High court rules Aboriginal Australians are not 'aliens' under the constitution and cannot be deport [View all]

High court rules Aboriginal Australians are not 'aliens' under the constitution and cannot be deported

The high court has decided that Aboriginal Australians are not aliens for the purpose of the constitution, a major defeat for the deportation powers of Peter Dutton’s home affairs department and a significant development in the rights of Indigenous Australians.

In a four-to-three split decision on Tuesday the high court ruled that Aboriginal people with sufficient connection to traditional societies cannot be aliens, giving them a special status in Australian constitutional law likely to have ramifications far beyond existing native title law.

The majority of the high court ruled that Brendan Thoms was not an alien and the commonwealth therefore did not have power to order his deportation. The court was not able to decide if the second plaintiff, Daniel Love, was an Aboriginal Australian, requiring a further hearing to establish the facts.

snip

Justices Virginia Bell, Geoffrey Nettle, Michelle Gordon and James Edelman ruled that the tripartite test – established by the landmark Mabo native title cases – can be used to establish biological descent and recognition of indigeneity by a traditional group that puts Indigenous Australians beyond the reach of the aliens power in the constitution.

https://www.theguardian.com/australia-news/2020/feb/11/high-court-rules-aboriginal-australians-are-not-aliens-under-the-constitution-and-cannot-be-deported

on edit
The argument before the Court was whether they had Aboriginal status as they were born outside Australia: New Zealand and Papua New Guinea. They both had one Aboriginal parent. The Court ruled in the first case that it qualified the man as Aboriginal. I am uncertain about the nuances of the second case and why it has been delayed