Love v Commonwealth; Thoms v Commonwealth [2020] HCA 3

Summary Background majority minority Conclusion Summary

"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.

Background

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...