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Government tries to turn 'Aboriginal' into 'alien'

  • 02 December 2019


Amid the ongoing tragedy of the Australian government's policy of keeping asylum seekers in detention, there is a lesser-known injustice presently under challenge in the High Court of Australia. Two Aboriginal men are currently being held in immigration detention under threat of deportation because they are not Australian citizens. The case raises practical questions of justice for the incarcerated men, as well as more far-reaching implications concerning the status of the relationship between Aboriginal and Torres Strait Islander Australians and the state.

Mr Love, a member of the Kamileroi people, was born in PNG to an Aboriginal father and PNG mother. He moved to Australia in 1984 when he was five years old, and has not ever applied for citizenship. Mr Thoms, a member of the Gunggari people and declared native title holder, was born in New Zealand to an Aboriginal mother and NZ father. He has lived in Australia since 1994. Both men have been convicted of an offence under the Criminal Code (Qld), and the Minister for Home Affairs cancelled their visas. Both are in detention pending the court's decision.

The court is considering the two men's cases jointly, as they raise the same constitutional issue. The Constitution gives the Commonwealth power to make laws in relation to 'naturalisation and aliens'. If the men are not 'aliens', then the Commonwealth is not empowered to deport them. The Commonwealth maintains that because the men are not citizens — a status that is different from that of an 'alien' — it is therefore open to the Minister to cancel their visas and deport them.

The plaintiffs argue that the men's connection with Kamileroi and Gunggari country respectively, and as members of these communities, is an inherently Aboriginal identity regardless of their place of birth and the consequences that entails under Anglo-Australian law. Under this argument, the men's 'non-alien' status would have them remain in Australia.

Importantly, the twofold implication of the Commonwealth's argument is not only to exclude the two men from their homeland, but also to banish them to a place foreign to them — denying their ability to connect with their country and their community.

This is not the first time the Minister has sought to deport non-citizens who are long-term Australian residents. In a notorious case in 2005, and following a series of criminal convictions, then-Minister Philip Ruddock ordered that Robert Jovicic be deported to Serbia despite having lived in Australia since