(Feb. 26, 2020) On February 11, 2020, the High Court of Australia (Australia’s highest court) handed down a decision in the case of Love v Commonwealth of Australia  HCA 3 (“Decision”). In the significant judgment, the Court ruled by a majority of 4-to-3 that indigenous Australians who do not hold Australian citizenship cannot be deported.
The two plaintiffs in the case, Brendan Thoms and Daniel Love, “were both born outside Australia and are not Australian citizens.” According to a summary released by the Court (“Summary”), both have been permanent residents in Australia since early childhood. Mr. Thoms, a citizen of New Zealand, “is a descendant of the Gunggari People through his maternal grandmother. He identifies as a member of that community and is accepted as such by members of the Gunggari People. He is also a common law holder of native title.” Mr. Love, a citizen of Papua New Guinea, “is a descendant, through his paternal great-grandparents, of Aboriginal persons who inhabited Australia prior to European settlement. He identifies as a descendant of the Kamilaroi tribe and is recognised as such by an elder of that tribe.” (Summary at 1.)
The plaintiffs were convicted of unrelated offenses and their visas were cancelled under section 501(3A) of the Migration Act 1958 (Cth). Under section 189 of that Act, they were both taken into immigration detention on suspicion of being “unlawful non-citizen[s]” and were liable to deportation. Love was subsequently released after the decision to cancel his visa was revoked; Thoms remained in detention.
The Commonwealth government relied on section 51(xix) of the Australian Constitution to support the validity of the Migration Act and its application to the two plaintiffs. Section 51(xix) provides that the Commonwealth Parliament has the power to make laws “for the peace, order, and good government of the Commonwealth with respect to: . . . naturalization and aliens.” Both the Migration Act and the Australian Citizenship Act 2007 (Cth) are enacted under this provision. (Decision at 1.)
The plaintiffs argued that section 51(xix) “should be read so as not to apply to a person who is not a citizen of Australia, who is a citizen of a foreign country and is not naturalised as an Australian citizen, but who is an Aboriginal person.” That is, the plaintiffs contended that section 51(xix) “is subject to an unexpressed limitation or exception.” (Decision at 1.) The plaintiffs submitted that ”Aboriginal Australians are a permanent part of the Australian community” and cannot be “alien” to Australia. The Attorney-General of the State of Victoria intervened in the case in support of the plaintiffs. (See Decision at 22.)
The Summary explained the decision of the Court as follows:
In their separate reasons, the Justices forming the majority held that it is not open to the Parliament to treat an Aboriginal Australian as an “alien” because the constitutional term does not extend to a person who could not possibly answer the description of “alien” according to the ordinary understanding of the word. 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. The existence of that connection is inconsistent with holding that an Aboriginal Australian is an alien within the meaning of s 51(xix) of the Constitution.
The High Court held, by majority, that as an Aboriginal Australian Mr Thoms is not within the reach of the aliens power. However, the majority was unable to agree, on the facts stated in the special case, as to whether Mr Love has been accepted, by elders or others enjoying traditional authority, as a member of the Kamilaroi tribe. For that reason, the majority was unable to answer the question of whether he is an “alien” within the meaning of s 51(xix).
An “Aboriginal Australian” was taken in the case to be a person who meets the ”tripartite test” in Mabo v Queensland [No 2]  HCA 23. This test “requires demonstration of biological descent from an indigenous people together with mutual recognition of the person’s membership of the indigenous people by the person and by the elders or other persons enjoying traditional authority among those people.” (Summary at 1.)
Two constitutional law professors commented that “[a]lthough the decision applies to only a small number of people – Indigenous Australians who are not citizens – it has a broader impact in recognising the special status of Indigenous Australians in Australia.” They further noted that “[t]his decision will be recognised as a milestone for Indigenous Australians. But the closeness of the decision and the qualified finding in relation to Love’s case means this question of belonging for non-citizen Indigenous people will likely be raised again.”
In a radio interview, the Australian Attorney-General conceded that the majority view of the Court would have implications for the federal government’s “program of pretty vigorous deportation of people that we consider represent a threat to the Australian community and Australian citizens.” He indicated, however, that the government will examine whether there are alternatives to relying on the “aliens power” in the Constitution for deporting people who have “committed serious offences while on a visa and who are non-citizens.”