• Maurice Blackburn Lawyers’ Senior Associate Claire Gibbs, who is acting for Daniel Love and Brendan Thoms. (NITV News )Source: NITV News
The High Court has found two Aboriginal men facing deportation can't be considered 'aliens' under immigration law. Their lawyers say the decision protects Indigenous people from being deported.
Keira Jenkins, Shahni Wellington

11 Feb 2020 - 12:25 PM  UPDATED 11 Feb 2020 - 4:18 PM

In a four-three split decision the high court ruled that Aboriginal people are not subject to the 'alien' powers in the constitution, and cannot be deported under immigration law.

The court ruled that the three part test, used to establish Indigenous descent, puts Indigenous people beyond the reach of the constitution's 'alien' powers.

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A lawyer for Brendan Thoms and Daniel Love said this is a significant decision for Australian Indigenous people, regardless of where they were born.

"This case is not about citizenship. It's about who belongs here and who is a part of the Australian community," lawyer Claire Gibbs said.

"For now, what this means is that the High Court has found that Aboriginal Australians are protected from deportation.

"They can no longer be removed from the country that they know and the country that they have a very close connection with."

But UNSW Indigenous Law Centre manager Eddie Synot said he doesn't think it has much of a broader application for Aboriginal and Torres Strait Islander people.

"I understand the obvious excitement, confusion or even relief from people in the community to see the High Court saying some of the things they have about recognising the unique place and the connection to country that Aboriginal and Torres Strait Islander people have," he told NITV News.

"I think what we are really seeing from the judgement and I think once other people put their eyes over it is that we haven't seen much of a difference in the way the court has approached Aboriginal people in this case and the ways it has previously.

"They still haven't gone into the tricky questions of Aboriginal sovereignty. They've kind of stuck to the status quo of what the common law is.

"For most Aboriginal and Torres Strait Islander people, this case, I believe will mean it's business as normal."

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Mr Synot said, if anything, the case shows that Australia's legal and political systems are incapable of answering "fundamental questions of who we are as a nation".

"That includes questions about sovereignty, that includes questions about a First Nations voice in the constitution, it includes questions about treaty and agreement-making," he said.

"All of these kinds of things that for a long time in the direction of the way the court decisions have gone have really been calling for political leadership and political decisions.

"I think more than anything else this case is a confirmation of that need for a greater political solution to be able to address those long-lasting questions for Aboriginal and Torres Strait Islander people.

"The worst thing I think to come out of this would be in another 20 years without having achieved any structural reform, and more people are in the High Court having these same kinds of questions addressed."

The court ruled that Brendan Thoms could not be deported, but could not decide if a Daniel Love is Indigenous. A further hearing will be held to establish Mr Love's Aboriginality.

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Mr Synot said considering recent events surrounding claims to Aboriginality, he can understand why this is a touchy point for Indigenous communities but said the court was not trying to exercise any jurisdiction over who is - or isn't - Indigenous.

"Most mob will understand the complexities with that," he said.

"I think we're all or pretty much all, committed to the idea that that should be a self-determining matter for our own people to be able to determine. 

"But I think it's important to highlight in this case that the court wasn't necessarily doing anything or applying a test that's been different to normal practice that's existed over the past couple of decades.

"Whilst they have said they haven't been able to make a determination, it was more so that they weren't able to make that decision based on a lack of evidence or proof.

"I understand that's also disheartening for a lot of Aboriginal people too but it wasn't necessarily them trying to exercise any jurisdiction over who is or who isn't Aboriginal or Torres Strait Islander, it was more so on the evidence that was presented before them.

"And in that respect the court followed that same, what everyone would be familiar with, the tripartite test that is very much cemented in legal and political practice in Australia now." 



Speaking outside the court, Ms Gibbs said she is confident they can prove Mr Love's Aboriginality.

"The court didn't make a decision because all the evidence wasn't put forward in this particular special case," she said.

"But we are confident that we can provide that evidence and it will be accepted.

"In terms of the tripartite test, the three-part test, he's certainly been accepted by his community as Aboriginal, he identifies as Aboriginal and, he has biological proof that he's a descendant of the First Australians."

Mr Thoms was born in New Zealand and Mr Love in Papua New Guinea; both have one Aboriginal Australian parent.

Mr Thoms is a Gunggari man and Mr Love a member of the Kamilaroi nation.

Both men had their permanent residency visas cancelled in 2018 on character grounds, after serving jail sentences. Neither of them has Australian citizenship.

The pair were placed in immigration detention after their visas were cancelled.

Mr Love was released shortly after the court proceedings were filed. Mr Thoms was released from immigration detention on Tuesday afternoon.

Ms Gibbs said the men will seek compensation for false imprisonment.

"It's absolutely crucial now that the High Court have made a definitive statement today that Aboriginal Australians, and particularly Brendan, is not an alien," she said.

"We will obviously be providing further evidence and being in further communication with the Commonwealth to establish Daniel's Aboriginality and we'll be pursuing a damages case for Brendan Toms and for Daniel Love for the detainment that was unlawful."

The Commonwealth was ordered to pay the men's costs.


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