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Law Council of Australia


Aboriginal and Torres Strait Islander Peoples in Immigration Detention, Following Love and Thoms

17 July 2020

On 30 April 2020, the Law Council wrote to the Minister for Home Affairs and the Acting Minister for Immigration regarding media reports that individuals asserting an Aboriginal or Torres Strait Islander identity were being held potentially unlawfully in immigration detention centres.

The High Court’s landmark decision in Love v Commonwealth of Australia; Thoms v Commonwealth of Australia handed down on 5 February 2020, held that Aboriginal and Torres Strait Islander peoples, understood according to the tripartite test in Mabo v Queensland [No 2], are not ‘aliens’ within the meaning of section 51(xix) of the Australian Constitution. As the Migration Act 1958 (Cth) relies on section 51(xix), this decision had the implication that non-citizens who are in this group of non-aliens cannot be deported.

The Law Council asked the Minister and Acting Minister for further information concerning steps undertaken to:

In response, the Acting Minister has advised that the Department of Home Affairs has implemented processes to identify persons who may be affected by the High Court’s decision in Love and Thoms, and to assess their individual claims of indigeneity. The Department:

The Acting Minister has also assured the Law Council that persons affected by the High Court’s decision in Love and Thoms may continue to apply for, and be granted, Australian citizenship, should they satisfy the relevant statutory requirements.



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