Australian government appeals ruling protecting Aboriginals from deportation
The Australian government has made an appeal against a High Court decision that Aboriginal Australians can’t be aliens, claiming the decision threatens to confer “political sovereignty on Aboriginal societies”.
Lawyers for the government made the claim in an appeal against the Love and Thoms decision, which bars the deportation of Indigenous non-citizens. They claim that the ruling threatened the position that Aboriginal sovereignty did not survive the colonisation of Australia.
The Guardian reports that the submissions, lodged on Friday, also contain arguments that the spiritual connection Aboriginal Australians have with the land doesn’t create a “special relationship” to the commonwealth.
What is the Love and Thoms decision?
In February 2020, four out of the seven judges ruled that Aboriginal Australians were not aliens under the Australian constitution and couldn’t be deported, prompting the release of New Zealand-born man Brendan Thoms from detention.
Thoms and Papua New Guinea-born Daniel Love, who both have one Indigenous parent, had their visas cancelled and faced deportation from Australia after serving time in prison.
Lawyers for the two men, with support from the state of Victoria, argued that the government can’t deport Aboriginal or Torres Strait Islanders even if they don’t hold Australian citizenship.
In separate judgements, justices Virginia Bell, Geoffrey Nettle, Michelle Gordon and James Edelman made the ruling based on the three-part test established by the Mabo native title cases that assess a person’s claim to be Aboriginal based on their biological descent, self-identification, and recognition by a traditional group.
By April 2021, nine people were released from immigration detention as a result of the ruling, with Guardian Australia revealing the government was seeking to overturn the decision in October of the same year.
Why is the government appealing the decision?
In November 2021, the federal court ordered for the release of Shayne Montgomery, a New Zealand citizen whose visa was revoked by former home affairs minister Peter Dutton after he was convicted of a non-violent aggravated burglary in 2018.
The court ruled that Mr Dutton “failed to give any degree of consideration” to Mr Montgomery’s claims of Aboriginality. Though he wasn’t biologically descended from an Aboriginal person, the court said it was “not reasonable” to conclude Mr Montgomery was not Aboriginal since he was culturally adopted by the Mununjali people in Queensland.
In an appeal against that ruling, the federal government is now asking that the federal court overrule Love and Thoms.
With the retirement of two of the four judges who originally made the decision, assistant attorney general Amanda Stoker has noted in a 2020 research paper that a challenge to the decision could see it get reconsidered by the new bench.
In October, immigration minister Alex Hawke said the government had “no intent to deport an Aboriginal from Australia”, despite making an appeal alongside home affairs minister Karen Andrews to restore their power to do so.
He said the case was about “a complex question of law, it’s not about an opinion of the government, and it has to be tested and resolved”.
“That’s what the government is doing. Of course, there is no intent to deport an Aboriginal from Australia, ever.”
Kristina Kenneally, the shadow home affairs minister, has said Labor “respects the decision of the high court” in Love and Thoms, and that the government should “abide by the ruling”.
The matter is yet to be listed for a hearing.
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