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This article was written by Sally Crosswell

Sally Crosswell has a Bachelor of Laws (Hons), a Bachelor of Communication and a Master of International and Community Development. She also completed a Graduate Diploma of Legal Practice at the College of Law. A former journalist, Sally has a keen interest in human rights law.

Aboriginal Men Facing Deportation: High Court


In February 2020, the High Court was asked to rule on the case involving two Aboriginal men who were facing deportation. Brendan Thoms and Daniel Love were deemed to have failed the character test under section 501 the Migration Act 1958 and subject to deportation as a  result of serving more than a year in prison and having long criminal histories.

The court had to determine whether Aboriginal people were subject to the “alien” powers under section 51 (xix) the Constitution and therefore could be deported.

Brendan Thoms

Thoms was born in New Zealand to an Aboriginal mother and New Zealander father. He settled in Australia at age 6 but never obtained citizenship. The 31-year-old had served part of an 18-month prison sentence for domestic violence assault. At the end of his sentence, his permanent residency visa was cancelled, and on release from prison, he was taken to immigration detention. He spent 17 months in immigration detention before his release as a result of the High Court decision.

Daniel Love

Love was born in Papua New Guinea to a Papua New Guinean mother and Aboriginal father. Love settled in Australia at age 5 but never obtained citizenship. The 39-year-old had served a year in prison for assault occasioning bodily harm. At the end of his sentence, his permanent residency visa was cancelled and on release from prison, he was taken to immigration detention. This decision was revoked and he was released from immigration detention after 49 days.

The arguments

The High Court was asked to decide whether Thoms and Love were “aliens” within the meaning of section 51 (xix) the Constitution, which grants power to the Commonwealth Government to make laws about “naturalisation and aliens”.

The men argued that they were beyond the reach of the aliens power due to their Aboriginality, established by descent, self-identification and community acceptance. This argument was backed up by each man’s long-standing residence in Australia and their assertion that they owed no allegiance to their birth country because each had emigrated from their birth country as children.

The Commonwealth Government argued a person is automatically an alien if they do not have Australian citizenship under the Australian Citizenship Act 2007. It also argued that Thoms and Love owed allegiance to New Zealand and Papua New Guinea by virtue of their respective citizenship of those countries.

The tripartite test

The court used the tripartite test established in Mabo v Queensland (No 2) (1992) to determine Aboriginality. The test “requires demonstration of biological descent from an indigenous people together with mutual recognition of the person’s membership of the indigenous people by the person and by the elders or other persons enjoying traditional authority among those people”.

It ruled Thoms was an Aboriginal Australian, being descended from and recognised by the Gunggari people of southern Queensland, and identifying as Aboriginal. Thoms had also been recognised as a native title holder by the Federal Court. The court could not reach a decision on whether Love had been accepted as a member by the Kamilaroi people of north-eastern New South Wales, so could not say whether he qualified for special status.

The decision

In a 4-3 split decision, the court ruled in favour of Thoms and Love. In their separate reasons, the majority judges held:

“that it is not open to the Parliament to treat an Aboriginal Australian as an “alien” because the constitutional term does not extend to a person who could not possibly answer the description of “alien” according to the ordinary understanding of the word. Aboriginal Australians have a special cultural, historical and spiritual connection with the territory of Australia, which is central to their traditional laws and customs and which is recognised by the common law. The existence of that connection is inconsistent with holding that an Aboriginal Australian is an alien within the meaning of s 51(xix) of the Constitution.”

The decision was hailed as a milestone for recognising the special status of indigenous Australians but the closeness of the decision and the qualified finding about Love’s Aboriginality had legal experts predicting the question of belonging for indigenous non-citizens would likely be raised again.

Damages claims

As of June 2021, Love and Thoms were suing the Government for false imprisonment on the basis their being held in immigration detention was unlawful. Section 189 of the Migration Act provides for the detention of unlawful non-citizens. Love and Thoms were to argue the section could not apply to them because their Aboriginality accorded them a special connection to Australia such that neither of them was an “alien” under the  Constitution. Each was to argue he had a continuing right to remain in Australia regardless of whether he had Australian citizenship or a current visa.

Thoms was seeking $4.1 million in damages, made up of $2.7 million in general damages, $1.3 million in aggravated damages and almost $75,000 in economic loss. Love was seeking $390,000.

For advice or representation in any legal matter, please contact Armstrong Legal.

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