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Love v Commonwealth of Australia


The High Court of Australia ruled by a majority of 4-to-3 that indigenous Australians who do not hold Australian citizenship.

The question before the High Court was whether it is within the legislative competence of the Parliament under s 51(xix) of the Constitution to treat either plaintiff as an “unlawful non-citizen” (within the meaning of s 14(1) of the Migration Act), and thus to detain and possibly to deport him under ss 189, 196, and 200 of the Migration Act. After hearing all the contentions, the High Court held that— the constitutional concept of an alien is not coterminous with any persons whom the Commonwealth of Australia Parliament chooses to make statutory citizens. That long-standing assumption is correct. The 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 a person and Australian land, or “mother nature”.

The High Court further stated that— this conclusion could only be avoided by denying its premise so that the children in both scenarios are capable of being aliens according to the definition of citizen chosen by the Commonwealth of Australia Parliament. That approach would be contrary to the essential meaning of s 51(xix), which is not tied to the state of legislation. It would deny the long-standing existence of a category of persons who are non-citizens and non-aliens. It would effectively allow the Commonwealth Parliament to recite itself to power. To the extent that such an approach might be said to be based upon a concern for equality within the political community, it would involve a misunderstanding of both equality and community. And, by denying the unquestioned premise and authority upon which every party and the intervener proceeded in these special cases., it would deny Aboriginal people the essence of their identity without giving any party or the intervener, or any of the population of more than half a million Aboriginal or Torres Strait Islander people or their respective bodies, the opportunity to be heard on the point.

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At its conclusion, the High Court held that— the plaintiff is not an alien within the meaning of s 51(xix) of the Constitution, and that the defendant should pay the costs of the special case.