Commonwealth Litigates Over The Right To Deport Aboriginal Australians

On Wednesday, the federal government disputed the high court decision that Aboriginal people cannot be deported. The commonwealth argues that defining ‘aliens’ should be a power vested in the parliament. This would include the capacity to deport Aboriginal non-citizens or dual nationals.

The government’s challenge counters the 2020 landmark ruling that ruled Aboriginal people could not be deported from Australia, even if they lacked citizenship. This week’s challenge urges the court to scrap the verdict, or otherwise rule that individuals without biological Aboriginal ancestors will not be exempt from deportation.

The case of Shayne Montgomery – settled in November last year – was the catalyst for the government’s challenge. Montgomery, while having no Australian citizenship nor Aboriginal heritage, successfully argued he was Aboriginal via cultural adoption. His deportation order was revoked as a result.

The Commonwealth now wishes to dispute Montgomery’s case, and by extension the Love & Thoms ruling.

Legal representatives of the commonwealth took issue with what they saw as an implication that alien status would be determined by Aboriginal societies. Justice Patrick Keane agreed that parliament should determine alien status, claiming it was “preferable to leaving who is a member of the Australian community to a court.” Commonwealth representative, solicitor general Stephen Donaghue added, “or the elders of a traditional” society.

The Shayne Montgomery Case

Shayne Montgomery is a New Zealand citizen, who successfully resisted deportation last year. He argued he was Aboriginal because he had been culturally adopted by the Mununjali, despite having no biological descent from Indigenous Australians.

As part of his defence, his evidence included recognition by Mununjali woman Gamma Merle as her “son”. Montgomery was initiated into the community on Stradbroke Island, and feels his “spirit guides and ancestors are Aboriginal”. The judge on his case also pointed to Montgomery’s receiving Abstudy, a government social security program “directed specifically to Aboriginal people”.

The Love & Thoms Ruling

In February 2020, the Australian High court set a landmark precedent, ruling that Aboriginals could not be deported as aliens, even when lacking Australian citizenship. The case involved Brendan Thoms and Daniel Love.

Thoms and Love were born in New Zealand and Papua New Guinea respectively, moving to Australia as children. Each had one Australian parent and Aboriginal heritage, as well as being permanent residents. Their children were Australian citizens.

After serving jail sentences for violent assault, Thoms and Love were both facing deportation. This is because of Australia’s controversial deportation laws, which state foreigners revoke their right to live and work here if they are sentenced to a year or more in prison.

Love and Thoms’ legal teams successfully argued they couldn’t be considered aliens due to their ancestral ties to Australia. A four to three decision by judges ruled Aboriginal Australians were “not within the reach” of constitutional references to foreign citizens.

Cases of attempted deportation of Aboriginal people are not a new phenomena.

The federal government has not been uncritical in its approach to this decision. Then-attorney general Christian Porter said it created “an entirely new category of people” who must be “treated differently from all other persons in the same circumstances”.

Earlier this year, the Morrison government argued Aboriginal people’s spiritual connection to the land does not create a “special relationship” to the commonwealth. Wednesday’s challenge is just the latest development.

As Love and Thoms’ lawyer Claire Gibbs has remarked, “It’s really difficult to understand why the government are so fixated on trying to have the power to deport Aboriginal people.”

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