Indigenous Australians are inseparably tied to the land of Australia - not Constitutional “aliens”
Indigenous Australians are inseparably tied to the land of Australia and its political community - not “aliens” under the Commonwealth Constitution
Love v The Commonwealth – High Court of Australia - 11 February 2020
In 1992 the High Court of Australia handed down the historic Mabo (No.2) decision recognising native title. The Court today handed down another highly significant case for indigenous Australians and for Australia: Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3 (the Love decision).
Today, the Court drew heavily on Mabo (No.2) but, historically, in a constitutional context. The case involved two “non-citizens” of Australia – Mr Love and Mr Thoms. Love identified as a Kamilaroi aboriginal and Thoms as a member of the Gunggari People. Love was born in, and was a citizen of, Papua New Guinea. Thoms was born in, and was a citizen of, New Zealand. Following the commission of offences in Queensland by them, a delegate of the Minister for Home Affairs cancelled their visas. Thoms was taken into, and remained in, immigration detention. Love was taken into immigration detention but subsequently released.
The case divided a Full Court of the High Court – 4:3. The majority (Nettle, Gordon, Bell and Edelman JJ) in separate judgements held that that Aboriginal Australians (as understood according to the tripartite test in Mabo (No. 2)) are not within the reach of the "aliens" power conferred by s. 51(xix) of the Constitution. In the case of Love, the majority was unable to agree as to whether he was an Aboriginal Australian on the facts.
Some of the more significant aspects of the decision include the following:
· “The identity of Aboriginal people, whether citizens or non-citizens, is shaped by a fundamental spiritual and cultural sense of belonging to Australia. It is that identity which constitutes them as members of the Australian political community.” (Edelman J).
· “Since settlement, Aboriginal people have been inseparably tied to the land of Australia generally, and thus to the political community of Australia, with metaphysical bonds that are far stronger than those forged by the happenstance of birth on Australian land or the nationality of parentage.” (Edelman J).
· Put simply, “an aboriginal person cannot be an alien of Australia” (Edelman J).
· “Political community is not a concept that is wholly a creature of legislation. For example, a child born in Australia to two parents who have only Australian citizenship is not an alien. The metaphysical ties between that child and the Australian polity, by birth on Australian land and parentage, are such that the child is a non-alien, whether or not they are a statutory citizen. The same must also be true of an Aboriginal child whose genealogy and identity includes a spiritual connection forged over tens of thousands of years between person and Australian land, or "mother nature".” (Edelman J).
· “The constitutional term "aliens" does not apply to Aboriginal Australians, the original inhabitants of the country. An Aboriginal Australian is not an "outsider" to Australia.” (Gordon J).
In dissent, were Chief Justice Kiefel and Justices Gageler and Keane. Justice Keane observed that, “A strong moral case can be made for special recognition of Aboriginal people in the Constitution because of their special place as the first inhabitants of the continent and the historical injustices suffered by them. Indeed, the case for special recognition is the subject of public debate at the present time.”
The Love decision today, drawing on Mabo (No.2) nearly a generation ago, is an important one for indigenous Australians and the entire Australian community. It is a significant case which affects the Commonwealth Constitution. Whilst in dissent, the acknowledgement of strong moral case for Constitutional recognition of indigenous Australians (Keane J) is noteworthy. The case is an historic first – a constitutional first – in its acknowledgment of the unique and special place of indigenous Australians and their spiritual connection with Australia and its lands.