Julian R Murphy and Shireen Morris

The federal government’s recent decision to discontinue the proceedings in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor v Montgomery, a high-profile case concerning the constitutional status of Aboriginal and Torres Strait Islander people, has attracted criticism from the shadow Attorney-General and some conservative legal commentators. These commentators argue that the decision not to pursue the appeal, in which the government challenged the earlier High Court decision in Love v Commonwealth [2020], risks politicising the Court.

In this post we argue that when the decision is seen in its proper context, the government’s change of position is justified. First, because it concerns matters of immigration policy and discretionary decision-making that are properly the province of the executive. Second, the government’s decision may help depolarise public debate on this issue, to facilitate more respectful and informed public deliberation in the lead up to a referendum on a constitutionally guaranteed First Nations Voice.

Guy Baldwin

Since the shift in focus for supporting Commonwealth migration legislation from the ‘immigration’ power under s 51(xxvii) of the Constitution to the ‘aliens’ power under s 51(xix) in the 1980s, there has been a great deal of litigation before the High Court about the scope of s 51(xix). Perhaps the most influential judicial dicta …

Elisa Arcioni & Rayner Thwaits

The Chetcuti decision of 12 August 2021 is the High Court’s latest attempt to delineate a concept of constitutional membership. Here membership is understood as ‘non-alienage’; in practical terms, immunity to deportation. The question was whether Mr Chetcuti, a British subject who arrived in Australia before the advent of …