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The unfinished business of colonisation

  • 17 February 2020
Last week the High Court of Australia handed down its decision in Love and Thoms v The Commonwealth. As reported here in December, the plaintiffs, Daniel Love and Brendan Thoms, are both non-citizen Aboriginal men who have lived in Australia since they were young. The government tried to deport them because they each have a criminal record. The men appealed against their deportation, arguing that the government did not have the power to deport them under the constitution.

The High Court agreed with Love and Thoms, in a majority of 4:3.

All four judges in the majority agreed with the principle that ‘Aboriginal Australians… are not within the reach of the “aliens” power conferred by s 51(xix) of the Constitution’. Although agreeing on the principle, the majority judges were not unanimous in how this principle applied to both men. Mr Thoms is a registered native title holder. As such, the law has already acknowledged his Aboriginality through an exhaustive process of determining an ongoing connection by the native title holders with their lands. For this reason, there was no question that the principle applied to him. After the judgment, Mr Thoms was released from immigration detention where he had been held for some months.

Mr Love, however, while part of an Aboriginal community, is not a native title holder. For this reason, some in the majority made no finding as to whether he fell within the principle. In the narrowest of the judgments, Justice Nettle found that the Federal Court should determine whether, as a matter of fact, Mr Love satisfied the relevant test concerning his Aboriginality. If he did so, then he too would fall outside the ‘aliens’ power.

Because of the difference in the findings of the majority judges regarding Mr Love, it is unclear what will happen next for him — whether his matter will need to be heard by the Court, or whether the matter will simply rest. In the meantime, he too is free from detention.

The minority judges seemed particularly concerned with two factors. One was apprehension about the possible attribution of ‘sovereignty’ to Aboriginal communities. The implication was that this might come close to contradicting the sovereignty of the Australian State. The other was a concern about introducing ‘race’ as a criterion for citizenship.


'This difference — between the existence of sovereignty and the consequences of sovereignty— is crucial to understanding that the divergence between the judgments lies in