High Court Of Australia Rules Aboriginal People Cannot Be Deported

New Zealand-born Brendan Thoms is fighting against deportation to New Zealand

They were facing deportation, under the federal government's policy of sending away non-citizens convicted of serious crime.

Brendan Thoms and Daniel Love - who had no prior connection - had been born in New Zealand and Papua New Guinea respectively however moved to Australia as youngsters.

"Both had well and truly served their time for crimes committed, yet they were punished twice with no basis for doing so, and for our client Brendan this remains the case".

The high court ruled in a four-to-three decision that Aboriginal people with sufficient connections to their communities and country can not be subject to s.51 (xix) of the constitution, known as the aliens power, and therefore can not be deported.

The High Court has ruled Aboriginal Australians can not be deported because they belong to Australia.

Australia's conservative government had sought to treat the men as foreigners and deport them to Papua New Guinea and New Zealand.

Who Are The Men Involved In The Case?

Gibbs said while the court did not make a determination about Mr Love's "Aboriginality", she was confident lawyers could prove that was the case.

But the Commonwealth told the court any person who was not a citizen was an "alien" under the law, and that Mr Thoms and Mr Love owed their allegiance to the countries they were born in. In so, recognising the long history of Indigenous dispossession in Australia.

These were the details of the news Aboriginal Australians born overseas can not be deported, court rules for this day. He's a descendant of the Kamilaroi people of NSW.

Brendan Thoms and Daniel Love.

Each man has Aboriginal heritage and one Australian parent.

Love was released in September 2018 shortly after the court proceedings were filed.

After serving part of an 18-month sentence for a domestic violence assault, he was taken into immigration detention, where he had remained until today's outcome.

I'm as patriotic as any Australian.

It was originally heard in May a year ago, but came back in December after the court suggested the parties consider whether Aboriginal people occupy a special position, backed up by common law recognition of native title rights.

An Aboriginal man held in immigration detention for 500 days should be immediately released after the High Court found he can not be deported, his lawyer said.

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.

Twomey said it would be "premature to leap to conclusions" about the impact of the decision on other kinds of rights in relation to Indigenous Australians. Image: AAP What Happened?

But the judges could not agree on whether Love was, under a three-part test that considers biological descent, self-identification and community recognition.

The president of the Law Council of Australia, Pauline Wright, welcomed the decision, saying it confirmed that questions about membership of Aboriginal societies were beyond the Parliament's legislative power.

"To remove Aboriginal Australians from the country would be another, if not worse, case of dispossession", he said.

The decision is being heralded as one of the biggest in Aboriginal legislation within Australia. He now requires a further hearing.

Ms Gibbs said the government's decision to detain the men "defied logic" and said today's decision had exposed it as "unfair" and "also wrong".

"This case isn't about citizenship, it's about who belongs here, who is an Australian national and who is a part of the Australian community", she told reporters in Canberra.

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