“Always was, always will be”. This traditional protest call, the theme of NAIDOC week for 2020, ordinarily relates to the idea of indigenous connection to land, and is at the core of native title preceding and co-existing with common law sovereignty. But can this statement also be applied to the idea of being Aboriginal Australian? In Love v Commonwealth and Thoms v Commonwealth, the High Court considered the intersection between being Aboriginal Australian and that of ‘alien’ within the meaning of section 51(xix) of the Constitution.1
By a majority of 4 to 3, the Court decided that Aboriginal Australians who are born overseas and are not citizens of Australia are nevertheless not within the reach of the ‘aliens’ power in s 51(xix) of the Constitution.
The Plaintiffs, Daniel Love and Brendan Thoms, were both born overseas with one Aboriginal Australian parent and both identify as Aboriginal Australian. Both Plaintiffs had been recognised as members of an Aboriginal community. However, neither Mr Love nor Mr Thoms sought to become Australian citizens.
The Commonwealth sought to deport both Plaintiffs pursuant to s 501(3A) of the Migration Act 1958 (Cth), on the basis that both were serving a term of imprisonment of 12 months or more. The Commonwealth argued that, since the Plaintiffs were not citizens, they were necessarily aliens, and therefore the Commonwealth had the jurisdiction to deport the Plaintiffs pursuant to s 51(xix) of the Constitution.
The majority, Bell, Nettle, Gordon and Edelman JJ, held that persons in the Plaintiffs’ position were not within the reach of s 51(xix) for the following reasons:
- there is a special and unique connection between Aboriginal and Torres Strait Islander peoples and the land and waters of Australia as recognised by the Court’s decision in Mabo v Queensland [No 2],2 such that Aboriginal Australians are in a unique position in Australia;3
- the antonym of an ‘alien’ is not ‘citizen’,4 but a ‘non-alien’,5 or a ‘belonger’ to the political community;6
- the two common tests of citizenship, by birth (jus soli) or by descent (jus sanguinis), are not the only examples of membership of a political community;7 and
- that the recognition by the common law of the unique spiritual connection between Aboriginal Australians and their traditional lands is incongruous with the finding that an Aboriginal Australian can be described as alien to that land.8
The minority, Kiefel CJ, Gageler and Keane JJ disagreed that the Plaintiffs were not within the scope of s 51(xix). Their Honours held that:
- the Commonwealth’s constitutional power under s 51(xix) should not be limited by race;9
- although Aboriginal Australians have a special connection to the lands and waters of Australia, this connection has limits,10 and does not extend to a recognition in the common law of Indigenous sovereignty at large or a recognition of the traditional laws and customs;11
- allowing individuals and their communities to determine their Aboriginal status, and therefore whether or not they were non-aliens, is a concession of sovereignty and constitutional capacity to an unconstitutional person or authority that is beyond the Court’s jurisdiction;12 and
- section 51(xix) should not be read to say: ‘naturalization and aliens, save in respect of members of the Aboriginal race’13 or ‘(other than [members of] the aboriginal race)’.14
Despite providing separate reasons, the majority judges provided a clear consensus by authorising Bell J to state 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”.15
The majority held that determination of whether the Plaintiffs were Aboriginal was a question of fact, requiring a claim of Aboriginal descent, identity as a member of an Aboriginal community and a recognition of that claim by the Aboriginal community. On the facts, Nettle J found that Mr Thoms was a recognised member of an Aboriginal community because his status as a native title holder was undisputed. However, his Honour found that the facts were unclear in respect of Mr Love, and remitted the question of his status to the Federal Court.16