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Analyse all the judgments in Love v Commonwealth [2020] HCA 3. Was the case correctly decided? Which of the judgments (if any) do you prefer?...

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Analyse all the judgments in Love v Commonwealth [2020] HCA 3. Was the case correctly decided? Which of the judgments (if any) do you prefer?

Introduction The decision of the milestone High Court case of Love v Commonwealth; Thoms v Commonwealth of Australia [2020] HCA 31 addresses the center issues regarding whether the plaintiffs were considered ‘aliens’ for the ordinary meaning of the word in accordance to section 51(xix) of the Commonwealth Constitution2. A decision of a 4 to 3 majority in favor of Mr Love and Mr Thoms established that the essence of the tripartite test in Mabo [No2] 3 acknowledges and recognizes that Aboriginal Australians are beyond the extent of ‘aliens’ power. The seven individual judgements communicated shows a various of creative methods that the High Court took in interpreting and building the essence of the word ‘aliens’ found in section 51(xix) of the Commonwealth Constitution by distinguishing ‘non-citizen, non-alien' while additionally giving context to the significance meaning of ‘Australian citizenship’ 4.

The majority decision of 4 to 3 were divided with a split approach to the interpretations and understandings of the significance of the word ‘aliens’ under the constitution between the majority and dissenting judgements. The contrast can be seen between the split approach with the adoption of a more stricter and open originalist approach towards identifying the essential meaning of the word ‘alien’ and its intended meaning in the Constitution, furthermore, the adoption of the decisions in Indigenous landmark cases of Mabo and the Native Title. The majority, including Justices Bell, Nettle, Gordon and Edelman JJ, observed that Aboriginal Australians were past the perspective of the aliens (outsiders) power5. Chief Justice Kiefel, Gageler and Keane JJ strongly disagreed with the findings of the majority as their observations and approach of the interpretation is that the Commonwealth Parliament holds the right to decide the legal status of who is to be characterized to be ‘aliens’ of the country.

Background The plaintiffs were both born outside of Australia, Mr Daniel Love is born in Papua New Guinea and Mr Brendan Thoms is born in New Zealand. The two plaintiffs have Indigenous descent and were identified as Aboriginal Australians. Mr Love identifies as a member of the Kamilaroi nation and is recognized by one Kamilaroi Elder. Mr. Thoms is identified as a member of Gunggari People and has have Native title rights at common law.

1

Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3. Ibid 16, [50] (Kiefel, CJ). 3 Mabo v Queensland [No2] (1992) CLR 1. 4 Australian Citizenship Act 2007 (Cth). 5 Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3, [81]. 2

Both Mr Love and Mr Thoms have been residing in Australia for a long time and were permanent residents in Australia which does not equate to be an Australia citizen under the Australian Citizenship Act 2007 (Cth)6. Both plaintiffs were condemned in prison for a term of 12 months for criminal offences and were notified that their visa had been cancelled under the Migration Act 1958 (Cth)7 for failing the character test, their permanent visas were revoked under section 501(3A) of the Migration Act 1958 (Cth)8 which means deportation of the plaintiffs.

Issue The issue of the case was if Aboriginal Australians could be viewed as ‘aliens’ under the scope of section 51(xix) of the Constitution. If Aboriginal Australians cannot be identified as ‘aliens’, is it still legal for the plaintiffs to be deported in compliant to the Migration Act.

The majority The majority judgement (Bell, Gordon, Nettle and Edelman JJ) concurred that the Plaintiffs’ position was not within the scope of s 51(xix) for the following reasons: The majority considered the findings in Mabo [No 2] 9that Aboriginal association with Australia occurred a long time before colonization and were kept through the continuation of the act of Indigenous regulations and customs, consequently it ought to stay perceived and recognized in common law practice. Their Honours found there is an exceptional and unique association among Aboriginal and Torres Strait Islander peoples and the land and waters of Australia as recognized by the Court’s significant decision in Mabo v Queensland [No 2] 10, this unique position that Aboriginal Australians are in is the significant reason why they do not fall within the scope to be outsiders or foreigners of Australia.11Though, it is not formally expressed by the Court in Mabo [No 2], this acknowledgement was implied in the federation’s acknowledgement of the rights for the native title in that case.12

Justice Bell Justice Bell distinguishes that the Commonwealth contends that the plaintiffs were not Australian citizens and that the ordinary meaning of the word ‘alien’ in the constitution applies to them. This means that an Aboriginal Australian is depicted and identified as an ‘alien’ in its own country despite the

6

Australian Citizenship Act 2007 (Cth).

7

Migration Act 1958 (Cth). Ibid s 501(3a). 9 Mabo v Queensland [No2] (1992) CLR 1. 8

10

Ibid. Love v Commonwealth [2020] HCA 3. 12 Ibid 663 [269] (Nettle J), 669 [289], 679– 80 [340] (Gordon J).

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consideration of one’s descent. 13Her Honour takes note that “... the power conferred by s 51(xix) does not extend to treating an Aboriginal Australian as an alien because, despite the circumstance of birth in another country, an Aboriginal Australian cannot be said to belong to another place.”14

Justice Edelman The essence of ‘belonging’; was further continued by Justice Edelman, his Honour presumes that the status and identity of indigenous people, despite citizens or not, is constitutionally built on by their spiritual and cultural belief of belonging to the land of Australia 15. His Honour noticed that the ordinary meaning of the expression ’aliens at federation’ fundamentally means ’foreign ... to a political group’16. Justice Edelman identifies the importance Aboriginal Australia have a special identity of belonging which indicates that the ordinary meaning of ’alien to a political group’ cannot be characterized as a ’citizen’, but Aboriginal ’non-citizens’ were to be perceived as a ’belonger’ to the Australian federation,17 with acknowledgements of the significant historical developments and major developments and impacts from landmark events such as the 1967 referendum, the Native Title Act 1993 (Cth)18 and the enactment of the Racial Discrimination Act 1975 (Cth) 19

The embodiment of ‘belonging’ is the most suitable interpretation of the Constitution, Edelman J quotes Brennan J in Mabo (No 2) in his judgement, he approaches it in a moderate originalist approach and highlights that it is crucial in modern times that ‘the common law should neither be, nor seen to be, frozen in an age of racial discrimination’.20 The two common tests of Australian citizenship 21, being by descent or by birth should be expanded and not be the only examples of membership of a federation. His Honour outlines the similarly view Mabo perceived of the spiritual and cultural connection that Aboriginal people have with the traditional land, it is a given that a connection between Aboriginal people and the territory of Australia exist. 22

Justice Gordon Justice Gordon had a similar comprehension and definition of the terms ‘aliens’. Her Honour perceives that the supreme power of the Commonwealth has set out limits in each territory. It is further expressed that though we are divided in different territories, Australia shares the same lands and waters regardless

13

Love v Commonwealth [2020] HCA 3, [71]. Love v Commonwealth [2020] HCA 3, [74]. 15 Ibid [391]. 16 Love v Commonwealth [2020] HCA 3. 17 Ibid [394], [396], [437]. 14

18 19

Native Title Act 1993 (Cth). Racial Discrimination Act 1975 (Cth).

20Love 21 22

v Commonwealth [2020] HCA 3, [450].

Australian Citizenship Act 2007 (Cth). Ibid.

of territory in which Aboriginal people have a unique and recognised connection. It is then an absolute judgement that Aboriginal people are part of ‘the people’ of Australia. 23

Justice Nettle Justice Nettle held that a person cannot functionally be a member of an Aboriginal society if they are not physically present and residing in Australia as this takes away the connection of the individual and the Indigenous group with the land. Accordingly, the duty to deport Aboriginal people from Australia identified with an ‘alien’ status would mean the revocation of the common law’s official recognition of Aboriginal people connection with the country. His Honour further express that the Commonwealth holds the duty to a ‘unique obligation of protection’ to Aboriginal people. 24 The common law’s recognition of the unique connection that Aboriginal Australians have with their traditional lands is highly contrast and is inconsistent with the conclusion that Aboriginal Australian can be identified as alien to their traditional land. Indigenous Australians cannot be said to ‘belong’ to any other country and are not within the scope of the definition of ‘alien’ within s 51(xxi) of the Constitution. 25

The minority The minority, Kiefel CJ, Gageler and Keane JJ dissents the majority decisions. Their Honours held that there was no classification of “non-alien, non-citizen" and the plaintiffs, as non-citizens, were therefore in scope of section 51(xix) and identified as ‘aliens.

Justice Gageler Justice Gageler observed that an alien is identified as an outsider and non-citizen, and that the Commonwealth Parliament can characterize alienage through citizenship laws26. Justice Gageler holds a stricter originalist approach towards defining the word ‘alien 'of the Constitution. His Honour identifies that the intention of the text is created and determine for a nation state, and that under s 51 (xix) of the Commonwealth Parliament holds a supreme power to decide who is a legally and fitted to be a part of the Australian federation27. Justice Gageler emphasizes that the Commonwealth’s constitutional power under s 51(xix) should not have constraints and be limited by different race28. His Honour further compares the Canadian constitutional and the need for a referendum for constitution amendments

23

24

Ibid.

Ibid [66], [373], [435], [444]. [71], [270], [272], [454]. 26 Ibid [93]. 27 Ibid [91]. 28 Ibid [31], [44], [126], [133], [147], [178], [181]. 25

following the landmark success of the amendment in 1967, this is to give parliament more legislative power to make special laws for Aboriginal and Torres Strait Islander people.29

Chief Justice Kiefel and Justice Keane Chief Justice Kiefel deciphered the plaintiff’s arguments and states that if section 51(xixx) of the Constitution ought to be read and Aboriginal Australian is exempted, this would lead to an unexpressed limitation or exception30. Justice Keane adopted an approach similarly to Chief Justice Kiefel, His Honour points out that s 51 (xix) applies even if ‘that no less than any other child who is born abroad of an Australian parent and does not apply for Australian citizenship’31 implicitly expressing that section 51 (xix) is intended how it is written. Both Chief Justice Kiefel and Justice Keane sees those various types of ’belonging’; to be specific ’property’ could not be used to help citizenship rights. Their Honours acknowledge that Aboriginal Australians have a special connection to the lands and waters of Australia though they argue that this connection has limitations, 32and does not expand to an expressed recognition in the common law of Indigenous jurisdiction and further recognition of the customary regulations and laws;33 Furthermore, by not having any limits in permitting individuals and their communities to determine their Aboriginal status, and whether or not they were non-aliens, this is inconsistent with the Constitution power capacity as it allows an unconstitutional person with the Court’s jurisdiction legislations.34

Conclusion The individual reasoning of each judge made the case more complicated, with the majority 4 to 3 in favour of the plaintiff, Justice Bell expressed the significant reasoning for the outcome of the case that “Aboriginal Australians (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”.35 The majority of the judgements held that the plaintiffs needed to have Aboriginal descent, this can be proven through the identification and recognition as a member of an Aboriginal community. On the facts on the case, Mr Thoms rights of native title means that he is identified and recognised as a member of an Aboriginal community. Justice Nettle J found that In Mr Love’s unique circumstances his status was still unclear. In conclusion, it is found that Aboriginal Australians do not fit in the description of “aliens” in the ordinary understanding of the word36 and therefore, do not fall within the scope of alien powers.

29

Ibid [135]. Ibid [31], [44], [126], [133], [147], [178], [181]. 31 Ibid 49, [147] (Keane, J). 32 Ibid [29], [127], [193]-[195]. 33 Ibid. 34 Ibid [25],[137],[196]. 35 Love v Commonwealth [2020] HCA 3 at [287]-[288]. 36 Ibid [427]. 30

In my opinion, I agreed strongly with Justice Edelman’s judgement to this case. His Honour approach in identification of the essence of ‘alien’ under section 51(xix) interpret the meaning as ‘belonging to another person or place,’ the moderate originalism approach gave a suitable meaning to the unique circumstances of the case with adaption to both the precedents of landmark Aboriginal cases and the everchanging society. Not only did Justice Edelman, adopted the intended meaning of the time the constitution was written but his Honor was able to include contemporary changes and values to the ordinary meaning of the word. Justice Edelman’s unique approach remains consistent to the structure of the Constitution by recognizing the essence of the word and amendments that retains the intention as it is, at the time the Constitution was written.

Bibliography Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3 Mabo v Queensland (1992) 175 CLR 1 Australian Citizenship Act 1948 (Cth) Australian Citizenship Act 2017 (Cth) Migration Act 1958 (Cth) Australian Constitution...