On 11 February 2020, the High Court of Australia (HCA) delivered a landmark judgment in which it ruled that indigenous Australians cannot be considered “aliens” under the Australian Constitution and therefore cannot be deported. The judgment is significant because it marks the first time that the HCA has considered whether non-citizens of Australia, who nevertheless identify and are recognised as indigenous Australians, may be deported pursuant to the Migration Act 1958 (Migration Act). More broadly, the judgment marks a positive step forward in the Australian common law’s recognition of indigenous Australians as a distinct category of rights-holders with a unique historical, cultural and spiritual connection to Australia’s land and waters.
The two plaintiffs – Mr Love and Mr Thoms – are not Australian citizens but have permanently resided in Australia since they were children. Mr Love was born in Papua New Guinea (PNG) and holds PNG citizenship. He identifies and is recognised as a member of the Kamilaroi people. Mr Thoms was born in New Zealand. He identifies and is recognised as a member of the Gungarri people and is a holder of native title.
The Migration Act, which is enacted pursuant to the aliens power in section 51(xix) of the Australian Constitution, allows the cancelation of a non-citizen’s visa if the person has been convicted of an offence for which a sentence of imprisonment of 12 months or more is provided. The plaintiffs were separately convicted of criminal offences and sentenced to terms of imprisonment of 12 months and 18 months respectively. Consequently, upon the completion of their sentences, their visas were cancelled, and they were placed into immigration detention awaiting deportation. The plaintiffs challenged their deportation, arguing that the aliens power cannot apply to indigenous Australians due to their unique connection to Australia.
By a narrow four to three majority, the HCA ruled in favour of the plaintiffs. The majority found that indigenous Australians’ historical, spiritual and cultural connections to land and waters are strong enough such that the common law of Australia recognises that Aboriginal people “belong” to the land (at ).
Accordingly, the majority concluded that the existence of this unique connection is incompatible with the concept of alienage. Justice Nettle, who joined the majority, put it most poignantly when his Honour stated that to deport and permanently exclude indigenous Australians from the land to which they have a unique connection “would have been the very antithesis of the common law’s recognition of that society’s laws and customs as a foundation for rights and interests enforced under Australian law” (at ).
For the plaintiffs, the judgment marks the end of their time in immigration detention, prevents their deportation and effectively upholds the ties that make them indigenous.
While the case was decided on a narrow legal question, it would be remiss to think that the judgment does not have broader political and social implications. Since colonisation, indigenous Australians have suffered, and continue to suffer, systemic racial discrimination, disproportionately high rates of incarceration, economic disempowerment and political marginalisation. The judgment therefore represents a significant milestone in the ongoing journey towards reconciliation between indigenous and non-indigenous Australians by recognising that the Crown’s power to make laws with respect to indigenous persons is not unlimited. The judgment also comes at an important time in the ongoing debate over the proposed constitutional recognition of indigenous Australians as it reinforces unique status of indigenous Australians as the first inhabitants of Australia.
However, although the judgment has been welcomed by the Law Council of Australia, academics and indigenous peoples, the Australian Government has been less receptive to the decision. The Government noted that the HCA left open the question of whether the Australian Parliament could restrict or modify indigenous connection to land and waters by statute and also foreshadowed that it may seek to rely on a different constitutional basis to legislate for the deportation of indigenous non-citizens.
While the judgment should be lauded as a watershed moment for the indigenous rights movement in Australia, the Australian Government’s response underscores that this movement still has a long way to achieve the full realisation of indigenous rights in Australian law.