Love v The Commonwealth

[2020] HCA 3

HIGH COURT OF AUSTRALIA

KIEFEL CJ,
BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ

Matter No B43/2018

DANIEL ALEXANDER LOVE  PLAINTIFF

AND

COMMONWEALTH OF AUSTRALIA  DEFENDANT

Matter No B64/2018

BRENDAN CRAIG THOMS  PLAINTIFF

AND

COMMONWEALTH OF AUSTRALIA  DEFENDANT

Love v Commonwealth of Australia
Thoms v Commonwealth of Australia

[2020] HCA 3

Date of Hearing: 8 May 2019 & 5 December 2019
Date of Judgment: 11 February 2020

B43/2018 & B64/2018

ORDER

Matter No B43/2018

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

1.Is the plaintiff an "alien" within the meaning of s 51(xix) of the Constitution?

Answer:  The majority considers that Aboriginal Australians (understood according to the tripartite test in Mabo v Queensland [No 2] (1992) 175 CLR 1 at 70) are not within the reach of the "aliens" power conferred by s 51(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.

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

Answer:The defendant.

Matter No B64/2018

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

1.Is the plaintiff an "alien" within the meaning of s 51(xix) of the Constitution?

Answer:  Aboriginal Australians (understood according to the tripartite test in Mabo v Queensland [No 2] (1992) 175 CLR 1 at 70) are not within the reach of the "aliens" power conferred by s 51(xix) of the Constitution. The plaintiff is an Aboriginal Australian and, therefore, the answer is "No".

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

Answer:The defendant.

Representation

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

S P Donaghue QC, 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 SC 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 5 December 2019

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Love v Commonwealth of Australia
Thoms v Commonwealth of Australia

Constitutional law (Cth) – Powers of Commonwealth Parliament – Power to make laws with respect to naturalisation and aliens – Meaning of "aliens" – Where plaintiffs foreign citizens, born outside Australia, who did not acquire Australian citizenship – Where plaintiffs biological descendants of indigenous peoples – Where plaintiffs' visas cancelled under s 501(3A) of Migration Act 1958 (Cth) – Whether statutory citizenship and constitutional alienage co‑terminous – Whether an Aboriginal Australian (defined according to tripartite test in Mabo v Queensland [No 2] (1992) 175 CLR 1) can be "alien" within meaning of s 51(xix) of Constitution – Whether s 51(xix) supports application of ss 14, 189 and 198 of Migration Act to plaintiffs – Whether plaintiffs satisfy tripartite test.

Words and phrases – "Aboriginal Australian", "alienage", "aliens", "allegiance", "body politic", "citizen", "connection to country", "essential meaning", "foreign citizen", "indicia of alienage", "nationality", "non‑alien", "non-alienage", "non-citizen", "obligation of protection", "political community", "polity", "sovereignty", "spiritual connection", "subject", "territory", "traditional laws and customs", "tripartite test", "unlawful non-citizen".

Constitution, s 51(xix), (xxvii).
Australian Citizenship Act 2007 (Cth), ss 12, 13, 14, 15, 16.
Migration Act 1958 (Cth), ss 5, 14, 189, 196, 198, 200, 501.

1. KIEFEL CJ. These two special cases raise questions concerning s 51(xix) of the Constitution, which provides that the Commonwealth Parliament has power to make laws "for the peace, order, and good government of the Commonwealth with respect to: ... naturalization and aliens". The plaintiffs argue that the power should be read so as not to apply to a person who is not a citizen of Australia, who is a citizen of a foreign country and is not naturalised as an Australian citizen, but who is an Aboriginal person. That is to say, the plaintiffs contend that s 51(xix) is subject to an unexpressed limitation or exception.

2. Each of the plaintiffs was born outside Australia – Mr Love in Papua New Guinea and Mr Thoms in New Zealand. They are citizens of those countries. They have both lived in Australia for substantial periods as holders of visas which permitted their residence but which were subject to revocation. They did not seek to become Australian citizens. Their visas were cancelled by a delegate of the Minister for Home Affairs under s 501(3A) of the Migration Act 1958 (Cth), the relevant effect of which is to require the Minister to cancel a person's visa if the person has been convicted of an offence for which a sentence of imprisonment of 12 months or more is provided[1]. Upon cancellation of their visas the plaintiffs became unlawful non-citizens[2] and liable to be removed from Australia.

   [1]Migration Act 1958 (Cth), s 501(6)(a), s 501(7)(c).

   [2]Migration Act 1958 (Cth), ss 13, 14.

3. The Migration Act and the Australian Citizenship Act 2007 (Cth) ("the Citizenship Act") are enacted under s 51(xix)[3]. The plaintiffs do not challenge the provisions of those statutes. They do not contend that the criteria stated in the Citizenship Act for Australian citizenship and the inference to be drawn from those criteria respecting the status of alien is not within the power given by s 51(xix). They contend that they are outside the purview of those statutes and s 51(xix) because they have a special status as a "non-citizen, non-alien". They say that they have that status because although they are non-citizens they cannot be aliens because they are Aboriginal persons. Mr Thoms identifies, and is accepted by other Gunggari People, as a member of the Gunggari People. He is a common law holder of native title which has been recognised by determinations made by the Federal Court of Australia[4]. Mr Love identifies as a descendant of the Kamilaroi group and is recognised as such by one Elder of that group.

   [3]See, eg, Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 443 [156] per Gummow and Hayne JJ; Pochi v Macphee (1982) 151 CLR 101.

   [4]Kearns on behalf of the Gunggari People #2 v Queensland [2012] FCA 651; Foster on behalf of the Gunggari People #3 v Queensland [2014] FCA 1318.

   The question of law

4. The question of law stated for the opinion of this Court in these special cases is whether each of the plaintiffs is an "alien" within the meaning of s 51(xix). The question as framed is apt to mislead as to the role of this Court. It is not for this Court to determine whether persons having the characteristics of the plaintiffs are aliens. Such an approach would involve matters of values and policy. It would usurp the role of the Parliament. The question is perhaps best understood to be directed to whether it is open to the Commonwealth Parliament to treat persons having the characteristics of the plaintiffs as non‑citizens for the purposes of the Migration Act.

   Section 51(xix)

5. Section 51(xix) gives the Commonwealth Parliament power to choose the criteria for alienage[5]. It gives the Parliament the power to provide the means by which that status is altered, which is to say by naturalisation. It gives the Parliament power to determine the conditions upon which a non-citizen may become a citizen and to attribute to any person who lacks the qualifications for citizenship the status of alien[6]. It is now regarded as settled that it is for the Parliament, relying on s 51(xix), to create and define the concept of Australian citizenship and its antonym, alienage[7].

   [5]Koroitamana v The Commonwealth (2006) 227 CLR 31 at 38 [11] per Gleeson CJ and Heydon J.

   [6]Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 at 35 [2] per Gleeson CJ, Gummow and Hayne JJ.

   [7]Koroitamana v The Commonwealth (2006) 227 CLR 31 at 46 [48] per Gummow, Hayne and Crennan JJ, citing Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002) 212 CLR 162 at 173 [31], 180 [58], 188-189 [90], 192 [108]-[109], 215-216 [193]-[194], 219-220 [210]-[211], 229 [229]; see also Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 at 35 [2] per Gleeson CJ, Gummow and Hayne JJ.

6. At Federation it was well recognised that an attribute of an independent sovereign State was to decide who were aliens and whether they should become members of the community[8]. It was a view held by international jurists of the time and was followed by the courts of the United Kingdom[9]. At Federation there were two leading theories about the status of subject or citizen and how it was to be determined. On one view that status was acquired by descent; on the other it was acquired by reference to a person's place of birth. The latter reflected the view of the common law, earlier expressed in Calvin's Case[10], but which had been modified by statute in the United Kingdom. But by s 51(xix) it was to be left to the Commonwealth Parliament to deal with the subject matter of aliens[11].

   [8]Robtelmes v Brenan (1906) 4 CLR 395 at 400-401 per Griffith CJ.

   [9]Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002) 212 CLR 162 at 170 [21] per Gleeson CJ.

   [10](1608) 7 Co Rep 1a [77 ER 377].

   [11]Singh v The Commonwealth (2004) 222 CLR 322 at 340-341 [30] per Gleeson CJ, 413-414 [251]-[252] per Kirby J.

7. Following Federation it was open to the Commonwealth Parliament to choose one or more of the common law approaches, or variations of them, so long as what was chosen could be said truly to answer the description of "alien"[12]. In Pochi v Macphee[13], Gibbs CJ acknowledged that, necessarily, there must be a limit to Parliament's powers to determine who comes within the definition of an "alien". The limit to which his Honour referred was that Parliament could not expand the power under s 51(xix) by defining as aliens persons who could not possibly answer the description of an "alien" in the ordinary understanding of that word. No question of that kind[14] arises in these special cases. The plaintiffs do not suggest that the criteria stated in the Citizenship Act are beyond the power of the Parliament. Rather, they argue that neither that statute nor s 51(xix) applies to a person who is a non‑citizen, a citizen of a foreign country and an Aboriginal person.

   [12]Koroitamana v The Commonwealth (2006) 227 CLR 31 at 49 [62] per Kirby J.

   [13](1982) 151 CLR 101 at 109.

   [14]See Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 258 per Fullagar J.

8. Section 51(xix) is not expressed to be subject to any prohibition, limitation or exception respecting Aboriginal persons. The task of this Court, in interpreting a provision of the Constitution, is to expound its text and where necessary to ascertain what is implied in it. Needless to say, questions of constitutional interpretation cannot depend on what the Court perceives to be a desirable policy[15] regarding the subject of who should be aliens or the desirability of Aboriginal non-citizens continuing to reside in Australia. The point presently to be made is that in the absence of a relevant constitutional prohibition or exception, express or implied, it is not a proper function of a court to limit the method of exercise of legislative power[16]. The question then is whether the plaintiffs can point to an implication by the accepted methods of constitutional interpretation.

   [15]Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 143-144 per Brennan J.

   [16]Adelaide Company of Jehovah's Witnesses Inc v The Commonwealth (1943) 67 CLR 116 at 133-134 per Latham CJ.

   The Citizenship Act and the Australian body politic

9. From the time of British settlement the legal status of Aboriginal persons in Australia – as subjects of the Crown – has not been different from other Australians. In Mabo v Queensland [No 2][17], it was explained that at settlement all persons present in Australia became subjects of the British Crown on the inception of the common law. With the enactment of the Nationality and Citizenship Act 1948 (Cth)[18] British subjects became citizens of Australia. It has been observed[19] that another effect of Australia becoming a fully independent sovereign nation, with its own brand of citizenship, was that the word "alien" became synonymous with non‑citizen.

   [17](1992) 175 CLR 1 at 37-38 per Brennan J, with whom Mason CJ and McHugh J agreed, 80 per Deane and Gaudron JJ, 182 per Toohey J.

   [18]Later renamed the Australian Citizenship Act 1948 (Cth).

   [19]Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 25 per Brennan, Deane and Dawson JJ, referring to Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178.

10. Neither the Citizenship Act nor the Migration Act defines the term "alien". The Citizenship Act does specify the criteria for citizenship and it may be taken that Parliament attributes the status of alien to a person who does not have those characteristics. The preamble to the Citizenship Act states that "Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia" and is a "common bond" involving reciprocal rights and obligations. The community there referred to may be understood to be the "people" referred to in the Constitution[20].

    [20]See Constitution, preamble, s 24.

11. Under the Citizenship Act a person is automatically an Australian citizen if born in Australia and one or both parents of the person are Australian citizens or permanent residents at that time[21]. There are other ways in which a person may acquire citizenship automatically. A person may also acquire citizenship by application to the Minister[22]. One basis for such an application is citizenship by descent, where a person is born outside Australia and one or both of the parents of the person are Australian citizens[23]. Citizenship by descent is not automatically conferred.

    [21]Australian Citizenship Act 2007 (Cth), ss 2A, 4(1), 12.

    [22]Australian Citizenship Act 2007 (Cth), s 16.

    [23]Australian Citizenship Act 2007 (Cth), s 16(2).

12. The preamble to the Citizenship Act goes on to state that the Parliament recognises that persons conferred with Australian citizenship will have the reciprocal rights and obligations as citizens after pledging loyalty to Australia and its people and after pledging to uphold and obey the laws of Australia.

13. The reciprocal obligations of loyalty or allegiance[24] on the part of a citizen and the protection given by the Crown in right of Australia to its citizens are somewhat abstract in that their content is not clear[25]. It may be expected that Australia will continue to provide protection to its citizens, or nationals, when abroad[26]. Within Australian territory all persons, citizens and non-enemy aliens alike, have the protection of the law[27].

    [24]Joyce v Director of Public Prosecutions [1946] AC 347.

    [25]Singh v The Commonwealth (2004) 222 CLR 322 at 387-388 [165]-[166] per Gummow, Hayne and Heydon JJ.

    [26]Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 at 8 [19], 23-24 [63]; Singh v The Commonwealth (2004) 222 CLR 322 at 387-388 [166] per Gummow, Hayne and Heydon JJ.

    [27]Bradley v The Commonwealth (1973) 128 CLR 557 at 582-583 per Barwick CJ and Gibbs J; Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002) 212 CLR 162 at 197-199 [125]-[130] per Gummow J.

14. The preamble to the Citizenship Act makes plain, if it were necessary, the importance of the power given to the Commonwealth Parliament respecting citizenship, alienage and naturalisation. It is by this means that Parliament determines who is to be part of the body politic and who is not to be. It is a serious matter to deny a power which is fundamental to the structure of the Constitution and the governance of Australia. The basis for an implication having this effect must be pellucidly clear.

    Cases concerning alienage

15. In the past four decades there have been a number of challenges to the provisions of the Citizenship Act, and its predecessors, and the Migration Act concerning the status of a non-citizen or alien. In each of those cases the non-citizen sought to identify a characteristic pertaining to them which placed them outside the reach of the statute. But as was said by Gummow, Hayne and Heydon JJ in Singh v The Commonwealth[28], the status of alien is not defined by pointing to what is said to take a person outside the reach of Parliament's prescription, rather it depends upon what it is that gives the person that status.

    [28](2004) 222 CLR 322 at 398 [200].

16. The preamble to the Citizenship Act identifies an important feature of the relationship between citizen and State. It is the loyalty owed by a citizen to the State. The decision in Singh highlights the importance of loyalty, or allegiance[29], to the question of alienage. But it has also been held to be within the power of the Parliament to treat as an alien a stateless person who owes no such allegiance to the State[30]. It may be sufficient that the person has the characteristics of being born in Australia but to foreign nationals, when the statute requires that one or both of the parents be Australian citizens or permanent residents of Australia.

    [29]See Joyce v Director of Public Prosecutions [1946] AC 347.

    [30]Koroitamana v The Commonwealth (2006) 227 CLR 31.

17. There have been a number of cases in which it has been argued, unsuccessfully, that a person's strong connection to Australia and its community takes a non‑citizen out of the operation of the statute. In Pochi, the plaintiff was an alien immigrant who had not been naturalised. Like the plaintiffs, he was facing deportation after being convicted of a serious offence. He argued that his long residency in Australia and absorption into the Australian community took him outside the statutory meaning of "alien". In Shaw v Minister for Immigration and Multicultural Affairs[31], the plaintiff pointed to his connection with Australia gained through his personal history. In Singh and in Koroitamana v The Commonwealth[32], the plaintiffs sought to rely on the fact that they were born in Australia. But birth in Australia will not exclude a person from the reach of statutory‑mandated alienage. That status now applies even to a British subject who has not been naturalised. A long connection with Australia and its community will not deprive a person of that status[33].

    [31](2003) 218 CLR 28.

    [32](2006) 227 CLR 31.

    [33]Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002) 212 CLR 162; Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 at 43 [31] per Gleeson CJ, Gummow and Hayne JJ, 87 [190] per Heydon J.

18. In Nolan v Minister for Immigration and Ethnic Affairs[34] it was observed that, as a matter of etymology, "alien" means belonging to another place. This is not a reference to a person's feelings of connection, however strong. It is not a reference to perceptions, to how a person might be understood by others to have a connection to a country. Rather it describes a person's lack of formal legal relationship with the community or body politic of the country with which they contend to have a connection. In the United States the meaning attributed to "alien" has been said to be "one born out of the United States, who has not since been naturalized under the constitution and laws"[35].

    [34](1988) 165 CLR 178 at 183.

    [35]Milne v Huber (1843) 17 Fed Cas 403 at 406.

1. In the present case the plaintiffs were born outside Australia, are citizens of foreign sovereign countries and have not been naturalised under the Citizenship Act or its predecessor. They are not part of the community of the Commonwealth of Australia and do not have the relationship with the Crown in right of Australia that a member of that community has. In Re Minister for Immigration and Multicultural Affairs; Ex parte Te[36], Gleeson CJ said "there are many people who entered Australia as aliens, who have lived here for long periods and have become absorbed into the community ... Whether by design, or simply as the result of neglect, they remain aliens." Subject to consideration of the plaintiffs' argument as to the relevance of their aboriginality to s 51(xix), on the current state of authority it must be held to be within the power of the Commonwealth Parliament to treat them as aliens.

   [36](2002) 212 CLR 162 at 172 [27].

   The plaintiffs' essential contention

2. The plaintiffs do not challenge these decisions. They seek to distinguish their circumstances from the plaintiffs in those cases by reference to the special connection which they, as Aboriginal persons, have to Australia.

3. The plaintiffs' submissions have been subject to extensive elaboration. Their essential contention is that it may be seen by reference to Mabo [No 2] and following cases that the common law of Australia recognises the unique connection which Aboriginal people have with land and waters in Australia. The plaintiffs contend that that connection is so strong that the common law must be taken to have recognised that Aboriginal persons "belong" to the land. This recognition is inconsistent with the treatment of Aboriginal persons as strangers or foreigners to Australia. The status of alien provided for in s 51(xix) therefore cannot be applied to them, it is submitted.

   Aboriginal persons

4. The cases relied on by the plaintiffs refer to the connection to particular land by distinct groups of Aboriginal persons by reference to their laws and customs respecting that land[37]. The common law has never recognised, as the plaintiffs' argument at some points suggests, that Aboriginal persons as a whole comprise a singular society or group for the purposes of native title or that the connection spoken of extends beyond the traditional lands of the groups in question.

   [37]Mabo v Queensland [No 2] (1992) 175 CLR 1 at 70 per Brennan J, with whom Mason CJ and McHugh J agreed.

5. The plaintiffs' submissions do accept that in order to determine whether a person comes within the special category of "non-citizen, non-alien", on account of the person's aboriginality, some test would be necessary. The plaintiffs initially adopted the three-part test propounded by Brennan J in Mabo [No 2][38], which accords with definitions earlier proposed by Commonwealth departments[39], and later sought to adopt a test which they described as "analogous" to the three-part test. Under that test, aboriginality depends upon biological descent and upon recognition of the person's membership of the group with which the person identifies. In that latter regard, Brennan J said that membership of the group depends upon recognition by the Elders or other persons having traditional authority amongst those people[40].

   [38]Mabo v Queensland [No 2] (1992) 175 CLR 1 at 70.

   [39]Gardiner-Garden, Defining Aboriginality in Australia (2003) at 4; see also The Commonwealth v Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1 at 274 per Deane J.

   [40]Mabo v Queensland [No 2] (1992) 175 CLR 1 at 70.

6. It is not to be assumed that all persons of Aboriginal descent will be in a position to prove recognition by the group in question. Some native title cases bear this out. The evidence relating to Mr Love points to this difficulty. The agreed facts of the special case concerning Mr Love do not go so far as to establish that acceptance by one Elder of the Kamilaroi group is sufficient according to the laws of that group. No concession has been made by the Commonwealth in this regard.

7. Matters of proof may be put to one side. There is a more fundamental difficulty which arises from the plaintiffs' argument. It is that the legal status of a person as a "non-citizen, non-alien" would follow from a determination by the Elders, or other persons having traditional authority amongst a particular group, that the person was a member of that group. To accept this effect would be to attribute to the group the kind of sovereignty which was implicitly rejected by Mabo [No 2][41] – by reason of the fact of British sovereignty and the possibility that native title might be extinguished – and expressly rejected in subsequent cases[42].

   [41]Mabo v Queensland [No 2] (1992) 175 CLR 1 at 57-60, 63 per Brennan J, with whom Mason CJ and McHugh J agreed.

   [42]Coe v The Commonwealth (1993) 68 ALJR 110 at 115 per Mason CJ; 118 ALR 193 at 200; Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 at 443-444 [44] per Gleeson CJ, Gummow and Hayne JJ.

8. Nor is it to be assumed that all Aboriginal persons will be able to establish the requisite existing connection to particular land and waters as the common law requires. Yorta Yorta Aboriginal Community v Victoria[43] is a case in point. To meet these difficulties the plaintiffs contended, and Victoria intervening in support of the plaintiffs agreed, that it may be sufficient for the purposes of the test that an Aboriginal person be descended from a person who was accepted as a member of an Aboriginal group at the time of acquisition of sovereignty by the British Crown. This contention marks a significant divergence from the common law recognition of native title upon which the plaintiffs rely.

   [43](2002) 214 CLR 422.

   Connection at common law

9. Mabo [No 2] held that the common law recognises a form of native title to land and waters which has survived the acquisition of sovereignty by the British Crown. At the inception of the common law its protection was extended to the holders of a common law native title, which was a burden on the Crown's radical title[44].

   [44]Mabo v Queensland [No 2] (1992) 175 CLR 1 at 57-58 per Brennan J, with whom Mason CJ and McHugh J agreed.

10. Native title is liable to extinguishment, but when it is not extinguished it, and the persons who are entitled to it, is ascertained by reference to the traditional laws and customs respecting that land. It is by this means that it may be said that members of an Aboriginal group have a connection to the land and waters which supports the existence of native title. The incidents of native title, which is to say that which may be enjoyed by those persons with respect to the land, are also ascertained by reference to those laws and customs[45]. The nature of the connection to land and waters ascertained by reference to traditional laws and customs has been further explained in cases subsequent to Mabo [No 2]. It has been described as being not only material or physical, but also spiritual and cultural[46].

    [45]Mabo v Queensland [No 2] (1992) 175 CLR 1 at 70 per Brennan J, with whom Mason CJ and McHugh J agreed.

    [46]Yanner v Eaton (1999) 201 CLR 351 at 373 [38] per Gleeson CJ, Gaudron, Kirby and Hayne JJ; Western Australia v Ward (2002) 213 CLR 1 at 64-65 [14] per Gleeson CJ, Gaudron, Gummow and Hayne JJ; Northern Territory v Griffiths (2019) 93 ALJR 327 at 341 [23] per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ; 364 ALR 208 at 219.

11. It may be accepted that the connection spoken of in these cases is special, unique even. Its importance at a personal and community level to the members of an Aboriginal group cannot be denied. And it is an essential requirement of proof of native title. But it also has its limits, both geographical and as to the area of the law to which it is relevant. Neither its unique nature nor its importance can alter or extend the concept of connection so as to apply beyond those limits.

12. In a geographical sense the connection which is the concern of the common law of native title is limited to the particular land and waters which are the subject of traditional laws and customs of the Aboriginal group in question. Brennan J made this plain in Mabo [No 2][47]. The connection spoken of cannot be to the territory of the whole of Australia. A connection with any lands beyond those to which a group's traditional laws and customs relate is inconsistent with the concept of native title.

    [47]Mabo v Queensland [No 2] (1992) 175 CLR 1 at 70.

13. Closer to the heart of the plaintiffs' case is the erroneous assumption that the connection to land necessary for recognition by the common law of native title may be used in an entirely different area of the law, to answer questions of a constitutional kind about the relationship between an Aboriginal group and its members and the Australian body politic. Its use for such a purpose is wrong as a matter of law and of logic. The error is compounded by the fact that race is irrelevant to the questions of citizenship and membership of the Australian body politic[48].

    [48]Kartinyeri v The Commonwealth (1998) 195 CLR 337 at 366 [40] per Gaudron J.

14. Because the cases accept that the connection spoken of is spiritual and cultural, it may be said that the common law accepts that members of an Aboriginal group may feel a sense of "belonging" to the land in question and that others may perceive them to "belong" to the land. But that is not the "belonging" spoken of in the constitutional sense. In the constitutional context it refers to a characteristic which a citizen has with respect to the sovereign State of which they are a citizen and which an alien does not. A citizen may be said to belong to their country. A non-citizen or alien does not belong. An alien belongs to the sovereign State of which they are a citizen.

15. In the constitutional context "belonging" refers to the formal legal relationship between a person and the community or body politic in question. In Australia it is apt to describe the connection between a citizen and the body politic. It reflects a conclusion reached about that relationship rather than a premise upon which the relationship may be founded.

    Aboriginal laws and customs

16. Native title is not regarded as a creation of the common law, although Mabo [No 2] might be seen as correcting the prior refusal of the common law to recognise it. It was observed in Fejo v Northern Territory[49] that native title is not an institution of the common law. It has its origins in the traditional laws and customs of indigenous peoples. The common law takes those traditional laws and customs to evidence the connection to land and waters which is necessary for the existence and recognition of native title.

    [49](1998) 195 CLR 96 at 128 [46] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ.

17. The plaintiffs' submissions treat the common law as going further. They contend that, by accepting traditional laws and customs as the foundation for native title, the common law must be taken to accept that a decision made pursuant to them as to membership of the group has some recognised legal effect, including with respect to questions of alienage.

18. The other aspect of the plaintiffs' argument which relies upon the common law's acceptance or recognition of traditional laws and customs points to a characteristic of alienage. An alien, it is said, is a person to whom the Crown does not owe permanent protection. The common law, by its recognition of traditional laws and customs, must be taken to accept an obligation of protection of the persons subject to, and who create and maintain, them. The argument then follows that a member of an Aboriginal group cannot be an alien.

19. These arguments are based upon a wrong premise. It is not the traditional laws and customs which are recognised by the common law. It is native title (namely, the interests and rights possessed under the traditional laws and customs[50]) which is the subject of recognition by the common law, and to which the common law will give effect. The common law cannot be said by extension to accept or recognise traditional laws and customs as having force or effect in Australia. They are not part of the domestic law. To suggest that traditional laws may be determinative of the legal status of a person in relation to the Australian polity is to attribute sovereignty to Aboriginal groups contrary to Mabo [No 2] and later cases, as has earlier been explained[51].

    [50]Mabo v Queensland [No 2] (1992) 175 CLR 1 at 57 per Brennan J, with whom Mason CJ and McHugh J agreed.

    [51]See [25] above.

20. The common law's protection is not given to the traditional laws and customs upon which native title is based. It is extended to native title and the holders of native title[52]. The common law's concern with respect to traditional laws and customs is as to the evidence they may furnish of the requisite connection to land and waters and no more.

    [52]Mabo v Queensland [No 2] (1992) 175 CLR 1 at 57-58 per Brennan J, with whom Mason CJ and McHugh J agreed.

    A constitutional implication?

21. This is not the first occasion on which a non-citizen has argued for the acceptance of a special constitutional category of non-citizen, non-alien. The category was for a short time accepted by this Court, in Re Patterson; Ex parte Taylor[53]. That decision was disapproved in Shaw. It must be said that in neither case were arguments of the kind here advanced presented.

    [53](2001) 207 CLR 391 at 413 [52] per Gaudron J, 437 [136] per McHugh J, 493-494 [308] per Kirby J, 518 [377] per Callinan J.

22. If there is to be understood to be a special constitutional category of persons to whom s 51(xix) does not apply, it must be by way of exception to that provision. The plaintiffs do not point to anything in the text or context of s 51(xix) or any other provision to found an implication of this kind. As Brennan CJ explained in McGinty v Western Australia[54]:

    "Implications are not devised by the judiciary; they exist in the text and structure of the Constitution and are revealed or uncovered by judicial exegesis. No implication can be drawn from the Constitution which is not based on the actual terms of the Constitution, or on its structure."

    [54](1996) 186 CLR 140 at 168 (footnotes omitted), quoted in Kruger v The Commonwealth (1997) 190 CLR 1 at 152 per Gummow J.

23. If the implication for which the plaintiffs must contend is said to rest upon existing common law principle it would be necessary to consider whether, as the plaintiffs' argument implies, the common law trumps or controls the Constitution. It would require consideration of the relationship between the common law and the Constitution of which Sir Owen Dixon spoke[55] when he said that constitutional questions "should be considered and resolved in the context of the whole law, of which the common law ... forms not the least essential part". It would be necessary to consider whether his Honour intended to convey more than the proposition that the common law provides the context by reference to which a constitutional question is to be decided but that the question is not determined only by reference to the common law[56]. Regard might also be had to the view expressed by Mason CJ, Toohey and Gaudron JJ in Theophanous v Herald & Weekly Times Ltd[57] when, after referring to the statement of Sir Owen Dixon, their Honours said that it may be understood that the common law "set[s] the scene in which the Constitution operates", but that if a doctrine of the common law is at variance with the Constitution, the common law must yield. These views point up the difficulty for the plaintiffs in reading s 51(xix) by reference to what is said to be common law principle.

    [55]Dixon, "The Common Law as an Ultimate Constitutional Foundation" (1957) 31 Australian Law Journal 240 at 245.

    [56]See Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 126-127 per Mason CJ, Toohey and Gaudron JJ.

    [57](1994) 182 CLR 104 at 126.

24. In reality the plaintiffs' arguments do not rest upon existing common law principle. They are far removed from what was said in Mabo [No 2] and later native title cases. The plaintiffs must contend for the application of a new principle. This new principle cannot be said to be a development of the common law. If it were, the plaintiffs would have to explain how it could be applied in the face of the terms of s 51(xix), given that the common law cannot be developed inconsistently with the Constitution[58].

    [58]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 566 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ.

25. The new principle or rule for which the plaintiffs contend is not articulated by them but may be expressed as: that persons of Australian Aboriginal descent who have, or whose ancestors had, some connection with land in Australia are to be permitted to be physically present and not be subject to removal from Australia. So understood, the rule is of the nature of a right which would inhere in the person regardless of the person's status as a non-citizen and as a citizen of a foreign sovereign State and regardless of their lack of relationship with the body politic of the Commonwealth of Australia. It is this principle or rule which would found the necessary implication in s 51(xix) which excludes persons such as the plaintiffs from its operation.

26. If it was not already obvious from the arguments put for the plaintiffs, the identification of a rule of this kind points up an issue of race. The plaintiffs do not refer to s 51(xxvi) of the Constitution, by which the Commonwealth Parliament is expressly conferred power with respect to the people of any race for whom it is deemed necessary to make special laws. The Constitution makes no other relevant provision on the topic, which may be thought to render an implication involving race in s 51(xix) problematic. Moreover the express conferral of this power on the Parliament does not suggest that its subject is appropriate to the judicial function.

27. The plaintiffs' argument in connection to this rule cannot be said to be supported by assumptions about some underlying, but unexpressed, view upon which Mabo [No 2] and following cases proceeded concerning Aboriginal persons and the protection which the common law shall afford them. These cases were not concerned with any such question. Mabo [No 2] may have been a landmark decision but it did not provide a philosophical basis by which such questions might be answered. It and the cases which follow explain what is native title. They hold that it will be recognised when the necessary facts are present. But they do not speak more broadly.

28. What is the source of this proposed new principle if it is not the common law of native title? Clearly enough it is of such a nature that it may not be altered either by statute or by the Constitution. Because it is immutable it might be understood to bear the characteristics of a higher principle of which natural law might conceive[59]. But such conceptions are generally not regarded as consistent with constitutional theory[60]. And they are regarded by some as antithetical to the judicial function since they involve an appeal to the personal philosophy or preferences of judges[61].

    [59]See Singhv The Commonwealth (2004) 222 CLR 322 at 388-389 [170], 390 [174] per Gummow, Hayne and Heydon JJ.

    [60]Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 73 per Dawson J; Building Construction Employees & Builders' Labourers Federation (NSW) v Minister for Industrial Relations (1986) 7 NSWLR 372 at 403-405 per Kirby P.

    [61]Zines, "A Judicially Created Bill of Rights?" (1994) 16 Sydney Law Review 166 at 183, 184.

    Answers

29. In each of the proceedings I would answer Question 1 as follows: the plaintiff does not have the status of an Australian citizen according to legislation validly enacted under s 51(xix) of the Constitution. Accordingly each plaintiff is an alien within the meaning of s 51(xix).

1. So far as concerns Question 2, in each case the plaintiff should pay the costs of the special case.

2. BELL J. The question of law, the facts and the applicable legislation in each special case are set out in the reasons of other members of the Court and need not be repeated, save to the extent that it is necessary to explain my reasons. In the Commonwealth's submission, whether the plaintiffs are Aboriginal Australians is irrelevant to the determination of whether they are persons within the reach of the "aliens" power under s 51(xix) of the Constitution. In the event the Commonwealth is wrong in this respect, it makes no submission on whether either plaintiff is an Aboriginal Australian. For the reasons to be given, I answer the question of law upon acceptance that the plaintiff in each case is an Aboriginal Australian who was born overseas and is not an Australian citizen.

3. Section 51(xix) of the Constitution confers power on the Commonwealth Parliament to make laws with respect to "naturalization and aliens". The question of law in each special case turns on the meaning of "aliens" in this provision. In Pochi v Macphee Gibbs CJ stated[62]:

   "[T]he Parliament cannot, simply by giving its own definition of 'alien', expand the power under s 51(xix) to include persons who could not possibly answer the description of 'aliens' in the ordinary understanding of the word."

   [62](1982) 151 CLR 101 at 109 (Mason J agreeing at 112, Wilson J agreeing at 116).

4. The issue in these special cases is whether, as the plaintiffs assert, Aboriginal Australians are persons who cannot possibly answer the description of "aliens" in the ordinary understanding of the word.

5. The plaintiffs and the Commonwealth are at one in acknowledging that at Federation Aboriginal Australians were not aliens. The Commonwealth submits that this is because in 1901 Aboriginal Australians were persons who were born in Australia and by virtue of that circumstance were subjects of the Queen. The plaintiffs do not contest that this is one reason why, at Federation, Aboriginal Australians were not aliens. A more fundamental reason, in their submission, is the unique connection that Aboriginal Australians have to the land and waters of Australia; a connection which at least since Mabo v Queensland [No 2][63] has been recognised by the Australian body politic. 

   [63](1992) 175 CLR 1.

6. The Commonwealth relies on a line of unchallenged authority, commencing with Nolan v Minister for Immigration and Ethnic Affairs, holding that since Australia's emergence as a fully independent sovereign nation with its own distinct citizenship, alien in s 51(xix) has come to be synonymous with "non-citizen"[64]. As subsequently explained in Shaw v Minister for Immigration and Multicultural Affairs, the power conferred by s 51(xix) supports legislation determining those to whom the status of alien is to be attributed[65]. The legislation that presently performs this function is the Australian Citizenship Act 2007 (Cth) ("the Citizenship Act"), which exhaustively provides the circumstances in which a person has the status of an Australian citizen. Neither plaintiff acquired that status at the time of his birth because each was born outside Australia. It follows, in the Commonwealth's submission, that absent challenge to the Citizenship Act, the plaintiffs' case must fail.

   [64](1988) 165 CLR 178 at 183-184 per Mason CJ, Wilson, Brennan, Deane, Dawson and Toohey JJ.

   [65](2003) 218 CLR 28 at 35 [2].

7. The Commonwealth advanced an alternative argument, based on the analysis in the joint reasons of Gummow, Hayne and Heydon JJ in Singh v The Commonwealth, that the defining characteristic of alienage is the owing of allegiance to a foreign power[66]. Whether a person possesses some other characteristic, such as having been born to an Australian parent, or having other deep ties to Australia, is, on this analysis, immaterial. That is because, as the joint reasons put it[67]: 

   "The central characteristic of that status is, and always has been, owing obligations (allegiance) to a sovereign power other than the sovereign power in question (here Australia). That definition of the status of alienage focuses on what it is that gives a person the status: owing obligations to another sovereign power. It does not seek to define the status, as the plaintiff sought to submit, by pointing to what is said to take a person outside its reach."

   [66](2004) 222 CLR 322 at 398 [200].

   [67](2004) 222 CLR 322 at 398 [200].

8. Mr Love was born in Papua New Guinea and is a citizen of that country and Mr Thoms was born in New Zealand and is a citizen of that country. The Commonwealth submitted that absent a challenge to Singh, the plaintiffs' case must also fail.

9. The plaintiff in Singh was born in Australia and had remained in Australia continuously since her birth. Her parents were citizens of India. She challenged the validity of s 10 of the Australian Citizenship Act 1948 (Cth), the predecessor to the Citizenship Act, insofar as it purported to deny Australian citizenship to any person born in Australia who had not attained the age of ten years. Her case was conducted on the footing that an essential characteristic of a constitutional alien is that he or she was born outside Australia[68], because a person born within Australia would not have been an alien at Federation, under the common law[69]. 

   [68](2004) 222 CLR 322 at 332 [11] per Gleeson CJ.

   [69](2004) 222 CLR 322 at 398 [199] per Gummow, Hayne and Heydon JJ.

10. Building on the analyses in Nolan[70] and Shaw[71], the joint reasons rejected Tania Singh's "one-sided understanding of the [aliens] power"[72], because it failed to accommodate the change in Australia's relationship to the United Kingdom since Federation. In this context, their Honours said that the "central characteristic" of the status of alien is owing obligations to a sovereign power other than Australia[73]. Tania Singh had acquired Indian citizenship at birth and thus she owed allegiance to a foreign sovereign power. The possession of this characteristic sufficed to resolve the case stated in Singh[74]. As the joint reasons in Singh made clear, their Honours were not seeking to describe the metes and bounds of the constitutional expression "aliens"; they were determining whether the circumstances presented by Tania Singh were such that s 51(xix) did, or did not, have the consequence for which she contended[75].

    [70](1988) 165 CLR 178.

    [71](2003) 218 CLR 28.

    [72](2004) 222 CLR 322 at 398 [198] per Gummow, Hayne and Heydon JJ.

    [73](2004) 222 CLR 322 at 398 [200] per Gummow, Hayne and Heydon JJ.

    [74](2004) 222 CLR 322 at 383 [154] per Gummow, Hayne and Heydon JJ.

    [75](2004) 222 CLR 322 at 383 [152] per Gummow, Hayne and Heydon JJ.

11. The joint reasons of Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame approved the statement in Singh that the defining characteristic of alienage is the owing of allegiance to a foreign sovereign power[76]. By reason of the changes brought about by the Papua New Guinea Independence Act1975 (Cth) and the Constitution of the Independent State of Papua New Guinea, Amos Ame was a person who owed allegiance to Papua New Guinea, and was no longer a citizen of Australia. These circumstances were determinative of Mr Ame's status as an alien.

    [76](2005) 222 CLR 439 at 458 [35].

12. Nonetheless, as Koroitamana v The Commonwealth[77] makes plain, none of the Justices in the majority in Singh are to be understood as holding that allegiance to a foreign power is the determinative characteristic of the status of alienage. Neither of the appellants in Koroitamana owed allegiance to a foreign sovereign power. Each appellant was born in Australia and had remained in Australia continuously from birth. The appellants' parents were citizens of a foreign country. As Gleeson CJ and Heydon J explained the position in their joint reasons[78]:

    "Once one rejects the notion that birth in Australia ... necessarily results in membership of the Australian community, then it is a short step to the conclusion that it is open to Parliament to decide that a child born in Australia of parents who are foreign nationals is not automatically entitled to such membership. It cannot be said of such a person that he or she could not possibly answer the description of alien." (emphasis added)

    [77](2006) 227 CLR 31.

    [78](2006) 227 CLR 31 at 38-39 [14].

13. On the hearing, the Commonwealth acknowledged the tension between reading statements in Singh and Ame as holding that there is a defining characteristic of the status of alienage, and the line of authority commencing with Nolan holding that it is open to Parliament to determine the characteristics of that status. The Commonwealth submitted that the joint reasons in Singh and Ame are to be understood as responding to the argument that the plaintiff in each special case was a person outside the reach of the aliens power. The Commonwealth's ultimate position was that there is no defining characteristic of alienage, rather there are "available characteristics for the Parliament to choose and some unavailable characteristics". The Commonwealth's case is encapsulated in the joint reasons of Gleeson CJ, Gummow and Hayne JJ in Shaw[79]:

    "The power conferred by s 51(xix) supports legislation determining those to whom is attributed the status of alien; the Parliament may make laws which impose upon those having this status burdens, obligations and disqualifications which the Parliament could not impose upon other persons. On the other hand, by a law with respect to naturalisation, the Parliament may remove that status, absolutely or upon conditions. In this way, citizenship may be seen as the obverse of the status of alienage." (footnote omitted)

    [79](2003) 218 CLR 28 at 35 [2].

14. Nolan rejected the notion that a person may have the status of "non-alien" and "non-citizen", and although temporarily in disfavour following Re Patterson; Ex parte Taylor[80], its authority was restored by the majority in Shaw. Nolan, Shaw and the decisions following them were made in the course of the working out of the reach of the aliens power in light of Australia's changed relationship with the United Kingdom. While at Federation there could have been no doubt that a British subject was not an alien[81], Nolan held that the application of the constitutional term "aliens" had changed, reflecting Australia's emergence as an independent nation[82]. It was a change that required recognition of the divisibility of the Crown such that Therrance Nolan, a citizen of the United Kingdom and subject of the Queen who had lived in Australia continuously between 1967 and 1985, was within the scope of the aliens power[83]. The joint reasons noted that etymologically the term "alien" is traced through old French to the Latin "alienus", and has the meaning of "belonging to another person or place"[84]. 

    [80](2001) 207 CLR 391.

    [81]Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 at 183 per Mason CJ, Wilson, Brennan, Deane, Dawson and Toohey JJ.

    [82](1988) 165 CLR 178 at 184 per Mason CJ, Wilson, Brennan, Deane, Dawson and Toohey JJ.

    [83](1988) 165 CLR 178 at 184 per Mason CJ, Wilson, Brennan, Deane, Dawson and Toohey JJ.

    [84](1988) 165 CLR 178 at 183 per Mason CJ, Wilson, Brennan, Deane, Dawson and Toohey JJ; see also at 189 per Gaudron J.

15. Gleeson CJ observed, in Re Minister for Immigration and Multicultural Affairs; Ex parte Te, that it is through the power conferred by s 51(xix) that the Parliament decides who will be admitted to membership of the Australian body politic[85]. His Honour noted that the power is not unqualified, but found that it extended to denying membership to the prosecutors in Te, who were born in Cambodia and Vietnam respectively, entered Australia as aliens and had not become Australian citizens[86]. 

    [85](2002) 212 CLR 162 at 175 [39].

    [86](2002) 212 CLR 162 at 170 [18].

16. However, no decision of this Court has addressed the question of whether the aliens power extends to the exclusion of an Aboriginal Australian from the Australian body politic.

17. Acceptance that the aliens power supports legislation defining the circumstances in which a person will be treated as an alien is subject to the qualification that Parliament cannot by defining "alien" or "citizen" expand the power conferred by s 51(xix)[87]. Recognition that, in some circumstances, an attempt by the Parliament to ascribe the status of alien to a person would be beyond power allows of the possibility that a person may not hold Australian citizenship and yet not be an alien. In the course of argument, when pressed, the Commonwealth submitted that a person born in Australia to two Australian parents who has not renounced his or her citizenship of Australia might be outside the reach of the power.

    [87]Pochi v Macphee (1982) 151 CLR 101 at 109 per Gibbs CJ (Mason J agreeing at 112, Wilson J agreeing at 116); Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002) 212 CLR 162 at 172 [26] per Gleeson CJ; Singh v The Commonwealth (2004) 222 CLR 322 at 329 [4] per Gleeson CJ, 375 [124] per McHugh J, 382-383 [151] per Gummow, Hayne and Heydon JJ.

18. In the Commonwealth's submission, acknowledgement of the limit on legislative power is not to the point: the Parliament cannot be said to have come near the outer boundaries of the power in choosing to treat persons who are born outside Australia, and who have not been granted Australian citizenship, as aliens. The Commonwealth submits that the vice in the plaintiffs' invocation of their Aboriginality to take them outside the aliens power is that it places a race-based limitation on legislative power. Correctly understood, it is said, the plaintiffs are within the reach of the aliens power because each was born outside Australia; they stand in no different position to any person born to an Australian parent outside Australia. The Commonwealth points out that at all times it has been open to the plaintiffs to apply to the Minister to become Australian citizens[88], and that neither has done so. 

    [88]Citizenship Act, s 16.

19. It may be, as the Commonwealth submits, that recognition of dual citizenship is largely reflective of the legislative choice to treat foreign citizens as capable of being Australian citizens. It does not follow that possession of foreign citizenship necessarily brings a person within the scope of the aliens power. Whether it is open to Parliament to treat as an alien a person born in Australia to Australian parents, by reason that the law of a foreign country confers citizenship on the person by descent, is a large question. The language of s 51(xix) is to be distinguished in this respect from that of s 44(i) of the Constitution. The circumstance that each plaintiff, an Aboriginal Australian, is a citizen of the country of his birth cannot be determinative of his status as a constitutional alien. 

20. Following the hearing of the special cases, the Court wrote to the parties inviting submissions on whether members of an Aboriginal society have such a strong claim to the protection of the Crown that they may be said to owe permanent allegiance to the Crown. In response to the invitation, the Commonwealth filed a s 78B Notice in each special case[89]. Following receipt of those Notices, the Attorney-General for the State of Victoria ("Victoria") intervened in support of the plaintiffs. In Victoria's submission, Aboriginal persons who are members of an Aboriginal society are not within the reach of the "aliens" power in s 51(xix) by reason of the "recognised mutual and unique relationship between members of Aboriginal societies and the land and waters of Australia".

    [89]Judiciary Act 1903 (Cth), s 78B.

21. The Commonwealth submits that Victoria's contention involves a radical reconceptualisation of "the law of alien status", in that it postulates that non-alien status may arise from a connection between persons and land. Such a postulate is said to be inconsistent with "the fundamental basis of the law of alien status", which basis is the connection between persons and the sovereign or body politic.

22. The importance of Singh to the plaintiffs' and Victoria's argument is the holding that at Federation the constitutional term "aliens" did not possess a fixed, immutable meaning ascertained by reference to the common law[90]. The joint reasons explained that any understanding of the term "aliens" at Federation must take account of the existence of different and competing views as to how aliens were to be identified[91]. The analysis was developed in Ame in the joint reasons of Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ. Their Honours said that changes in the national and international context in which s 51(xix) is to be applied may have an important bearing upon its practical operation[92]. The decisions in Sue v Hill and Shaw and Singh were each instanced as illustrative of the ways in which those changes in national and international circumstances may affect the application of terms such as "foreign" and "alien"[93]. 

    [90](2004) 222 CLR 322 at 384 [157] per Gummow, Hayne and Heydon JJ.

    [91](2004) 222 CLR 322 at 393 [183] per Gummow, Hayne and Heydon JJ.

    [92](2005) 222 CLR 439 at 458-459 [35].

    [93](2005) 222 CLR 439 at 459 [35], citing Sue v Hill (1999) 199 CLR 462, Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 and Singh v The Commonwealth (2004) 222 CLR 322.

23. The plaintiffs' and Victoria's argument relies on Mabo [No 2], not because it acknowledged a change in national circumstances, but rather because it recognised that at the time of European settlement there existed antecedent rights and interests in the land and waters of Australia possessed by the indigenous inhabitants sourced in traditional law and customs and alienable only by that body of law and custom[94]. The recognition, as subsequent decisions have explained, was of a connection that Aboriginal Australians have with "country" that is essentially spiritual[95]. As the plurality observed in Western Australia v Ward, there are difficulties in describing the connection between a community of Aboriginal Australians and their traditional land in terms of the language of "rights and interests" familiar to the common lawyer[96]. 

    [94](1992) 175 CLR 1 at 57-59 per Brennan J (Mason CJ and McHugh J agreeing at 15).

    [95]Western Australia v Ward (2002) 213 CLR 1 at 64 [14] per Gleeson CJ, Gaudron, Gummow and Hayne JJ; Northern Territory v Griffiths (2019) 93 ALJR 327 at 341 [23] per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ; 364 ALR 208 at 219.

    [96](2002) 213 CLR 1 at 65 [14] per Gleeson CJ, Gaudron, Gummow and Hayne JJ.

24. To observe that the capacity of an alien to hold proprietary interests in land has no bearing on his or her status as an alien fails to address the core of the plaintiffs' argument. Their argument does not depend on the holding of native title rights and interests. In many instances those rights and interests have been extinguished. The plaintiffs' and Victoria's argument depends upon the incongruity of the recognition by the common law of Australia of the unique connection between Aboriginal Australians and their traditional lands, with finding that an Aboriginal Australian can be described as an alien within the ordinary meaning of that word.

25. Other common law nations that have indigenous populations do not appear to have been confronted with the issue here raised. Amongst other things, this may reflect differences in the relations between the sovereign power and the indigenous population[97]. The affirmation of existing Aboriginal rights under the Canadian Constitution[98] was described as "limit[ing] the exercise of governmental powers which may be inherent as a sovereign state"[99], in a case bearing some semblance to the present one. Canada's choice to fetter the power to control which non-citizens may remain in Canada foreclosed consideration, in that case, of whether the power conferred on the Parliament of Canada with respect to "naturalization and aliens"[100] supports the exclusion of an Aboriginal Canadian from the community.

    [97]Elk v Wilkins (1884) 112 US 94.

    [98]Constitution Act 1982 (Can), s 35(1).

    [99]Watt v Liebelt [1999] 2 FC 455 at 457 [3].

    [100]Constitution Act 1867 (Can), s 91(25).

1. The Commonwealth's concern, that to hold that its legislative power does not extend to treating an Aboriginal Australian as an alien is to identify a race-based limitation on power, is overstated. It is not offensive, in the context of contemporary international understanding, to recognise the cultural and spiritual dimensions of the distinctive connection between indigenous peoples and their traditional lands[101], and in light of that recognition to hold that the exercise of the sovereign power of this nation does not extend to the exclusion of the indigenous inhabitants from the Australian community.

   [101]United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN Doc A/RES/61/295 (2 October 2007, adopted 13 September 2007); see also R v Van der Peet [1996] 2 SCR 507 at 534 [17]-[19], 538 [30].

2. The conclusion is not to deny that an attribute of every sovereign state is the power to decide whether an alien is admitted to membership of the community and to expel an alien whom it chooses not to suffer to remain[102]. As Gleeson CJ observed in Te, the exercise of the power is vital to the welfare, security and integrity of the nation[103]. The position of Aboriginal Australians, however, is sui generis. Notwithstanding the amplitude of the power conferred by s 51(xix) it does not extend to treating an Aboriginal Australian as an alien because, despite the circumstance of birth in another country, an Aboriginal Australian cannot be said to belong to another place[104]. 

   [102]Robtelmes v Brenan (1906) 4 CLR 395 at 400 per Griffith CJ.

   [103](2002) 212 CLR 162 at 171 [24].

   [104]cf Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 at 183.

3. Whether a person is an Aboriginal Australian is a question of fact. In the Tasmanian Dam Case, Deane J proposed the meaning of the term "Australian Aboriginal" as "a person of Aboriginal descent, albeit mixed, who identifies himself as such and who is recognized by the Aboriginal community as an Aboriginal"[105]. This was in the context of s 8(2)(b) of the World Heritage Properties Conservation Act 1983 (Cth), which referred to Aboriginal sites having particular significance to "the people of the Aboriginal race". His Honour inclined to the view that the reference was to the Australian Aboriginal people generally rather than to any particular racial sub-group[106].

   [105]The Commonwealth v Tasmania (1983) 158 CLR 1 at 274.

   [106](1983) 158 CLR 1 at 274.

4. In their written submissions, the plaintiffs relied on Brennan J's formulation in Mabo [No 2] for the meaning of "Aboriginal" Australian: "[m]embership of the indigenous people depends on biological descent from the indigenous people and on mutual recognition of a particular person's membership by that person and by the elders or other persons enjoying traditional authority among those people"[107].

   [107](1992) 175 CLR 1 at 70.

5. On the hearing, the Solicitor-General was asked if the Commonwealth accepted that each plaintiff met the tripartite test in Mabo [No 2]. The Solicitor-General responded that the Commonwealth did not "affirmatively advance a submission against that proposition". In response to the Court's invitation to clarify its position on the question of whether both plaintiffs meet the tripartite test formulated by Brennan J in Mabo [No 2], the Commonwealth maintained its preference not to take a position on the state of the agreed facts.

6. In each case, the plaintiff claims entitlement to the relief sought in his writ of summons by reason of the fact that he is an Aboriginal person. The parties agreed to state a single question of law for the opinion of the Full Court in each case, namely, "[i]s the Plaintiff an 'alien' within the meaning of s 51(xix) of the Constitution?" If the Commonwealth did not accept that Mr Love is an Aboriginal person there was no utility in agreeing to state a question for the opinion of the Full Court which assumes that he is such a person. If the Commonwealth did not accept Mr Love's pleaded case, that he is a member of the Aboriginal race of Australia, the appropriate course was for the proceeding to have been remitted to the Federal Court of Australia for the facts to be found.

7. The agreed facts are that Mr Love's paternal great-grandfather, Frank Wetherall, was born in Queensland and was descended in significant part from people who inhabited Australia immediately prior to European settlement, as was his paternal great-grandmother, Maggie Alford. Mr Love identifies as a descendant of the Kamilaroi tribe and is recognised as such a descendant by Janice Margaret Weatherall, an elder of the Kamilaroi tribe. In light of the agreed facts and the Commonwealth's position respecting the conduct of the litigation, the question of law reserved in Mr Love's special case is answered upon acceptance that Mr Love is an Aboriginal Australian within the tripartite Mabo [No 2] test.

8. That test was framed with respect to native title to land. Deane J's test expressed his Honour's understanding of the conventional meaning of the term "Australian Aboriginal"[108]. That understanding appears to accord with the Commonwealth's working definition applied in connection with the provision of special benefits to Aboriginal persons and with respect to the enactment of special laws affecting Aboriginal persons[109]. The special cases do not raise consideration of the circumstances, if any, in which a person who is not within the Mabo [No 2] test may nonetheless establish that he or she is an Aboriginal Australian[110].

   [108]The Commonwealth v Tasmania(The Tasmanian Dam Case) (1983) 158 CLR 1 at 274.

   [109]See Constitutional Section, Department of Aboriginal Affairs, Report on a Review of the Administration of the Working Definition of Aboriginal and Torres Strait Islander (1981) at 9; Gardiner‑Garden, Defining Aboriginality in Australia, Department of the Parliamentary Library, Current Issues Brief No 10 2002-03 (2003).

   [110]See Attorney-General (Cth) v Queensland (1990) 25 FCR 125 at 126-127 per Jenkinson J, 132 per Spender J, 147-148 per French J; Gibbs v Capewell (1995) 54 FCR 503 at 506, 511-512 per Drummond J; Re Watson [No 2] [2001] TASSC 105 at [7] per Cox CJ; Eatock v Bolt (2011) 197 FCR 261 at 304-305 [188]-[189] per Bromberg J; Hands v Minister for Immigration and Border Protection (2018) 364 ALR 423 at 435-436 [50]-[51] per Allsop CJ (Markovic and Steward JJ agreeing at 436 [54], [55]).

9. I am authorised by the other members of the majority to say that although we express our reasoning differently, we agree 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. The difference with respect to Mr Love is a difference about proof, not principle.

10. For these reasons, I answer question 1 in each special case "no" and question 2 in each special case "the defendant".

    GAGELER J.  

    Nature of the aliens power

11. The subject-matter of the legislative power with respect to "naturalization and aliens" conferred on the Parliament of the Commonwealth by s 51(xix) of the Constitution is framed in terms that are identical to the subject-matter of a legislative power declared to be exclusive to the Parliament of Canada by s 91(25) of the British North America Act 1867 (Imp) (30 & 31 Vict c 3). The subject-matter comprises persons of a legal status – "aliens" – together with the process by which that legal status can be changed – "naturalisation".

12. The Privy Council recognised in 1902 that the legislative power of the Parliament of Canada under s 91(25) of the British North America Act is a power to "determine what shall constitute either the one or the other"[111]. The High Court ultimately recognised in 2002 that s 51(xix) of the Constitution encompasses legislative power of the same nature: to determine who is and who is not to have the legal status of alienage[112]. The Court then also recognised that the legislative power goes further than its Canadian counterpart in that the power permits as well specification of the legal consequences of that legal status[113].

    [111]Cunningham v Tomey Homma [1903] AC 151 at 156. See also Morgan v Attorney-General for Prince Edward Island (1975) 55 DLR (3d) 527 at 531-532.

    [112]Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002) 212 CLR 162 at 170-172 [21]-[26], 219-220 [209]-[210]. See also Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 at 35 [2], 87 [190].

    [113]Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002) 212 CLR 162 at 185 [80], 194 [114]; Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 at 35 [2], 87 [190]. See also Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 56-57.

13. What is meant by a legal status in this or any other context is clear[114]:

    "A person may be said to have a status in law when he belongs to a class of persons who, by reason only of their membership of that class, have rights or duties, capacities or incapacities, specified by law which do not exist in the case of persons not included in the class and which, in most cases at least, could not be created by any agreement of such persons. An alien, for example, as distinct from a subject of the Crown, a married person as distinct from an unmarried person, a bankrupt as distinct from other persons generally, are all persons who have a particular status. The mere fact that an alien is an alien means that he is subject to certain disabilities and disqualifications in law. A husband because he is a husband owes special duties to his wife which he owes to no other person and cannot owe, merely as a matter of law, to any other person. A bankrupt, simply because he is a bankrupt, cannot deal with his property in the same manner as other persons. These consequences follow as a matter of law from the fact of membership of a particular class of persons."

    [114]Ford v Ford (1947) 73 CLR 524 at 529.

14. To the extent that s 51(xix) of the Constitution confers legislative power to determine the existence and consequences of a legal status, it resembles the legislative powers conferred by s 51(xvii) (with respect to "bankruptcy"), s 51(xviii) (with respect to "copyrights, patents ... and trade marks") and s 51(xxi) (with respect to "marriage"). Unlike the power conferred by s 51(vii) (with respect to "lighthouses"), the example of which is often seized upon for the purpose of expounding constitutional principle[115], the subject‑matter of none of those powers is a thing the existence of which falls to be ascertained as a constitutional fact independently of the application of positive law. Each refers instead to a "recognized topic of juristic classification"[116]. The topic of juristic classification to which each refers has an ineluctable fluidity in that the law on that topic was in a process of legislative development before and after 1900 and in that each is itself a source of legislative authority to modify or replace the pre-existing law on that topic[117]. The subject-matter of none is expressed in terms that can be said to have an "established and immutable legal meaning"[118]. The scope of none can be "ascertained by merely analytical and a priori reasoning from the abstract meaning of words"[119]. Each takes its place within "an instrument of government meant to endure and conferring powers expressed in general propositions wide enough to be capable of flexible application to changing circumstances"[120]. 

    [115]eg, Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 258.

    [116]Attorney-General (Vict) v The Commonwealth ("the Marriage Act Case") (1962) 107 CLR 529 at 578; The Commonwealth v Australian Capital Territory (2013) 250 CLR 441 at 455 [14].

    [117]Grain Pool of Western Australia v The Commonwealth (2000) 202 CLR 479 at 500-501 [40]-[41]; TheCommonwealth v Australian Capital Territory (2013) 250 CLR 441 at 458-459 [21].

    [118]Koroitamana v The Commonwealth (2006) 227 CLR 31 at 37 [9].

    [119]Marriage Act Case (1962) 107 CLR 529 at 576; The Commonwealth v Australian Capital Territory (2013) 250 CLR 441 at 455 [15].

    [120]Australian National Airways Pty Ltd v The Commonwealth (1945) 71 CLR 29 at 81.

15. References in the context of s 51(xix) of the Constitution to the principle in Australian Communist Party v The Commonwealth ("the Communist Party Case")[121], and to the inability of the Parliament "simply by giving its own definition" of "alien" to "expand the power ... to include persons who could not possibly answer the description of 'aliens'"[122], must be understood in that light. Expressed at the appropriate level of generality, the applicable principle is that courts do, and legislatures do not, exercise the constitutional function of finally determining whether or not legislation is within power[123]. Application of that principle requires that "[w]hen any enactment is challenged on the ground that it is outside the power over a particular subject, a decision whether or not that is so must ultimately depend upon what exactly is the effect of the enactment upon that subject"[124]. Applied to the subject-matter of s 51(xix), what that means is that the content of the power to determine alienage and the existence or non-existence of a connection between the power and a particular law purporting to lay down criteria for determining who has the status of an alien or a non-alien must and can only be determined judicially. That is all it means.

    [121](1951) 83 CLR 1.

    [122]Pochi v Macphee (1982) 151 CLR 101 at 109; Singh v The Commonwealth (2004) 222 CLR 322 at 329 [4], 383 [151]; Koroitamana v The Commonwealth (2006) 227 CLR 31 at 38 [12], 54-55 [81].

    [123]Communist Party Case (1951) 83 CLR 1 at 262-263, citing Marbury v Madison (1803) 5 US 137.

    [124]Marriage Act Case (1962) 107 CLR 529 at 578.

16. No room is left by s 51(xix) for application of the more specific principle, on which the outcome in the Communist Party Case turned, that it is the duty of a court in a constitutional case "to be satisfied of every fact the existence of which is necessary in law to provide a constitutional basis for the legislation"[125]. That more specific principle has no application because the nature of the legislative power to determine who has and who does not have the legal status of alienage is wholly inconsistent with the notion that a person's status as an alien or non-alien falls to be determined independently of the exercise of the power as a question of constitutional fact. The status of a person as an alien or non-alien can (and where put in issue in appropriately constituted legal proceedings must) be judicially ascertained. But that status can be judicially ascertained only through the application of positive law, enactment of which inheres in the legislative power itself. 

    [125](1951) 83 CLR 1 at 222.

17. Failure to recognise that the nature of the power conferred by s 51(xix) is inconsistent with a person's status as an alien or non-alien falling to be determined as a question of constitutional fact was a problem which attended the notion, taken up for a time in the case law[126], only to be implicitly discarded[127], that an "essential characteristic" of the legal status of alienage was to be found in the owing of "allegiance" to a foreign sovereign. That was not the only problem. Quite apart from being in tension with the nature of the legislative power with respect to aliens being to determine who has and who does not have the legal status of alienage, the notion was in tension with the power being a "plenary legislative power" conferred on an "autonomous government"[128]. The tension arose from the circumstance that owing allegiance to a foreign sovereign turns at least primarily on the content of foreign law[129]. Those problems aside, the notion was stripped of utility as a criterion of constitutional demarcation once the postulated essential characteristic of the legal status of alienage was accepted to extend beyond owing allegiance to a foreign sovereign to include in the alternative owing no allegiance at all. The additional problem exposed by that development was one of logic. For so long as the status of alienage is conceived of as importing an absence of allegiance to the sovereign (about which I will have more to say), the essential characteristic of alienage as so extended became so broad that anyone determined to be an alien through the application of any criterion would fall within one category or the other simply by reason of being an alien. The legal consequence of being an alien no matter what criterion is used to distinguish an alien from a non-alien cannot without circularity supply the criterion for distinguishing an alien from a non-alien.

    [126]Singh v The Commonwealth (2004) 222 CLR 322 at 383 [154], 395 [190], 398 [200]; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame (2005) 222 CLR 439 at 458-459 [35].

    [127]Koroitamana v The Commonwealth (2006) 227 CLR 31 at 38 [11], 46 [48]-[49].

    [128]Polites v The Commonwealth (1945) 70 CLR 60 at 78; Kartinyeri v The Commonwealth (1998) 195 CLR 337 at 384-385 [98].

    [129]Sykes v Cleary (1992) 176 CLR 77 at 105-107, 109, 135.

    Scope of the aliens power

18. How then is the scope of the legislative power conferred by s 51(xix) to determine the legal status of alienage to be determined?

19. The requisite frame of reference is the body politic of the Commonwealth of Australia, which is described in the preamble to the Commonwealth of Australia Constitution Act 1900 (Imp) as having been created through the agreement of "the people" of the former Australian colonies "to unite in one indissoluble Federal Commonwealth under the Crown", the Parliament of which is required by the Constitution to consist of the Queen and of a Senate and a House of Representatives respectively comprised of senators and members "directly chosen by the people"[130] in the exercise of a common franchise determined by the Parliament itself[131], and the Executive Government of which is required by the Constitution to be responsible to the Parliament[132]. Whilst the Commonwealth of Australia was at the time of its creation yet another colony within an Empire, the grant to its Parliament of legislative power to determine the legal status of alienage, no less than the grant to its Parliament of legislative power with respect to external affairs[133], "was a clear recognition, not merely that, by uniting, the people of Australia were moving towards nationhood, but that it was the Commonwealth which would in due course become the nation state, internationally recognized as such and independent"[134].

    [130]Sections 1, 7 and 24 of the Constitution.

    [131]Sections 8, 30 and 51(xxxvi) of the Constitution.

    [132]Sections 61 and 64 of the Constitution.

    [133]Section 51(xxix) of the Constitution.

    [134]New South Wales v The Commonwealth ("the Seas and Submerged Lands Case") (1975) 135 CLR 337 at 373.

20. The usage and practice of independent nation states had been from at least the middle of the nineteenth century[135], and remains to the present, each to draw a distinction under its municipal law between those persons who are formally admitted to membership of the community that constitutes the body politic of the nation state and those persons who are not. The former category of persons, as recognised in the terminology of s 44(i) of the Constitution, has long been referred to from the perspective of the nation state as either "subjects" or "citizens", or more generically as "nationals". It is persons within the latter category who have long been referred to from the same perspective as "aliens"[136].

    [135]See Minor v Happersett (1874) 88 US 162 at 165-166.

    [136]See, generally, Koessler, "'Subject,' 'Citizen,' 'National,' and 'Permanent Allegiance'" (1946) 56 Yale Law Journal 58.

1. Over the next 36 years, the Nationality and Citizenship Act was amended to provide, among other things: (i) that citizenship by descent could be acquired through married parents if either the mother or father was an Australian citizen[694]; (ii) for the presumed citizenship of children found abandoned in Australia unless and until the contrary was proved[695]; (iii) for the avoidance of statelessness, that a person born in Australia who had never been a citizen of any country could apply for and was to be granted citizenship[696]; (iv) for citizenship to be acquired by a person adopted by an Australian citizen, provided that person was, at the time of adoption, a permanent resident[697]; (v) for the removal of distinctions between people born within or outside of marriage for the purpose of citizenship by descent[698]; (vi) for citizenship by descent, a requirement that, if the relevant parent is themselves a citizen by descent, they had been lawfully present in Australia for at least two years at any time prior to seeking to register the child as a citizen[699]; and (vii) for the conferral of citizenship by descent on the children of women who met the requirements of the transitional provisions in s 25(1)(a)-(c) of the Nationality and Citizenship Act[700]. In 2007, the Australian Citizenship Act 1948 (Cth), as the Nationality and Citizenship Act had by then become, was repealed[701]. The Australian Citizenship Act 2007 (Cth), which was passed in its place, retains the core concepts of citizenship by birth[702], by adoption[703], by abandonment in Australia[704], by incorporation of territory[705], and by descent[706], as well as secondary concepts like the power to grant citizenship to prevent statelessness[707], among others.

   [694]Citizenship Act1969 (Cth), s 7.

   [695]Citizenship Act 1969 (Cth), s 5(d).

   [696]Australian Citizenship Act 1973 (Cth), s 12.

   [697]Australian Citizenship Amendment Act 1984 (Cth), s 10.

   [698]Australian Citizenship Amendment Act 1984 (Cth), s 10.

   [699] Australian Citizenship Amendment Act 1984 (Cth), s 10.

   [700]See Nationality and Citizenship Act 1948 (Cth) (as made), s 25(3).

   [701]Australian Citizenship (Transitionals and Consequentials)Act 2007 (Cth), Sch 1 item 42.

   [702]Australian Citizenship Act 2007 (Cth), s 12.

   [703]Australian Citizenship Act 2007 (Cth), ss 13, 19C.

   [704]Australian Citizenship Act 2007 (Cth), s 14.

   [705]Australian Citizenship Act 2007 (Cth), s 15.

   [706]Australian Citizenship Act 2007 (Cth), s 16.

   [707]Australian Citizenship Act 2007 (Cth), s 21(8).

2. Despite the fluctuation, two central matters that have remained among the norms of political community have been the traditional factors of place of birth (ius soli) and citizenship of a parent or parents (ius sanguinis). At Federation, English and United States common law placed most emphasis on the place of birth[708]. But many nations of Continental Europe, including France and Prussia, focused more heavily upon descent[709]. In 1862, Dr von Bar argued that "by the laws of all nations", nationality was "closely dependent on descent"[710]. This rule was, Dr von Bar said, the "correct canon, since nationality is in its essence dependent on descent"[711].

   [708]Calvin's Case (1608) 7 Co Rep 1a at 18a [77 ER 377 at 398-399]; Blackstone, Commentaries on the Laws of England (1765), bk 1, ch 10 at 361-362. See also Parry, Nationality and Citizenship Laws of The Commonwealth and of The Republic of Ireland (1957) at 34.

   [709]Great Britain, Report of the Royal Commissioners for Inquiring into the Laws of Naturalization and Allegiance (1869) at viii; Cockburn, Nationality: or the Law Relating to Subjects and Aliens (1869) at 187.

   [710]von Bar, Das Internationale Privat- und Strafrecht (1862) at 92 §31. See von Bar, International Law: Private and Criminal, tr Gillespie (1883) at 99 §31.

   [711]von Bar, Das Internationale Privat- und Strafrecht (1862) at 92 §31. See von Bar, International Law: Private and Criminal, tr Gillespie (1883) at 99-100 §31.

3. As explained in the introduction to these reasons, the Solicitor-General of the Commonwealth submitted that one limit to legislative power to alter the content of political community lay in the combination of the central norms of birth and descent. Apparently drawing upon, and making more extreme, an example from Gaudron J[712], the Solicitor-General of the Commonwealth accepted that a person could never be an alien if the person satisfied the tests of ius soli and ius sanguinis by birth in Australia to two parents who were solely Australian citizens and the person had not renounced their allegiance. No explanation was given for why the combination of birth and descent was, or should be, the only indelible example of membership of the political community that is beyond legislative power with respect to aliens.

   [712]Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002) 212 CLR 162 at 179 [54], requiring birth in Australia and the Australian citizenship of one parent.

4. The reason that the combination of birth and descent is a norm of political community that is indelible subject only to renunciation is that these factors evince fundamental norms of attachment to country. Of the two factors, the common law placed great emphasis upon the birth of a child in the country as establishing the necessary attachment to country. But the emphasis of the common law upon birth rather than parentage was sometimes doubted. In 1869, the Lord Chief Justice of England wrote extra-judicially that, "in the vast majority of instances", a child left to their own choice between nationality based on parentage or place of birth would choose the former. He continued[713]:

   "And the reason is obvious. Personal attachments are stronger than local ones. The place of birth is an accident; the associations connected with it are fleeting and uncertain; while the domestic ties and the relations of family and kindred are powerful and enduring. ... The impression thus produced in early youth remains, and strengthening with advancing years develops itself into the national attachment which we designate by the term of patriotism.

   Descent, therefore, affords the true rule for determining nationality."

   [713]Cockburn, Nationality: or the Law Relating to Subjects and Aliens (1869) at 187-188.

5. The Lord Chief Justice acknowledged, however, that there was "general agreement" as to two related exceptions to nationality based on parentage which also illustrate the centrality of attachment to country: (i) where the child was raised in a country in which their parents had become domiciled but which was different from the country of the parents' nationality; and (ii) where for two generations the ancestors of a person have been domiciled in a foreign country[714].

   [714]Cockburn, Nationality: or the Law Relating to Subjects and Aliens (1869) at 188-189.

   Indigenous persons and the Australian political community

6. Indigenous non-citizens, with their powerful personal attachment to land, fall within the same intermediate region of "non-citizen, non-alien" as denizens and other protected persons. As Professor Volpp observed of the members of the "Indian Tribes", described in Art I, s 8, cl 3 of the United States Constitution, "key concepts" such as "citizen" and "alien" cannot "address the actual relationship between the nation-state and indigenous peoples. [American] Indians have been considered citizen and alien, as well as neither citizen nor alien"[715].

   [715]Volpp, "The Indigenous as Alien" (2015) 5 UC Irvine Law Review 289 at 293.

7. The legal position of American Indians cannot be directly compared with Aboriginal and Torres Strait Islander people of Australia. Even before the uniform grant of their United States citizenship in 1924[716], American Indians were expressly given legal recognition as "distinct, independent, political communities, retaining their original natural rights, as the undisputed possessors of the soil"[717] when they "live together as a distinct community, under their own laws, usages and customs"[718]. Nevertheless, the basic difficulty involved in characterising American Indians as aliens is the same as that for Aboriginal people of Australia: "[w]e call an alien a foreigner, because he is not of the country in which we reside"[719].

   [716]Indian Citizenship Act, c 233, 43 Stat 253 (1924).

   [717]Worcester v Georgia (1832) 31 US 515 at 559.

   [718]Cherokee Nation v Georgia (1831) 30 US 1 at 60. See also Worcester v Georgia (1832) 31 US 515.

   [719]Cherokee Nation v Georgia (1831) 30 US 1 at 56 (emphasis added).

8. Professor McHugh has observed that in Australia, unlike New Zealand and North America, "both law and practice revealed scant, indeed a virtually non-existent, recognition of the reality of Aboriginal political organization, so blind were the settlers to it"[720]. Yet, despite the limited understanding and recognition of Aboriginal society at Federation, the Aboriginal people in Australia were not regarded as aliens to the political community. It would be an astonishing result if, on the one hand, Aboriginal people were a necessary part of the "people of Australia" and the Australian political community in 1901 despite the exclusionary nineteenth century racial application of the aliens power and despite the scant recognition of the reality of Aboriginal community ties to Australia, and yet, on the other hand, Aboriginal people were to fall outside the same political community upon a more sophisticated, inclusive concept of community that has been shaped by legislative and judicial developments following the recognition of the realities of Aboriginal society and the effect upon it of the acts of Parliament and the executive.

   [720]McHugh, Aboriginal Societies and the Common Law (2004) at 191.

9. Significant legislative and judicial developments since Federation have been premised upon recognition of Aboriginal community in Australia. As Brennan J said in Mabo v Queensland [No 2][721], "it is imperative in today's world that the common law should neither be nor be seen to be frozen in an age of racial discrimination". There, the law developed to recognise the reality that the indigenous inhabitants of Australia lived in societies in accordance with laws and customs that required the recognition of their entitlements to land. The powerful spiritual and cultural connection that Aboriginal people have with the land – the "religious relationship"[722] – is, by definition, a powerful spiritual and cultural connection with the defined territory of Australia. Just as the attachment to country that arises from citizenship of parents and birth in the defined territory can be an underlying basis for membership of political community independent of citizenship legislation, so too are the powerful spiritual and cultural connections between Aboriginal people and the defined territory of Australia.

   [721](1992) 175 CLR 1 at 41-42.

   [722]Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 167.

10. Native title rights and interests require a continuing connection with particular land[723]. However, underlying that particular connection is the general spiritual and cultural connection that Aboriginal people have had with the land of Australia for tens of thousands of years[724]. In other words, underlying a connection to any particular land is a general, "fundamental truth ... an unquestioned scheme of things in which the spirit ancestors, the people of the clan, particular land and everything that exists on and in it, are organic parts of one indissoluble whole"[725]. Sometimes events, including the cessation of the existence of a particular Aboriginal society, cause the loss of native title rights to land[726]. But the loss of those rights to, and the relationship with, particular land, or even the effluxion of particular Aboriginal societies, does not extinguish the powerful spiritual and cultural connections Aboriginal people have generally with the lands of Australia[727]. Those connections are inextricably part of Aboriginal identity as members of the broader community of the first people of the Australian land generally. The very words "Aboriginal" and "indigenous", ab origine or "from the beginning", enunciate a historical, and original, connection with the land of Australia generally. The sense of identity that ties Aboriginal people to Australia is an underlying fundamental truth that cannot be altered or deemed not to exist by legislation in the same way that changing legislative definitions of citizenship cannot alter the fundamental truth underlying identity that is shaped by the core combined norms that metaphorically tie a child to Australia by birth and parentage.

    [723]Western Australia v Ward (2002) 213 CLR 1 at 72 [32], 85 [64]; Native Title Act 1993 (Cth), s 223(1).

    [724]Gerhardy v Brown (1985) 159 CLR 70 at 149.

    [725]Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 167. See also R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 356-357; Western Australia v Ward (2002) 213 CLR 1 at 64 [14]; Northern Territory v Griffiths (2019) 93 ALJR 327 at 368 [153]; 364 ALR 208 at 255.

    [726]Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 at 446 [53].

    [727]Northern Territory v Griffiths (2019) 93 ALJR 327 at 377 [206], 379 [223]; 364 ALR 208 at 267-268, 271.

11. Legislative developments since Federation have expanded the rights and treatment of Aboriginal people towards equality with other members of the Australian political community, including by the enactment of the Racial Discrimination Act 1975 (Cth). The same expansion occurred in relation to the federal franchise. Shortly after Federation, s 4 of the Commonwealth Franchise Act 1902 (Cth) excluded Aboriginal people of Australia and various other nations from the federal franchise, unless entitled to vote under State laws as preserved by s 41 of the Constitution[728]. Further exceptions to the exclusion were introduced, including for Aboriginal people of Australia who were entitled to vote under State laws, without resort to s 41 of the Constitution, or who were or had been members of the Defence Force[729]. In 1962, s 2 of the Commonwealth Electoral Act 1962 (Cth) gave all Aboriginal people the right to enrol and, by removal of an exemption[730], in 1984 they had the duty to enrol[731].

    [728]See also Commonwealth Electoral Act 1918 (Cth), s 39(5); Commonwealth Electoral Act 1925 (Cth), s 2.

    [729]Commonwealth Electoral Act 1949 (Cth), s 3(b); Commonwealth Electoral Act 1961 (Cth), s 4.

    [730]Commonwealth Electoral Act 1962 (Cth), s 3.

    [731]Commonwealth Electoral Legislation Amendment Act 1983 (Cth), s 28(j).

12. The Commonwealth effectively submitted that this movement towards equality before the law requires Aboriginal non-citizens to be stripped of their membership of the Australian political community in order to ensure that they are treated equally with other, non-Aboriginal non-citizens. In other words, the expansion of Aboriginal rights has assimilated Aboriginal people within a unitary, homogenous political community that is defined almost entirely by legislative norms of citizenship. This view reflects a human inclination toward homogeneity which Hume described as the "narrowness of soul" which makes people prefer that which is more proximate over that which is more remote[732]. It also misunderstands the concept of equality before the law. To treat differences as though they were alike is not equality. It is a denial of community. Any tolerant view of community must recognise that community is based upon difference. As Professor Detmold has written[733]:

    "Suppose I see only green and you see only red. Do we have community in this simple matter of our example? No, because I live in a green world and you live in a red one – two worlds, not a common (communal) world. But when we recognise each other's difference then and only then is there a common world as the foundation of a community between us ... For one of us to impose their view on the other (in our example, one of us insisting that it is the other who is colour-blind) is a denial of respect for the other, and therefore a denial of our community."

    [732]Hume, A Treatise of Human Nature, ed Selby-Bigge (1896), bk 3 at 537.

    [733]Detmold, "Law and Difference: Reflections on Mabo's Case", in Essays on the Mabo Decision (1993) 39 at 39.

13. In any event, the expansion of Aboriginal rights by Commonwealth legislation does not require an identical treatment of Aboriginal and non-Aboriginal people in the shaping of the political community. In the Native Title Act 1993 (Cth), the Commonwealth Parliament recited that "[t]he people whose descendants are now known as Aboriginal peoples and Torres Strait Islanders were the inhabitants of Australia before European settlement. They have been progressively dispossessed of their lands."[734] Our legal system would involve a hopeless and incoherent contradiction if it were simultaneously: (i) to recognise and implement this recitation; and (ii) to conclude that those same descendants, identifying and recognised as such, have now become foreigners to the Australian political community.

    [734]Native Title Act 1993 (Cth), preamble.

    Absurd consequences?

14. The Solicitor-General of the Commonwealth submitted that a consequence of treating Aboriginal persons as beyond the reach of the aliens power was that a 60 year old foreign citizen who had lived overseas all of their life could move to Australia and, by being accepted into an Aboriginal community, lose their status as an alien. It might be doubted that there are significant numbers of foreign sexagenarians awaiting their acceptance as indigenous by Aboriginal communities in Australia. This is the type of "exercise in imagination"[735], "extreme example"[736], "absurd possibility"[737] or "distorting possibility"[738] about which this Court has repeatedly warned in constitutional interpretation[739], including in relation to the aliens power[740].

    [735]Western Australia v The Commonwealth (1975) 134 CLR 201 at 271.

    [736]Kartinyeri v The Commonwealth (1998) 195 CLR 337 at 380 [87]; Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 at 43 [32].

    [737]Western Australia v The Commonwealth (1975) 134 CLR 201 at 275.

    [738]Western Australia v The Commonwealth (1975) 134 CLR 201 at 275; Kartinyeri v The Commonwealth (1998) 195 CLR 337 at 381 [88]; Egan v Willis (1998) 195 CLR 424 at 505 [160]; Singh v The Commonwealth (2004) 222 CLR 322 at 384 [155]; XYZ v The Commonwealth (2006) 227 CLR 532 at 549 [39].

    [739]See Wainohu v New South Wales (2011) 243 CLR 181 at 240 [151].

    [740]Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 at 43 [32].

15. The interpretation of s 51(xix) of the Constitution is also not assisted by the submission that Aboriginal people who moved overseas and whose families lived overseas for multiple generations might claim to be non-aliens. Again, it might be seriously doubted whether there are significant numbers of Aboriginal people who have lived overseas for generations, maintaining mutual recognition and Aboriginal identity.

16. A final submission by the Commonwealth was that the consequence of treating Aboriginality as a status of non-alienage is that the power of the Commonwealth Parliament to legislate would depend upon the "choices or views of individuals". The immediate answer to this submission is that a determination of the application of the concept of "alien" remains a matter for the courts even if one factor to be taken into account is the views of individuals. The same point can be made about s 51(xxvi) of the Constitution. It might be doubted whether the application today of the difficult concept of "race" could be confined to matters of physical characteristics or genetics without any role for the views of individuals. In any event, there is no basis for the underlying assumption that the application of constitutional concepts is fixed in time so that Aboriginal identity in the Constitution, whether for the purposes of s 51(xix) or s 51(xxvi), could only be determined by physical characteristics or genetics. Further, unless "alien" means whatever the Commonwealth Parliament says that it means, the power of the Commonwealth Parliament to legislate will always depend upon exogenous matters such as the choices or views of individuals. A child born in Australia to parents who are solely Australian citizens is only outside the scope of s 51(xix) due to the choices of the child's parents, including their choices to apply for and obtain Australian citizenship before the birth of their child, in some cases, and to give birth in Australia.

    Mr Love and Mr Thoms

1. In Mabo v Queensland [No 2][741], Brennan J said that "[m]embership of the indigenous people depends on biological descent from the indigenous people and on mutual recognition of a particular person's membership by that person and by the elders or other persons enjoying traditional authority among those people". This tripartite test was neither new nor novel. It was similar to the approach taken in s 4(1) of the Aboriginal Land Rights Act 1983 (NSW) and the approach of Deane J in The Commonwealth v Tasmania (The Tasmanian Dam Case)[742]. The tripartite test was applied in Mabo [No 2] as a means to identify those members of a particular sub-group of indigenous people who enjoy continuing connection with particular land. It can be usefully applied in this case. However, it is not set in stone, particularly as an approach to determining Aboriginality as the basis for those fundamental ties of political community in Australia which are not dependent upon membership of a particular sub-group[743].

   [741](1992) 175 CLR 1 at 70.

   [742](1983) 158 CLR 1 at 274.

   [743]See The Tasmanian Dam Case (1983) 158 CLR 1 at 274.

2. Although Mr Love is a citizen of Papua New Guinea, having been born there in 1979 after independence of that country from Australia in 1975, his identity as an Aboriginal man is based upon: (i) his paternal great-grandparents, who were descended "in significant part from people who inhabited Australia immediately prior to European settlement"; (ii) his self-identification as a descendant of the Kamilaroi tribe; and (iii) his recognition as such a descendant by an elder of that tribe.

3. Although Mr Thoms is a citizen of New Zealand, having been born there in 1988, the parties agree that he is an Aboriginal man. He identifies, and is accepted by other Gunggari People, as a member of the Gunggari People. As a Gunggari man he is a holder of native title. The native title determinations that recognised the rights of the Gunggari People quoted from a report that said[744]:

   "Despite the odds, determined efforts on the part of the Gunggari to maintain knowledge of country, of kin and countrymen, and of Gunggari law and custom – both on country and at a remove – ensured the survival of Gunggari society. Present Gunggari society may be seen as substantially continuous with that existing at presovereignty."

   [744]Kearns on behalf of the Gunggari People #2 v Queensland [2012] FCA 651 at [22]; Foster on behalf of the Gunggari People #4 v Queensland [2019] FCA 1402 at [20]. See also Foster on behalf of the Gunggari People #3 v Queensland [2014] FCA 1318 at [23].

4. As to whether Mr Love and Mr Thoms meet the tripartite test for recognition as members of an Aboriginal community, it is unnecessary to descend to the detail of any inferences that can be drawn from the agreed facts. At one point in oral submissions, the Solicitor-General of the Commonwealth accepted that Mr Love and Mr Thoms were Aboriginal, properly adding that the Commonwealth was "conscious of the historical difficulties that have attended questions of definition in relation to Aboriginal persons" and saying that the case had therefore been approached at a higher level of principle. The Commonwealth's position was clarified in a written response to the Senior Registrar of this Court after the first hearing in which it was explained that "the Commonwealth prefers not to take a position on the state of the agreed facts". In short, the Commonwealth has never disputed that the agreed facts might be sufficient for the plaintiffs' asserted conclusion that both men are Aboriginal.

5. The process of agreeing the facts of a special case to be presented to this Court takes place against the background of the issues understood to be in dispute. A plaintiff needs to introduce sufficient facts to satisfy the Court, but that sufficiency can be shaped by the matters in dispute. The position in relation to Mr Thoms is plain. It is an agreed fact that Mr Thoms is an Aboriginal man. As for Mr Love, the lack of any dispute about the sufficiency of recognition of him as a member of an Aboriginal community means that there has been no contest against which to consider issues that might surround the application of the tripartite test, including: (i) whether the tripartite test, developed in the context of native title, and involving issues of recognition by sub-groups of Aboriginal people, should be adapted in the context of application of provisions such as s 51(xix) or s 51(xxvi); (ii) whether the limbs of the tripartite test are each part of a continuum from weakness to strength; and (iii) whether the limbs are interrelated so that a weaker factual basis in one limb could be compensated for by a stronger factual basis in others[745]. In the absence of any contest on this point, and in circumstances in which there is force in each of the three propositions above and in which it is plainly open to treat Mr Love as Aboriginal, the assumption upon which the agreed facts proceeded, namely that Mr Love is Aboriginal, should be accepted.

   [745]See, for instance, Gibbs v Capewell (1995) 54 FCR 503 at 512; Shaw v Wolf (1998) 83 FCR 113 at 119.

6. As mentioned earlier in these reasons, each plaintiff also relied upon numerous facts whose relevance was to show the integration of each plaintiff into the Australian community. For instance, in relation to Mr Love these facts include: his paternal grandfather served with Australian military forces; his father was born an Australian citizen in the Territory of Papua; his mother lived in Australia for 19 years until she died; he arrived in Australia 34 years ago with his parents and has lived in Australia continuously since then on either a permanent residency visa or a BF transitional (permanent) visa; he was married to an Australian citizen; and he has five children, who are Australian citizens. In relation to Mr Thoms the facts include: his maternal great-grandparents and grandparents were born in Australia and lived their lives in Australia (his grandmother continues to live in Australia); his mother was born in Australia, married his father, a New Zealand national, and has resided permanently in Australia with his father since 1994; his father became an Australian citizen in 2009; and Mr Thoms himself has resided in Australia since 1994, as, it seems, has his brother, and, since their respective dates of birth, his sister (an Australian citizen) and his child (also an Australian citizen).

7. Ultimately, it is unnecessary to consider the effect of the absorption of Mr Love and Mr Thoms into the Australian community upon the application of norms of political community. As I have explained, although absorption into the community might be a relevant factor, the course of authority in this Court denies that it is sufficient. The sufficiency of the plaintiffs' identity as Aboriginal people makes it unnecessary to explore this issue further.

8. It is also unnecessary to consider the circumstances in which an Aboriginal person might become an alien. It is possible for a person who is a non-alien to become an alien. In relation to non-Aboriginal people, one obvious manner in which this can occur is by renunciation of citizenship. So too, the renunciation of Aboriginal identity by a non-citizen might transform the status of that person from non-alien to alien. Other circumstances need not be considered because they do not arise here. The Commonwealth did not suggest that Mr Love or Mr Thoms had engaged in any conduct, or was the subject of any circumstance including de-identification or non-recognition from his Aboriginal community, that could alter his status from non-alien to alien.

   Conclusion

9. A premise of the submissions of all parties and the intervener to these special cases, consistently with the same premise in previous cases in this Court[746], solidly based upon repeated statements in this Court[747], is that the constitutional concept of an alien is not co-terminous with any persons whom the Commonwealth Parliament chooses to make statutory citizens. That long-standing assumption is correct. Political community is not a concept that is wholly a creature of legislation. For example, a child born in Australia to two parents who have only Australian citizenship is not an alien. The metaphysical ties between that child and the Australian polity, by birth on Australian land and parentage, are such that the child is a non-alien, whether or not they are a statutory citizen. The same must also be true of an Aboriginal child whose genealogy and identity includes a spiritual connection forged over tens of thousands of years between person and Australian land, or "mother nature"[748].

   [746]See also Singh v The Commonwealth (2004) 222 CLR 322 at 327.

   [747]Pochi v Macphee (1982) 151 CLR 101 at 109; Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 435-436 [132], 469-470 [238], 490 [297], 491-492 [303]; Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 at 36 [9]; Singh v The Commonwealth (2004) 222 CLR 322 at 329 [4]-[5], 382-383 [151]; Koroitamana v The Commonwealth (2006) 227 CLR 31 at 54-55 [81].

   [748]Western Sahara (Advisory Opinion) [1975] ICJR 12 at 85. See also Mabo v Queensland [No 2] (1992) 175 CLR 1 at 41.

10. This conclusion could only be avoided by denying its premise, so that the children in both scenarios are capable of being aliens according to the definition of citizen chosen by the Commonwealth Parliament. That approach would be contrary to the essential meaning of s 51(xix), which is not tied to the state of legislation. It would deny the long-standing existence of a category of persons who are non-citizens and non-aliens. It would effectively allow the Commonwealth Parliament to recite itself into power. To the extent that such an approach might be said to be based upon a concern for equality within the political community, it would involve a misunderstanding of both equality and community. And, by denying the unquestioned premise and authority upon which every party and the intervener proceeded in these special cases, it would deny Aboriginal people the essence of their identity without giving any party or the intervener, or any of the population of more than half a million Aboriginal or Torres Strait Islander people or their representative bodies, the opportunity to be heard on the point.

11. I would answer the questions in each special case as follows:

    Question: Is the plaintiff an "alien" within the meaning of s 51(xix) of the Constitution?

    Answer: No.

    Question: Who should pay the costs of the special case?

    Answer: The defendant.