Tag: High Court
An Aboriginal man who spent 500 days in immigration detention was released today after the High Court ruled that Indigenous Australians cannot be deported.
- The Commonwealth told the High Court anyone who was not a citizen was an “alien” under the law
- The men’s lawyers argued Indigenous people could not be “alien” to Australia
- The High Court found Aboriginal people hold a special position and are exempt from the immigration act
The court found Aboriginal people held a special status and were exempt from immigration laws, after it considered the cases of two convicted criminals whom the Government wanted to deport.
The two men, Daniel Love and Brendan Thoms, had failed their migration character tests as a result of serving jail sentences.
In a 4-3 split, the court found Aboriginal Australians were not subject to the alien powers in the constitution and therefore could not be deported.
But the judges did not clear Mr Love entirely, saying they could not reach agreement on whether he was an Aboriginal person on the facts stated in the case.
After this morning’s ruling, Mr Thoms was released from detention in Brisbane.
The 31-year-old told the ABC he was struggling to believe he was finally free.
He said he found it hard to stay positive while in immigration limbo.
“After 17 months it was starting to wear on me,” he said.
“I really just was thinking about my son a lot and all the fighting was for him … That’s why I put up a fight.”
“The lawyers did a really good job and it’s good win for Aboriginal people.”
Both men were born overseas but moved to Australia as children and held permanent residency visas.
Mr Love, a recognised member of the Kamilaroi people but born in Papua New Guinea, was placed in immigration detention after he was sentenced to more than a year in jail for assault occasioning actual bodily harm.
A delegate for Home Affairs Minister Peter Dutton had cancelled the 40-year-old’s visa, but that decision was later revoked and he was released.
Mr Thoms was born in New Zealand and also lacks Australian citizenship, though he is a native title holder as a member of the Gunggari people.
After serving part of an 18-month sentence for a domestic violence assault, he was taken into immigration detention, where he had remained until today’s outcome.
Outside the High Court, one of the men’s lawyers, Claire Gibbs, said Mr Thoms was “incredibly relieved” by the judgement.
“He’s missed two Christmases with his family [and] one of his son’s birthdays. His son’s birthday is coming up again so he’s hopeful of returning to celebrate with his family.”
Ms Gibbs said the ruling was not about citizenship, but was instead about “who is an Australian national and who is a part of the Australian community”.
“It’s about the use of alien powers, which we believe the government has been using inconsistently, unfairly and, now we’ve proven, unlawfully,” she said.
“So, in a practical sense, Brendan is still a New Zealand citizen, but he’s not an alien in this country and he’s protected from being deported.
“Aboriginal Australians can no longer be removed from the country that they know and the country that they have a very close connection with.”
Ms Gibbs said while the court did not make a determination about Mr Love’s “Aboriginality”, she was confident lawyers could prove that was the case.
The president of the Law Council of Australia, Pauline Wright, welcomed the decision, saying it confirmed that questions about membership of Aboriginal societies were beyond the Parliament’s legislative power.
She said the judgment raised several other “complex issues which require careful consideration”.
Aboriginal people can’t be ‘alien’ to Australia, lawyers said
In an unusual move, the High Court held two separate hearings into the case.
It was originally heard in May last year, but came back in December after the court suggested the parties consider whether Aboriginal people occupy a special position, backed up by common law recognition of native title rights.
If that was the case, the court said it then followed that the crown had a unique obligation to protect Aboriginal society, and in return Aboriginal people owed a permanent allegiance to the crown.
Lawyers for the men submitted that Aboriginal people could not be “alien” to Australia.
“Aboriginal Australians are a permanent part of the Australian community,” they wrote in a submission.
The submissions also stated that, at Federation, Aboriginal people were not considered “aliens” under the constitution.
But the Commonwealth told the court any person who was not a citizen was an “alien” under the law, and that Mr Thoms and Mr Love owed their allegiance to the countries they were born in.
The dancehall legend was convicted for murder On November 20th in the Home Circuit court after prosecution introduced seven witnesses who testified against the deejay. But the artist is arguing that the justice system failed him because he did not commit the murder. Ninjaman’s brother, Gonzellio Ballentine, believes his brother was convicted base on a perception that he is a murderer.
“They convicted him base on his image as a bad man and as a hardcore dancehall artist who deejays gun lyrics,” Ballentine said. “That doesn’t mean that you’re a murderer or a killer, not because you do music about badness means that you’re guilty of a crime. The whole trial was bias against him from the start and they have this case over him head for eight years and now they want to send him to prison for the rest of his life.”
Some close friends of the “Kingston Town” deejay are making the same arguments with one of his close friends, who requested anonymity, telling us that they made an example out of him. “Right now the government used Ninja as an example because crime and corruption is out of control and they want to use him to send a message,” he said. “They used him because he is a powerful figure in the society just like how they used Vybz Kartel to send a message and send him to prison for life. This is not fair to these artists because that is like ending their lives.”
Ninjaman is facing a life sentence for the murder conviction. According to the Director of Public Prosecution (DPP), Paula Llewellyn, the artists murder case stemmed from a fight over kitchen space at a house on Marl Road, Kingston 13, in March 2009. Ninjaman, real name Desmond Ballentine, his son Janiel, and Dennis Clayton were convicted for the killing of Ricardo Johnson, known in the community as Ricky Trooper.
Vybz Kartel, real name Adidja Palmer, is currently serving a life sentence for a murder conviction. Kartel, his protege Shawn “Storm” Campbell, and his friends Andre St John and Kahira Jones, were convicted for the killing of Clive “Lizard” Williams. Police never found Williams body.
Ninjaman will likely know his fate tomorrow when a high court judge is expected to hand down a ruling in his murder trial.
The dancehall legend is back behind bars after being discharged from a hospital earlier this week after having a mild heart attack. The prosecution closed their case last week Friday and the defense attorney submitted a no case submission. The trial is being held behind closed doors on camera because of the nature of the case.
Ninjaman is on trial for the murder of Ricardo Johnson, known in the community as Trooper. The dancehall artist, whose real name is Desmond Ballentine, his son Jamiel, and their friend Dennis Clayton were charged with murder and shooting with intent for the March 2009 murder. One witness, who testified in the trial, said the three men fired two shots after him, but he managed to escape the gunfire.
The “Kingston Town” deejay has been on bail since 2012, but last month, High Court judge, Justice Martin Gayle, revoked his bail and ordered him back behind bars. The case was transferred to a special court that deals with cases over five years old. Ninjaman has maintained his innocence and previously told us that he is anxious to put this case behind him.
Ninja Man remains in the hospital but his high profile murder trial is proceeding without him.
The dancehall legend was rushed to the hospital on Friday after collapsing in court from a suspecting heart attack. The judge adjourns the trial until Monday, but the artist was unable to attend court. His attorney, Valrie Neita-Robertson, confirmed that he gave permission to continue the case without him. This means that he could learn the verdict while on his hospital bed.
“We went on with the case today (yesterday,” Neita-Robertson said. “He has given permission to us to finish it without him.” Ninja Man reportedly started feeling severe chest pain and difficulty breathing while in court on Friday. A foreign-based witness was set to give testimony against the artist before he fell ill. The case continued in the Supreme Court in Kingston yesterday and today.
Ninja Man, real name Desmond Ballentine, his son Jamiel Ballentine, and another man, Dennis Clayton, are all on trial for the murder and shooting with intent. Cops say the three men shot and killed Ricardo “Trooper” Johnson on Marl Road, Kingston 11, in March 2009. Ninja Man received bail in 2012 but was remanded in custody last month while the trial commences. High Court judge, Justice Martin Gayle, transferred the case to a special court that deals with cases older than five years. This case has seen roughly two dozens mentions and 17 trial delays since 2009.
If found guilty, Ninja Man could be sent to prison for life.