Aboriginal Australians cannot be deported as 'aliens', High Court holds

Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3

Summary

The High Court of Australia, by majority of 4-3, has held that Aboriginal people are not “aliens” and therefore cannot be deported under laws passed under the “aliens power” conferred on the Commonwealth Parliament by s 51(xix) of the Constitution.

Facts

The case was brought by Brendan Thoms and Daniel Love (plaintiffs) against the Commonwealth of Australia. The Department of Home Affairs had cancelled their visas, detained them, and threatened deportation.

Their challenge was brought on the basis that as Aboriginal people, they are beyond the reach of the aliens power and cannot be deported.

Mr Thoms became a citizen of New Zealand by birth in 1988, and has permanently resided in Australia since 1994. He is a descendant of the Gunggari People through his grandmother. He identifies as a member of the community, is accepted as a member, and is a native title holder.

Mr Love was born in Papua New Guinea in 1979, and has been a permanent resident of Australia since 1984. He is a descendant of the Kamilaroi People through his great-grandparents, and is recognised as such by an elder of the Kamilaroi People.

The cancellation of each plaintiff’s visa was pursuant to s501(3A) of the Migration Act 1958 (Cth) following convictions for (unrelated) offences against the Criminal Code (Qld). The Commonwealth relied upon the aliens power to support the validity of the Migration Act in its application to the plaintiffs.

The question before the Court was “whether Aboriginal Australians, born overseas, without the statutory status of Australian citizenship and owing foreign allegiance, are aliens within the meaning of s 51(xix)” [294].

Decision

Justices Bell, Nettle, Gordon and Edelman formed the majority that held Aboriginal Australians (understood according to the tripartite test in Mabo [No 2] (1992) 175 CLR 1 at 70) are not within the reach of the aliens power.

The tripartite test is derived from Justice Brennan’s statement in Mabo [No 2], that a person’s membership of an Indigenous people of Australia depends on "biological descent from the [I]ndigenous [sic] people and on mutual recognition of a particular person's membership by that person and by the elders or other persons enjoying traditional authority among those people".

When applied, the majority agreed that Thoms is a Gunggari man, and therefore beyond the reach of the aliens power. However, the majority were unable to agree on whether Love has been accepted as a member of the Kamilaroi People.

Each member of the High Court delivered separate judgments and reasoning.

Justice Gordon stated that whether either plaintiff is an “alien” is a constitutional, not statutory, question, arguing that Aboriginal people are uniquely connected with country. That connection was not severed by colonisation, and therefore Aboriginal people cannot fall within the concept of “alien”.

Justice Gordon stated:

“The constitutional term "aliens" conveys otherness, being an "outsider", foreignness. The constitutional term "aliens" does not apply to Aboriginal Australians, the original inhabitants of the country. An Aboriginal Australian is not an "outsider" to Australia.” [296]

“Failure to recognise that Aboriginal Australians retain their connection with land and waters would distort the concept of alienage by ignoring the content, nature and depth of that connection. It would fail to recognise the first peoples of this country. It would fly in the face of decisions of this Court that recognise that connection and give it legal consequences befitting its significance.” [298]

Justice Edelman shared this view, stating that, the “identity of Aboriginal people, whether citizens or non-citizens, is shaped by a fundamental spiritual and cultural sense of belonging to Australia.” [391] Justice Edelman argued that it is this identity that constitutes Aboriginal people as “members of the Australian political community”, and that the “antonym of an alien to the community of the body politic cannot be a "citizen". It is a "belonger" to the political community.” [391, 394].

Justice Bell echoed this conceptualisation, stating:

“Notwithstanding the amplitude of the power conferred by s 51(xix) it does not extend to treating an Aboriginal Australian as an alien because, despite the circumstance of birth in another country, an Aboriginal Australian cannot be said to belong to another place.” [74]

Justice Nettle takes a distinctive approach, arguing that,

“with its recognition of Aboriginal societies as the source and sanctuary of traditional laws and customs, the common law must be taken always to have comprehended the unique obligation of protection owed by the Crown to those societies and to each member in his or her capacity as such.” [272] (emphasis added)

Chief Justice Kiefel, dissenting, argued that to accept the plaintiffs’ submissions, “that the legal status of a person as a "non-citizen, non-alien" would follow from a determination by the Elders, or other persons having traditional authority amongst a particular group, that the person was a member of that group… would be to attribute to the group the kind of sovereignty which was implicitly rejected by Mabo [No 2] – by reason of the fact of British sovereignty and the possibility that native title might be extinguished” [25].

Commentary

The majority judgments recognise that Aboriginality is rooted in a spiritual, cultural and historical connection with the land and waters of Australia. This connection was not severed by colonisation. It existed long before then, and gave rise to Aboriginal laws and customs.

As a result, the High Court recognised that even where Aboriginal people are born overseas and do not have the statutory status of Australian citizenship, they cannot be deemed aliens because the strength of Aboriginal identity supersedes their status under citizenship law and puts them beyond the Minister’s desire to deport them.

Nearly thirty years on, this case builds on the landmark decision in Mabo through echoing some of the ‘fundamental truths’ of Australia’s history.

The full judgment is available here. 

Tess McGuire is a lawyer on secondment at the Human Rights Law Centre.