High Court Rules Aboriginal People Cannot Be Deported

Last Tuesday 11th February the High Court handed down its judgment in Love and Thoms v The Commonwealth, deciding by a 4:3 majority that Aboriginal Australians do not fall within the scope of the ‘aliens’ power contained in our Constitution, and therefore cannot be deported by the Department of Home Affairs. In doing so, the new category of “non-citizen, non-alien has been created”.

The two men were Aboriginal non-citizens born overseas, but resided in Australia since they were young, but risked deportation due to criminal records.

While many have celebrated this decision as a recognition of First Nations peoples’ belonging to their own land and a step towards implied indigenous constitutional recognition, many also consider the reasoning of the bench as flawed. We spoke with Dr. Kate Galloway, Associate Professor at Griffith Law School, to help us unpack this complex this judgment.

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