The request to withdraw the appeal has been echoed by legal academics and the lawyer for Brendan Thoms and Daniel Love, two men who won a landmark case in February 2020 establishing that Aboriginal people cannot be aliens.
In October Guardian Australia revealed the Morrison government was attempting to use the case of Shayne Montgomery, a New Zealand citizen culturally adopted as Aboriginal, to overturn that precedent.
In November, the federal court ordered Montgomery to be released from immigration detention, sparking a commonwealth appeal to the high court which was heard in April. The court reserved its decision.
At least a dozen people have been released from immigration detention because they were found to be Aboriginal non-citizen non-aliens. If Love and Thoms is overturned, the Migration Act requires they be taken back into detention unless they are granted visas.
Thorpe, a DjabWurrung Gunnai Gunditjmara woman and the Greens First Nations and justice spokesperson, wrote to Mark Dreyfus and Linda Burney on 6 June asking the new government to withdraw the appeal.
Guardian Australia understands the Labor government has sought legal advice about the visa status of non-citizen non-aliens but it is not clear if it has asked for advice about withdrawing the case.
The original Love and Thoms decision was decided in a four-three split decision, with the chief justice Susan Kiefel in the minority.
Since it was handed down, two judges in the majority retired and were replaced by the Morrison government.
Eddie Cubillo, associate dean and senior research fellow of Indigenous programs at the University of Melbourne, said the case should be withdrawn.
