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Indigenous is not alien, High Court decides

  • 17 February 2020


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.

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.


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