Civil Law: Implications of High Court Ruling on Indigenous Australians

This report examines the civil law case concerning the deportation of indigenous Australians, focusing on the High Court's ruling regarding Mr. Love and Mr. Thoms. The report provides a detailed overview of the facts, opinions, and reflections on the case, including the implications of the verdict on Australian immigration laws and the rights of indigenous people. It discusses the court's decision to exempt Aboriginal people from deportation, highlighting their special status and connection to the land. The report further explores the historical context, the strained relationship between the state and indigenous communities, and the impact of the ruling on the Australian Migration Act and Citizenship Act. It concludes by emphasizing the significance of the decision in protecting minority rights and promoting the identity of indigenous Australians.

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(Application in context) Bachelor of social work

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Introduction
A debate rose across Australia when the high court made a verdict of not deporting the
indigenous people. There were mixed feelings based on the nature of the decision and what it
would imply to the history of the Australian community in general. A primary goal of the
judiciary is to interpret the law and oversee the protection of minority rights in Australia. This
paper analyzes an article by Elizabeth Byrne and Josh Robertson regarding a verdict made
regarding the case of Mr Love and Mr Thoms. Facts, opinions and a reflection on the article will
be presented as well as implications of the verdict made by the high court of the case.
Facts
The court made the decision that the Aboriginal people had a special status in them that
vehemently exempts them from being deported as they are not in any way implicated by the
immigration rules. This was agreed after the court looked into cases of two different convicted
criminals the government was on the verge of deporting (Nethery, Rafferty-Brown, Taylor,
2013). Brendan Thom's and Daniel Love both failed their immigration tests because of
imprisonment.
The decision implicated that the indigenous people were not subject to alien powers. According
to Australian law, an alien is an individual who naturally owes allegiance to another country
based on the virtue that they were born there. Aboriginal Australians have a profound and long-
lasting connection with the community and traditional land (Davis, & Prescott, 2015). However,
they do not belong in their own country. As such, members of the Aboriginal community in
Australia should not be deported. They hold a special status and for that reason are exempted
from migration laws (Galligan, 2017). There is no doubt that the Aboriginal people are not a

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subject to the alien powers in the constitution. As a result, they should not be deported because
the Minister does not have the constitutional right. The argument is that it seems contradicting
for the Aboriginals to be considered as strangers in their traditional land.
In most cases, this applies to registered native title holders just like Thomas. The law recognizes
and considers their traditional connection to the land and deporting them will be a violation of
this unique provision (Judd & Butcher, 2016). The traditional connection to the land earns them
the implication and right of belonging.
The decision made by the court on this particular case had a very significant implication to the
Indigenous Australians. It presented a different relationship between the indigenous people and
the state government (Colquhoun & Dockery, 2012). In years to come, this decision will be used
to protect the rights of the Aboriginal people from losing their unique right of identity and
traditional lands just because of a mere birth accident. This decision upheld recognition of the
Aboriginal and Torres Strait Islander in the law and their connection to their land
(Grewcock,2017).
In the past decade, there has been an ongoing heated challenge between the State and the
indigenous people. In most of these cases, the issues revolved around the lack of proper legal and
civil recognition. In this case, for instance, Minister categorically failed to consider the
Aboriginality of the men before deciding to deport them. The commonwealth went ahead and
indicated that the men did not belong to Australia, and for that, they were aliens. For this and
many other cases, it is conclusive that the long and strained relationship that exists between the
State and the indigenous people remains unresolved. It is, however, essential to note that the final
decision made in this case will be recognized as a milestone for the indigenous community in
years to come.

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Opinions
The ruling made will be a significant milestone for the indigenous people. Even though it only
directly affected just a small number of people, in the nearby future, this ruling will form a
profound legal recognition of the indigenous people. Moreover, the case is legally based on
citizenship but instead on identity and belonging. Aboriginal people are exempted from
immigration laws and no matter where they are born; they should never be deported. The
Australian government has no legal right to evict the indigenous people even when they do not
hold citizenship. This is regarding the definition of Alien in the Australian constitutions, which
could not, in any way, be set by the current government through citizenship law.
Mr Love, born in Papua New Guinea, was held in immigration detention right after being
sentenced for assault. Mr Thomas, on the other hand, was born in New Zealand and held a native
title although he lacks Australian citizenship just like Mr Love. Thomas has been in migration
detention for quite some time. Keeping people in detention centres without following due
process and considering all grounds before detention is reckless (Strodthoff, 2014). Such acts
continue to stain the relationship of the indigenous people and the State.
Reflection
The Aboriginal and Strait Islander have lived in Australia for a period of more than forty-seven
thousand years. This was years before the arrival of settlers. They barely make 4% of the

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population and are ranked among Australia's most disadvantaged people (Wright, 2014).
Australia as a country has never had any meaningful treaty with its indigenous people despite the
pressure that it would bring with it some sense of recognition for the disadvantaged. In the State
of Victoria, a decision made by the high court changes it all. It marks the beginning of many
legal reforms to come regarding the Aboriginal and Strait Islander people.
The commonwealth implicated any individual who is not a citizen of Australia is an 'alien' as
indicated in the law. As such, Love and Thoms were not Australians and owed allegiance to their
birth countries. This statement was somewhat contradicting as it based its consideration on
citizenship and not identity and belonging. In the identity and belonging perspective, the
Aboriginal Australians are a permanent and very significant part of the Australian community.
Also, they are not considered as aliens under the law (Wright & Clibborn, 2017). The court made
stood up for their obligation to protect the indigenous society. The crown decided to try and
change the long stained relationship with the Aboriginals. As such, scholars suggest that the
Aboriginal now owe the crown a permanent allegiance.
Impacts/Critical reflection
In the last two decades, people have been deported from Australia and forced back to countries
they left as young children. In this particular case, Brendan Thoms and Daniel Love were born
out of Australia, but in each case at least one of their parents was an Indigenous Australian
citizen. They live in Australia with permanent residency, but when they tried to apply to become
citizens, the worst happened. Their visas got revoked and were sentenced.
The impact of the high court's decision, in this case, shall be remembered for ages, and it will
have a significant effect on the indigenous community history's. The high court found the

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indigenous people are protected from deportation as a result of the connection they have with the
land. In the process of justice, the victims suffered severe embarrassment and ridicule. First and
foremost, they are among the disadvantaged group in Australia and secondly, they are in an
immigration detention centre.
It is now certain that the eviction of the Aboriginal Australians from the country will like a case
of dispossession. The two men got their visa cancelled on character grounds and stipulated in
section 501 of the Migration Act (Coddington, 2014). Moreover, according to section 116 of the
Act, they were not waiting for deportation because they were not awaiting deportation. Detaining
them is against the law, and they were released. A lot of damage was done; the victims may
decide to sue for wrongful detention and violation of their fundamental human rights (Akbari &
MacDonald, 2014). The verdict made has numerous implications on both the Australian
Migration Act and the Australian Citizenship Act. It has in one way or the other created a new
category of persons and not strictly as per what is indicated in the Citizenship Act.
Conclusion
In Australia, the Aboriginal and Strait Islander have been recognized by the national legislation
as minorities. As such, they have exclusive rights based on their vulnerability situation. In most
cases, the central right of minorities is that or promoting and protecting their identity. In the
article, the decision decided to oblige to its role in protecting minority rights adequately
(Pugliese, 2015). The choice of nor deporting indigenous people will have a significant impact
on the Aboriginal and Strait Islander community. There is no doubt the verdict made has
numerous implications on both the Australian Migration Act and the Australian Citizenship Act.
Detaining people without following due process and considering all grounds before detention is

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reckless. Such acts continue to stain the relationship of the indigenous people and the State. The
high court however made a decision that will change the course of this.
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