The high court has decided that Aboriginal Australians are not aliens for the purpose of the constitution, a major defeat for the deportation powers of Peter Dutton’s home affairs department and a significant development in the rights of Indigenous Australians.
In a four-to-three split decision on Tuesday the high court ruled that Aboriginal people with sufficient connection to traditional societies cannot be aliens, giving them a special status in Australian constitutional law likely to have ramifications far beyond existing native title law.
The majority of the high court ruled that Brendan Thoms was not an alien and the commonwealth therefore did not have power to order his deportation. The court was not able to decide if the second plaintiff, Daniel Love, was an Aboriginal Australian, requiring a further hearing to establish the facts.
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The plaintiffs were born in Papua New Guinea and New Zealand, each with one Aboriginal parent, and face deportation due to laws which allow the cancellation of visas on character grounds.
Lawyers for the two Indigenous men, backed up by the state of Victoria, argued the Australian government cannot deport Aboriginal or Torres Strait Islanders even if they do not hold Australian citizenship because the constitutional definition of “alien” cannot be set by the government of the day through citizenship law.
Both were convicted of criminal offences and served time in prison. At the conclusion of their sentences in 2018, both had their visas revoked and were taken to immigration detention in Brisbane where they were advised they would be deported.
Love was to be deported to Papua New Guinea, and Thoms to New Zealand. Love was released in September 2018 shortly after the present court proceedings were filed. Thoms remains in immigration detention.
Justices Virginia Bell, Geoffrey Nettle, Michelle Gordon and James Edelman ruled that the tripartite test – established by the landmark Mabo native title cases – can be used to establish biological descent and recognition of indigeneity by a traditional group that puts Indigenous Australians beyond the reach of the aliens power in the constitution.
The chief justice, Susan Kiefel, and justices Stephen Gageler and Patrick Keane disagreed. Nettle was the swing vote who decided a further hearing would be required in Love’s case to determine his Aboriginality.
The majority ordered the commonwealth to pay the plaintiffs’ costs.
This content was originally published here.