Landmark ruling on deportation of Aboriginals
Aboriginal Australians are exempt from immigration law, the country’s top court ruled on Tuesday, in a historic decision that found indigenous people born overseas could not be deported.
Australia had been trying to deport two men — Papua New Guinea citizen Daniel Love and New Zealand citizen Brendan Thoms — under laws that allow a convicted criminal’s visa to be cancelled on character grounds.
Both men identify as Aboriginal Australians, each has one indigenous parent, and they have lived in the country since they were small children.
Love, who served time for assault, and Thoms, who had been jailed for domestic violence, have been battling in the courts to stay in Australia, arguing that they may be “non-citizens” but they are also not “aliens”.
The 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.
Thoms — who was already recognised as a traditional land-owner — was accepted by the court as Aboriginal.
But the judges could not agree on whether Love was under a three-part test that considers biological descent, self-identification and community recognition.
Lawyer Claire Gibbs, who represented the men, hailed the decision as “significant for Aboriginal Australians”.
“This case isn’t about citizenship, it’s about who belongs here, who is an Australian national and who is a part of the Australian community,” she told reporters in Canberra.
“The High Court has found 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 case marked the first time an Australian court has considered whether the government has the power to deport indigenous people.
But it also touched on the contentious question of how Aboriginality is defined in the law.
Gibbs said she was confident they would eventually be able to prove Love’s status as he was accepted by his community as Aboriginal and had biological proof he was a descendant of the First Australians.
Lawyers will now pursue compensation claims on behalf of both men as a result of being Aboriginals held in immigration detention.
Acting immigration minister Alan Tudge described it as a significant judgment.
“On the face of it, it has created a new category of persons; neither an Australian citizen under the Australian Citizenship Act, nor a non-citizen,” he said.
Thoms was freed from immigration detention following the ruling, while Love had been released in September 2018. — AFP