Last year, barrister for the two men, Stephen Keim SC, 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.
The court ruled that as an Aboriginal Australian, Brendan Thoms, could not be subjected to the “aliens power” under the constitution.
However, the court was unable to agree as to whether Daniel Love is Aboriginal, casting continued uncertainty over his case.
“The majority was unable to agree, on the facts stated in the special case, as to whether Mr Love has been accepted, by elders or others enjoying traditional authority, as a member of the Kamilaroi tribe. For that reason, the majority was unable to answer the question of whether he is an “alien” within the meaning of s 51(xix),” a summary judgment said.
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.
“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,” Ms Gibbs said in a statement on Tuesday.
“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.”
The men are seeking damages for false imprisonment after being placed in immigration detention pending their deportation.