Aboriginal Australians cannot be deported as 'aliens', High Court holds
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].
https://www.hrlc.org.au/human-rights-case-summaries/2020/2/21/aboriginal-austral...So Aborigines are Australians even if born overseas are citizens of another country but hold no Australian citizenship.
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