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Today, the High Court, by majority, answered a question in two special cases to the effect that Aboriginal Australians (understood according to the tripartite test in Mabo v Queensland [No 2] (1992) 175 CLR 1) are not within the reach of the power to make laws with respect to aliens, conferred on the Commonwealth Parliament by s 51(xix) of the Constitution ("the aliens power"). That is the case even if the Aboriginal Australian holds foreign citizenship and is not an Australian citizen under the Australian Citizenship Act 2007 (Cth). The tripartite 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.
The plaintiffs, Mr Thoms and Mr Love, were both born outside Australia and are not Australian citizens. Mr Thoms was born in New Zealand on 16 October 1988 and became a New Zealand citizen by birth. He has resided permanently in Australia since 23 November 1994. Mr Thoms 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 was born on 25 June 1979 in the Independent State of Papua New Guinea. He is a citizen of that country but has been a permanent resident of Australia since 25 December 1984. Mr Love 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.
The plaintiffs were sentenced for separate and unrelated offences against the Criminal Code (Qld). After their convictions, the visas of both men were cancelled by delegates of the Minister for Home Affairs under s501(3A) of the Migration Act 1958 (Cth). They were taken into immigration detention, under s 189 of that Act, on suspicion of being "unlawful non-citizen[s]" and were liable to deportation. In the case of Mr Love, the decision to cancel his visa has since been revoked pursuant to s 501CA(4) of the Migration Act and he has been released from immigration detention.
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The High Court of Australia will on Tuesday 11 February hand down its ruling in a landmark case to determine whether Aboriginal Australians can be considered an ‘alien’ under the Constitution and, as a result, be deported following a serious criminal conviction.
The special case is being brought on behalf of Aboriginal Australian men Daniel Love and Brendan Thoms. It was argued that both men are Australian nationals because they are Aboriginal people who, although born overseas, are not aliens under the Constitution.
Mr Love was born in Papua New Guinea. His father was a natural born Australian citizen and Aboriginal Australian. Mr Thoms was born in New Zealand. Mr Thoms’ mother is an Australian citizen and an Aboriginal Australian woman.
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