Indigeneity as a basis for constitutional membership – recent developments in Australia¹¹This article is based on a blog post by the authors Elisa Arcioni and Rayner Thwaites, GLOBALCIT, 17 February 2020, http://globalcit.eu/aboriginal-australians-not-vulnerable-to-deportation/ , revised and republished as Arcioni/Thwaites, AusPubLaw, 6 March 2020, https://auspublaw.org/2020/03/aboriginal-australians-not-vulnerable-to-deportation/ , further revised and republished as Arcioni/Thwaites, Aboriginal Australians Not Vulnerable to Deportation, LSJ Law Society of NSW Journal 2020, 65 (68-70).

Abstract: The case of Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3, decided in February 2020, centred on the Australian government’s attempt to deport two Aboriginal Australians who were statutory non-citizens. Australia’s highest appellate court, the High Court of Australia (‘the Court’), decided that Aboriginality, that is, indigeneity, is relevant to Australian constitutional membership. Aboriginality was defined with reference to a tripartite test requiring: descent, self-identification and community recognition. The foundation for the Love decision was the recognition of the connection to country of Aboriginal peoples, which the Court held had a constitutional relevance. The Court concluded that statutory citizenship did not determine constitutional membership. It held that the plaintiffs could be, and were, outside statutory membership but inside constitutional membership. Accordingly, they could not be deported notwithstanding that they were non-citizens.