See our previous blog post to read a more in depth recap of the cases, being Love (B43/2018) and Thoms v Commonwealth of Australia (B64/2018).
Can Australian Aboriginal people be considered ‘aliens’ under the Constitution?
Essentially, the plaintiffs were Australian Aboriginal men who were born overseas and did not hold Australian citizenship. After they were imprisoned for assault occasioning bodily harm, their permanent residencies were cancelled and the Commonwealth government sought to deport them to their countries of citizenship under the Migration Act 1958 (Cth), arguing that they were legal “aliens” because they were not “citizens” within the meaning of the Australian Citizenship Act 2007 (Cth).
The Majority’s View
In a 4-3 decision, the High Court determined that Aboriginal Australians are not “aliens” within the meaning of Section 51(xix) of the Commonwealth Constitution, and therefore cannot be deported.
The Majority (Bell, Nettle, Gordon and Edelman JJ) considered the case of Mabo v Queensland [No 2], approving the following three-part native title test as also applying to citizenship and deportation matters:
- Biological descent from an Indigenous Australian group;
- Self-identification as an Indigenous Australian person; and
- Recognition and acceptance by an Aboriginal or Torres Strait Islander group.
The Majority held that a legal “alien” is not necessarily a non-citizen, but a “foreigner”, and recognised a new category of a “belonger” – a person who is neither an Australian citizen nor an alien.
Following Mabo, Nettle J further argued that the native title test recognised the existence of Aboriginal societies before European settlement – it would not be logical to then classify an Astralian Indigenous people satisfying the three-part test as an alien.
The Minority’s View
The Minority (Kiefel CJ, Gageler and Keane JJ) held a more literal view in line with the Commonwealth’s argument that if one is not a citizen under the Australian Citizenship Act 2007 (Cth), they are a legal “alien“. They argued that the Mabo decisions do explain native title, but do not extend to citizenship issues.
Mr Thoms is an accepted member of the Gunggari People, and will not be deported to New Zealand. A further hearing is required to determined whether Mr Love is an accepted member of the Kamilaroi.
This decision is likely to have wide-ranging legal consequences. Its effects are so far unknown, but will extend beyond the Commonwealth government’s ability to deport non-citizens who do not possess a current visa.
We will have to wait and see.