Daniel Love and Brendan Thoms were men who had failed their migration character tests as a result of serving jail sentences. Neither Love nor Thoms were Australian citizens, but both identified as Aboriginal Australians. The government was trying to deport both men as aliens under the provisions of the Migration Act 1958, based on a 2014 amendment of the Act. Love was a recognised member of the Kamilaroi people who was born in Papua New Guinea. He had been placed in immigration detention after he was sentenced to more than a year in jail for assault occasioning actual bodily harm. His visa was revoked by Commonwealth Immigration MinisterPeter Dutton, but this was later overturned and he was released from detention. Thoms was a native title holder and a member of the Gunggari people who was born in New Zealand. He was also placed in immigration detention after serving part of an 18-month sentence for domestic violence. He remained in detention until the judgment was handed down.
Decision
In the judgment, titled Love v Commonwealth of Australia; Thoms v Commonwealth of Australia HCA 3, each judge issued a separate judgment. A majority of the Court found that Aboriginal Australians were not within the reach of the "aliens" power conferred by s 51 of the Constitution. The majority were not, however, able to determine whether Love was an Aboriginal Australian and remitted the matter to the Federal Court to deal with that question. As Thoms had already been recognised as an Aboriginal Australian through his native title claim, the Court determined that he was not an alien.
Consequences
The following day, Christian Porter, Attorney-General of Australia, said the decision created "an entirely new category of people in terms of what the government can and can’t do” a non-citizen non-alien, or "belonger". Porter said that the government would be looking to deport the small group of Aboriginal non-citizens who have committed serious offences in a different way. Peter Dutton described the decision as "a very bad thing" that would be "exploited by lawyers", and said he had sought legal advice from the Department of Home Affairs that would be "looking to restrict the damage". Constitutional law professorAnne Twomey said that it was too early to tell what the ramifications would be, especially in light of the fact that each of the seven-person bench had given individual reasonings. The Law Council of Australia said that a number of "complex issues" had been raised, and would give rise to a great deal of debate and scrutiny. Wamba Wamba lawyer Eddie Synot of the Indigenous Law Centre at the University of New South Wales said the judgment concerned a “very narrow application of the aliens power” and explicitly stated that it was not a recognition of Aboriginal sovereignty.
