High Court rules Indigenous Australians cannot be deported

The High Court has struck a major blow to the federal government's attempt to deport two Indigenous men, ruling that Aboriginal Australians are exempt from the Commonwealth's "aliens power" under the constitution and cannot be deported.

In a ruling that further enshrines the rights of Indigenous Australians, a 4-3 majority said Aboriginal Australians have a "special cultural, historical and spiritual connection" with Australia that is already recognised by common law.

Brendan Thoms with his mother Jenny and his father Robert.

This connection means they cannot be deported, even if they are born outside Australia and are not Australian citizens.

Papua New Guinea-born Kamilaroi man Daniel Love and New Zealand-born Gunggari man Brendan Thoms had been fighting deportation after their visas were cancelled in 2018 following criminal convictions and serving jail time.

Neither man holds Australian citizenship. They each moved to Australia as children and lived here on permanent resident visas. Both men have one Australian parent and identify as Indigenous. Mr Thoms is a native title holder.

Last year the barrister for the two men, Stephen Keim, SC, invoked the case of Mabo – which acknowledged the history of Indigenous dispossession.

"To remove Aboriginal Australians from the country would be another, if not worse, case of dispossession," he said.

The court ruled that as an Aboriginal Australian, Brendan Thoms could not be subjected to the "aliens power" under the constitution.

However, the court was unable to agree as to whether Daniel Love is Aboriginal, casting continued uncertainty over his case.

"The majority was unable to agree, on the facts stated in the special case, as to whether Mr Love has been accepted, by elders or others enjoying traditional authority, as a member of the Kamilaroi tribe. For that reason, the majority was unable to answer the question of whether he is an 'alien' within the meaning of s 51(xix)," a summary judgment said.

Maurice Blackburn senior associate Claire Gibbs, who is acting for Mr Love and Mr Thoms, said the court's decision was significant for all Aboriginal Australians born overseas.

"From the perspective of common sense, Aboriginal Australians should never have been placed in immigration detention and threatened with deportation from Australia, and today's High Court decision has further reinforced this fact," Ms Gibbs said in a statement on Tuesday.

"Both had well and truly served their time for crimes committed, yet they were punished twice with no basis for doing so."

The men are seeking damages for false imprisonment after being placed in immigration detention pending their deportation.

With staff writers, AAP