In Love vs The Commonwealth and Thoms vs the Commonwealth, the Australian Government relied on provisions in the Migration Act to attempt to deport Daniel Love and Brendan Thoms on character grounds. Both men were born outside Australia, have one Aboriginal parent and identify as Aboriginal Australians.
Tim, a Yuin man from the South East Coast of NSW, was Junior Counsel for the Victorian Government, which made an application to intervene in support of Love and Thoms on the basis that Aboriginal Australians could not be “aliens” and, therefore, could not be deported.
On 11 February 2020, the majority of the High Court of Australia ruled – for the first time – that Aboriginal Australians cannot be classed as “aliens” within the meaning of section 51(xix) of the Australian Constitution, as they inherently “belong” to the Australian community, regardless of their citizenship status.
As Tim described it, in conversation with AISN co-chairs Karri Walker and Charlotte Inge, the two questions at the heart of Love and Thoms were: who “belongs” to the Australian body politic; and who should determine who belongs to the Australian body politic?
Both questions, he said, “go to the heart of our national identity vis-à-vis our relationship with Indigenous peoples”.
Tim believes that it could be the High Court that eventually needs to address the failure of the Australian Constitution to recognise Aboriginal and Torres Strait Islander peoples. However, he believes that Constitutional recognition is best driven from the political realm, so that change is more lasting and empowering.