Love v The Commonwealth

The case of *Love v The Commonwealth* involved two plaintiffs, Mr Love and Mr Thoms, who were foreign citizens born outside Australia and had not acquired Australian citizenship. They were biological descendants of Indigenous peoples and sought to establish that they were not "aliens" within the meaning of section 51(xix) of the Australian Constitution. Their visas had been cancelled under section 501(3A) of the *Migration Act 1958* (Cth), and the central dispute concerned whether their status as Aboriginal Australians rendered them non-aliens for constitutional purposes, despite their lack of statutory citizenship. The matter was heard by the High Court of Australia.

The High Court was required to determine whether an Aboriginal Australian, as defined by the tripartite test established in *Mabo v Queensland [No 2]*, could be considered an "alien" within the meaning of section 51(xix) of the Constitution. This involved considering whether the constitutional concept of alienage was co-terminous with statutory citizenship and whether the plaintiffs' connection to Australia as Aboriginal people meant they fell outside the scope of the Commonwealth Parliament's power to legislate with respect to "aliens". The Court also had to consider whether the *Migration Act* provisions in question could validly apply to the plaintiffs.

A majority of the High Court held that Aboriginal Australians, understood according to the tripartite test, are not within the reach of the "aliens" power conferred by section 51(xix) of the Constitution. The Court reasoned that the constitutional concept of an alien is not determined by Commonwealth legislation but is rooted in fundamental notions of political community and belonging. The majority emphasised that the ties of birth and parentage, and similarly the deep spiritual and ancestral connection to Australian land characteristic of Aboriginal identity, establish a person as a non-alien, irrespective of statutory citizenship. While the majority agreed on this principle, they were unable to reach a consensus on whether the plaintiff in Matter No B43/2018 met the criteria for being an Aboriginal Australian on the facts presented.

In Matter No B64/2018, the Court answered "No" to the question of whether the plaintiff was an "alien" within the meaning of section 51(xix) of the Constitution, as the plaintiff was found to be an Aboriginal Australian. In both matters, the defendant, the Commonwealth, was ordered to pay the costs of the special case. The Court also noted that it was unnecessary to consider circumstances in which a non-alien might become an alien, as the Commonwealth had not presented evidence of any such conduct or circumstances affecting the plaintiffs.