“They were not born in Australia. They had been here on visas [and] committed serious offences.”
Brendan Thoms was born in New Zealand and Daniel Love in Papua New Guinea.
Mr Porter said he found “great strength of reasoning” in the dissenting decision of Chief Justice Susan Kiefel, who said in her written decision that it was “not for the court to determine” whether Aboriginal people like Thoms and Love were “aliens”.
“Such an approach would involve matters of values and policy. It would usurp the role of the Parliament,” she wrote.
Sydney University constitutional law professor Anne Twomey said the Attorney-General would be combing the 169-page judgment, in which the High Court justices were split 4-3, to see if the government could find an alternative constitutional basis for deporting the men.
Professor Twomey said if the government assured itself that it could do so, it may opt to start fresh deportation proceedings against the two men, who could then launch another appeal.
She said the fact the court’s central ruling was that Aboriginal people were not aliens “leaves open the possibility” that the government’s deportation laws “might be supported by some other head of power”.
The Constitution enables the Federal Parliament to make laws “for the peace, order, and good government of the Commonwealth” under specific heads of power, which include immigration and “the influx of criminals”.
The High Court has also recognised an “implied nationhood” power to “engage in enterprises and activities peculiarly adapted to the government of a nation and which cannot otherwise be carried out for the benefit of the nation”.
Professor Twomey said the judgment would have to be carefully examined to work out whether it only prevented Aboriginal people from being deported under the aliens power, or if other heads of power were affected by the decision.
UNSW Law School dean George Williams said the government could also rely on the Constitution’s race power to pass new legislation specifically enabling it to deport Aboriginal people.
Asked if he would rule this out, Mr Porter did not respond before the Sydney Morning Herald and The Age went to print on Wednesday night.