- The Plaintiffs, Messrs Love and Thoms, were not Australian citizens and had not been born in Australia. However, they both had Aboriginal Australian ancestry and were accepted by elders of their respective nations.
- Both of the Plaintiffs were sentenced under the Criminal Code (Qld) for unrelated charges
- Their visas were cancelled by the Minister for Home Affairs under s 501(3A) of the Migration Act 1958 (Cth) (“the Act“), the effect of which requires the Minister to cancel a person’s visa if that person has been convicted of an offence for which a sentence of imprisonment of 12 months or more is provided.
- The Commonwealth relied upon section 51(xix) of Constitution to support the validity of the Act’s application to the respective Plaintiffs. Section 51(xix) is a plenary power which allows Parliament to enact laws with respect to the “naturalisation and aliens“.
Whether an Aboriginal person, identifying and accepted by their community as such, is an “alien” in Australia within the application of s 51(xix) of the Constitution.
- The High Court majority (4:3) held that Parliament could not treat Aboriginal Australians as “aliens” because section 51(xix) did not extend to people who could not answer the description of “alien” according to the ordinary understanding of that term.
- Edelman, for example, described Aboriginal Australians’ connection to Australia as being “inseparably tied to the land of Australia generally, and thus to the political community of Australia, with metaphysical bonds that are far stronger than those forged by the happenstance of birth on Australian land or the nationality of parentage.
- The Aboriginal “connection to country” has now long been recognised as establishing that they belong to Australia and are therefore a part of its political community
- The existence of the above described connection is inconsistent with deciding that an Aboriginal Australian is an “alien” within the meaning of s 51(xix) of the Constitution.
- While Mr Thoms was accepted by the Court to be of Aboriginal Australian ancestry and thus outside the purview of s 51(xix), the Court could not conclude whether Mr Love was.
The full text is available here: http://eresources.hcourt.gov.au/downloadPdf/2020/HCA/3
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