An exception to the Court’s generally speedy resolution of cases before it in recent years is Daniel Love’s and Brendan Thoms’s challenges to their proposed deportations to Papua New Guinea and New Zealand. The pair, who are not Australian citizens but who each have an Australian parent, had their visas cancelled after they were convicted of (separate) harmful assaults in 2018. They argue that, because each identifies and is recognised as ‘an Aboriginal man’ (respectively of the Kamilaroi and Gunggari people), they fall outside of the federal parliament’s power to make laws ‘with respect to naturalisation and aliens’ and, accordingly, the scope of a federal statute requiring their removal from Australia. After commencing their actions respectively in September and December last year, they had cases ‘stated’ before the Court in January and March this year and were the subject of a joint Full Court hearing in May. But, six months later, the Court is yet to rule on their cases and instead has scheduled a further hearing in December. Until last Friday, all the public knew was that, three weeks ago, Love and Thoms issued fresh notices as required by federal law to alert Australia’s Attorneys-General of a ‘constitutional matter’.

Last Friday, we learnt that the Court wrote to the parties a month ago asking for submissions on a series of propositions that, if correct, would prevent deportation of, not only Love and Thoms, but anyone else who ‘an Aboriginal society has determined to be one of its members’. Continue reading →