Aboriginality and Alienage: Legal Pluralism at the Australian Border

The Australian Centre thanks Ashley Anderson for the careful and considerate revision of provided captions

Webinar summary and key themes

This webinar is the sixth in the Australian Centre's 2022 Critical Public Conversations series:  Undoing Australia.

The possibility of constitutionalised Indigenous-settler legal pluralism was raised in the Australian High Court in the case of Love-Thoms (2020). In this case, the Court accepted that an ‘Aboriginal Australian’, even if a non-citizen, could not be an ‘alien’ and so could not be placed in immigration detention or deported from Australia. In federal court cases applying Love-Thoms, (and in the 2022 discontinued Montgomery proceedings in the High Court), judges have been asked in essence to decide whether it is ‘traditional law and custom’ that makes a person an Aboriginal Australian, and if so, whether Indigenous law can confer Aboriginality on persons who are not (or cannot show) that they are the biological descendants of Aboriginal ancestors. The Commonwealth and responsible Ministers have argued that endorsing the authority of traditional law and custom in this way would: 1. Amount to an unconstitutional recognition of Indigenous sovereignty and 2. Require settler officials to determine the content of multiple and varied bodies of traditional law and custom, a task they say renders the administration of immigration law and policy unreasonably uncertain and difficult. What should we make of claims about ‘uncertainty’ and ‘difficulty’ in a legally plural settler-colonial state? Why is ‘sovereignty’ still, after all these years, operating as a dead weight on judicial recognition of legal pluralism in Australia? In this presentation I attempt a reframing of the problem, and propose a way forward, building in part on a joint research project underway with Mary Spiers Williams (ANU) and on work done with colleagues at the Melbourne Law School Indigenous Law and Justice Hub in support of Indigenous intervenors in Montgomery.


Professor Kirsty Gover is a first-generation New Zealander who grew up on Kāti Māmoe-Ngāi Tahu land and is a Professor at Melbourne Law School. She teaches and writes about domestic and international law affecting Indigenous peoples in Canada, New Zealand, Australia and the United States. She is currently undertaking an ARC Future Fellowship on Indigenous-settler legal pluralism in those countries.


Professor Sarah Maddison is Professor of Politics in the School of Social and Political Sciences, and Director of the Australian Centre. She is particularly interested in work that helps reconceptualise political relationships between Aboriginal and Torres Strait Islander peoples and the Australian settler state, including critical examinations of a range of relevant public policies. Her recent work has focused on the treaty process in Victoria, and she is currently working with the Australian Centre’s Deputy Director, Julia Hurst, exploring the role of truth-telling in treaty making. Sarah has also designed the Professional Certificate in Treaty, which includes the Preparing for Treaty series of Melbourne MicroCerts.

Sarah has published widely in international journals and is the author or editor of nine books including, most recently, The Colonial Fantasy: Why white Australia can’t solve black problems (2019). Her other books in the field include The Limits of Settler Colonial Reconciliation (2016), Conflict Transformation and Reconciliation (2015), Beyond White Guilt (2011), Unsettling the Settler State (2011), and Black Politics (2009). Sarah has led numerous research projects and was an Australian Research Council Future Fellow for 2011-14, undertaking a project that examined reconciliation in Australia, South Africa, Northern Ireland, and Guatemala. Her current ARC project is exploring intersections in Indigenous and settler governance regimes.

The presenters have granted permission for this recording to be used for personal viewing and educational purposes.