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 New Zealand-born 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 whether he is accepted as a member of the Kamilaroi tribe.
Speaking outside the court, the men’s lawyer, Claire Gibbs, called on the government to immediately release Thoms, who has been in immigration detention for 500 days.
Gibbs said she was “confident” Love will also be found not to be an alien and told reporters the pair will seek “significant” damages.
“This is significant for Aboriginal Australians … regardless of where they are born.
“It’s about who belongs here, who is an Australian national and who is a part of the Australian community.”
“So for now, what this means is that the high court has found that Aboriginal Australians are protected from deportation.”
The plaintiffs were born in Papua New Guinea and New Zealand, each with one Aboriginal parent, and faced deportation due to laws which allow the cancellation of visas on character grounds.
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.
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.
Love was released in September 2018 and his visa reinstated shortly after court proceedings were filed. Thoms remains in immigration detention.
Justices Virginia Bell, Geoffrey Nettle, Michelle Gordon and James Edelman ruled that the tripartite test of biological descent, self-identification and recognition of indigeneity by a traditional group – established by the landmark Mabo native title cases – can put Indigenous Australians beyond the reach of the aliens power in the constitution.
In doing so, the majority recognised a new category of “belonger” – somebody who is neither an alien nor a citizen – who owe allegiance to and are owed protection by the crown.
Justice Nettle said that the Mabo native title decisions had recognised the existence of Aboriginal societies before European settlement.
To have classified an Aboriginal person as an alien would be to “to tear the organic whole of the society asunder, which would have been the very antithesis of the common law’s recognition of that society’s laws and customs as a foundation for rights and interests enforced under Australian law”, he said.
The chief justice, Susan Kiefel, and justices Stephen Gageler and Patrick Keane disagreed with the conclusion Aboriginal Australians cannot be aliens.
Kiefel said it was “erroneous” to apply the connection to land required in native title cases to an “entirely different area of the law” to answer that question because the Mabo cases “explain what is native title … but they do not speak more broadly”.
She suggested the majority had recognised a new immutable right for certain non-citizens that “cannot be said to be a development of the common law”.
“Because it is immutable it might be understood to bear the characteristics of a higher principle of which natural law might conceive.
“But such conceptions are generally not regarded as consistent with constitutional theory.
“And they are regarded by some as antithetical to the judicial function since they involve an appeal to the personal philosophy or preferences of judges.”
The majority ordered the commonwealth to pay the plaintiffs’ costs.