Love v Commonwealth of Australia (B43/2018) and Thoms v Commonwealth of Australia (B64/2018) are currently before the High Court. These cases, distinct but posing the same questions, could be as significant as the Mabo decision of 1992. They ask:
Can Australian Aboriginal and Torres Strait Islander people be considered ‘aliens’ under the Constitution?
Section 51(xix) of the Commonwealth Constitution states:
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: naturalization and aliens.
Broadly speaking, ‘aliens’ are persons without Australian citizenship (or a valid visa).
Daniel Love and Brendan Thoms each identify as Aboriginal (Kamilaroi and Gunggari peoples, respectively) and are accepted as Aboriginal persons. Both men were however born overseas, and neither holds Australian citizenship. Each held an Australian visa until it was cancelled in 2018.
Mr Love was born in, and is a citizen of Papua New Guinea. His father is an Australian citizen. From the age of five, Mr Love has held an Australian permanent residency and has resided continuously in Australia. In 2018, he was sentenced to 12 months imprisonment for assault occasioning bodily harm. Whilst imprisoned, the Department of Home Affairs cancelled his visa under section 501(3A) of the Migration Act 1958 (Cth).
Section 501(3A) provides:
The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test …. and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Mr Thoms was born in, and is a citizen of New Zealand. His mother is an Australian citizen. Mr Thoms has resided in Australia since 1994. In 2018, Mr Thoms was sentenced to 18 months imprisonment for assault occasioning bodily harm. His visa was also cancelled under section 501(3A).
After the cancellation of their Australian visas, both Mr Love and Mr Thoms were placed in immigration detention on the basis that they were suspected ‘unlawful non-citizens’. Section 189(1) of the Migration Act 1958 states:
If an officer knows or reasonably suspects that a person in [Australia]… is an unlawful non-citizen, the officer must detain the person.
Mr Love and Mr Thoms argue that section 189 does not apply to them. They contend that, given their Aboriginal heritage (descent, self-identification and community acceptance) and special connection to Australia, neither can be an “alien” within the meaning of section 51(xix) of the Commonwealth Constitution. Their longstanding residence in Australia is noted, demonstrating that they owe no allegiance to a foreign power (PNG or NZ). They argue that they have a continuing right to live in Australia, regardless of whether they hold an Australian citizenship or current visa.
The Commonwealth Government argues that any person who is not an Australian citizen under the Australian Citizenship Act 2007 (Cth) must therefore be an alien. Additionally, it argues that Mr Love and Mr Thoms owe allegiance to PNG and NZ simply due to their citizenships of those countries.
The Court’s Position
In October 2018, the High Court wrote to the parties seeking their submissions about various propositions. These propositions focus on the right of Aboriginal societies to determining their memberships, and the special duty Australian governments owe to Indigenous Australian peoples.
If correct, these propositions would prevent the deportation of any person who is accepted as an Indigenous Australian person.
The Court Decides?
At present, the High Court is still deliberating over these hugely significant cases.
A finding in favour of Mr Love and Mr Thoms could have enormous legal consequences, extending beyond the Government’s ability to deport non-citizens who do not possess a current visa.
When the High Court decides, we will report back on their judgment.