The High Court has ruled Aboriginal Australians cannot be considered "aliens" under the constitution, presenting a major hurdle to the deportation of two men. ", Mary Crock, professor of public law at Sydney University, described the decision as "radical.". Maurice Blackburn senior associate Claire Gibbs, who is acting for Mr Love and Mr Thoms, said the court’s decision was significant for all Aboriginal Australians born overseas and a key step in the road to justice for Brendan Thoms in particular.
I do hope they receive appropriate compensation for the time they’ve spent in detention.
He was concerned that the potential political and societal ramifications of the judgment could not be judicially appreciated and that the viewpoints of representative Aboriginal bodies had not been put to the court on these issues. After all is said and done ,the only thing that separates these cases from dozens of others ,where foriegn born citizens commit serious crime they are deported, is genetic racial profile.
The Department of Home Affairs had not kept any data on this, but did provide a statement that they are aware of media reports of 16 people who identify as Indigenous whose visas have been refused or cancelled. The High Court ruled in a 4-3 decision that indigenous Australians cannot be deported even if they do not hold Australian citizenship. (The reverse is true: that is why we had all the Kerfaffle about Government Members being not Australian Citizens, or having dual citizenship) Also, I do not think there is yet a valid legal definition of an Original Australian. They are Aboriginal Australians with a proud family history here and a strong connection to the land, including in Brendan Thoms’ case a claim to native title.
Both Daniel Love and Brendan Thoms had been subject to Federal Government legislation that permits the deportation of non-citizens from Australia if they have been found guilty of a crime and sentenced to 12 months or more in prison. The case was last heard on 8 May, with the high court reserving its decision. Both Daniel Love and Brendan Thoms had been subject to Federal Government legislation that permits the deportation of non-citizens from Australia if they have been found guilty of a crime and sentenced to 12 months or more in prison. “In our view it means Aboriginal Australians cannot be aliens because they have a unique position in this country as the original inhabitants.
It says Indigenous people who inhabited Australia before settlement became British subjects “because they were the Indigenous inhabitants”. Love and Thoms face deportation after the home affairs minister, Peter Dutton, cancelled their Australian visas over criminal convictions.
Chief Justice Kiefel said that "race is irrelevant to the questions of citizenship and membership of the Australian body politic". The High Court ruled in a 4-3 decision that indigenous Australians cannot be deported even if they do not hold Australian citizenship. The High Court's judgment in the Love and Thoms cases dealt directly with these issues, and like the general public, the court was on some points fiercely divided. ‘This is a very significant decision today that has helped to clarify the law – it is now beyond doubt that Aboriginal Australians cannot be deported through the exercise of the aliens power,’ Ms Gibbs said. The Migration Act 1958 gives the Minister discretionary power to cancel a visa if the Minister reasonably suspects that a person does not pass the “character test” and is satisfied that it is in the national interest. "He is very happy to have been released and to now be reunited with his family at long last," she added. Some experts have stated that this could lead to a challenge to the federal laws that allow Australian citizenship to be stripped in certain circumstances from dual nationals. New Zealand-born Brendan Thoms is fighting against deportation to New Zealand.Source:Facebook. In a landmark decision on Tuesday, the High Court issued a reprieve for Daniel Love and Brendan Thoms, delivering a blow to the Department of Immigration that was seeking to deport the pair. G”), Your email address will not be published. The majority judges focused upon the strong connection of Aboriginal people with their traditional lands and waters, noting that it was not only a legal connection, but also a spiritual, cultural and religious one. Nationwide News Pty Limited Copyright © 2020. “He is very happy to have been released and to now be reunited with his family at long last.”. © 2020 Guardian News & Media Limited or its affiliated companies. Justice Keane saw the problem as confusing property rights with citizenship rights. But are there people who are not citizens that identify as Australians? Indigenous Australians die younger than other Australians and are overrepresented in prisons. subscription. At federation the term alien in our Constitution referred to a person who owed an allegiance to a foreign state, who was born out of the jurisdiction of the Queen, or was not a British subject. These people, aliens, have had fewer rights and sometimes almost no rights compared to the members of the society they were living in. Thoms, who arrived in Australia in 1994, is a Gunggari man and native title holder, born in New Zealand to an Aboriginal mother and New Zealand father. The Christian Science Monitor has expired. log out. In a majority decision, the High Court found Aboriginal people cannot be classified as “aliens”, regardless of whether they held Australian citizenship or not. Both Mr. Love and Mr. Thoms were placed in immigration detention and threatened with deportation on their release from prison after serving sentences for unrelated crimes. The Indigenous Australians Minister Ken Wyatt wants to hold a referendum within three years. The Migration Act relies on the aliens power found in the Constitution. Who has the power to fix our power networks? We Sounds like a win for racism to me. It seems that the common law recognition of the relationship of Indigenous peoples with their traditional lands and waters has affected the interpretation of the constitutional term ‘alien’. Where there is a relevant difference, such as the existence of a unique and legally recognised connection to land, this must be recognised and accommodated. subscription yet. I am hoping this year to have a speaker explain the Uluru Statement from the Heart at the Lismore Politics in the pub. Australia's highest court ruled Tuesday that the government can't deport Aboriginal people as part of its policy of ridding the country of foreign criminals. Are there Constitutional restrictions for a national sex offender register? Justice Gordon pointed out that the constitution "does not prohibit special treatment of a race", as the "race power" expressly provides for it. The plaintiffs, Daniel Love and Brendan Thoms, have accused the commonwealth of alarmism and say if the high court rules in their favour it would not open borders to anyone claiming Indigenous heritage, but simply prevent the government detaining and deporting bona fide First Nations people. Overall, the minority judges, Chief Justice Kiefel and Justices Gageler and Keane, had trouble connecting the distinct property rights of native title holders to a particular area of land with membership of the Australian body politic. contact customer service So just how can not the Indigenous NOT be mentioned in the Australian Constitution in the forthcoming Referendum on Aboriginal Rights to be mentioned in the Constitution. Australian Constitution Centre: a 2017 reality at the High Court of Australia, The High Court as the ‘Court of Disputed Returns’. Love is a Kamileroi man born in PNG to an Aboriginal father and Papua New Guinean mother. We remained British subjects until 1987 and British citizens who migrated to Australia after the enactment of the Australia Acts 1986 by all the Parliaments in Australia and the British Parliament were regarded as aliens. Constitutional crisis or is the system working as it was designed? A person can be a subject or citizen of a foreign power, or be entitled to the rights and privileges of a subject or citizen of a foreign power, and not be an alien. Hannah Ryan from Buzzfeed last year made an FOI request into: The number of people who have claimed to be Indigenous who have been subject to visa refusal or visa cancellation processes. Congratulations to Claire Gibbs for her diligence. Here's why, Driver in crash that killed 19yo pedestrian when passenger pulled car's handbrake denied bail, High Court's judgment in the Love and Thoms cases, Man released from detention as High Court rules Aboriginal people cannot be deported, These two Indigenous men could be deported for failing the migration character test, Family 'horrified' as Aboriginal man faces deportation from Australia, Indigenous (Aboriginal and Torres Strait Islander), NBN boss blames $600m blowout on bad address data, 'Peddlers of death' warned as police seize $9m cash from drug traffickers in WA, Tuk-tuk driver tells de Belin trial alleged victim's 'exact words' when trio reached apartment, Saeb Erekat, longtime spokesman for Palestinians, dies aged 65, 'It's been done by stealth': Indigenous health groups condemn 'urgent' legislation set to fast track liquor store decision, Australian archaeologists discover 2-million-year-old skull of distant human cousin, The US election has been called, but the result isn't official… yet. That aboriginal children or mixed race, partially white and partially black were taken from their parents for assimilation into the white community was racism. The High Court ruled in a 4-3 decision that indigenous Australians cannot be deported even if they do not hold Australian citizenship. In her opening statement in her judgment Gordon J stated: …the deeper truth – is that the Indigenous peoples of Australia are the first peoples of this country, and the connection between the Indigenous peoples of Australia and the land and waters that now make up the territory of Australia was not severed or extinguished by European "settlement". Among the most highly controversial subjects today is how one determines who is an Aboriginal person and whether Aboriginal people should be treated differently to other groups under the law and the constitution. Justice Patrick Keane, however, rejected the notion of 'permanent allegiance' as a paternalistic approach that potentially limits the autonomy of persons of Aboriginal descent. The Court recognised that parliaments do not have absolute power. His lawyers say he will provide more evidence of his Aboriginality and another trial could be held to decide the issue. In the video above, a dying Perth mum is given citizenship on Australia Day. Separation of powers on display in America, Chief Justice Susan Kiefel sworn in on Monday, Former Senator Rod Culleton’s demise: the Constitution in action. (xix) naturalization and aliens; (Yep, we spelled naturalisation the American way back in 1900). It might also give them a capacity to enter the country. An Aboriginal has a legal right to live in this country no matter where he was born. In its submission as an intervening party, the Victorian government wrote in support of Love and Thoms, saying that because they were Aboriginal members of an Aboriginal society, and “because of the recognised mutual and unique relationship” between those members and Australian land and waters, the two men were not aliens as defined by the constitution. However, stretching it to Original citizen Parliament seems to be long bow. “Both had well and truly served their time for crimes committed, yet they were punished twice with no basis for doing so.”.
Your session to The Christian “From the perspective of common sense, Aboriginal Australians should never have been placed in immigration detention and threatened with deportation from Australia, and today’s High Court decision has further reinforced this fact.”. Does the High Court decision mean we should reconsider what it means to be Australian? The Court was asked to consider whether Aboriginal non-citizens of Australia could be ‘aliens’ as found in section 51(xix) of the Constitution.
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