Commenting on a landmark case that commenced in the High Court on Wednesday, Constitutional law experts say the idea of an Indigenous person being deported as an illegal ‘alien’ was “morally wrong but legally correct”.
The trial of Brendan Thoms and Daniel Love has been brought before the High Court by Maurice Blackburn Lawyers on behalf of the two Indigenous men who face deportation from Australia as illegal ‘aliens’.
Mr Thoms and Mr Love were both born overseas and each have an Indigenous parent who then returned home to Australia with each child aged very young. However, neither child was ever registered to become a citizen at the time.
Both men are now facing the threat of deportation after having their visas cancelled following jail sentences.
UTS expert in constitutional law and Indigenous rights, Harry Hobbs, told NITV News on Thursday that on the grounds of law, the men are legally aliens as they hold no Australian citizenship.
“Morally I don’t think it seems to make much sense that the Government could deport Aboriginal people from Australia, this is based obviously on Aboriginal and Torres Strait Islander people having that continuing connection to country,” Mr Hobbs said.
Mr Hobbs is skeptical about the Justices of the High Court ruling in favour of the right of both men to remain in Australia, but hopes they find the moral compass to do so.
“The High Court’s got a very technical role, it’s going to look at law, it’s not going to look at any moral or political consideration,” he said.
Mr Hobbs said currently, “the government has the authority to deport non-citizens from Australia” as set out under the Migration Act 1958 (Cth), whether they are Aboriginal or not,
Professor of Constitutional Law at the University of Sydney, Anne Twomey, reiterated Mr Hobbs perspective regarding First Nations people’s unique connection to Australia, citizen or not.
Ms Twomey said efforts to determine an Indigenous person's rights to Australian citizenship should be shifted away from amending the constitution, because if other future issues arise, it would be very hard to amend it again.
“Legislation, in contrast, is more flexible and can be relatively easily amended to meet changing needs, unexpected situations or deal with conflicting rights. So, it may be better to approach citizenship issues by revising and improving the legislation, rather than amending the Constitution,” she said.
Maurcie Blackburn senior assoicate, Claire Gibbs, said her argument is strong enough to persuade the Court to rule in favour of Mr Love and Mr Thoms.
“This is the first time they’ve considered whether an Aboriginal Australian born overseas can be classed as an ‘alien’,” she told NITV News outside the High Court on Wednesday.
“We think we’ve got a good argument to make that our clients are genuinely and uniquely Australian by being Aboriginal.”
The High Court is expected to reach a verdict within three months.