High Court hears of bid to deport Aboriginal ‘aliens’

The plight of two criminals born overseas but who identify as Aboriginal likened to Mabo.

Daniel Love is facing deportation.

A federal government attempt to deport two Aboriginal men who served more than a year in prison for crimes would be “another and perhaps worse form of dispossession” than that considered in the famous Mabo case, the High Court of Australia has heard.

A landmark trial in the court has begun this morning to determine whether Aboriginal Australians can be considered an “alien” under the Constitution and, as a result, be deported following a serious criminal conviction.

The case has been brought by Maurice Blackburn on behalf of two indigenous men, Daniel Love and Brendan Thoms, who were convicted of crimes and sentenced to more than a year in prison.

Although both have Aboriginal heritage neither was born in Australia and they were sent to immigration detention having failed the migration character test and face derogation to Papua New Guinea and New Zealand.

One of the men is a native title holder.

Stephen Keim SC began arguments this morning on behalf of the men with a two-pronged case based on the “fundamental” connection of Aboriginal Australians to the country and a broader angle that no person born to a “non-alien” parent outside of Australia can be considered an alien.

The argument has already touched on Mabo and the now defunct concept of Terra Nullius, the Hindmarsh Island bridge case, the Tasmanian Dams judgment and the citizenship of Barnaby Joyce.

“What we say is, to interpret the ‘aliens’ clause in the constitution to say it’s all right to remove Aboriginal Australians from the country they have occupied for 80,000 years on the mere basis that they happen to be born overseas is another dispossession and raises similar challenges to that considered by the court with regard to Terra Nullius,” Mr Keim told the court today.

Justices of the court savaged part of the argument, however, and said Mr Keim was advancing a “vastly expansive rewrite of our understanding” of section 51 (19) of the constitution.

“You are inviting the court to answer a much larger question and the chances are it will not be answered,” Chief Justice Susan Kiefel said.

Rather than focus on broader arguments about whether citizenship and the status of “non-alienship” are the same, justices urged Mr Keim to target his argument at the question of Aboriginality and the powers of the parliament to find indigenous people to be outsiders.