Hobson v Commonwealth of Australia

Hobson v Commonwealth of Australia is a case before the Federal Court of Australia where the applicant, Mr Hobson, is seeking a writ of habeas corpus. Mr Hobson, a New Zealand citizen, contends that his detention under the Migration Act 1958 (Cth) is unlawful. He argues that he is an Aboriginal Australian, and therefore not subject to the provisions of the Migration Act that permit the detention of non-citizens. The central legal issues in the case involve the interpretation of constitutional provisions, specifically section 51(xix) of the Australian Constitution, which pertains to the Commonwealth's power to make laws with respect to aliens. The case also examines the application of the tripartite test for Aboriginality as established in Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1 and the High Court's decision in Love v Commonwealth of Australia [2020] HCA 3; 270 CLR 152. Furthermore, the case addresses the construction of section 189 of the Migration Act 1958 (Cth), the burden of proof concerning the lawfulness of detention, and the admissibility of evidence regarding traditional laws and customs.

The court held that the burden of proof lies with the Minister to establish the lawfulness of Mr Hobson's detention under section 189 of the Migration Act. The court found that the Minister must demonstrate that a relevant officer knows or reasonably suspects that Mr Hobson is a non-citizen and not an Aboriginal Australian. The court accepted that Mr Hobson satisfies the tripartite test for Aboriginality, as he is biologically descended from an Aboriginal woman, self-identifies as such, and is accepted by Dharug Elders. The court ruled that the Minister's contention that there is no evidence of the Dharug community remaining continuously united in and by its customs and laws from before the Crown's acquisition of sovereignty was not substantiated. Consequently, the court concluded that the Minister did not meet the onus of proof required to justify Mr Hobson's detention, and granted the writ of habeas corpus. The court also ordered that the respondents pay the applicant's costs, to be assessed if not agreed.