Immigration detainees claim ‘I’m indigenous’ after High Court ruling

Home Affairs is examining the claims of 23 detainees who say they should be freed because they are indigenous Australians.

Last month’s landmark decision allowed two indigenous men - one born in Papua New Guinea, the other in NZ (Brendan Thoms, pictured) - to avoid deportation. Picture: Supplied

Home Affairs is examining the claims of 23 immigration detainees who say they should be ­released on the grounds that they are indigenous Australians, following a landmark High Court ­decision that ruled Aboriginal people cannot be deported.

The department’s general counsel, Pip De Veau, said in some cases those seeking release had only their assertions of indigenous ancestry to back their claims. Ms De Veau said the department was in talks with detainees’ lawyers to obtain “appro­priate legal information’’ to establish the merits of their claims to indigenous heritage, and negotiations were “ongoing to establish evidence”.

“That spans all possible indications of indigeneity, not those that might ultimately meet the threshold,” she said. “The bulk of those, we already had information about prior to the (High Court) decision. There has been a smaller number who have self-identified since the decision.”

The High Court found in a split decision last month that ­people with indigenous Australian heritage — even those born overseas — cannot be considered “aliens” under the Constitution and ­deported on character grounds.

Home Affairs Minister Peter Dutton, inset, has opened the door to introducing legislation to “rectify” the ramifications of the High Court ruling.

The 4-3 decision allowed two indigenous men — one born in Papua New Guinea, the other in New Zealand — to avoid deportation after committing separate ­violent assaults in Australia.

It was revealed at the weekend that a third man, a New Zealand criminal, was released last week in light of the decision.

Home Affairs secretary Mike Pezzullo said the department’s decision-maker “formed the view that to hold that person would be detaining a person without power”. “There is no one else, to my knowledge, who is yet close to ­establishing the appropriate — I’ll use the lay term — ‘credentials’,” Mr Pezzullo said.

He told Greens senator Nick McKim the department was taking legal advice on the impli­cations of the High Court decision, which effectively created a third category of person who is neither “citizen” nor “alien”.

“I can assure you, senator, lest there be any doubt … we take all court decisions very seriously, but especially so in the case of a decision made by the High Court on questions of constitutionality,” he said. “That is obviously the highest form of judicial authority you can have, and our officers work on those matters through the night as required and we’ll ensure we act in conformance with the new line of judicial authority that now exists in our nation.”

High Court judges Virginia Bell, Geoffrey Nettle, Michelle Gordon and James Edelman ruled the ­tripartite test of biological ­descent, self-identification and recognition of Aboriginality by a traditional group, established by the Mabo native title cases, meant Aboriginal people “are not within the reach of the ‘aliens’ power ­conferred by the Constitution”.

The judgment was praised by Minister for Indigenous Australians Ken Wyatt for affirming the way in which ­Aboriginality is recognised. But Home Affairs Minister Peter Dutton has opened the door to introducing legislation to “rectify” the ramifications of the ruling. At the time of the decision, Mr Dutton said it “essentially creates another class of people”, adding: “There might be some points of ambiguity where there is the ability for us to legislate.”