992) 175 CLR 1 at 70 was not an alien amenable to deportation (Love at ). The tripartite test depends on proof of biological descent, self-identification as a member of an Aboriginal group, and identification as a member of that group by traditional authorities of that group. The Court did not rule out other ways in which a person might be Aboriginal (Love at ). Mr McHugh’s case was an opportunity to work through some of the practical consequences of Love.
Mr McHugh submitted that his custody in immigration detention was not authorised by s 189(1) of the Act. Section 189(1) relevantly provides: “[i]f an officer knows or reasonably suspects that a person … is an unlawful non-citizen, the officer must detain the person”. The officer detaining him could not even have reasonably suspected that he was an “unlawful non-citizen” given that he had identified himself as Aboriginal.
The primary Judge dismissed Mr McHugh’s application for a writ of habeas corpus: McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs  FCA 416. The primary Judge considered that he could not directly review the lawfulness of Mr McHugh’s detention. Section 476A(1) of the Act limits the Federal Court’s jurisdiction to particular kinds of migration decisions. It provides that the Federal Court has “original jurisdiction in relation to a migration decision if, and only if … (c) the decision is a privative clause decision, or purported privative clause decision, made personally by the Minister under section … 501CA”. The primary Judge considered that this removed jurisdiction in relation to direct challenges to detention under s 189(1): at -. However, because s 39B(1A)(c) of the Judiciary Act 1903 (Cth) provides jurisdiction in matters arising under any laws made by the Parliament, the Court retained jurisdiction over the bare question whether s 189(1) was capable of applying to Mr McHugh: at , . On that question Mr McHugh had the onus of proof, but he could not prove he was Aboriginal without evidence of his biological descent: .
The Full Court allowed Mr McHugh’s appeal, though he was not a citizen. I will discuss the Full Court’s reasoning on the topics of habeas corpus, jurisdiction, and keeping Aboriginal-identifying people in immigration detention.
Habeas Corpus and Jurisdiction
A writ of habeas corpus calls upon a detaining person to justify their detention of a detained person, failing which they must release the detained person. The Full Court maintained a distinction between the jurisdiction to hear and determine a matter in which the writ is sought and the power to issue the writ. If the Court had jurisdiction over the matter, then it had the power to issue the writ under s 23 of the Federal Court Act 1976 (Cth), which provides the Court with power “to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate” (emphasis added): McHugh (FCAFC) at -, , -. The Full Court disposed of a poorly-regarded distinction made by Beaumont J in Ruddock at - between the writ and “an order in the nature of” the writ: McHugh (FCAFC) at .
If the Court did not have jurisdiction over the matter, then Mr McHugh would have had to re-file his claim in the Federal Circuit Court; causing more expense, time in detention, and inefficiency in the administration of justice. Jurisdiction is a technical subject. Many litigants, whether represented or unrepresented, bring their claim to a court thinking the court will do justice only for their claim to be remitted or dismissed on technical grounds. Fortunately for Mr McHugh, the Full Court held that it did have jurisdiction over his case. Chief Justice Allsop’s reasoning at - commanded a plurality of the Court, with Besanko J agreeing at . Chief Justice Allsop held that s 476A limits the Court’s jurisdiction to the review of decisions mentioned in s 476A(1). In this case there was a decision within s 476(1)(c), the decision made personally by the Minister under s 501CA not to revoke the cancellation of Mr McHugh’s visa, but the words “in relation to” did not allow the Court to review a subsequent decision to detain Mr McHugh under s 189(1). However, s 476A only curtails the review of decisions. The Court retained jurisdiction under s 39B(1) and (1A)(c) of the Judiciary Act to review the detention for lawfulness in general, because Mr McHugh had sought an injunction and the controversy over whether s 189(1) could apply to him was a matter arising under a law of Parliament.
The Full Court’s opinion that in the Australian federal context the remedy of habeas corpus is distinct from the question of jurisdiction gives pause for thought, given that the federal courts have a statutory jurisdiction granted by reference to remedies. The Full Court’s reasoning can be contrasted with a recent decision of Edelman J, sitting as a single Justice of the High Court. In Mokhlis at , Edelman J was considering the jurisdiction of the Federal Circuit Court under s 476(1) of the Act, which is conterminous with the jurisdiction of the High Court under s 75(v) of the Constitution. Section 75(v) is also reflected in s 39B(1) of the Judiciary Act. To that extent, what goes for the High Court goes for the Federal Court and Federal Circuit Court. The framers of the Constitution included s 75(v) to dispel any possibility, associated with the decision of the Supreme Court of the United States in Marbury v Madison (1803) 5 US 137, that the High Court of Australia could not issue mandamus, prohibition and injunction. In the time immediately prior to federation, these three remedies were thought critical to the exercise of original jurisdiction to control officers carrying out statutory duties: Official Record of the Debates of the Australasian Federal Convention (“Convention Debates”) (Melbourne), 4 March 1898 at 1875, 1883-1885. As Edelman J observed, the ability to obtain a writ of habeas corpus was considered “equally necessary”: Convention Debates (Melbourne), 31 January 1898 at 320. But it was also thought that the ability to seek habeas corpus was a common law right and no enabling words were needed: Convention Debates (Melbourne), 4 March 1898, 1884-1885. In the end, its omission is somewhat similar to that of certiorari: see Gummow, “The Scope of Section 75(v) of the Constitution: Why Injunction but No Certiorari?” (2014) 42 Federal Law Review 241. Reading Edelman J’s reasons in Mokhlis with Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at  is instructive. There his Honour raised the question whether certiorari falls within the essential meaning of s 75(v) as a prerogative remedy available in original jurisdiction not limited to jurisdictional errors, notwithstanding the convention delegates’ personal thought patterns at federation. The same would follow for habeas corpus. Seeking the remedy would ground jurisdiction.
Aboriginal People in Immigration Detention
Justifying Detention and Onus of Proof
The Full Court considered whether and how the detention of an Aboriginal Australian could be justified under s 189(1) of the Act. Chief Justice Allsop gave particular attention to this issue: McHugh (FCAFC) at -. Insofar as the Act is one “with respect to” aliens, it cannot apply to “known” Aboriginal people: see Love at , , . But what if the detaining officer “reasonably suspects” a person is an “unlawful non-citizen”, even if the person is a citizen or Aboriginal? Chief Justice Allsop held the tentative view that, because detention could only relate to the deportation of an actual alien under s 198(1), it would be difficult to justify the detention of a non-alien especially as the time for deportation nears: McHugh (FCAFC) at . It might be said against this that the detention is an administrative step prior to a potential deportation, bounded by reasonableness. It was not necessary to decide the issue, however, because the Minister could not overcome the onus of proof, which fell on him, even on the most favourable view of s 189(1).
On any view of s 189(1), the onus of proof is troublesome. Ordinarily, the plaintiff bears the onus of showing they are detained and the evidentiary onus of showing the detention might be unlawful whilst the defendant bears the legal onus of proving the detention is indeed lawful. In Mr McHugh’s case, the Full Court was satisfied that he discharged the evidentiary onus even though he did not know his biological parents. As to the legal onus, there was no evidence as to the state of mind of the detaining officer: . But the general case could have the Minister attempting to prove negatives as to the plaintiff’s membership of an Aboriginal group. That introduces considerable difficulties into otherwise standard deportation cases, albeit in a minority of those cases.
The Full Court pondered how one might prove biological descent. Chief Justice Allsop queried which “frame of reference or normative standard” we should look towards, including blood ancestry or custom: at . Descent by blood seems simple, but it raises evidential, social and ethical questions. The ancestry of Mr McHugh, who knows next to nothing about his parents, might be revealed to a high degree of certitude using genetic testing, but that could be costly and undignifying. In any case, who decides how many ancestors count and how distant those ancestors can be? Judges, Indigenous leaders and academics have critiqued genetic accounts of Indigenous identity in the law, which is made by Parliaments and courts in which Indigenous people are under-represented: see especially Shaw v Wolf (1998) 83 FCR 113 at 137F-G; Aboriginal and Torres Strait Islander Social Justice Commissioner, “The Protection of Genetic Information of Indigenous Peoples” (2002), Pritchard, “Defining ‘Indigenous’: Between Culture and Biology” (2004) at 53-54. We could look to traditional laws and customs concerning biological descent, but then why would we stick to the tripartite test? Decisions under the Native Title Act 1993 (Cth) demonstrate that under traditional laws and customs a person can become a member of an Indigenous community and native title holder by adoption, spousal affiliation, birthplace connection, or initiation: McHugh (FCAFC) at  citing Akiba v Queensland [No 3] (2010) 204 FCR 1 at - and Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442 at , -.
One answer to these problems could be to recognise that although notions of “alienhood” and “Aboriginality” have been entangled with genetic notions of “race” they need not be: see especially Love at -. The tripartite test acknowledges that to the extent that blood ancestry is over-inclusive we can look to identification with people and place. To the extent that it is under-inclusive we can look to traditional law and custom. The High Court did not say the tripartite test is the only test for Aboriginality: at . Nor will the Minister be put to negativing numerous tests in one case; a person who claims they are Aboriginal will know why they make that claim.
The Federal Court can issue writs of habeas corpus. It could well be that the Court has jurisdiction in matters where a writ of habeas corpus is sought, subject to ouster provisions such as s 476A of the Act. It is unclear whether an Aboriginal person can ever be detained lawfully under the Act, but in any event the Minister faces difficulties in proving that a detainee is not Aboriginal, or, possibly, suspected to be Aboriginal. The case also demonstrates the limitations of the tripartite test, which is not the only test of Aboriginality. Mr McHugh is reported to be enjoying his freedom.
James Barrett holds a JD from the ANU and a BSc from the University of Sydney. He has served as Senior Associate to the Hon. Justice Edelman of the High Court of Australia.
Suggested citation: James Barrett, ‘Habeas Corpus, Jurisdiction, and Aboriginal-Identifying People in Immigration Detention: McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs  FCAFC 223’ on AUSPUBLAW (10 February 2021) <