Landmark High Court trial to test if Constitutional 'aliens' power applies to Aboriginal Australians


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Tomorrow a landmark trial will be held in the High Court of Australia to determine an important threshold question as to whether Aboriginal Australians can be considered an 'alien' under the Constitution and, as a result, be deported following a serious criminal conviction.

The special case is being brought on behalf of Aboriginal Australian men, Daniel Love and Brendan Thoms. It will be argued that both men are Australian nationals because they are Aboriginal people who, although born overseas, are not aliens under the Constitution.
Mr Love was born in Papua New Guinea. His father was a natural born Australian citizen and Aboriginal Australian. Mr Thoms was born in New Zealand. Mr Thoms' mother is an Australian citizen and an Aboriginal Australian woman. Both men have lived in Australia since they were young boys. Both have an extensive Aboriginal Australian heritage. Both have children who are Australian citizens and identify as Aboriginal Australian. Mr Thoms also is a native title holder.
Both were convicted of criminal offences and served time in prison. At the conclusion of their sentences last year, both men had their visas revoked and were taken to immigration detention in Brisbane where they were advised they would be deported. Mr Love was to be deported to Papua New Guinea, and Mr Thoms was to be deported to New Zealand. Mr Love was released in September 2018 shortly after the present court proceedings were filed. Mr Thoms remains in immigration detention.
Maurice Blackburn Senior Associate Claire Gibbs, who is acting for Mr Love and Mr Thoms, said the case was important in seeking to make clear that it was unacceptable, under the Constitution, for people who were clearly Australians to be subjected to the alien deportation powers.
"In our view it is morally wrong for the Commonwealth to try to remove our clients from Australia, when it is evident that, on any common sense measure, our clients are Australians," Ms Gibbs said.
"Our case is directed to showing that it is also unlawful.
"Our clients have a clear Aboriginal lineage, they each have an Aboriginal Australian parent, they have children who are Aboriginal Australians and they went to school and worked in Australia.
"One of Mr Love's grandfathers, an Aboriginal Australian man, fought for Australia in World War Two. Mr Thoms is a native title holder.
"It defies logic that our clients who came here as kids, whose Aboriginality and strong connection to Australia is not in dispute, should have ever been placed in immigration detention and threatened with removal from Australia.
"No one is seeking to defend the criminal behaviour of our clients. But, in their situation, the fact is they are now being punished twice.  These men have served their time and instead of being released they were instead sent to immigration detention with the threat of deportation. This is not consonant with their multi-layered connections to Australia.
"The case is not challenging the Commonwealth's powers, in the appropriate case, to deport at their discretion people who meet the definition of an alien and have committed a criminal offence.
"Rather, the importance of this case stems from the fact that it addresses the constitutional limits of the 'aliens' power in the Constitution and the threshold question of whether an Aboriginal Australian, born overseas to an Australian Aboriginal parent can, lawfully, be treated as an alien and subjected to those same deportation powers.
"The case argues that they cannot be treated in this way.
"This is an important point for which the need to be clarified extends more widely, as we know there are other Aboriginal Australians in a similar position to our clients," she said.
Mr Love and Mr Thoms are being represented in this social justice matter by Maurice Blackburn Lawyers and the Refugee and Immigration Legal Service (RAILS). Both Mr Love and Mr Thoms are also making a claim in the High Court for unlawful imprisonment.

Australian Government Community Indigenous & Heritage Law & Safety

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