The plaintiffs, Mr Love and Mr Thoms, are non-citizens, identify as Aboriginal Australians and have spent most of their lives in Australia. Mr Thoms is also a native title holder. Mr Love is a citizen of Papua New Guinea and Mr Thoms is a citizen of New Zealand. Both of their visas were mandatorily cancelled under the Migration Act 1958 (Cth) for failing the character test after both were independently sentenced to a term of imprisonment of 12 months or more for certain crimes. The power to deport a person is reliant on the “aliens” power in s 51(xix) of the Constitution.

The question for the High Court was whether an Aboriginal Australian fell within the reach of the “aliens” power in the Constitution and could therefore be subject to deportation. The plaintiffs argued that the common law’s recognition of native title was inconsistent with the treatment of Aboriginal Australians as strangers to the land or foreigners in Australia. The State of Victoria intervened in support of the plaintiffs, arguing that by reason of the recognised mutual and unique relationship between members of Aboriginal societies and the land and waters of Australia, Aboriginal Australians could not be aliens. The Commonwealth argued that the recognition of native title was irrelevant and instead, through the development of Australian citizenship law, “alien” had become synonymous with “non-citizen”. Accordingly, as both plaintiffs were non-citizens, each was within the scope of the “aliens” power.

The High Court split 4-3 in favour of the plaintiffs and declared that Aboriginal Australians (according to the tripartite test based on descent, self-identification and community acceptance) are not within the reach of the “aliens” power. However, Nettle J in the majority could not determine on the agreed facts whether Mr Love was an Aboriginal Australian, leaving that question open for determination.

In the majority, Bell, Gordon and Edelman JJ wrote separately but all found that the common law’s recognition of native title recognised that Aboriginal people belonged and had a unique connection to the lands and waters of Australia and they therefore could not be outsiders or foreigners. Justice Nettle found that Aboriginal Australians owed a permanent duty of allegiance to the Crown and the Crown owed a permanent duty of protection to Aboriginal Australians, contrary to the historical genesis of alienage. The minority judges, Kiefel CJ, Keane and Gageler JJ, also wrote separately in support of the Commonwealth’s view that there was no category of “non-alien, non-citizen” and the plaintiffs, as non-citizens, were therefore aliens.