• Today the High Court heard further submissions on two high profile cases of Aboriginal men who were subject to deportation. (AAP)Source: AAP
The High Court heard submissions over whether Aboriginal or Torres Strait Islander people should be exempt from the government's mandatory deportation powers.
Brooke Fryer

5 Dec 2019 - 7:03 PM  UPDATED 5 Dec 2019 - 7:04 PM

On Thursday the High Court of Australia heard further submissions on two high profile cases of Aboriginal men who were subject to deportation, as the justices work towards deciding on whether Aboriginal Australians can be considered as ‘aliens’ under the Australian constitution.

Daniel Love and Brendan Thoms were both born overseas to one Aboriginal Australian parent and moved to the country as young children, never obtaining Australian citizenship.

Both Mr Love and Mr Thoms were sentenced to 12 months or more in prison and were told shortly before their scheduled release from jail that they would be going to immigration detention.

Immigration laws changed in 2014 allowing visas to be revoked if a person has been convicted of a crime carrying a jail sentence of 12 months or longer.

Mr Love, a Kamilaroi man born in Papua New Guinea, had his visa reinstated after seven weeks in detention and has sued for $200,000.  Mr Thoms, a Gunggari man born in New Zealand, remains in detention.

Maurice Blackburn Senior Associate Claire Gibbs, who is acting for Mr Love and Mr Thoms, told SBS World News the case was an important landmark decision, as it would make clear that it is unacceptable under the constitution for people who are clearly Australian to be subject to the government’s deportation powers.

"Today the court has invited us back... in October they put some further propositions to us," she said. 

"Under the common law, because Aboriginal people have a historic status as Australia's first people, whether they have some special protection under the common law and of course we agree with that position.

"We say that someone with special connection to this country could not possibly fit the definition of an alien because an alien in general terms is a stranger to this country." 

Ms Gibbs said that Mr Thoms life is "in limbo" as he goes into his second Christmas in the detention centre. 

Barrister Steven Keim SC, who is acting on behalf of Maurice Blackburn, argued in front of a full bench that the High Court’s second Mabo case demonstrated the “understanding of European settlement” and the “imposition of the sovereignty of the crown”

He further argued that common law should be dealing with multiple factors surrounding Australian identify beyond a citizenship status.

In defense, the government argued that common law does not identify if an Australian citizen is Indigenous or non-Indigenous, arguing that Indigenous Australians became British subjects due to the British exercising sovereignty over Australia.

"No matter how deep the connection is between Aboriginal people and the land... that doesn't equate to any answer to questions about the body politic," Solicitor-General Stephen Donaghue said. 

The case was first heard in the High Court in May earlier this year. Mr Keim argued that it was the "worst form of Australian dispossession" to deport an Indigenous person based on the Constitutional definition of the term 'alien'.

He also said the Court should keep up with the changing modern society and move away from a precedent that came into effect in 1901.

In defense, Solicitor-General Stephen Donaghue said anyone born outside of Australia who holds no Australian citizenship, Aboriginal or otherwise, should be treated the same way, and that is as an ‘alien’.

Lawyers acting on behalf of the men said they hope the decision will come in a timely fashion.