An Aboriginal man who made history in the High Court when it ruled Indigenous Australians could not be "aliens" under the constitution, will today ask the court to clear the way for him to claim compensation for the 14 months he spent in immigration detention.
Brendan Thoms, 33, was taken into immigration detention at the end of a jail sentence in 2018, pending deportation.
He was immediately released in 2020 when the ruling that he could not be deported because of his Aboriginal ancestry was handed down, and now he's seeking more than $4 million in compensation.
But the Commonwealth says his detention was legal at the time, and therefore it is not liable.
Aboriginal people can't be 'alien' to Australia
Mr Thoms was born in New Zealand but came to Australia when he was two months old.
He has Aboriginal ancestry and has been recognised as a native title holder and member of the Gunggari people.
And indeed, the High Court recognised his status under the three-step definition in the Mabo (2) decision — that a person is of biological descent; that person believes they are indigenous; and that other indigenous people recognise them as such.
The majority of the High Court bench found that if a person met the tripartite test, even though they are born overseas, they are not subject to migration laws.
Two of the judges in the majority, Virginia Bell and Jeffrey Nettle, have now left the court, so if the court were to decide to revisit the decision the result could depend on the rulings by the two new judges, Rebecca Gleeson and Simon Steward.
But efforts by Mr Thoms to sue the government in the Federal Court have hit a snag, with a dispute over whether his detention by immigration officers was legal.
Suspicion 'does not shield the Commonwealth from liability'
The High Court is being asked to determine whether Mr Thoms's 14 months in immigration detention was legal and whether the Commonwealth is liable.
The Commonwealth will tell the High Court the immigration law requires an officer to detain a person if they are suspected of being an unlawful non-citizen, and so the detention was lawful at the time.
But Mr Thoms's lawyers say the High Court's ruling does not protect the Commonwealth.
Whatever the court decides, it could all be academic if the Commonwealth gets its way, with plans to challenge the original decision in a High Court appeal later this year.
In that case, the government will take on New Zealander Shayne Montgomery, who is fighting extradition after a stint in jail on the grounds he's a Mununjali man who does not need to have biological Aboriginal ancestors to be considered Aboriginal under the traditional laws and customs of his group.
