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Indigenous is not alien, High Court decides



Daniel Love and Brendan Thoms were the plaintiffs in two recent High Court cases. Both men are Indigenous. They were born outside Australia, held foreign citizenship, had never taken out Australian citizenship and, having been convicted of offences carrying custodial sentences of 12 months or more, were subject to automatic cancellation of their permanent residency and removal under the Migration Act.

Exterior of the High Court of Australia (Getty Images/kokkai)

What is novel about their case is that this was the first time the High Court needed to consider whether an Indigenous person can even come within the Migration Act at all. At its heart, the question was whether an Indigenous Australian who was eligible for citizenship but had never formalised it could be regarded as an alien and therefore subject to removal. In a landmark judgment, a 4:3 majority of the Court found that Indigenous Australians were not aliens, even if they were not citizens.

In part, the High Court relied on the landmark decision of Mabo v Queensland [No 2] of 1992 (the Mabo Case), which was the foundation High Court case for Native Title. Previously the authority of the Mabo Case was not seen as pertinent to Migration or even citizenship law in Australia.

The Mabo Case overturned long held legal fictions and assumptions about terra nullius. Now the case was relied on to overturn another assumption about whether in migration terms, there are just citizen and non-citizens. As one of the majority judges Justice Gordon stated: ‘In the nearly 120 years since Federation, awareness, understanding and acknowledgement of the connection between Aboriginal Australians and this country have increased. By contrast, the significance of the notion of “British subject” in Australia has diminished.’

Both Love and Thoms identify as Indigenous thorough a parent. Love is as a descendant of the Kamilaroi People and Thoms is from the Gunggari People. Thoms is also a common law holder of native title, relating to the land and waters of the Gunggari People. Both are Queenslanders. The problem was that neither was born in Australia. Love was born in Papua New Guinea and Thoms in New Zealand and they hold the citizenship of their birth countries. Neither holds Australian citizenship.

Until the High Court’s decision, they were considered as non-citizen permanent residents of Australia. Both men have criminal records. These two points — their ‘non-citizen’ status and criminal records — brought them to the attention of the Department of Home Affairs.


'There is a great irony that the first European settlers to this country were not only unlawful boat arrivals, but mostly transported criminals who would all have failed the character test. For the first time our migration law will need to deal with the interaction between restrictive migration laws, and laws for the Indigenous peoples of Australia.'


The Migration Act states that if a non-citizen is serving a term of imprisonment, and they fail the character test in s501, their visas must be cancelled automatically. Relying on the provisions, they were taken into mandatory immigration detention straight after their release from prison. They could seek revocation of the cancellation, but must remain in detention whilst this process continues. Love managed to have the cancellation revoked but at the time of the High Court’s judgement on 11 February, Thoms was still in immigration detention.

The question for the Court was whether the Migration Act applied to Indigenous people who for whatever reason did not hold Australian citizenship. The court ruled by a majority that the Migration Act did not apply to Indigenous people because they were ‘non-aliens’ even if they were ‘non-citizens’. The case is complex, 169 pages and 468 paragraphs, and each of the seven judges wrote their own judgment.

The key issues were about Constitutional interpretation. The parliament’s power to make laws about aliens and naturalisation, such as the Migration Act and the Citizenship Act come from s51(xix) of the constitution. So the core issue was whether Indigenous Australians can ever be seen to be ‘aliens’ and therefore potentially subject to the Migration Act; or whether they could not possibly answer the description of ‘alien’ in the ordinary understanding of the word.

Previously it was understood that for the purposes of migration and citizenship law, people in Australia were either citizen or non-citizens. Now the court has explained there is a third category — non-aliens, and such people are not subject to the Migration Act because only aliens are subject to that act.

What was the meaning of ‘alien’? The judges looked at the origins of the word, and previous cases going back to the Immigration Restriction Act of 1901, and cases such as the Lim Case of 1994 that resulted in the mandatory detention law we still have in 2020.

Justice Gordon stated that the term aliens ‘conveys otherness, being an outsider, foreignness... the term does not apply to Aboriginal Australians, the original inhabitants of this country. An Aboriginal Australian is not an outsider to Australia.’

An issue of concern for the minority judges was whether the decision meant that ‘race’ was the determining factor for whether a non-alien was even a category in Australian law. Some judges said race should not be a factor in this. However, the majority held that it was not an issue about race per se, but about the meaning of alien. Also there was nothing in the Constitution prohibiting a law regarding a special treatment of race, in a positive sense.

An Indigenous person may also be an Australian citizen, by automatic grant or by application. The vast majority of Indigenous Australians will fall into this category. But, as the majority of the Court has found, it is also possible for certain Indigenous people such as Love and Thoms, to be not citizens, and not aliens — they are ‘non-aliens’ in the term used by some of the judges, because of their membership of an Indigenous community. One of the key reasons for this was because the Indigenous people of Australia were never intended to fall within the power in the Constitution to make laws about aliens.

The Mabo Case posited a three part legal test for recognition of a person as Indigenous: biological descent, self-identification and recognition of his/her membership of an Indigenous People by elders or those with authority in that group. Mr Thoms had been so recognised by elders in the Gunggari People and is a native title holder.

The effect of the Court’s decision is that a ‘non-alien’ cannot be detained or removed from Australia under the Migration Act because the Migration Act cannot possibly apply to them. It also means that the immigration detention of a ‘non-alien’ is unlawful. Already the government is looking at what options it has to amend or overturn the case. There were also very strong critical reactions back in 1992 after The Mabo case. Back then, the Native Title law was passed to create systems for assessing claims and disputes over title. We wait to see how the government reacts legislatively.

There is a great irony that the first European settlers to this country were not only unlawful boat arrivals, but mostly transported criminals who would all have failed the character test. For the first time our migration law will need to deal with the interaction between restrictive migration laws, and laws for the Indigenous peoples of Australia.

So whilst the Mabo Case was primarily about property and native title issues, now there has been a further development in the law. As Justice Gordon stated: ‘Native Title is one legal consequence flowing from common law recognition of the connection between Aboriginal Australians and the land and waters that now make up Australia. That Aboriginal Australians are not ‘aliens’ within the meaning of that constitutional term in s51(xix) is another.’



Kerry MurphyKerry Murphy is an immigration and refugee lawyer and part-time lecturer on immigration and refugee law at ACU.

Main image: Exterior of the High Court of Australia (Getty Images/kokkai)

Topic tags: Kerry Murphy, Indigenous, High Court, Australian law



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Existing comments

In common with fellow citizens, I rely on the Justices of the High Court to make difficult and often challenging decisions. This was a close decision in favour of the two Indigenous men. Your penultimate paragraph is striking and truthful, Kerry. Much like the judgement.

Pam | 17 February 2020  

If the principle of this case works out well in practice, it is because Aborigines do not have a (large) diaspora. The Overseas Chinese Affairs Office recently told those of Chinese ethnicity living abroad “No matter where you live in the world, we all share one origin. There is a place for all of you here at home”. But, temporary residence visas still have to be applied for and presumably none of them will get Chinese old age pensions (if there is such a thing) as of right. Will either of these ‘non-aliens’ qualify for the aged pension if they do not take out citizenship? Will both of them qualify in the absence of citizenship to vote for a Voice to Parliament or even for the Parliament? Surely, the claimed intrinsic connection to the soil must justify an entitlement to the fruits of that soil. Or does the numerical accident of a miniscule (if any) diaspora make the principle of non-citizen non-alien appear sounder than it is, especially when the text of the law conceptualises ‘aliens’ in juxtaposition with the concept of ‘naturalisation’.

roy chen yee | 17 February 2020  

Great article; I wonder if this creates an opportunity for the good old Australian Tax Office to find expatriate indigenous earners internationally and pursue them for years of unpaid Australian taxes? I don't claim to be a legal eagle but the Court determination didn't change the law, it only defined it's view of existing legislation, therefore the findings should be retrospective. Clever. Given they're now automatically considered (in many cases) indigenous and this infers they're non-alien it must pose a quandary; clearly the usual tax exempt leave-pass of no Australian property interest can't apply unless their individual mob doesn't have a land claim. I expect the High Court and the ATO will have fun with this one...

Ray | 17 February 2020  

As we have come to expect Kerry Murphy’s comments are full of insights. Unlike the hysteria in the media he actually analyses the basis of the decision.

JL Trew | 18 February 2020  

Thanks Kerry. 4:3 is a bit close, but better than the other way round. Good on Victoria for intervening.

Jill Robertson | 18 February 2020  

Wonderful article. 3 quick points/questions. 1. The decision does apply to Torres Strait Islanders too doesn’t it? They’re Australia’s often-forgotten other Indigenous people. 2. An Aussie mate with a very Irish name was told “Welcome home” by Irish Customs at Dublin Airport. “Oh”, the Aussie said, “it hasn’t been home for my family for 140 years”. “No”, said the official, “you’re home now.” 3. The first line of Robert Frost’s (US d 1963) “The Gift Outright” speaks to “white” Americans but could speak to their Australian counterparts; “The land was ours before we were the land’s...”

Gerard Hore | 18 February 2020  

I lost a lot of faith in the high court after Al Kateb and v Ghulam (kids in indefinite detention), this ruling is fair but the Keifel judgement in particular was racist, crude and just plain wrong. And it was Gageler who took the Malaysia trade deal to the high court arguing that human trafficking is legal, something the high court dismissed in that case but legalised in the follow on Nauru case. The idea that any Aboriginal Australia is a foreigner is absurd and the whole citizenship is ridiculous. It's not constitutional and as a statutory status only people like Dutton can use it to punish people over and over. Like the Australian babies trapped in Syria, no care from our government, just cancel their parents citizenship and leave the babies to die.

Marilyn Shepherd | 19 February 2020  

Thank you Kerry for your very important article. To their shame, the British invaders of Australia and their descendants have had a long history of trying to deny Australia's indigenous people full acceptance as citizens. This court decision is therefore a very important one. I remember reading the book by Harry Gordon "The Embarrassing Australian" which is the biography of Reg Saunders - the first Aborigine to become a commissioned officer in the Australian Army. Before 1967, the only indigenous Australians who were accepted as full citizens had to be given a certificate of citizenship - usually conferred for some exceptional contribution to the Australian society. Saunders was given citizenship because of his bravery and leadership during WW2 and the Korean War. At that time, Aborigines who wanted a drink in a pub had to show the certificate to be served. Saunders felt this was very demeaning - which indeed it was! When bar staff asked to see his certificate, he would respond by saying that he was an Asian student. He got served almost every time. Some senior officers thought that he had the ability to be an army general, but the high command never helped him to develop his career further. There have been many lost opportunities to help talented Aboriginal people to develop to their hull potential thanks to the White Australia Policy and other forms of discrimination. This has to change.

Andrew (Andy) Alcock | 20 February 2020  

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