The ‘aliens power’ and what it means for Aboriginal Australians born overseas
The High Court of Australia has recently handed down a decision in relation to the “aliens power” under section 51 (xix) of the Constitution, and its application to Aboriginal Australians. In the case of Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3, a 4:3 majority found that Aboriginal Australians born overseas cannot be deported under the Migration Act 1958 (Cth) following criminal offending. The decision was made on the basis that the Commonwealth Parliament used the aliens power to enact the relevant provisions of the Migration Act, and the aliens power cannot be relied upon to make laws for Aboriginal Australians.
Background
The plaintiffs, Brendan Thoms and Daniel Love, were born overseas and each have one Aboriginal Australian parent. They are not citizens of Australia under the Australian Citizenship Act 2007, and both entered Australia on visas. Mr Thoms is a Gunggari man and common law holder of native title. Mr Love identifies as a Kamilaroi man and is recognised as such by a Kamilaroi Elder. Both men were sentenced for criminal offending under the Criminal Code (Qld). As a consequence, they had their visas cancelled under the Migration Act and were taken into immigration detention to await deportation. In relation to Mr Love, the decision to cancel his visa was revoked and he was released from immigration detention in September 2018. Mr Thoms remained in immigration detention while the High Court decided this case.
Decision
The Commonwealth relied upon the aliens power to support the validity of the Migration Act in its application to Mr Thoms and Mr Love. However, the majority of the High Court held that Aboriginal Australians cannot be "aliens" within the ordinary understanding of the word. In the summary of the judgments of the majority, the High Court stated that:
“Aboriginal Australians have a special cultural, historical and spiritual connection with the territory of Australia, which is central to their traditional laws and customs and which is recognised by the common law. The existence of that connection is inconsistent with holding that an Aboriginal Australian is an alien within the meaning of s 51(xix) of the Constitution.”
The majority held that whether Mr Thoms and Mr Love are Aboriginal Australians is a question of fact to be determined in accordance with the test set out in the Mabo case requiring demonstration of biological descent from Indigenous people and mutual recognition of membership of an Aboriginal community by that person and the Aboriginal community. On the facts it was found that Mr Thoms is an Aboriginal Australian, however, the majority was unable to agree as to whether Mr Love has been accepted, by elders or others enjoying traditional authority, as a member of the Kamilaroi tribe. Accordingly, the question as to whether Mr Love is an Aboriginal Australian has been remitted to the Federal Court of Australia for determination.
The decision is important in protecting Aboriginal Australians from deportation under the Migration Act. Following the court’s ruling, Mr Thoms was released from immigration detention. As noted, Mr Love was previously released from immigration detention in 2018. The decision paves the way for potential damages claims relating to unlawful detention.
Author: Guy Donovan
HCLC: Privacy invasion laws must be scaled back
Laws that require telecommunication companies to keep records of every single Australian’s phone calls, text messages and movements for at least two years must be amended to prevent the indiscriminate invasion of people’s privacy, a Parliamentary Committee heard today (14 February 2020). More...
Big data increasing corruption risks
Organised crime groups are targeting data bases held by government agencies, a report warns. Reliance on technology in the public sector and the ubiquity of personal devices and smart phones in the workplace are increasing the risk of corruption, Victoria’s corruption watchdog says (13 February 2020). More...
'Risky', 'unrealistic': MPs hit back at call to ditch religious discrimination bill
Coalition MPs and church leaders want to persist with the controversial religious discrimination bill, warning "we should not let perfect be the enemy of the good" (13 February 2020). More...
More than 40 per cent of sports rorts projects were 'ineligible'
Auditors say more than 40 per cent of projects funded under the controversial sports rorts grant program were technically ineligible to get the money (13 February 2020). More...
Lack of respect for High Court ruling concerns ALA
The outcry from some commentators following the High Court’s ruling this week that Aboriginal Australians cannot be considered ‘aliens’ in Australia reveals a concerning lack of respect for the High Court, says the Australian Lawyers Alliance (ALA) (14 February 2020). More...
Ending the blame game: How Australia introduced 'no-fault divorce'
For decades, if you wanted a divorce in Australia, you had to prove your spouse was to blame. That changed in 1975 with the Family Law Bill — but the system remains controversial (11 February 2020). More...
HRLC: Religious Discrimination Bill one of the biggest threats to reproductive healthcare access
Women’s rights and legal experts have warned that the Morrison Government’s latest version of the Religious Discrimination Bill threatens to erode decades of progress on reproductive healthcare access (06 February 2020). More...
LCA: High Court decision natural outcome of Mabo
The Law Council of Australia has welcomed a landmark High Court decision confirming that the Australian Parliament cannot use the “aliens” power to make laws for Aboriginal Australians. Law Council President said the decision of the High Court today in Love v Commonwealth of Australia; Thoms v Commonwealth of Australia flows from the Mabo (No. 2) decision in 1992 (11 February 2020). More...
We must do better on children's rights
Australia’s first Children’s Commissioner, Megan Mitchell has launched her final report – one of the most comprehensive assessments of children’s rights ever produced in Australia. The report makes clear that the mental health of Australian children is not being cared for sufficiently and that Governments must do more to ensure children’s wellbeing (10 February 2020) . More...
New ACLEI Commissioner appointed
Attorney-General Christian Porter is pleased to announce that Ms Jaala Hinchcliffe has been appointed to lead the Australian Commission for Law Enforcement Integrity (ACLEI) (07 February 2020). More...
LCA: Religious freedom bills - second exposure drafts
The Law Council provided a submission to the Attorney-General’s Department on the second exposure drafts of the Religious Freedom Bills (ie Religious Discrimination Bill 2019 (the Bill); Religious Discrimination (Consequential Amendments) Bill 2019; Human Rights Legislation Amendment (Freedom of Religion) Bill 2019) (06 February 2020). More...
LCA: Corporate criminal responsibility
A key concern for the Law Council was the proposed model for reforming the attribution of criminal responsibility to both bodies corporate and individual officers within corporations.The Australian Law Reform Commission will deliver its Final Report on the 30 April 2020 (06 February 2020). More...
HRLC: Healthcare and equality for all would be jeopardised by deeply unbalanced Religious Discrimination Bill
People’s healthcare will be undermined, while religious bodies are given unprecedented privileges to discriminate in the revised Religious Discrimination Bill, the Human Rights Law Centre has warned in a submission to the Attorney-General’s Department (03 February 2020). More...
Law Council of Australia updates
7 February 2020
Practice direction - Federal Circuit Court of Australia
Practice Direction 2 of 2020 - Case Management - Family Law (Priority Property Pools under $500,000) Financial Cases
This practice direction sets out guiding principles for case management arrangements for cases that meet the definition of a Priority Property Pool under $500,000 Case (PPP500). All steps taken in proceedings before the Court in these cases, including commencing proceedings, should follow these principles. This practice direction takes effect from the date that it is issued and, to the extent practicable, applies to all PPP500 cases filed on or after 1 March 2020 (07 February 2020).
Joint practice direction - Family Court of Australia and Federal Circuit Court of Australia
Find attached the following Joint Practice Direction "Core Principles in the Case Management of Family Law Matters" Family Court of Australia and Federal Circuit Court of Australia - Joint Practice Direction: JPD1 of 2020
LSC: Consultation paper - Proposed Amendments to the Legal Profession uniform laws
The Legal Services Council has published a consultation paper on proposed amendments to the Legal Profession Uniform Law. Submissions can be sent to the Council here on or before Friday, 28 February 2020. See the consultation paper
Australian Bushfires Disaster Emergency Declaration — Understanding your privacy obligations
The Attorney-General has made the Privacy (Australian Bushfires Disaster) Emergency Declaration (No. 1) 2020 (the emergency declaration) under Part VIA of the Privacy Act 1988 (Cth) (Privacy Act). The emergency declaration was made in response to bushfires in Australia resulting in death, injury and property damage occurring from August 2019 into 2020.The emergency declaration expires on 20 January 2021.
AHRC: Human Rights and Technology discussion paper - Rights and freedoms
The Commission has launched the Human Rights and Technology Discussion Paper, which makes wide-ranging proposals for safeguarding human rights and encouraging accessible, equal and accountable use of new technology in Australia. The deadline for submissions is 10 March 2020. You can download the Human Rights and Technology Discussion Paper and make a submission here.
Legal and Constitutional Affairs references committee
Impact of changes to service delivery models on the administration and running of Government programs
Nationhood, national identity and democracy
Legal and Constitutional Affairs Legislation committee
Federal Circuit and Family Court of Australia Bill 2019 [Provisions] and Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019 [Provisions]
Crimes Legislation Amendment (Combatting Corporate Crime) Bill 2019
NSW
Coronavirus: precautions at NCAT
The New South Wales Civil and Administrative Tribunal has released the following statement regarding Coronavirus precautions at the Tribunal. Contact NCAT immediately if you are required to attend NCAT and may be affected. Read more
NSW Government services
The Department of Customer Service is collaborating across government to help agencies get ready to retire little-used sites or merge information to nsw.gov.au, which will become the centralised online home of the NSW Government. A trial version of the refreshed nsw.gov.au website will go live at the end of February 2020.
Review of the Minimum Age of Criminal Responsibility
The Council of Attorneys-General (CAG) Working Group is reviewing the age of criminal responsibility. Interested persons are invited to comment on a series of questions relevant to the Working Group's review. Submissions close on 28 February 2020
Review of the Graffiti Control Act 2008
The Department of Communities and Justice is seeking feedback on the Graffiti Control Act 2008 to determine whether the policy objectives of the Act remain valid and if its terms remain appropriate for securing those objectives. Submissions closed on 10 February 2020.
NSW DCJ: Update to child protection reporting
From 1 March 2020 amendments to the Children and Young Persons (Care and Protection) Act 1998 opens in new window (Care Act) will commence to expand mandatory reporting groups and provide greater protections for reporters. More...
Call for Submissions on the Legal Profession Uniform Admission Rules 2015 (NSW) Removal of the word 'fame'
The Legal Services Council's (LSC's) Admissions Committee invites comment about its recommendation that the text of the Legal Profession Uniform Admission Rules 2015 (Admission Rules) be amended to reflect the language of the Legal Profession Uniform Law 2014 (Uniform Law). Specifically, the Admissions Committee supports the removal of the word 'fame'. Submissions close on 28 February 2020. http://www.legalservicescouncil.org.au/Pages/consultations/current-consultations.aspx
Australian outlaw motorcycle gang involvement in violent and organised crime
Anthony Morgan, Christopher Dowling, Isabella Voce; Australian Institute of Criminology: 11 February 2020
This paper examines offending by outlaw motorcycle gang (OMCG) members, chapters and gangs, with a focus on violent and organised crime-type offending, using criminal history data for a large sample of Australian OMCG members known to law enforcement. More...
First step Australia: 10 ideas for reducing reoffending
Andrew Bushnell; Institute of Public Affairs: 09 February 2020
This paper considers 10 policy ideas aimed at reducing Australia’s high rates of reoffending. The paper considers the costs, complexity, and effectiveness of the reforms in light of the available evidence and the Australian context. More...
Time served prison sentences in Victoria
Paul McGorrery, Zsombor Bathy; Sentencing Advisory Council (Vic): 04 February 2020
A 'time served prison sentence' is a sentence of imprisonment imposed on an offender where the length of imprisonment is equal to the amount of time that the offender has spent on remand in custody. This report analyses the proportion of prison sentences that were time served prison sentences in Victoria over the seven financial years to 30 June 2018. More...
Shooting deaths in police custody
Laura Doherty, Samantha Bricknell; Australian Institute of Criminology: 04 February 2020
Shooting deaths in police custody (including police and self-inflicted shootings) account for 30 percent of all deaths in police custody. This paper uses National Deaths in Custody Program data and coronial records to examine the circumstances of these deaths between 2006–07 and 2016–17. More...
Grosser v Registrar of Births Deaths and Marriages [2020] NSWCATAD 55
ADMINISTRATIVE LAW – registration of birth – whether Registrar should correct the applicant’s name recorded in the Register
Henadeck Pty Ltd v Independent Liquor and Gaming Authority; Niraula v Independent Liquor and Gaming Authority [2020] NSWCATAD 53
ADMINISTRATIVE REVIEW – hotel licence - application to vary an ongoing extended trading authorisation – refusal of application - whether decision administratively reviewable
Gabriel v Commissioner of Police [2020] NSWCATAD 51
FREEDOM OF INFORMATION – government information – disclosure of information provided in confidence – revealing the identity of an informant – Personal information – personal factors of the applicant– balancing exercise.
O’Grady v Sutherland Shire Council [2020] NSWCATAD 50
ADMINISTRATIVE LAW – Government Information (Public Access) Act -– GIPA – whether agency obliged to create a new record in response to an access application – discretion balanced with objects of the Act
Melco Resorts & Entertainment Limited v The Independent Liquor and Gaming Authority [2020] NSWSC 53
STATUTORY INTERPRETATION – Summons to produce documents to statutory inquiry – claim of privilege – whether abrogated – Casino Control Act 1992 (NSW), s 143A
Klaric v Commissioner of Police [2020] NSWCATAD 47
ADMINISTRATIVE LAW – administrative review - Government Information – refusal to deal with application – whether agency has already decided previous application for same information – whether no reasonable grounds for believing agency would make a different decision – adequacy of searches ADMINISTRATIVE LAW – administrative review - Government Information – balancing the public interest
Tabbaa v NSW Taxi Council [2020] NSWCATAD 46
ADMINISTRATIVE REVIEW – taxi driver – no legislative requirement that driver be authorised – respondent not an administrator - no administratively reviewable decision
Vafa v Northern Sydney Local Health District [2020] NSWCATAD 44
FREEDOM OF INFORMATION – government information – whether information is held by agency – decision affirmed.
Johnson Property Group Pty Limited v Lake Macquarie City Council [2020] NSWLEC 4
CIVIL PROCEDURE: application for the determination of a separate question of law — legal principles — power of judges to allocate and list matters for hearing — where no expedition sought — matter referred to Registrar for the allocation of a hearing date.
Choi v University of Technology Sydney [2020] NSWCATAP 18
APPEAL – where Tribunal summarily dismissed application under Government Information (Public Access) Act 2009 – whether the Tribunal made an error of law – whether new evidence should be admitted – whether what happened at a case conference affected the Tribunal’s decision
Kirkby & Gibbs v Department of Premier and Cabinet [2020] NSWCATAD 39
Administrative Law – Government information - reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given - prejudice the effective exercise by an agency of the agency's functions - found an action against an agency for breach of confidence - prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review - endanger the security of, or prejudice any system or procedure for protecting any place, property or vehicle - reveal an individual's personal information - expose a person to a risk of harm or of serious harassment or serious intimidation - diminish the competitive commercial value of any information to a person - prejudice any person's legitimate business, commercial, professional or financial interests - prejudice the conduct, effectiveness or integrity of any research - prejudice the conservation of any place or object of natural, cultural or heritage value
Commonwealth
Student Identifiers Amendment (Enhanced Student Permissions) Bill 2019
Introduced Senate 11/02/2020 - Amends the Student Identifiers Act 2014 to: allow any entity to request access to an individual's authenticated vocational education and training (VET) transcripts (or extract), where that access is permitted by the access controls set by the individual; and introduce new civil penalties in relation to further applications for student identifiers, alteration of authenticated VET transcripts and representing that a non-authentic document is an authenticated VET transcript (or extract).
Privacy (Credit Reporting) Code 2014 (Version 2.1)
14/02/2020 - This instrument is a written code of practice about credit reporting under s 26N(1) of the Privacy Act 1988 as amended by the Privacy Amendment (Enhancing Privacy Protection) Act 2012.
The CR Code V2.1 repeals and replaces the Previous Code to clarify obligations under the Previous Code, reflect current industry practice and ensure consistency with the provisions in the Privacy Act.
Marriage (Celebrant Professional Development) Statement 2020
13/02/2020 - This instrument provides Commonwealth registered marriage celebrants with a list of activities to choose from to complete their ongoing professional development obligations for 2020.
Competition and Consumer (Consumer Data Right) Rules 2020
05/02/2020 - This instrument prescribes the Consumer Data Right as an economy-wide reform that will apply sector-by-sector, starting with the banking sector. The Competition and Consumer (Consumer Data Right) Rules 2020 deal with aspects of the Consumer Data Right regime as provided in Part IVD of the Competition and Consumer Act 2010, including the accreditation process, the use and disclosure of CDR data, dispute resolution, and rules in relation to the Privacy Safeguards.
NSW
Regulations and other miscellaneous instruments
Crimes (Domestic and Personal Violence) Amendment (Application Notices) Regulation 2020 (2020-40) — published LW 14 February 2020
Local Government (Regional Joint Organisations) Amendment Proclamation 2020 (2020-42) — published LW 14 February 2020
Gaming Machines Amendment (Miscellaneous) Regulation 2020 (2020-33) — published LW 7 February 2020
Liquor Amendment (Miscellaneous) Regulation 2020 (2020-34) — published LW 7 February 2020
Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.
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