Love v Commonwealth of Australia; Thoms v Commonwealth of Australia - Special Case Opinion on Constitutional Law

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ORDER

The questions stated in the special case for the opinion of the Full Court are answered as follows:

One. Is the plaintiff an "alien" within the meaning of section fifty-one(xix) of the Constitution?

Answer: The majority considers that Aboriginal Australians (understood according to the tripartite test in Mabo versus Queensland [Number two], one seventy-five C L R one at seventy) are not within the reach of the "aliens" power conferred by section fifty-one(xix) of the Constitution. The majority is unable, however, to agree as to whether the plaintiff is an Aboriginal Australian on the facts stated in the special case and, therefore, is unable to answer this question.

Two. Who should pay the costs of this special case?

Answer: The defendant.

The questions stated in the special case for the opinion of the Full Court are answered as follows:

One. Is the plaintiff an "alien" within the meaning of section fifty-one(xix) of the Constitution?

Answer: Aboriginal Australians (understood according to the tripartite test in Mabo versus Queensland [Number two], one seventy-five C L R one at seventy) are not within the reach of the "aliens" power conferred by section fifty-one(xix) of the Constitution. The plaintiff is an Aboriginal Australian and, therefore, the answer is "No".

Two. Who should pay the costs of this special case?

Answer: The defendant.

Representation

S J Keim S C with K E Slack and A J Hartnett for the plaintiff in each matter (instructed by Maurice Blackburn Lawyers)

S P Donaghue Q C, Solicitor-General of the Commonwealth, with N M Wood and J D Watson for the defendant in both matters (instructed by Australian Government Solicitor)

P G Willis S C with T B Goodwin for the Attorney-General for the State of Victoria, intervening in both matters (instructed by Victorian Government Solicitor) at the hearing on fifth December twenty nineteen

CATCHWORDS

The question of law

Section fifty-one(xix)

The Citizenship Act and the Australian body politic

Cases concerning alienage

The plaintiffs' essential contention

Aboriginal persons

Connection at common law

Aboriginal laws and customs

A constitutional implication?

Answers

Nature of the aliens power

Scope of the aliens power

Indigeneity and alienage

Articulation of the plaintiffs' argument

Rejection of the plaintiffs' argument

Disposition

The facts

Mr Love

Mr Thoms

From subjects to citizens

Aliens and citizens

Alienage and foreign allegiance

Section fifty-one clause xix and Aboriginality

Aboriginal connection with lands and waters in Australia

Native title and political sovereignty

A new basis for native title?

Permanent allegiance?

Conclusion and orders

The facts

Relevant statutory provisions

The question restated

The plaintiffs' contentions

Alienage

Overview

The Full Court addresses the status of Aboriginal Australians and their classification under constitutional law as it pertains to the concept of alienage. It examines the power of the Commonwealth Parliament to define who is considered an "alien" and the special status of Aboriginal peoples.

Key Points

1The majority opinion finds that Aboriginal Australians are not classified as "aliens" under section fifty-one(xix)
2The plaintiffs, non-citizens from Papua New Guinea and New Zealand, claim special status due to their Aboriginal heritage
3Their visas were cancelled, resulting in their classification as unlawful non-citizens
4The Court emphasized the role of Parliament in defining citizenship and alienage under the Constitution
5Legal interpretation must not incorporate values or policy judgments outside the Constitution's text.

Details

Category: Law and Legal Studies

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