High Court faces pressure to curb deportations of long-term residents

The High Court may soon be called upon to decide whether long-term residents who have lived in Australia since childhood can be constitutionally defined – and deported – as “aliens”. Gerry Georgatos writes.

IN RECENT YEARS, Australia has seen a dramatic rise in the deportation of non-citizens under Section 501 of the Migration Act 1958 (Cth). This is often on character grounds, including individuals who have lived in Australia for decades, who arrived as infants or toddlers, who have never meaningfully lived outside the country and whose immediate families – children, parents, siblings – are Australian citizens.

While the constitutional framework does not contain an express right to citizenship or freedom from deportation, there is a growing argument, both morally and legally, that constitutional principles, when read purposively and contextually, may afford long-standing residents a de facto claim to membership in the Australian community that is inconsistent with their forcible removal.

At the heart of this issue lies a battle between the statutory sovereignty of Parliament and the interpretive jurisdiction of the High Court, and whether the Constitution provides room for a remedy, particularly under Section 51 and the judicial interpretation of the “alien” power in clause (xix). 

Constitutional context: Section 51 and the power over ‘aliens’ and ‘immigration’

Section 51 of the Commonwealth of Australia Constitution Act gives the Federal Parliament the power to make laws with respect to:

• S51(xxvi): The people of any race for whom it is deemed necessary to make special laws;
• S51(xxvii): Immigration and emigration; and
• S51(xix): Naturalisation and aliens.

The key provisions most often invoked in deportation matters are S51(xix) and S51(xxvii). Parliament relies on the alien power to draw a binary distinction between citizens and non-citizens, no matter the tenure, contribution, or connection of the individual to Australian society.

In Love v Commonwealth; Thoms v Commonwealth (2020) 270 CLR 152, the High Court held that First Peoples Australians – regardless of their citizenship status – could not be classified as “aliens” for the purposes of S51(xix) due to their deep and inherent connection to the land. The majority introduced the possibility that the alien status is not purely about formal legal citizenship but about one’s “belonging” to the Australian community.

This precedent opens the door, at least conceptually, for challenging the notion that long-term residents, who arrived as babies, were raised here and whose families are Australian, are constitutional aliens. Love and Thoms created a fissure in the otherwise rigid citizen/alien dichotomy by recognising that some people can exist in a “third space” — not aliens, not citizens, but still outside the reach of S51(xix).

The limits of Section 51(xix): Is “alien” still absolute?

Despite Love, the High Court in Alexander v Minister for Home Affairs (2022) 396 ALR 540 reversed the conceptual expansion by holding that a person stripped of their Australian citizenship could still be treated as an alien, even if their attachment to the nation was enduring. The decision essentially reasserted parliamentary supremacy in defining and controlling citizenship and alienage.

Still, dissenting justices in Alexander and Love, particularly Justice Edelman and Justice Gordon, strongly suggested that constitutional concepts of alienage are not entirely at the mercy of legislative definition. Edelman posited that a person with no practical connection to any other country may not reasonably be considered an alien.

Applying this reasoning, a person who has lived in Australia since infancy, has no meaningful ties to their country of birth, and whose entire identity and relational bonds are within Australia, could not reasonably be regarded as a foreigner. The implication is profound: if such individuals are not aliens, then the Commonwealth lacks power under S51(xix) to make laws that subject them to deportation.

This argument could be advanced in a constitutional challenge against deportations under S501 of the Migration Act.

Section 51(xxvii): Immigration and emigration – a waning justification?

Parliament may also attempt to justify deportations using S51(xxvii), the immigration power. However, this power is historically understood to apply to the movement into and out of the country — not as a general power over non-citizens who have settled long-term within Australia. In R v Macfarlane; Ex parte O'Flanagan (1923) 32 CLR 518, the High Court noted that immigration referred to the entry of people into the country.

A person who entered Australia in 1970 as an infant and never left, and who now has children and grandchildren who are citizens, can hardly be said to still be in the process of immigration. Deporting them based on the immigration power stretches the textual meaning and original purpose of S51(xxvii) beyond its limits.

Can permanent residency and tenure give rise to constitutional “citizenship”?

While the Constitution does not contain an express right to citizenship, it does recognise the existence of a political community. In Roach v Electoral Commissioner (2007) 233 CLR 162, the Court held that the right to vote could not be arbitrarily withheld from prisoners, affirming that representative government is constitutionally entrenched. The Constitution, by implication, recognises participation in the polity.

One could argue that permanent residents who arrived as children, who have lived here for decades and who form the backbone of their communities, have become part of the constitutional polity, even if not formally recognised as citizens.

Thus, a court could find that, for some non-citizens, their tenure and life in Australia create such deep integration that Parliament’s power to define them as aliens is constitutionally unreasonable, or beyond power.

Section 51(xxvi): The race power and its historical use

Section 51(xxvi), the race power, was historically used to exclude and deport people based on race (see Kartinyeri v Commonwealth (1998) 195 CLR 337). While its contemporary use is constrained, the residue of this power does not offer a remedy for long-term residents. In fact, any reliance on the race power in deportation cases would be constitutionally fraught, particularly after the 1967 Referendum.

Ministerial intervention: Can a minister bring deported individuals back?

Section 351 of the Migration Act gives the Minister for Immigration the power to intervene in an individual case where it is in the public interest to do so. This includes the power to overturn a decision by the Administrative Review Tribunal and grant a visa.

Crucially, there is no limit in the statute preventing ministerial intervention post-deportation. The only practical limit is that once a person is deported, they are generally subject to a re-entry ban, usually of three years or more, unless the minister exercises discretion under S501C or S501BA to waive the ban.

This means that the minister can, at any time, lift a re-entry bar, reverse a visa cancellation and facilitate the return of a deported individual. While ministers frequently claim they have “no more powers”, this is misleading. The Act confers non-compellable powers of intervention. Political will, not legal impossibility, is the true constraint.

The moral and legal convergence: “We must own our own”

The morality of deporting people who have lived here since early childhood, who are socially, culturally and linguistically Australian, is increasingly at odds with the law. When a father is deported to a country he does not know, separating him from six children and 12 grandchildren, Australia fails not just morally but legally in preserving the integrity of the family, a principle enshrined in international law under Article 17 and Article 23 of the International Covenant on Civil and Political Rights (ICCPR), to which Australia is a party.

While international treaties are not directly enforceable in Australian courts unless incorporated into domestic law (Minister for Immigration v Teoh (1995) 183 CLR 273), they can inform statutory interpretation and reinforce the need for constitutional or legislative reform.

Foreseeable High Court challenges and likelihood of success

A High Court challenge could be framed as follows:

1. Plaintiff: A long-term permanent resident, who arrived in Australia as a baby, has no ties to their country of citizenship and whose deportation under S501 has been ordered.
2. Claim: That the individual is not an “alien” within the meaning of S51(xix), due to their enduring connection to the Australian community and that the law authorising their deportation is ultra vires (beyond constitutional power).
3. Relief Sought: A declaration that the plaintiff is not an alien and cannot be deported under S501.

Given the evolving jurisprudence (Love, Thoms, Alexander), the Court is deeply divided. A favourable majority ruling is not guaranteed, but the claim is not without substance, especially if the case is carefully constructed to resonate with judicial principles of constitutional identity, belonging and limitation of federal powers.

Recommendations and ways forward

• Pursue constitutional litigation to test the meaning of “alien” post-Love and Alexander, particularly for those brought here as children.
• Lobby for legislative reform to create a statutory safeguard for long-term residents with deep familial and community ties.
• Encourage ministerial discretion to be exercised consistently and compassionately — nothing in law prohibits return.
• Establish a framework for redemption, recognising that punishment and rehabilitation are domestic concerns, not grounds for exile.
• Campaign for the recognition of citizenship by tenure, akin to jus soli or residency-based citizenship models in other liberal democracies.

Concluding preface

At the advanced age of 63, with Parkinson’s disease worsening, I am completing a Juris Doctor in Law — not for career ambition, but because I cannot remain a bystander to the destruction wrought by S501. I've seen with my own eyes the broken families, the children and grandchildren abandoned, not by choice but by the weight of a law that does not recognise redemption, nor the right to belong, nor the bonds that make someone Australian in all but name. We are deporting fathers who came here as babies, who have lived lives of meaning and connection, and we do so on a mechanical character assessment that too often becomes a character assassination.

From 40 or 50 deportations a year, we now see hundreds — sometimes more than a thousand. The families left behind are disproportionately impoverished, traumatised and silenced. They are denied advocacy, representation and often even hope. We are acting in a way that is both extrajudicial and antithetical to rehabilitation, ignoring that a person who has served their sentence deserves a future.

Despite the constitutional pessimism of some legal minds, I believe the High Court must – and can – be convinced. I will be part of the legal movement that brings the challenge. We must frame and enact the law to protect those who have lived in this country since infancy. This battle is not merely legal. It is a moral reckoning with who we are as a nation.

Conclusion

The Australian Constitution, while silent on citizenship, is not bereft of pathways to justice. The High Court has, on occasion, read its provisions with moral clarity and constitutional purpose.

There is growing room to argue that deporting those who have lived in Australia since childhood violates the constitutional limits of the alien power and the principles of representative democracy. If the Parliament will not change the law, then the Court may, with courage and conviction, be called upon to interpret it in a way that finally sees these Australians, by all but name, truly belong.

Gerry Georgatos is a suicide prevention and poverty researcher with an experiential focus on social justice.

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