Aboriginal people are so closely connected to Australia that they cannot be deported, even if they are not citizens, the High Court has heard in a landmark case that Chief Justice Susan Kiefel likened to the 1992 Mabo case.
Lawyers for Daniel Love and Brendan Thoms told the court on Thursday that their Aboriginal identity meant the Australian government could not hold them in immigration detention or deport them.
Thoms has been in detention since September 2018, with the government planning to deport him to New Zealand. Love, who holds Papua New Guinean citizenship, was released after seven weeks in detention and is seeking compensation.
Both were born elsewhere, and never applied for citizenship despite being entitled to it, but have lived in Australia since they were children. Their permanent visas were cancelled after convictions for criminal offences.
Under the Australian Constitution, the Commonwealth can make laws to deport “aliens”. But the men say that even though they are not citizens, their Aboriginal identity means they cannot be aliens.
The landmark 1992 case of Mabo (No. 2), in which the High Court first recognised native title, lingered in the background of the argument.
The men’s barrister, Stephen Keim, said Mabo laid out an accurate history of Australia, providing a way forward for the law to deal with social and legal issues like those arising in this case.
The men “belong to Australia”, Keim emphasised, arguing that their belonging was recognised in Mabo and then developed through native title law.
Rights to native title were recognised in Mabo as arising from traditional laws and customs. On Thursday, the court pressed the men’s lawyers on if those same laws and customs decided who would be considered a non-alien because of their Aboriginal identity.
Both Keim and lawyers for the state of Victoria — which has intervened in support of Love and Thoms — said it was broader than that. Many Aboriginal people do not hold native title because they had been displaced from their historical lands and communities, but they are still Indigenous, Keim said.
“The last woman standing in a massacre is no less Aboriginal because no-one is there to recognise her,” he said.
But Justice Stephen Gageler said he was “really struggling” with the test. If it wasn’t traditional laws and customs that decided who was Aboriginal, the only criterion left was race, he suggested.
“The connection is Aboriginality,” Keim responded.
As Victoria’s lawyer Peter Willis made a similar argument, Chief Justice Kiefel cut him off.
“The plaintiffs’ case was originally premised on and reflected in Mabo and connection to native title,” she said, adding that the argument in court appeared to instead be taking them into "Mabo (No. 3)".
Willis said the Commonwealth was trying to characterise the case as "a revolutionary step, a step of a Mabo (No. 3)", but that the plaintiffs and Victoria saw it simply as a commonsense development of the law.
Commonwealth solicitor-general Stephen Donaghue told the court that the case was simple: anyone who is not a citizen is an alien, regardless of their identity. Mabo did not introduce a separate category of people who were not aliens, and the law applied equally, he said.
Donaghue accused the plaintiffs of asking the court to introduce a carve-out to the constitution based on race.
He argued that there was no precedent to suggest Aboriginal people should be treated any differently when it comes to deciding who is an alien. But those arguing for the plaintiffs simply said that the question had never arisen before. Along with some members of the bench, they emphasised that the law evolves over time.
Senior bureaucrats sat in the gallery to witness the argument, as did Labor senator Patrick Dodson, a Yawuru man.
Both Love and Thoms identify as Aboriginal, are accepted as such, and have Aboriginal heritage.
The state of Victoria also argued that the unique connection of Aboriginal people to the land and water had so much in common with the principles underlying citizenship that it meant they could not be aliens.
“It’s not just someone from The Castle who has a connection to their quarter acre block. It’s something unique,” Willis said.
He added that the question is "who belongs here, who is one of us" and said the court had simply never considered it before.
But some members of the bench suggested connection to the land, and loyalty to the polity of Australia, were two different things.
Donaghue picked up on that same argument. The "important connection" Aboriginal people have with land "doesn't equate to any answer about the relationship with the body politic" he said, and was "not the same" as Australian-ness.
Justice Michelle Gordon interjected to suggest that the "deeper truth" of Mabo was that the connection to the land did interplay with the relationship to the body politic. That was the underlying principle and philosophy that found expression in all cases post-Mabo, she said.
Justice James Edelman agreed: "It's the whole foundation of native title."
Edelman also countered to Donaghue that the concepts at play when talking about citizenship and alienage were "inherently metaphysical". If the core concept was belonging, he remarked, it was strange that a two-year-old born in Australia and a two-year-old born outside Australia to Aboriginal parents whose connection to Australia ran back tens of thousands of years would be treated differently.
Both sides tried at times to minimise the significance of the case, each explicitly saying they were not asking the court to decide on another Mabo. They argued that it was just about the two men before the court and not a major step to rule for their respective cases.
But the ultimate decision is sure to attract significant attention either way.
If the court finds for the plaintiffs, it will recognise a new status: the non-citizen, non-alien. In some ways, it will place Aboriginal people outside the migration system.
If the court rules for the Commonwealth, it will find that someone's Aboriginal identity has no constitutional bearing on decisions about who can enter and stay in Australia. In Thoms' case, it could mean permanent separation from the land over which he holds native title.
The Department of Home Affairs told BuzzFeed News via a freedom of information request in November that it was aware via media reporting of 16 people who had claimed to be Indigenous and who had had visas refused or cancelled, but that it did not keep records on it.
The case was first heard in May and the decision reserved. But in a surprise turn of events, the judges then called the parties back for further argument on the various scenarios under which it could find Aboriginal people cannot be considered "aliens".
The court reserved its decision on Thursday.