Landmark High Court ruling confirms Aboriginal Australians are not aliens under the Constitution

11 February 2020
Aboriginal Australians are not “aliens” under the Constitution and can no longer be deported from Australia, following a landmark decision handed down in the High Court today.

The test case was brought by two Aboriginal Australian men Daniel Love and Brendan Thoms, who were placed in immigration detention and told they could be deported after serving time in prison for serious criminal offences.

Both men were born overseas, but they each have a parent who was an Australian citizen and Aboriginal Australian, and identify strongly as Aboriginal Australians. Mr Thoms also holds native title.

Crucially, the High Court found today that Aboriginal Australians are not within the reach of the ‘aliens’ power of the Constitution, meaning that anyone deemed an Aboriginal Australian cannot be deported through the exercise of that power.

The High Court also found that Brendan Thoms, who has now spent 500 nights in immigration detention amidst the threat of deportation, is an Aboriginal Australian and that on this basis, should not be subjected to the aliens powers.

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.

“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 Federal Government must release our client Brendan Thoms from detention today, the High Court has found that Brendan is an Aboriginal Australian and with their further ruling today that Aboriginal Australians are not aliens there is no excuse for him to be detained a minute longer.

“Brendan has spent 500 nights in detention, he has missed two Christmases with his family. He has paid a hefty price for a crime he had already served time for and he must be released as a matter of urgency.

“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.

“These two men came here as kids. 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 had well and truly served their time for crimes committed, yet they were punished twice with no basis for doing so, and for our client Brendan this remains the case.

“For the Federal Government to have even detained both men at all defied logic, but with today’s decision it is now beyond doubt that not only was such action unfair, it was also wrong.

“Significantly, today’s ruling is also a win for any other Aboriginal Australians in similar circumstances and we are very proud of this result,” she said.

Mr Love and Mr Thoms are being represented by Maurice Blackburn Lawyers and the Refugee and Immigration Legal Service (RAILS).

Media inquiries: Chee Chee Leung on 0412 560 584 or via, or Jade Knight on 0417 969 438 or via

Practice Areas: