The High Court has ruled Aboriginal Australians cannot be considered “aliens” under the constitution, presenting a major hurdle to the deportation of two men.
The 4-3 majority decision is a big victory for New Zealand-born Brendan Thoms, who is fighting against deportation after serving time in prison.
However, the court was unable to agree on whether Papua New Guinea-born Daniel Love is Aboriginal, casting continued uncertainty over his case.
Neither man holds Australian citizenship but both identify as indigenous, and each has one Australian parent.
The pair held Australian visas until they were cancelled in 2018 after they were jailed for violent assaults.
The men are seeking damages for false imprisonment after being placed in immigration detention pending their deportation.
Lawyer Claire Gibbs said the case went far beyond the issue of citizenship.
“It’s about who belongs here, who is an Australian national and who is part of the Australian community,” she told reporters outside court.
“It’s about the use of alien powers, which we believe the government has been using inconsistently, unfairly and, now we’ve proven, unlawfully.”
The decision recognises indigenous connection to country and means Aboriginal Australians can no longer be removed.
Acting Immigration Minister Alan Tudge said the government was reviewing the decision as it could have implications for migration laws.
“On the face of it, (the decision) has created a new category of persons; neither an Australian citizen under the Australian Citizenship Act, nor a non-citizen,” he said.
“The Department of Home Affairs will consider the best methods to review other cases which may be impacted.”
On Tuesday afternoon, Ms Gibbs confirmed Mr Thoms had been released after 501 days in detention.
“Brendan should never have been in detention, and we are thrilled that the federal government have now finally acted to do the right thing and release him following today’s decision,” she said.
“Brendan has had 500 sleepless nights worrying he could be deported at any time and that is now thankfully at an end.
“He is very happy to have been released and to now be reunited with his family at long last.”
Lawyers are confident they will be able to prove Love’s indigenous background in a future court hearing.
He is currently being held on the Gold Coast.
Last year, barrister for the two men Stephen Keim invoked the case of Mabo which acknowledged the history of indigenous dispossession.
“To remove Aboriginal Australians from the country would be another, if not worse, case of dispossession,” he said.