JADE Recent Australian High Court Cases (HCA)


Love v Commonwealth of Australia; Thoms v Commonwealth of Australia

[2020] HCA 3 (11 February 2020) (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ)

Available in JADE Professional Layout.

CitationLove v Commonwealth of Australia [2020] HCA 3
CatchwordsConstitutional 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”.
JudgeKIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ
OrdersMatter 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.
Decision Date11 February 2020
Legislation CitedConstitution, 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.
FilenumberB43/2018 & B64/2018
PartiesDANIEL ALEXANDER LOVE PLAINTIFF
COMMONWEALTH OF AUSTRALIA DEFENDANT

BRENDAN CRAIG THOMS PLAINTIFF
COMMONWEALTH OF AUSTRALIA DEFENDANT
RepresentationS 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
Retrieved onTuesday, 11.02.2020 at 10:16 AM
BJS Number708192

Published by Editor-in-Chief

editor@jade.barnet.com.au

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