High Court and the question of ‘Aliens.’

11 Feb 2020

The Justices that formed the 4 to 3 majority held that an Aboriginal person is not within the reach of the aliens power. Accordingly, they determined that Mr Thoms could not be treated in accordance with the aliens power and has since been released from immigration detention where he has been held for 500 days.

The white power structures demonstrate their ubiquitous presence in our lives once again with the anticipated High Court decision in the matters Love v Commonwealth and Thoms v Commonwealth.

The release from the High Court confirmed that Aboriginal people are ‘not within the reach of the power to make laws with respect to ‘aliens,’ conferred on the Commonwealth Parliament by s 51(xix) of the Constitution (“the aliens power”)’ and this is even the case in instances where the individual holds foreign citizenship.

Notwithstanding some media interpretations of this decision, this does not mean there is any finding on citizenship for Aboriginal people but rather simply that Aboriginal people cannot be subject to the use of this power. The decision does leave open conjecture on the race power but this is a whole other issue upon which we are all too aware.

In these ‘special cases’ the High Court Justices that formed the 4 to 3 majority that held that an Aboriginal person is not within the reach of the aliens power, determined that Mr Thoms could not be subject the aliens power and has since been released from immigration detention where he has been held for 500 days.

Whilst the concept of an Aboriginal person being deported seems preposterous from a common sense perspective, this exact legal issue has resulted in 177 pages of legal analysis of the High Court Justices, which will no doubt influence jurisprudence on this given it relates to the foundational document of this colony.

The legal issue is well canvassed throughout the 7 reasons for decision but the summation of the issue was put simply by Bell J at para 51 when she said:

“The issue in these special cases is whether, as the plaintiffs assert, Aboriginal Australians are persons who cannot possibly answer the description of “aliens” in the ordinary understanding of the word.”

While both sides of the special cases did not disagree that at the time of federation, Aboriginal people were not aliens as they were deemed subjects of the Crown.

Bell J states at para 52 that the plaintiffs argued that a ‘more fundamental reason, in their submission, is the unique connection that Aboriginal Australians have to the land and waters of Australia; a connection which at least since Mabo has been recognised by the Australian body politic.’

The Commonwealth relied on the authority that commenced in the precedent case of Nolan v Minister for Immigration and Ethnic Affairs, in which, the prevailing legal position with respect to alien in s 51(xix) came to be synonymous with “non-citizen.” Subsequent caselaw set out that legislation could determine who fit within the definition of ‘citizen’ and conversely ‘alien.’ The relevant legislation is the Australian Citizenship Act 2007 (Cth) and the Commonwealth argued that as both plaintiff’s in these special cases were allowed to be treated pursuant to the power conferred by s 51(xix) as neither acquired citizen status at birth because they were born outside Australia.

The finding of Bell J and the other Justices that form the majority are perhaps best put by Bell J herself where, at para 74, she states (emphasis added):

“The position of Aboriginal Australians, however, is sui generis [unique]. Notwithstanding the amplitude of the power conferred by s 51(xix) it does not extend to treating an Aboriginal Australian as an alien because, despite the circumstance of birth in another country, an Aboriginal Australian cannot be said to belong to another place.”

The majority opined that, although their reasoning differed in some respects, the alien power cannot be used against (proven) Aboriginal people and although the facts did not provide sufficient evidence to determine whether Mr Love is in fact Aboriginal, his difference to Thoms was about proof and not principle. So this doesn’t mean a sweeping protection from the aliens power, it means that – if proven to be Aboriginal on the facts, the individual is beyond the scope of the aliens power.

Although an apparent legal victory, the dissent within the judgment itself is significant. The verdict was by narrow majority with the dissenting Justices finding that a non-citizen is an alien despite Aboriginality.

Gageler J at para 125 states quite tellingly that (emphasis added):

“Insofar as the plaintiffs treat membership of an indigenous society as exhaustive of the question of whether they are non-aliens, the first two variations of the argument come perilously close to an assertion of Aboriginal and Torres Strait Islander sovereignty…”

Of course it is unsurprising that an institution seeks to make a point of disagreeing with the continuing sovereignty of our people, because to acknowledge it would be to acknowledge its own illegitimacy.

Never more perfectly poignant are the words of Gageler J when he said in his dissenting judgment at para 128, ‘Morally and emotionally engaging as the plaintiffs’ argument is, the argument is not legally sustainable.’


In breach of their own prevailing legal rules and principles, the invaders brought governing structures and law that conflicted with ours and have been utilising their control of these institutions to reinforce and maintain the power dichotomy in this country.

Our scholars, lawyers, advocates and activists have made this argument since the very first imposition of laws upon our people. More recently we have had brilliant public law academics working with communities to ruminate and model solutions to the continuation of this oppressive system. We have had communities self-motivating, organising and collaborating with other communities to negotiate instruments for collectivising to self-determine and reject corporate interests. We have had activists working together to come up with ideas and strategies for resistance and reform.

Morals and ethics serve no purpose if those in a position to check their privilege are not brave enough unpack, dismantle and rectify. But don’t worry – we are not waiting on the High Court to demonstrate courage – we are doing it ourselves.

Always have, always will. Just like it always was and always will be.

The full reasons for decision are here.

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