Landmark case says Aboriginal Australians cannot be deported

Cheryl Sanders
February 14, 2020

Attorney-General Christian Porter says the government will seek to work around a controversial High Court ruling that non-citizens who identify as Aboriginal can not be deported.

The ruling is being seen as a historic moment for the recognition of Australia's first inhabitants.

"This case is not about citizenship".

What was the unique court case?

The court found that Thoms, 31, who was born in New Zealand to an indigenous Australian mother, was an Aboriginal Australian.

Both men were born overseas but moved to Australia as children and held permanent residency visas.

The two men both had criminal records and had both served jail sentences for violent assault.

They lived within the nation for no less than 47,000 years earlier than the arrival of European settlers, and subsequently suffered centuries of violence, oppression, land theft, and marginalisation.

What did the court rule?


Australia's conservative government had sought to treat the men as foreigners and deport them to Papua New Guinea and New Zealand.

The Australian High Court ruled in a decision that split the judges 4-3 that Aboriginal Australians "are not within the reach" of constitutional provisions relating to foreign citizens.

In its ruling, the High Court found Aboriginal Australians could not be considered "aliens" under the Constitution.

Gordon said native title was "one legal outcome flowing from common law recognition of the connection between Aboriginal Australians and the land and waters that now make up Australia".

"The Department of Home Affairs will consider the best methods to review other cases which may be impacted".

What does this imply for Thoms and Love?

"Certainly from a narrow point of view it just means that Indigenous Australians who don't have citizenship can't be deported under the Migration Act", Twomey said. "It's about who belongs here, who is an Australian citizen and who is part of the Australian community", Gibbs told reporters outside the court. Through his paternal great-grandfather, Love is a descendant of Aboriginal peoples.

She noted the case arose from Australia's increasingly tough policies of deporting non-citizens who break the law, some to countries where they don't speak the language or have any real connections.

" Brendan has had 500 sleep deprived nights fretting he might be deported at any time, and that is now fortunately at an end", Gibbs mentioned in a press release.


"He is very happy to have been released and to now be reunited with his family at long last".

However it stays unclear what this implies for Daniel Love.

He comes from the Kamileroi people, but the judges could not agree whether he had been accepted as a member of the tribe, so could not say whether he qualified for the special status.

The pair say their Aboriginality - by descent, self-identification and community acceptance - is bolstered by their longstanding residence in Australia.

Synot said the decision had caused some angst among Aboriginal people concerned that a court was yet again appearing to decide on Aboriginal identity and belonging to country.

Indigenous Australians make up 3 percent of the country's population and are the most disadvantaged minority group in a range of measures.

Consistent authorities experiences have discovered that indigenous persons are deprived throughout the board, from little one mortality charges and life expectancy, to literacy, tutorial success and employment charges.

"The case only went to the High Court because Australia uniquely has been trying so hard to deport so many different people".


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