Love v Commonwealth; Thoms v Commonwealth (2020) — Aboriginal Australians and the Citizenship Power
Introduction
Love v Commonwealth; Thoms v Commonwealth (2020) 270 CLR 152 is a landmark decision of the High Court of Australia concerning the constitutional status of Aboriginal Australians. The Court held that Aboriginal Australians, as defined by the tripartite test of biological descent, self-identification, and community recognition, are not “aliens” within the meaning of s 51(xix) of the Constitution and therefore cannot be deported under the aliens power. The decision represents a significant constitutional recognition of Aboriginal and Torres Strait Islander peoples and limits the Commonwealth’s power over the citizenship status of Indigenous Australians.
Facts
The cases involved two men:
Daniel Love was born in Papua New Guinea and moved to Australia as a child. He was a non-citizen who had resided in Australia since 1989. He was recognised as a member of the Kamilaroi people — an Aboriginal Australian group.
Brendan Thoms was born in New Zealand to an Australian mother and a New Zealand father. He was a New Zealand citizen who had resided in Australia since 1998. He was recognised as a member of the Gunggari people — an Aboriginal Australian group.
Both men had their visas cancelled under s 501 of the Migration Act 1958 (Cth) on character grounds (due to criminal convictions), and were subject to removal from Australia. They argued that, as Aboriginal Australians, they could not be “aliens” under the Constitution and therefore could not be deported under the aliens power.
The Constitutional Question
Section 51(xix) of the Constitution confers power on the Commonwealth to legislate with respect to:
“The people of any race, for whom it is deemed necessary to make special laws.”
Section 51(xix) must be read with the aliens power — the power to legislate with respect to “naturalisation and aliens” (s 51(xix)). The question was whether Aboriginal Australians who are not Australian citizens can be “aliens” within the meaning of the Constitution.
The Tripartite Test
The High Court applied the tripartite test for determining Aboriginal identity, derived from Mabo v Queensland (No 2) (1992) and applied in Eatock v Bolt (2011) 197 FCR 261. The test requires:
- Biological descent: The person must be descended from the Indigenous peoples of Australia.
- Self-identification: The person must identify as an Aboriginal Australian.
- Community recognition: The person must be recognised as an Aboriginal Australian by the relevant Indigenous community.
The High Court’s Decision
The High Court held by a 4:3 majority that Aboriginal Australians are not “aliens” within the meaning of the Constitution. Bell, Nettle, Gordon, and Edelman JJ formed the majority. Kiefel CJ, Gageler J, and Keane J dissented.
The Majority
Bell J held that the constitutional status of Aboriginal Australians is not determined by citizenship law but by their “connection to land and community.” Her Honour stated:
“The aliens power has no application to an Aboriginal Australian because the relationship between the Aboriginal people and the territory of Australia is one of profound historical and cultural significance that precedes and survives the acquisition of sovereignty.”
Nettle J held that the concept of “alien” in the Constitution must be understood in light of the unique status of Aboriginal peoples as the “first peoples” of Australia. His Honour held that Aboriginal Australians are not “subjects of a foreign power” and therefore cannot be aliens.
Gordon J held that the Constitution does not treat Aboriginal Australians as “aliens” because they are not “members of a foreign polity.” Her Honour emphasised the tripartite test and held that a person who satisfies that test has a “constitutional status” that cannot be overridden by citizenship legislation.
Edelman J held that “alien” in the Constitution means “a person who is not a member of the Australian community.” Aboriginal Australians are members of the Australian community by virtue of their Indigenous connection to the land and cannot be aliens.
The Dissent
Kiefel CJ dissented, holding that the question of who is an alien is determined by citizenship law, not by Indigenous identity. Her Honour held that the Constitution confers power on the Commonwealth to determine who is a citizen and who is an alien, and that Aboriginal identity does not confer a constitutional status that overrides the citizenship framework.
Gageler J dissented, holding that the Constitution does not recognise a special constitutional status for Aboriginal peoples that would exempt them from the aliens power. His Honour held that the question of alienage is determined by the Migration Act and the Australian Citizenship Act, not by Indigenous identity.
Keane J dissented, holding that the majority’s approach created a “constitutional anomaly” by recognising a category of persons who are neither citizens nor aliens. His Honour expressed concern about the practical consequences of the decision for immigration enforcement.
Constitutional Significance
The Love/Thoms decision is significant for several reasons:
Constitutional recognition: The decision provides a form of constitutional recognition of Aboriginal and Torres Strait Islander peoples as the first peoples of Australia.
Limitation on the aliens power: The decision limits the scope of the aliens power by excluding Aboriginal Australians from its operation, regardless of their citizenship status.
Constitutional status: The decision establishes that Aboriginal Australians have a constitutional status that is independent of citizenship legislation and cannot be overridden by the Migration Act or the Australian Citizenship Act.
Tripartite test: The decision confirms the tripartite test as the constitutional test for Aboriginal identity.
Implications and Controversies
The decision has generated significant debate:
Scope of the decision: The decision applies only to Aboriginal Australians (not to Torres Strait Islanders, though similar principles may apply). It is unclear whether the same reasoning would extend to Torres Strait Islanders under s 51(xix).
Practical implications: The decision prevents the deportation of Aboriginal Australians who commit serious crimes and have their visas cancelled, raising questions about community safety and the limits of Commonwealth power.
The “non-citizen, non-alien” category: The decision creates a constitutional category of persons who are neither citizens nor aliens — a category that was previously unknown to Australian law.
Future directions: The decision has implications for the ongoing debate about constitutional recognition of Indigenous Australians, including the Voice to Parliament proposal.
The Broader Context: Constitutional Recognition
The Love/Thoms decision must be understood in the broader context of the movement for constitutional recognition of Aboriginal and Torres Strait Islander peoples. The 2017 Uluru Statement from the Heart called for a constitutionally enshrined Voice to Parliament — a representative body that would advise Parliament on matters affecting Indigenous peoples.
The Love/Thoms decision does not provide the constitutional recognition contemplated by the Uluru Statement, but it does represent a significant judicial step toward recognising the unique constitutional status of Aboriginal peoples.
Subsequent Cases
The Love/Thoms decision has been applied and distinguished in subsequent cases. In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Montgomery (2021) 274 CLR 350, the High Court held that a non-citizen who claims Aboriginal identity but cannot satisfy the tripartite test is still an alien and subject to deportation.
Conclusion
Love v Commonwealth; Thoms v Commonwealth (2020) is a watershed decision in Australian constitutional law. By holding that Aboriginal Australians are not “aliens” within the meaning of the Constitution, the High Court recognised the unique constitutional status of Australia’s first peoples and limited the Commonwealth’s power over Indigenous citizenship. The decision has profound implications for the relationship between Indigenous Australians and the state, and for the ongoing project of constitutional recognition.