Love v Commonwealth of Australia; Thoms v Commonwealth of Australia

These proceedings before the High Court of Australia concerned two separate matters, *Love v Commonwealth of Australia* and *Thoms v Commonwealth of Australia*. The plaintiffs in both matters, Daniel Alexander Love and Mr Thoms, were represented by Mr S.J. Keim, QC, and the defendant, the Commonwealth of Australia, was represented by Mr N.M. Wood. The cases involved similar factual circumstances, with the primary distinction being that Mr Thoms was born in New Zealand and Mr Love in New Guinea, and the differing parentage of each plaintiff. The Court considered the convenience and efficiency of hearing both matters concurrently, particularly given Mr Thoms's ongoing detention.

The central legal issues before the Court revolved around the plaintiffs' status as "aliens" for the purposes of section 51(xix) of the Australian Constitution. The plaintiffs advanced two independent arguments. The primary argument was that a member of the Aboriginal race, as identified in the Constitution, cannot be an alien. The alternative argument concerned the impact of having a parent born overseas, which the Court noted was a fact-intensive and individual question. The Court also considered the relevance of facts demonstrating a connection to Australia, such as residency and acceptance by Aboriginal elders, to both of these arguments, and whether such facts were in dispute.

The Court's reasoning focused on procedural efficiency and the substantive legal arguments. It was deemed more expedient to prepare and hear both cases concurrently, especially given the limited time difference in their programming and the potential benefit of having both cases before the Court simultaneously, particularly when considering the alternative, fact-dependent argument. Regarding the substantive legal issues, the Court noted the plaintiffs' primary submission that indigenous Australians cannot be aliens. The Court also acknowledged the plaintiffs' desire to include facts demonstrating a connection to Australia as a reserve for their arguments, even if not strictly necessary for the primary indigenous descent argument. Both parties confirmed that there were no disputed facts of decisive importance to the plaintiffs' case, particularly concerning their connection to Australia.

The Court made orders for the *Thoms* matter to file an agreed special case by 15 February 2019, with further directions hearings scheduled for both matters on 19 February 2019. Costs in both matters were to be in the cause. The Court indicated it would consider any proposed programming orders administratively if submitted by 18 February 2019.