On Tuesday morning, the High Court of Australia handed down its decision in Love v Commonwealth of Australia; Thoms v Commonwealth of Australia, in which a majority of four judges determined that Aboriginal persons are not within the reach of s51(xix), known as the “naturalisation and aliens power”, of the constitution.

The four judges forming the majority held that it is not open to the parliament to treat an Aboriginal person as an “alien”, as the constitutional term does not extend to persons who could not be considered aliens, and Indigenous Australians have a connection with the land (which is recognised by common law) that is inconsistent with a deduction that an Aboriginal person could be considered an alien under the constitution.

The High Court’s ruling means, in effect, that Aboriginal persons cannot be deported under immigration law, even if they aren’t Australian citizens.

The two plaintiffs, Daniel Love and Brendan Thoms, both of whom were born outside of Australia but are descendants of Aboriginal peoples, were facing deportation for separate and unrelated criminal offences, for which they were imprisoned.

Mr Thoms was found by the majority to be an Aboriginal person and thus out of reach of the “aliens power”, but Mr Love is not entirely in the clear yet, as the court was unable to agree on whether he is an Aboriginal person as per the facts of his case.

In his separate judgment, Justice James Edelman held: “A child born in Australia to two parents who have only Australian citizenship is not an alien. The metaphysical ties between that child and the Australian polity, by birth on Australian land and parentage, are such that the child is a non-alien, whether or not they are a statutory citizen. The same must also be true of an Aboriginal child whose genealogy and identity includes a spiritual connection forged over tens of thousands of years between person and Australian land, or ‘Mother Nature’.”

Such a conclusion “could only be avoided by denying its premise”, his honour continued, so that the children in both scenarios are capable of being aliens.

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“That approach would be contrary to the essential meaning of s 51(xix), which is not tied to the state of legislation. It would effectively allow the Commonwealth parliament to recite itself into power. To the extent that such an approach might be said to be based upon a concern for equality within the political community, it would involve a misunderstanding of both equality and community.”

The judges in the majority were Justice Virginia Bell, Justice Edelman, Justice Michelle Gordon and Justice Geoffrey Nettle, and the minority judges were Chief Justice Susan Kiefel, Justice Stephen Gageler and Justice Patrick Keane.

Responses to the judgment

In a statement provided to Lawyers Weekly, the Attorney-General’s Department said: “The government will carefully consider the implications of the High Court’s judgment. Questions about the specific implications for the individuals involved should be directed to Home Affairs.”

Law Council of Australia president Pauline Wright welcomed the decision, saying it flowed from the precedent set by Mabo and confirmed that the question of membership of Aboriginal societies is outside the scope of legislative power of the parliament.

“Many lawyers were concerned about the notion that people of Indigenous heritage could be deported both for the individuals concerned and their families,” she said.

“The Law Council welcomes the decision which turned on the principle of Aboriginal and Torres Strait Islander people having native title rights. These rights depend on the existence of societies with continuing systems of law and customs that predate the acquisition of sovereignty by the British, and the unique connection Aboriginal people have to the lands of Australia. This means they cannot be regarded as aliens.”

Ms Wright said the decision raised a number of complex issues which require careful consideration.

The plaintiffs in the case were both born outside Australia and were not Australian citizens, she noted, but they identified as Aboriginal people and were accepted as such by other members of their community.

“The decision is not one which the High Court has previously had to consider but is one of a number of questions which might naturally flow from Mabo decision in 1992,” she said.

“It will no doubt be the subject of much scrutiny and comment in the coming weeks and months.”

Australian Lawyers for Human Rights offered similar sentiments about the decision’s importance and affirmation of Mabo.

“The decision also validates what Aboriginal and Torres Strait Islander peoples have been saying since colonial invasion: their connection to country is so strong that the law should acknowledge that they belong to the land,” said ALHR president Kerry Weste.

“It is an indictment on our society that Australia’s federal constitution does not acknowledge our First Nations People’s connection to the land and waters of Australia and we hope that this decision further propels actions to form a treaty and to progress the reforms in the Uluru Statement from the Heart to achieve justice, recognition and respect for our First Nations People.”

According to Deloitte partner and Worimi leader Professor Deen Sanders, this will be a judgment “that echoes for some time”.

The decision, Professor Sanders told Lawyers Weekly, “re-emphasises whether a person is an Aboriginal Australian is a question of fact, not a question of percentages and preference. It affirms that those of us who are born with Aboriginal blood, live as Aboriginal people and are accepted by our community, have an inalienable identity. We would also argue that with that identity comes responsibilities but that is a different case to argue.”

“It is not all light though, just as any good High Court judgement is want to do, this decision also potentially opens a future door on a growing area of concern in the ‘identity politics” of Aboriginality, in that the majority did not find that Mr Love satisfied the test of “acceptance by the community”, suggesting that acceptance by one elder of that community was insufficient,” he added.

“On the one hand the judgement provides a helpfully detailed rendering of the Migration Act considerations of citizenship and alienage that will have migration law experts scratching for a while. On the other, it is a profound statement about the inalienable, sovereign, citizenry of Aboriginal Australians.”

The Aboriginal Legal Service, Australian Women Lawyers, Community Legal Centres Australia and Human Rights Law Centre were unable to provide commentary before this story was filed. The Australian Bar Association declined to comment.