In a four-three split decision the high court ruled that Aboriginal people are not subject to the ‘alien’ powers in the constitution, and cannot be deported under immigration law.
The court ruled that the three part test, used to establish Indigenous descent, puts Indigenous people beyond the reach of the constitution’s ‘alien’ powers.
A lawyer for Brendan Thoms and Daniel Love said this is a significant decision for Australian Indigenous people, regardless of where they were born.
“This case is not about citizenship. It’s about who belongs here and who is a part of the Australian community,” lawyer Claire Gibbs said.
“For now, what this means is that the High Court has found that Aboriginal Australians are protected from deportation.
“They can no longer be removed from the country that they know and the country that they have a very close connection with.”
The court ruled that Brendan Thoms could not be deported, but could not decide if a Daniel Love is Indigenous. A further hearing will be held to establish Mr Love’s Aboriginality.
The High Court judgement states: the majority was unable to agree, on the facts stated in the special case, as to whether Mr Love has been accepted, by Elders or others enjoying traditional authority, as a member of the Kamilaroi tribe.@NITV @SBSNews
— Shahni Wellington (@Shahni_W) February 11, 2020
Speaking outside the court, Ms Gibbs said she is confident they can prove Mr Love’s Aboriginality.
“The court didn’t make a decision because all the evidence wasn’t put forward in this particular special case,” she said.
“But we are confident that we can provide that evidence and it will be accepted.
“In terms of the tripartite test, the three-part test, he’s certainly been accepted by his community as Aboriginal, he identifies as Aboriginal and, he has biological proof that he’s a descendant of the First Australians.”
Mr Thoms was born in New Zealand and Mr Love in Papua New Guinea; both have one Aboriginal Australian parent.
Mr Thoms is a Gunggari man and Mr Love a member of the Kamilaroi nation.
Daniel Love was born in PNG in 1979 to a PNG mother and an Aboriginal Australian father.
Both men had their permanent residency visas cancelled in 2018 on character grounds, after serving jail sentences. Neither of them has Australian citizenship.
The pair were placed in immigration detention after their visas were cancelled.
Mr Love was released shortly after the court proceedings were filed. Mr Thoms remains in immigration detention.
Ms Gibbs called for Mr Thom’s immediate release, saying the men will seek compensation for false imprisonment.
The most important next step is for Brendan to be released,” she said.
“It’s absolutely crucial now that the High Court have made a definitive statement today that Aboriginal Australians, and particularly Brendan, is not an alien.
“So the time frame moving forward is that we’re hopeful that Brendan will be released imminently, then we’ll be obviously meeting with Brendan and Daniel to talk about the next steps.
“We will obviously be providing further evidence and being in further communication with the Commonwealth to establish Daniel’s Aboriginality and we’ll be pursuing a damages case for Brendan Toms and for Daniel- Love for the detainment that was unlawful.”
The Commonwealth was ordered to pay the men’s costs.
This content was originally published here.