In Love v Commonwealth of Australia; Thoms v Commonwealth of Australia  HCA 3 (11 February 2020) the High Court has found that Aboriginal Australians hold a special status. In considering the cases of two men, both of whom were not Australian citizens and who were facing deportation over criminal convictions, the High Court found in a majority decision (4-3) that Aboriginal Australians "were not subject to the aliens power" in the Australian Constitution.
Mr Thoms was born in New Zealand on 16 October 1988 and as a result is a citizen of New Zealand by birth. Mr Thoms had resided permanently in Australia since 23 November 1994 and is a descendant of the Gunggari People through his maternal grandmother. He identifies as a member of that community and is accepted as such by members of the Gunggari People. He is also a common law holder of "native title".
Mr Love was born on 25 June 1979 in the independent state of Papua New Guinea. He is a citizen of that country and has been a permanent resident of Australia since 25 December 1984. Mr Love is a descendant of Aboriginal persons who inhabited Australia prior to European settlement [following from his paternal great-grandparents]. Mr Love identifies as a descendant of the Kamilaroi tribe and is recognised as such by an elder of that tribe.
Both plaintiffs served sentenced for separate and unrelated offences against the Criminal Code (Qld). After their convictions, the visas of both plaintiffs were cancelled by delegates of the Minister for Home Affairs pursuant to the Migration Act 1958 (Cth), section 501(3A). Both plaintiffs were then taken into immigration detention, under section 189 of the Migration Act 1958 (Cth), on suspicion of being "unlawful non-citizen[s]" and liable to being deported.
The decision to cancel Mr Love’s visa has since been revoked pursuant to the Migration Act 1958 (Cth) section 501CA(4), which provides for the revocation of a decision under subsection 501(3A) (person serving sentence of imprisonment). As a result, Mr Love has been released from immigration detention.
The Federal Government argued through its counsel that anyone who was not a citizen was an "alien" under the law, while the plaintiff’s lawyers argued that Indigenous people could not be subject to the "aliens power".
The Court agreed that the determination of Aboriginality should follow the "tripartite test" established in Mabo v Queensland [No 2] (1992) 175 CLR 1, namely, per Justice Brennan in that case:
The High Court forming the majority (4-3) provided separate reasons for their decision. They held that it was not open to the Parliament to treat an Aboriginal Australian as an "alien". The term as used in the Australian Constitution did not extend to a person who could ". . . not possibly answer the description of alien" according to the ordinary understanding of the word "alien". It was found that Aboriginal Australians have ". . . a special cultural, historical and spiritual connection with the territory of Australia, which is central to their traditional laws and customs and which is recognised by the common law". Because of the existence of such a connection it is inconsistent to hold that an Aboriginal Australian is an alien within the meaning of the Australian Constitution section 51(xix).
As result it was held, that as an Aboriginal Australian Mr Thoms was not within the reach of the aliens power. In the case of Mr Love, the majority was unable to agree, on the facts stated in the special case, on the matter of whether Mr Love has been accepted by elders or others enjoying traditional authority or as a member of the Kamilaroi tribe and as a result, the majority was unable to answer the question of whether he is an "alien" within the meaning of section 51(xix).
In an article for the ABC News, Anne Twomey, Professor of Constitutional Law at the University of Sydney Law School, states that one of the more "controversial" matters arising from the case "was whether this decision would place a race-based distinction in the constitution". Chief Justice Kiefel said in her dissenting judgment that "race is irrelevant to the questions of citizenship and membership of the Australian body politic". Justice Gageler, also in dissent, "objected in principle . . . to the judicial creation of any race-based constitutional distinction irrespective of how benign the particular distinction contended for might seem", which Professor Twomey said arose from concerns that the "potential political and societal ramifications of the judgment could not be judicially appreciated and that the viewpoints of representative Aboriginal bodies had not been put to the court on these issues". Justice Bell, in his decision, expressed the view that it:
Professor Twomey writes that while the decision has a narrow direct effect of protecting Aboriginal non-citizens from deportation, there are also indications of "broader ramifications" of the court's analysis of the connection of Aboriginal people to their land and waters, which in her view "will take decades to resolve".
Another example of how this may unfold is visible in a commentary by Tony McAvoy SC (Wirdi man, Barrister and Native title and treaty law advocate), writing for the Guardian, who makes an observation on the wider ramifications of the case:
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Love v Commonwealth of Australia; Thoms v Commonwealth of Australia  HCA 3 (11 February 2020) and associated short particulars and judgment summaries.
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