Love v Commonwealth

Love v Commonwealth; Thoms v Commonwealth is a High Court of Australia case that held that Aboriginal Australians could not be classified as aliens under section 51(xix) of the Australian Constitution. The case was decided on 11 February 2020. The full title is Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3.

Love v Commonwealth; Thoms v Commonwealth
CourtHigh Court of Australia
Argued8 May 2019; 5 December 2019
Decided11 February 2020
Citation(s)[2020] HCA 3
Case opinions
(Love) (4:3) Aboriginal Australians (understood according to the 3-part test in Mabo v Queensland (No 2)) are not within the reach of the "aliens" power conferred by s 51(xix) of the Constitution). The Court is unable, however, to agree as to whether Mr Love is an Aboriginal Australian and unable to determine whether Mr Love is an "alien" under section 51(xix) of the Australian Constitution. (per Bell, Nettle, Gordon & Edelman JJ)
(Thoms) (4:3) Aboriginal Australians (understood according to the 3-part test in Mabo v Queensland (No 2)) are not within the reach of the "aliens" power conferred by s 51(xix) of the Constitution. Mr Thoms is an Aboriginal Australian and is not an alien under section 51(xix) of the Australian Constitution. (per Bell, Nettle, Gordon & Edelman JJ)
Court membership
Judges sittingKiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ

Background

Daniel Love and Brendan Thoms were men who had failed their migration character tests as a result of serving jail sentences. Neither Love nor Thoms was an Australian citizen, but both identified as Aboriginal Australians.[1] The government was trying to deport both men as aliens under the provisions of the Migration Act 1958, based on a 2014 amendment of the Act.[2][3]

Love was a recognised member of the Kamilaroi people who was born in Papua New Guinea. He had been placed in immigration detention after he was sentenced to more than a year in jail for assault occasioning actual bodily harm. His visa was revoked by Commonwealth Immigration Minister Peter Dutton, but this was later overturned and he was released from detention.[1]

Thoms was a native title holder and a member of the Gunggari people who was born in New Zealand. He was also placed in immigration detention after serving part of an 18-month sentence for domestic violence. He remained in detention until the judgment was handed down.[1]

Decision

In the judgment, titled Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3,[4] each judge issued a separate judgment. A majority of the Court (Bell, Nettle, Gordon & Edelman JJ) found that Aboriginal Australians (understood according to the tripartite test in Mabo v Queensland (No 2)) were not within the reach of the "aliens" power conferred by s 51(xix) of the Constitution.[5][2][3]

The majority could not, however, determine whether Love was an Aboriginal Australian and remitted the matter to the Federal Court to deal with that question. As Thoms had already been recognised as an Aboriginal Australian through his native title claim, the Court determined that he was not an alien.[5]

Consequences

The following day, Christian Porter, Attorney-General of Australia, said the decision created "an entirely new category of people in terms of what the government can and can’t do” a non-citizen non-alien, or "belonger". Porter said that the government would be looking to deport the small group of Aboriginal non-citizens who have committed serious offences in a different way.[6] Peter Dutton described the decision as "a very bad thing" that would be "exploited by lawyers", and said he had sought legal advice from the Department of Home Affairs that would be "looking to restrict the damage".[7]

Constitutional law professor Anne Twomey said that it was too early to tell what the ramifications would be, especially in light of the fact that each of the seven-person bench had given individual reasonings. The Law Council of Australia said that a number of "complex issues" had been raised, and would give rise to a great deal of debate and scrutiny.[8]

Wamba Wamba lawyer Eddie Synot of the Indigenous Law Centre at the University of New South Wales said the judgment concerned a “very narrow application of the aliens power” and explicitly stated that it was not a recognition of Aboriginal sovereignty.[6][8]

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See also

References
  1. Byrne, Elizabeth; Robertson, Josh (11 February 2020). "High Court rules Aboriginal people cannot be deported for criminal convictions, cannot be 'alien' to Australia". ABC News. Australian Broadcasting Corporation. Retrieved 11 February 2020.
  2. Karp, Paul (11 February 2020). "High court rules Aboriginal Australians are not 'aliens' under the constitution and cannot be deported". the Guardian. Retrieved 12 February 2020.
  3. Byrne, Elizabeth; Robertson, Josh (11 February 2020). "Man released from detention as High Court rules Aboriginal people cannot be deported". ABC News. Australian Broadcasting Corporation. Retrieved 12 February 2020.
  4. Love v Commonwealth; Thoms v Commonwealth [2020] HCA 3 (11 February 2020), High Court (Australia)
  5. "Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3 - Judgment Summary" (PDF). High Court of Australia. Commonwealth of Australia. Retrieved 11 February 2020.
  6. Karp, Paul; Wahlquist, Calla (12 February 2020). "Coalition seeks to sidestep high court ruling that Aboriginal non-citizens can't be deported". the Guardian. Retrieved 12 February 2020.
  7. Young, Evan (13 February 2020). "'A very bad thing': Peter Dutton slams High Court's Aboriginal 'aliens' ruling". SBS News. Special Broadcasting Service. Retrieved 13 February 2020.
  8. Wahlquist, Calla (12 February 2020). "Legal experts urge caution on high court ruling that Aboriginal Australians are not 'aliens'". the Guardian. Retrieved 12 February 2020.

Further reading
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