Aboriginal people have occupied the continent of Australia for more than 60,000 years, so why does the Australian government feel justified imprisoning them in immigration detention centres and threatening them with deportation?

Australia’s indefinite detention of asylum seekers in inhumane conditions has long been a public concern, but only recently have we learned that the government is prepared to treat its Indigenous people in a similar manner. This week, two Aboriginal Australians who have experienced such treatment brought their cases to the high court, asking the court to rule that the federal government’s constitutional power to make laws with respect to “aliens” (essentially, foreigners) cannot apply to Aboriginal Australians.

The two men involved in the case are Daniel Love and Brendan Thoms. After being convicted and sentenced for certain criminal offences, they had their visas cancelled and were detained in immigration detention and threatened with deportation to Papua New Guinea and New Zealand. All of which would be entirely unremarkable, except for the fact that Love and Thoms identify as Aboriginal Australians.

They were each born to one Aboriginal Australian parent and one non-Australian parent. Both men were born outside Australia but came to Australia as children and have lived here since. Importantly, both would appear to satisfy the widely accepted tripartite test for Aboriginality – they are of Aboriginal descent, they identify as Aboriginal, and they are accepted within the community. Love is a descendant of the Kamilaroi people of modern day New South Wales and Thoms is a member, and native title holder, of the Gunggari people of Queensland. These connections to land and community – a central part of Indigenous cultural heritage – were emphasised by a number of the justices of the high court in oral argument on Wednesday.

Love and Thoms are not the first Aboriginal Australians to have their visas cancelled and to be threatened with deportation, however they are the first to bring their cases to the high court. With the assistance of a high-powered team of lawyers, they argued that: “For descendants of Australia’s first peoples, an indelible part of the Australian community, to be ‘aliens’ for the purposes of Australia’s constitution, is antithetical to their indigeneity and to the social, democratic and political values which underpin and are protected by the constitution.” To rule them “aliens” would undermine Love and Thoms’ cultural identity, sense of belonging, right to country and Indigenous knowledge (whether that be language, cultural identity or knowledge about land, seas, places, songs, stories and social practices). Finally, and perhaps most significantly, the deportation of these two men would diminish and devalue their cultural obligations and responsibilities.

In some ways, the question to be decided by the court is esoterically legal, turning on the meaning of a single word – “aliens” – in section 51(xix) of Australia’s constitution. Yet to frame the question in purely legal terms is to miss its hard political edge. When the high court decides today’s case it will be deciding the boundaries of Australia’s political community. The absurdity of excluding any Aboriginal Australians from that community should be patently obvious, especially at a time when Australia is moving slowly towards a constitutionally enshrined voice for Aboriginal people. To declare these two men “aliens” would be a great injustice, denying their sense of identity and making them feel as if they do not belong to a community. As Justice Edelman said in the course of oral argument, the word “alien” literally describes a person from another place. No Aboriginal person can sensibly fit that description. It is to be hoped that the high court will say so when it eventually hands down its judgment in the coming months.

Micah Kickett is a director of the Northern Territory Indigenous Lawyers Aboriginal Corporation and a lawyer at the North Australian Aboriginal Justice Agency (Naaja). Julian R Murphy previously worked as a judge’s associate at the high court and is now a lawyer at Naaja