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Byron Shire
February 26, 2021

Landmark High Court ruling confirms Aboriginal Australians are not ‘aliens’ under the Constitution

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Aboriginal Australians are not ‘aliens’ under the Constitution and can no longer be deported from Australia, following a landmark decision handed down in the High Court today.

 The test case was brought by two Aboriginal Australian men Daniel Love and Brendan Thoms, who were placed in immigration detention and told they could be deported after serving time in prison for serious criminal offences.

Both men were born overseas, but they each have a parent who was an Australian citizen and Aboriginal Australian, and identify strongly as Aboriginal Australians.

Mr Thoms also holds native title.

Crucially, the High Court found today that Aboriginal Australians are not within the reach of the ‘aliens’ power of the Constitution, meaning that anyone deemed an Aboriginal Australian cannot be deported through the exercise of that power.

The High Court also found that Brendan Thoms, who has now spent 500 nights in immigration detention amidst the threat of deportation, is an Aboriginal Australian and that on this basis, should not be subjected to the aliens powers.

Maurice Blackburn senior associate Claire Gibbs, who is acting for Mr Love and Mr Thoms, said the court’s decision was significant for all Aboriginal Australians born overseas and a key step in the road to justice for Brendan Thoms in particular.

‘This is a very significant decision today that has helped to clarify the law – it is now beyond doubt that Aboriginal Australians cannot be deported through the exercise of the aliens power,’ Ms Gibbs said.

‘The Federal Government must release our client Brendan Thoms from detention today, the High Court has found that Brendan is an Aboriginal Australian and with their further ruling today that Aboriginal Australians are not aliens there is no excuse for him to be detained a minute longer.

‘Brendan has spent 500 nights in detention, he has missed two Christmases with his family. He has paid a hefty price for a crime he had already served time for and he must be released as a matter of urgency.

‘From the perspective of common sense, Aboriginal Australians should never have been placed in immigration detention and threatened with deportation from Australia, and today’s High Court decision has further reinforced this fact.

‘These two men came here as kids. They are Aboriginal Australians with a proud family history here and a strong connection to the land, including in Brendan Thoms’ case a claim to native title.

‘Both had well and truly served their time for crimes committed, yet they were punished twice with no basis for doing so, and for our client Brendan this remains the case.

‘For the Federal Government to have even detained both men at all defied logic, but with today’s decision it is now beyond doubt that not only was such action unfair, it was also wrong.

‘Significantly, today’s ruling is also a win for any other Aboriginal Australians in similar circumstances and we are very proud of this result,’ she said.

 Mr Love and Mr Thoms are being represented by Maurice Blackburn Lawyers and the Refugee and Immigration Legal Service (RAILS).


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12 COMMENTS

  1. What a disgraceful thing for the Government to have done. I do hope they receive appropriate compensation for the time they’ve spent in detention.

  2. How (*&$#) is it that this is the first we hear of this BS. Thanks to the Echo for informing us, but what a (*&^%$#) up society and country we live in.

  3. What a wonderful win for Maurice Blackburn and the two criminals involved !
    However, the High Court has now confirmed it is fine and legal to discriminate on the basis of race !
    After all is said and done ,the only thing that separates these cases from dozens of others ,where foriegn born citizens commit serious crime they are deported, is genetic racial profile.
    This retrograde step puts into shape focus the apartheid future in store for this country, and one step closer to the Aboriginal House in Government and a permanent ‘ us and them ‘ society ,which history tells us will result in civil-war .
    Oh well, if enough survive, they may well get a treaty !
    Cheers, G”)

  4. That is a clear clarification and a sign that justice finds its way. Congratulations to Claire Gibbs for her diligence. I believe further justice will be served if a claim against the federal government is made for loss of time spend in detention unfair treatment and psychological and fanatical damages and losses. The point is beyond monetary gain but a settling of misuse of powers exercised but the federal government and its agents. They cannot and should not be left to commit actions the deprive freedom and rights from the public without just cause or without repercussions when unjustified action has been taken.

  5. Sorry, I’m struggling here – why is it good that they are being treated differently to any other person born overseas to Australian parents?
    Sounds like a win for racism to me.

  6. Victory for aboriginal persons not born in Australia and who have committed serious criminal offences. We get to keep them here …. lucky us.

  7. Is not the important part of the wording ” …under the Constitution.”
    Therefore the Australian Constitution covers the Australian Aborigine as a race of people, our First Australians and it is lawfully said and stated that they are.
    So just how can not the Indigenous NOT be mentioned in the Australian Constitution in the forthcoming Referendum on Aboriginal Rights to be mentioned in the Constitution.
    It is now covered by law that they are part of the Australian Constitution.

  8. This goes to show that we need a Bill Of Rights in Australia. To my mind, any Australian born overseas to an Australian citizen should have automatic Australian Citizenship. (The reverse is true: that is why we had all the Kerfaffle about Government Members being not Australian Citizens, or having dual citizenship)
    Also, I do not think there is yet a valid legal definition of an Original Australian. It seems to be accepted if a parent is an Original citizen, any offspring are also of their bloodline.

    This does set an interesting precedent. However, stretching it to Original citizen Parliament seems to be long bow. The Uluru statement from the Heart only wants an elected body with no legislative power to overview & advise on legislation that applies to first citizens. Not really a great deal different to a motoring organisation advising government on laws applying to motor vehicles!

    I am hoping this year to have a speaker explain the Uluru Statement from the Heart at the Lismore Politics in the pub. (If interested, follow us on Facebook!)

  9. The term Racism implies negative abusive or harmful discrimination. An Aboriginal has a legal right to live in this country no matter where he was born. This was the decision of the high court and it is a moral decision. That aboriginal children or mixed race, partially white and partially black were taken from their parents for assimilation into the white community was racism.

  10. Nityabodhananda Saraswati , you don’t understand !
    Racism and discrimination, means treating people differently based on their genetics.
    There is no such thing as “negative abusive or harmful discrimination” and the racism you mention was , at the time was seen as a positive humane action of rescuing children from a brutish, violent stone-age existence but as you seem, in your wisdom, to have decided, it would have been better to leave them to suffer and die from disease,exposure and malutrition.
    It is the act of differentiation that is the crime, and it is this that the High-Court now authorises and this
    “moral decision” is, to my mind, a disgrace in any civilised world.
    Does this new legal reality mean that, regardless of where you were born, you will be a citizen of the country your ancestors ?
    Very worrying ! G”)

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