Drawing on findings in Love, the Federal Court ordered Mr Montgomery’s release after he submitted that he “does not need to have a biological Aboriginal ancestor to be Aboriginal according to the traditional laws and customs of the Mununjali people”. On several counts, the Minister for Home Affairs and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs departments opposed this.

The appellant’s – including the Attorney-General as an intervening party – argued that leave to reopen Love for this matter is not required. They drew first on the “difference between analysis” of justices Virginia Bell, Michelle Gordon and James Edelman’s findings and that of Justice Geoffrey Nettle’s, specifically as it related to the meaning of the third limb of the tripartite test used in Love.

The tripartite test is derived from former chief justice Gerard Brennan’s statement in Mabo [No 2] that a person’s membership of an Indigenous people of Australia depends on “biological descent from the Indigenous people and on mutual recognition of a particular person’s membership by that person and by the elders or other persons enjoying traditional authority among those people”.

When the test was applied in Thoms v Commonwealth, the majority agreed that Brendan Thoms, a New Zealand citizen, is a Gunggari man and therefore beyond the reach of the alien’s power. The majority were unable to agree on whether this applied in the same way in the Love v Commonwealth decision, and each member of the High Court delivered separate judgments and reasonings.

Reflecting on Justice Nettle’s reasoning, the appellants found that his understanding of the third limb of the test – being the ongoing, continual connection to country – could be satisfied “only upon proof of recognition for the person’s membership by persons having authority under laws and customs” that have been observed since before the “crown’s acquisition of sovereignty” of Australian lands.

“Justice Nettle recognised that this meant only a subset of Aboriginal and Torres Strait Islander persons cannot be treated as aliens. By contrast, the judgements of the other members of the majority do not support, and are generally inconsistent with, that interpretation of the third limb,” the appellant’s submitted.

To the extent that it is necessary that leave should be granted, the appellants submitted that, in addition to the “material differences” between the justice’s reasonings, the majority’s approach to the relevance of status as an Aboriginal person was “entirely novel” and “not carefully worked out” in a succession of cases.

The appellants also argued that there were “substantial difficulties or uncertainties” arising from the decision, specifically relating to the “content of the test to identify persons who are non-aliens and to the practical administration of the test”. The submission adds a further argument that the decision made in Love was not independently acted upon “in a way that militates against consideration”.

“By the time of the hearing of these proceedings, it will have stood for a little over two years. In that time, there is nothing to suggest that a significant number of persons who satisfy the tripartite test, but who are not Australian citizens, have acted in the reliance on the decision, or indeed that anyone else has done so,” they wrote.

Focusing again on why Love should be overturned, the appellants submitted that the conclusion reached by the majority that the Parliament has no power to treat a person who satisfies the tripartite test as an “alien” should not be accepted. They argue that the word “alien” does not have an “essential” meaning. Specifically, “it cannot be capable of being defined by reference to certain essential features”.

“The majority’s attempts to identify an ‘essential meaning’ – by reference to the concepts of ‘foreigner’, ‘outsider’, or ‘belonging’ – illustrate the problem, as they convey no more about the concept of ‘alienage’ than the word ‘alien’ itself. They are statements of a conclusion about the formal legal relationship between a person and the body politic, rather than a premise upon which the relationship may be founded.

“To the extent that an Aboriginal person’s individual circumstances mean that they also have connections with other countries (including by reason of being born overseas), there is no reason why their constitutional status must be the same as Aboriginal persons with no such connections,” the appellants submitted.

Uncertainty also arises from the fact that Justice Bell and Justice Edelman left open the possibility that satisfaction of the test is not the only way in which an Aboriginal person can be a non-alien, the submission argued. This, they said, gives rise to issues such as whether other types of connections with the land, spiritual or otherwise, can take a person outside the reach of the s 51(xix) rule.

“If the tripartite test were to be abandoned or liberalised (including, for example, by abandoning the first limb), the number of people who would fall within the non-alien category would grow, and the complications in administering the Migration Act, and many other laws under s 51 (xix), would be multiplied,” they submitted.

Failing the above arguments, the appellants are prepared to argue that even if the decision in Love v Commonwealth was correct, Mr Montgomery’s detention was lawful. To do so, they will argue that no one test of Aboriginality is possible and that the test applied in Love does not apply to Mr Montgomery’s matter.

“The test that is appropriate for the purpose of, for example, determining eligibility for a beneficial governmental program or scholarship may bear no relationship to the test that is appropriate for determining whether a person is entitled to share in communal rights to land and waters. The test that is appropriate to identifying persons who Parliament cannot treat as aliens … may be different again,” they wrote.

Further, in circumstances where there was no evidence that Mr Montgomery is biologically descended from any Aboriginal person, let alone a member of the Mununjali people, “nothing in Love justified or required any reading down of s 189”.

The entire submission can be read here.

Lawyers Weekly is awaiting Mr Montgomery’s response submissions. More to come.