Love v Commonwealth of Australia; Thoms v Commonwealth of Australia

In *Love v Commonwealth of Australia; Thoms v Commonwealth of Australia*, the High Court of Australia considered the constitutional validity of provisions of the *Migration Act 1958* (Cth) that deemed non-citizens who had been convicted of certain criminal offences to be 'unlawful non-citizens' and liable for detention and removal from Australia, regardless of whether they held a visa. The applicants, Mr Love and Mr Thoms, were Aboriginal Australians who had been born in Australia but were not citizens. Both had been convicted of criminal offences and, as a result, were deemed 'unlawful non-citizens' under the Act, facing detention and potential removal.

The central legal question before the High Court was whether the definition of 'alien' in s 51(xix) of the *Constitution* extended to Aboriginal Australians who were not citizens. This question arose because the *Constitution* grants the Commonwealth Parliament the power to make laws with respect to 'aliens in and in relation to Australia'. If Aboriginal Australians were not 'aliens' for the purposes of s 51(xix), then the Commonwealth Parliament would lack the constitutional power to legislate with respect to them in the manner it had done under the *Migration Act*.

The High Court, by majority, held that the term 'alien' in s 51(xix) of the *Constitution* does not extend to Aboriginal Australians. The Court reasoned that the common law, as it stood at the time of Federation, recognised Aboriginal Australians as the original inhabitants of the continent, possessing their own laws and customs, and that they were not subject to British law in the same way as other inhabitants. This recognition meant that they were not considered 'aliens' in the sense contemplated by the *Constitution*. Consequently, the provisions of the *Migration Act* that deemed Aboriginal Australians to be 'unlawful non-citizens' and subject to detention and removal were beyond the constitutional power of the Commonwealth Parliament.

The High Court made declarations that Mr Love and Mr Thoms were not aliens within the meaning of s 51(xix) of the *Constitution*. The appeals were allowed, and the detention orders against Mr Love and Mr Thoms were quashed.