–Julian R Murphy, PhD student, University of Melbourne, School of Law
The High Court of Australia recently handed down its decision in Love v Commonwealth of Australia. The case concerned the so-called “aliens power” in the Australian Constitution and whether it could be used to deport an Aboriginal Australian who was born overseas and had not applied for Australian citizenship. In Australia, the decision has ignited a debate about judicial activism, constitutional interpretation and the unique place of Aboriginal people in the constitutional community.
Outside of Australia, the decision will be of special interest to Canadian lawyers because s 91(25) of Canada’s Constitution Act 1867 is identical to the Australian “aliens power”. Comparativists will also note the Australian High Court’s heavy citation of foreign domestic case law and scholarship, as well as numerous international law sources on the rights of colonised indigenous peoples.
Love concerned two men – Daniel Love and Brendan Thoms – who were Aboriginal Australians and long-term residents of Australia but who were citizens of Papua New Guinea and New Zealand by virtue of being born in those countries. Mr Love and Mr Thoms were found guilty of criminal offences attracting prison sentences of over 12 months. As a consequence, they were purportedly rendered liable to deportation under a “character test” in Australia’s migration legislation. Before their deportation, however, Mr Love and Mr Thoms brought legal action arguing that the federal government’s lawmaking power with respect to “naturalization and aliens” in s 51(xix) of the Constitution did not permit laws for the deportation of Aboriginal Australians.
In February of this year, the Court decided the case in favour of Mr Love and Mr Thoms by a bare majority of 4 to 3. Leaving aside an evidentiary question that was unable to be resolved, the Court held that Aboriginal Australians could not possibly answer the constitutional descriptor “alien” and thus they lay beyond the legislative power regarding deportation.
A Constitutional Concept of “Belonging”
At 169 pages, and with each of the seven Justices writing separate judgments, the decision in Love is lengthy, even by Australian standards (where Justices regularly write separately). However, there is one central strand of reasoning that unites the four majority justices – a conception of “belonging” as the converse of alienage.
The most senior member of the majority, Justice Bell, drew on previous authority which had noted that the term “alien” connotes “belonging to another … place”. Justice Bell concluded that, recognising “the cultural and spiritual dimensions of the distinctive connection between indigenous peoples and their traditional lands”, “Aboriginal Australians cannot be said to belong to another place.” Justice Nettle, also in the majority, focused on “an essentially spiritual connection with ‘country’ … [which] runs deeper than the accident of birth in the territory or immediate parentage”. Justice Gordon wrote to the same effect:
“The constitutional term ‘aliens’ conveys otherness, being an ‘outsider’, foreignness. The constitutional term ‘aliens’ does not apply to Aboriginal Australians, the original inhabitants of the country. An Aboriginal Australian is not an ‘outsider’ to Australia.”
The final member of the majority, Justice Edelman, held that the essential meaning of the term “alien” is “a foreigner to the Australian political community”. His Honour explained: “The antonym of an alien to the community of the body politic … is a ‘belonger’ to the political community.”
What emerges from the majority judgments is the understanding that, by virtue of their deep and enduring connection to the land of Australia, Aboriginal people are an essential and in-excludable part of the Australian constitutional community.
Allegations of Judicial Activism
As soon as it was published, the decision in Love ignited broad public debate. On the one hand were those, including many indigenous leaders, who celebrated the decision. On the other hand were the mostly conservative commentators who decried the majority judgments as judicial re-writing of the Constitution at the precise time that Australia is considering a referendum to amend the Constitution with respect to Aboriginal peoples. So heated was the debate that the Australian Bar Association issued a public plea for more respectful discussion of the issue.
When the controversy calms, the enduring consequences of the case will be in the field of constitutional interpretation. Unlike the United States and elsewhere, the Australian High Court rarely exhibits sharp differences of opinion as to methods of constitutional interpretation. Most Justices practice what has been called “non-literal, purposive interpretation”, which seems very close to “faint-hearted originalism” or “evolutionary originalism”. Far from self-identifying, however, the Court will usually disclaim such labels on the grounds that they “obscure much more than they illuminate”.
In Love, however, the differences of interpretative methodology are unmistakable. On the one hand, Chief Justice Kiefel and Justice Keane (both in dissent) adopt a formalist approach to constitutional interpretation that is particularly deferential to both precedent and federal legislative power. On the other hand, Justices Bell and Gordon’s approach is more purposive, in the way their Honours interpreted the text with a view to advancing high-level constitutional purposes and values. It is also notable that a number of Justices referred to “contemporary international understanding”, “comparative law” and international treaties, although apparently only to confirm the interpretative conclusion reached by other means. Finally, and perhaps most interestingly, three of the Justices adopting what might be called evolutionary originalist reasoning – Justices Gageler, Nettle and Edelman – reached different conclusions about the historic relevance of race to the concept of alienage.
Love is significant for its explicit engagement with the unwritten concept of a constitutional community and it is, of course, particularly important for Aboriginal people. However, the lasting influence of the case in the field of constitutional interpretation remains to be seen.
Suggested Citation: Julian R Murphy, Defining Australia’s Constitutional Community – The High Court’s Landmark Decision in Love v Commonwealth of Australia, Int’l J. Const. L. Blog, Mar. 17, 2020, at: http://www.iconnectblog.com/2020/03/defining-australia’s-constitutional-community–the-high-court’s-landmark-decision-in-love-v-commonwealth-of-australia