Australia Can’t Deport Indigenous Aboriginal People, Court Rules

Would appear to have been self-evident!

Australia’s highest court ruled Tuesday the government can’t deport Aboriginal people as part of its policy of ridding the country of foreign criminals.

The High Court ruled in a 4-3 decision that indigenous Australians cannot be deported even if they do not hold Australian citizenship.

The court had heard the case of two men who were born overseas but identified as being from indigenous tribes.

The government attempted to deport them after they served prison sentences for violent crimes. The government has been criticized for deporting some criminals who have lived in Australia since where were children but had never become citizens.

The court found that Brendan Thoms, 31, who was born in New Zealand to an indigenous Australian mother, was an Aboriginal Australian.

Thoms had lived in Australia since he was 6, is accepted as a member of the Gunggari tribe and is recognized as a native title holder of their traditional land.

But a majority of judges was not convinced that Daniel Love, 40, was indigenous and was accepted as a member of the Kamilaroi tribe.

He was born in Papua New Guinea to an indigenous Australian father and has lived in Australia since he was 5.

His lawyers say he will provide more evidence of his Aboriginality and another trial could be held to decide the issue.

Both Love and Thoms were placed in immigration detention and threatened with deportation on their release from prison after serving sentences for unrelated crimes.

Love has had his visa restored since his lawyers initiated court action and lives on the Gold Coast.

Thoms has been in immigration detention in Brisbane for the 16 months since he completed a six-month prison sentence.

Their lawyer Claire Gibbs demanded that Thoms be immediately released.

“He’s very anxious to be released and to be reunited with his family after all this time,” Gibbs said outside court.

“The High Court has found that Aboriginal Australians are protected from deportation. They can no longer be removed from the country that they know and that they have a very close connection with,” she added.

The Home Affairs Department did not immediately respond to a request for comment.

Gibbs said both Love and Thoms would sue the government for wrongful detention.

“Both of my clients have suffered severe embarrassment about being Aboriginal men in immigration detention and they’ve been subject to a lot of ridicule,” Gibbs said. “So it’s been a very, very tough time for them both.”

The court found Aboriginal Australian have a special cultural, historic and spiritual connection to Australia which is inconsistent with them being considered “aliens” in the meaning of the Australian constitution.

Indigenous Australians make up 3% of the population and are the most disadvantaged minority group in a range of measures. Indigenous Australians die younger than other Australians and are overrepresented in prisons.

Australia: Coalition warned it has ‘uphill battle’ in high court over citizenship and postal vote | The Guardian

As noted, only reasonable solution in an immigration-based country is to repeal section 44 and allow dual citizenship:

The government faces an “uphill battle” in major high court cases dealing with the same-sex marriage postal survey and the eligibility of seven parliamentarians on the current reading of the law, George Williams has warned.

In a speech to the National Press Club on Wednesday, the constitutional law expert and University of NSW professor accused the government of “a surprising constitutional adventurism” in testing the limits of its power and relying on a “creative, quite liberal and generous reading of those powers” by the court.

In October the high court will hear the cases challenging the eligibility of the deputy prime minister, Barnaby Joyce, the Nationals senator Matt Canavan, the resigned Greens senators Scott Ludlam and Larissa Waters, and the One Nation senator Malcolm Roberts. Nick Xenophon and Fiona Nash will also be referred.

Williams said that “on the current law it is difficult to see … that any of the seven parliamentarians who will face the high court are likely to survive that challenge”.

“It is hard to see any of them have taken the reasonable steps that the high court requires to divest themselves of foreign citizenship.”

Williams suggested Labor’s Katy Gallagher could also be in difficulty, depending on the high court ruling, and likened citizenship by descent to a “Pandora’s box” that could claim up to “20 or more parliamentarians”.

Section 44 of the constitution disqualifies anyone who “is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power” from sitting in parliament.

The Turnbull government insists it has strong legal advice from the solicitor general that the better view of the law is that some element of intention or acquiescence to foreign citizenship is required.

Williams warned that view was based on William Dean’s dissent in the case of Sykes v Cleary and it was “exceedingly rare” for a later court to adopt a dissenting view.

Another possible reading – to exclude only those members who have foreign citizenship by birth – had no support in the constitution, he said.

Williams said Joyce’s and the Greens’ eligibility problems “speak less of a constitutional problem … and more of complacency and poor vetting” by political parties. He cited a simple check he had performed online to confirm a person in Joyce’s situation was a New Zealand citizen by descent.

“In this case it is hard to see why the high court would fashion an exemption when candidates have been warned of this problem and when the information is very easy to obtain through a simple check on the internet.”

Williams described Malcolm Turnbull’s confidence that the high court will find Joyce eligible as “misplaced”.

Williams said section 44 was out of date, arguing it was “hardly consistent with our sovereignty, our stability as a democracy” to allow eligibility for parliament to be determined by other countries’ laws.

Source: Coalition warned it has ‘uphill battle’ in high court over citizenship and postal vote | Australia news | The Guardian