The majority of the High Court of Australia ruled on 11 February that the First Nations people of this continent cannot be deported as aliens, even if they’re noncitizens, in cases where their Indigeneity can be proven.
The decision was based on the tripartite test of Indigeneity established in the landmark 1992 High Court case Mabo [No 2], which depends on the demonstration of biological descent, self-identification and recognition from the authorities of an Indigenous nation.
The majority found that an Aboriginal or Torres Strait Islander person is “not within the reach of the power to make laws with respect to aliens”, which is set out in subsection 51(xix) of the Australian Constitution.
The case involved two Aboriginal men born overseas, who each have one Indigenous parent. These men were placed in immigration detention – with a view to deportation – under 2014 laws that have been used to deport thousands of noncitizens on character grounds.
The case was met with shock within the community, as many commentators maintain that the question as to whether Aboriginal or Torres Strait Islander people can be deported as aliens is an issue that should never have gone before the highest court in the land.
And the fact that the majority ruling in favour of the plaintiffs was so slim – with 4 in favour and 3 against – has also raised eyebrows.
The two First Nations men who failed the draconian Migration Act 1958 (Cth) character test and were therefore thrown into immigration detention are Gunggari man Brendan Thoms and Gamilaraay man Daniel Love.
Mr Thoms was born in New Zealand in October 1988 and has citizenship in that country. He has permanently resided in Australia since 1994. His maternal grandmother was a Gunggari elder and he identifies as being a member of that community.
Born in Papua New Guinea in June 1979, Mr Love has been a permanent resident of Australia since 1984. He is a descendant of the Gamilaraay people via his paternal great-grandparents and he identifies as being a part of that Indigenous nation.
Both men were sentenced to prison for separate and unrelated offences against Queensland’s Criminal Code. And following their convictions, they had their visas cancelled by the Home Affairs Department and were subsequently placed in immigration detention.
The 501 deportees
The pair were placed in immigration detention and were set to be deported under new character laws enacted by the Abbott government in late 2014. This has led to over 4,000 noncitizens being deported to their countries of origin, with around half of them being people born in New Zealand.
An amendment bill passed in November 2014 altered the provisions within section 501 of the Migration Act, so a noncitizen is automatically deported for any number of sentences that amount to 12 months or more, rather than the previous 24 months.
This change has resulted in an increasing number of long-term residents being thrown out of the country, due to the retrospective nature of the law. And as the 12 month prison time is cumulative, it means that many people have had their visas cancelled over multiple minor offences.
The High Court hearing into the matters involving Thoms and Love were heard on 8 May and 5 December last year. And the lawyers for the plaintiffs were backed by the attorney general of the state of Victoria.
The Victorian submission outlined that a First Nations person who’s a member of an Indigenous society doesn’t fall within reach of the constitutional alien powers, due to the “recognised mutual and unique relationship between members of Aboriginal societies and the land and waters of Australia”.
The plaintiffs’ lawyer pointed to the Mabo decision as it recognises that before European arrival, First Nations people had prior rights and interests in the land and water that were bestowed upon them via their law and customs.
As High Court Justice Virginia Bell set out in her judgement, subsequent cases have reasoned that the recognition is of a connection that First Nations people have to country, which “is essentially spiritual”. And it’s difficult to describe in the parlance common amongst lawyers.
Their “argument depends upon the incongruity of the recognition by the common law of Australia of the unique connection between Aboriginal Australians and their traditional lands, with finding that an Aboriginal Australian can be described as an alien within the ordinary meaning of that word”, her Honour explained.
The Commonwealth argued that placing these men beyond the alien powers is problematic as it places a race-based limitation on them. And when correctly understood, these powers do apply to both men as they were born outside of Australia, which is no different to any other noncitizen.
In favour of the plaintiffs
Justice Bell, along with High Court Justices Geoffrey Nettle, Michelle Gordon and James Edelman made up the majority siding with the plaintiffs, while dissenting voices came from Chief Justice Susan Kiefel, along with Justices Stephen Gageler and Patrick Keane.
All seven justices provided their reasons in separate judgements. And this resulted in a 177 page document, within which the majority put forth that it’s impossible for parliament to treat First Nations people as alien, as they fall outside of the common understanding of the word.
The majority further found that Indigenous people “have a special cultural, historical and spiritual connection with the territory of Australia”. This is central to their laws and customs, is recognised by common law, and is inconsistent with the meaning of alien in the Constitution.
And the Commonwealth was ordered to pay court costs.
The implications for the detainees
Following the delivery of the High Court’s decision, the Australian government released Mr Thoms from immigration detention, where he’d been held for 500 days, as the court found he passed the requirements of the test set out in the Mabo ruling.
However, as yet, Mr Love has not been released from detention as the majority was not able to agree as to whether Gamilaraay elders recognise his Indigeneity. Although, his lawyer has said she’s confident he too will be released.