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Government Told It Can't Deport Aboriginal Australians, In Landmark Court Ruling

Aboriginal Australians are protected from the government's mandatory deportation laws, a milestone court ruling has stated.  Here's what the landmark decision means.

The High Court judgement was handed down on Tuesday, in the cases of two Aboriginal Australian men who had been placed in immigration detention after serving jail time for serious criminal offences. They were facing deportation, under the federal government's policy of sending away non-citizens convicted of serious crime.

Daniel Love and Brendan Thoms were born overseas  to one Aboriginal Australian parent and one non-Australian parent. They are not Australian citizens, but both identify as Aboriginal Australians.

In a narrow 4-3 split, the High Court ruled Aboriginal Australians' cultural, historical and spiritual connection to their country meant they were not subject to the 'alien powers' definition in the Constitution, and thus could not be deported under the law.

The High Court has ruled Aboriginal Australians cannot be deported because they belong to Australia. Image: Getty

Lawyer Claire Gibbs, who is acting for Love and Thoms, said Monday's ruling "marks a day where we have permanent protection for Aboriginal Australians from deportation".

Who Are The Men Involved In The Case?

Love and Thoms are the first Aboriginal Australians to bring such cases to the High Court.

Thoms was born in New Zealand and moved to Australia as a child, where he has lived since. He is a member and native title holder of the Gunggari people of Queensland.

Love was born in Papua New Guinea and has been a permanent resident of Australia since 1984. He's a descendant of the Kamilaroi people of NSW.

Both Thoms and Love were convicted of criminal offences and served time in prison. At the conclusion of their sentences in 2018, both men had their permanent visas revoked and were taken to immigration detention in Brisbane where they were advised they would be deported.

Love was released in September 2018 shortly after the court proceedings were filed. Thoms remained in detention, but was released just hours after the court ruling, according to the ABC.

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What Is The 'Aliens Power'?

The case considered the reach of the 'aliens power', under Section 51(xix) of the Australian Constitution --  historically the main legislative power around the country's immigration laws. The section grants the Parliament power to make laws with respect to "naturalisation and aliens".

Lawyers for the men argued Aboriginal Australians could not be "alien" to Australia, and thus, that that section did not apply to them.

But the Commonwealth had a different view, telling the court any person who was not a citizen was an "alien" under the law and could be deported through the exercise of that power.

The High Court of Australia in Canberra. Image: AAP

What Happened?

In Tuesday's ruling, the majority of the High Court ruled in favour of the three-part test of biological descent, self-identification and recognition of indigeneity by a traditional group -- invoked during the landmark Mabo native title cases. This, the court ruled, put Aboriginal Australians beyond the reach of the aliens power.

"Aboriginal Australians have a special cultural, historical and spiritual connection with the territory of Australia, which is central to their traditional laws and customs and which is recognised by the common law," a summary of the majority decision read.

While four Justices ruled in favour of Thoms, the court was not able to decide if Love was an Aboriginal Australian. He now requires a further hearing.

Gibbs said the federal government must release Thoms from detention.

Lawyer Claire Gibbs speaks to reporters outside the High Court in Canberra. Image: AAP

“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," she said.

“From the perspective of common sense, Aboriginal Australians should never have been placed in immigration detention and threatened with deportation from Australia."

"With today's decision, it is now beyond doubt that not only was such action unfair, it was also wrong."

The majority ordered the Commonwealth to pay the plaintiffs’ costs.