Law Updates

By Olivia Huntington


It’s the constitution. It’s Mabo. It’s the vibe…

A win for Indigenous people – but will the Department of Home Affairs find a way around the recent decision of the High Court?

On 11 February 2020, the High Court handed down a somewhat controversial decision, finding that Indigenous Australians could not be considered “aliens” under the Constitution, and could not be deported. The case is seen as a major defeat for the deportation powers of the Department of Home Affairs, and a big win for the rights of Indigenous Australians.

The Plaintiffs were two Aboriginal men born overseas, one in Papua New Guinea and the other in New Zealand. Both were permanent residents of Australia. Each were descendants of traditional Aboriginal groups, and identified with, and were accepted into, their respective Indigenous communities. Both were sentenced to imprisonment for criminal offences, and after serving their sentence, had their visas cancelled, pursuant to section 501(3A) of the Migration Act 1958 (Cth), on the basis they no longer passed the “character test”, because of their criminal convictions, and the sentences imposed on them.

The High Court ruled that Indigenous Australians who are not citizens of Australia, but who pass the tripartite test of being a biological descent of an Indigenous person, self-identify as an Indigenous person, and are recognised as a member of an Indigenous group by its elders – established by the landmark Mabo native title cases – are not within reach of the “alien power”, conferred on the Commonwealth Parliament by s51(xix) of the Constitution.[1] Nettle J, in his reasons, said that to classify an Indigenous as an alien, would be the complete opposite of the common law recognition of Aboriginal laws and customs enforced under Australian Law.[2]

While this decision applies to a narrow group of people, the government has already indicated this will not stop their policy of deporting non-citizens who commit crimes. The Attorney General and Minister for Home Affairs have both said that the government will be working on a way to legislate to deport Aboriginal non-citizens who have committed crimes in another way[3] – and no doubt they will be working on this tirelessly to prove a point.

The first test of the High Court decision has already been made, with AFL star Dustin Martin’s father quickly jumping on the decision and attempting to re-enter Australia on the grounds of his Aboriginality. His challenge wasn’t successful (due to lack of evidence as to Mr Martin’s Aboriginality), and the Home Affairs Minister has used it as an example to again reinforce his strong “no tolerance” mantra, that if you come to Australia and commit a crime, you will be deported.

As always, many decisions are not without consequence. This decision has the power to add more fuel to the fire for the Minister for Home Affairs, and cause an even more stringent crack down on deportation for those who commit criminal offences. It is concerning this win for Indigenous people may be short lived, if the Home Affairs Minister has his way. The ultimate consequence of this may well be that people who are facing deportation – Indigenous or not – may be made an example of in the near future, and will ultimately have no reprieve when it comes to deportation. For now – we will have to wait and see what the Department of Home Affairs can come up with – and be conscious that, at least for the time being, the right of an Indigenous person to remain in Australia is (quite rightly) preserved.

[1] Commonwealth of Australia Constitution Act 1900 s 51(xix).

[2] Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3.

[3] Frank Chung ‘High Court ruling on indigenous deportation ‘will lead to racial division and strife’’, (online 12 February 2020), .