The unfinished business of colonisation



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.

An Aboriginal flag waving against a stormy sky (Getty Images/ Sean Garnsworthy)

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 how the issue is framed.'


Predictably, following the decision some commentators have denounced the decision in pejorative terms as ‘judicial activism’ that has generated a ‘woke outcome’. Some have suggested that the government must be sure to appoint ‘Capital C conservatives’ to the High Court to protect the constitution. These comments are reminiscent of the hysteria following the decision in Mabo, in 1992 — hysteria that has, in the long term, been unfounded.

By contrast, as pointed out by Professor Megan Davis, the judgments were ‘cautiously framed’ and the case ‘emphatically reinstates its prior pronouncements’ on sovereignty — namely that it is a matter for the parliament, not the court. Justice Nettle affirmed that ‘the Crown's acquisition of sovereignty over the territory of Australia from 1788 cannot be called into question in this or any other Australian municipal court.’ He pointed out though that ‘the consequences of the acquisition of sovereignty in and for municipal law are justiciable…’ This difference — between the existence of sovereignty and the consequences of sovereignty — is crucial to understanding that the divergence between the judgments lies in how the issue is framed.

On the question of race, there is no doubt that the Australian Constitution does itself engage with race. As Justice Gordon points out, there is a head of power concerned with race. The constitution does not prohibit special treatment of race. Additionally, the inquiry as to whether Love and Thoms are ‘aliens’ under the constitution is not only a question of race. It is a question of biological descent, self-identification and recognition by an Indigenous community. This ‘tripartite test’ is well known and has long standing.

Despite claims to the contrary, the decision in Love and Thoms affirms the standing of the common law, including the unassailable power of the Australian State to make and enforce law. It upholds the centuries-long common law principle of accommodation of Indigenous laws in a colonial context. In this respect, the decision accords with a contemporary legal and social understanding of how Indigenous Australians fit within the broader Australian polity.

But what is clear also is that this decision has arisen because Australia has unfinished business with Aboriginal and Torres Strait Islander peoples. Until we engage in proper legal relations with Indigenous Australians, on freely negotiated terms, we will continue to see new questions arise for determination — such as they have in this case.



Kate GallowayKate Galloway is a legal academic with an interest in social justice. She is presently associate professor of law at Griffith Law School.

Main image: An Aboriginal flag waving against a stormy sky (Getty Images/ Sean Garnsworthy)

Topic tags: Kate Galloway, Indigenous, ATSI, High Court, Love and Thoms



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Existing comments

The power of Goverment to change laws has trapped many Australians to Statelessness. The children of Australian Citizens born in PNG prior to Independence were given Australian Citizenship at birth. We were rendered 'not Australian' by a retrospective change in Citizenship Laws which is being enforced in recent years. Many of us have had Australian passports and lived in this country for decades.
Liz Munro | 19 February 2020

I remember watching 'Insiders' on the ABC last Sunday. The panel included Malcolm Farr, who I have always regarded as a fair minded journalist. When asked about Love and Thoms, he appeared to have some reservations. He mentioned that his grandfather was from one of the Scandinavian countries and wondered whether he had any special rights there. I guess a special right, subject to clear conditions, is what Love and Thoms appears to have established for certain non-Australian citizens. Law is quite difficult for many outside the legal profession to understand. This decision has confused many who cannot understand why it was arrived at by the majority of judges and what the long term implications are. This is very similar to what happened with the Mabo decision. Mabo and native title, as well as the concept of Aboriginality as applied in certain circumstances, such as that of Bruce Pascoe, can be extremely confusing for a number of Australians who do not share your intelligence, education and experience. We have an increasing number of citizens very similar to the 'poor whites' in the USA. They are not amused by this. How on earth do you get everyone together to the next stage you envisage, which appears to be a treaty negotiated on equal terms?
Edward Fido | 21 February 2020


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