Court rules Aboriginal people cannot be deported

High Court Australia rules Aboriginals cannot be aliens

In a landmark ruling, the High Court of Australia has confirmed that Aboriginal Australians are not ‘aliens’ under the Constitution.

This may sound ridiculous – that a descendent of the oldest living culture and original custodians of this land could possibly be considered ‘alien’ and subsequently deported. However, this is exactly what the Australian Government attempted to do – and failed.

Two men, Daniel Love and Brendan Thoms, born overseas to at least one parent who was an Aboriginal Australian and Australian Citizen, were placed in immigration detention and advised that they may have their permanent residency revoked after having served time in prison for serious criminal offences.

Daniel Love was born in Papua New Guinea to a father who was a natural born Australian citizen and Aboriginal Australian. Brendan Thoms was born in New Zealand to a mother who is an Australian citizen and Aboriginal Australian. Both had lived in Australia since they were young children and have an extensive Aboriginal Heritage. Both also have children who are Australian citizens and strongly identify as Aboriginal Australian. Brendon Thomas is also a native titleholder.

Both men were convicted of criminal offences and given prison sentences. After serving these sentences, both men were told that their permanent visas were being revoked and they were to be deported – Daniel Love to Papua New Guinea and Brendan Thomas to New Zealand.

Under the Migration Act, the Minister has discretionary power to cancel or refuse visas is a person fails to satisfy the Minister that they pass the character test. A person with a ‘substantial criminal record’ will not pass the character test – in fact, they will automatically fail it irrespective of any mitigating factors. A person who has been sentenced to imprisonment for twelve months or more will be deemed to have a ‘substantial criminal record’ for the purpose of section 501(7) of the Migration Act. If a person fails the character test, refusal or cancellation of a visa is not automatic. Rather, the Minister is empowered with the discretion to refuse or cancel a visa.

The central issue of the litigation revolved around how we define ‘alien’ for the purposes of the constitutional ‘alien’ powers. During the proceedings, the Commonwealth argued that anyone who was not a citizen was an ‘alien’ under the law. The constitutional ‘aliens’ power allows the Commonwealth government to make federal laws with respect to persons who meet the definition of ‘alien’. It is this constitutional power, which allows the Commonwealth to deport people at their discretion who meet the definition of an ‘alien’ and have committed serious criminal offences. The men’s lawyers argued that Indigenous people could not be ‘alien’ to Australia.

In at 4-3 split, the High Court agreed with the men’s lawyers, deciding that Aboriginal people hold a special position and are exempt from immigration legislation. Consequently, Aboriginal Australians do not fall within the ambit of the ‘aliens’ power. As such, anyone who is deemed to be an Aboriginal Australian – regardless of their citizenship – cannot be deported through exercise of this particular constitutional power.


  1. Maurice Blackburn Lawyers:
  2. ABC:
  3. Australian Human Rights Commission: