On 11 February, the High Court ruled by a 4-3 majority that indigenous Australians cannot be considered ‘aliens’ within the meaning of s 51(xix) of the Constitution and are therefore beyond Parliament’s legislative competence under that section.
The plaintiffs, Mr Thoms and Mr Love, who are of Aboriginal descent, were born overseas and lived in Australia as non-citizens. They were both convicted of violent assaults and subject to visa cancellation by the Department of Home Affairs for failing the character test under s 501 of the Migration Act 1958 (Cth). Mr Thoms was found to be an indigenous Australian under the law and was released from immigration detention whereas the question of Mr Love’s indigeneity was referred to the Federal Court.
The decision is evidently contentious, with every judge of the High Court espousing distinct reasoning for their conclusion.
With the outcome of Love v Commonwealth receiving significant coverage in the media, Thomson Reuters sat down with Justice Geoffrey Flick of the Federal Court and Senior Lawyer Allan Flick, joint authors of High Court Practice, and Alexander Flecknoe-Brown, Barrister and author of the Federal Circuit Court Guidebook, to discuss the implications and potential effects of Love v Commonwealth  HCA 3.
Practitioners most affected by Love v Commonwealth
Justice Flick and Allan, who are subjects matter experts on Constitutional law, consider that the immediate consequences of the decision are likely to arise in migration law, and stated:
“The immediate practical consequence of the judgment is that s 51(xix) does not provide a basis for an exercise of legislative power that purports to apply to non-citizen Aboriginal Australians by virtue of their lack of citizenship.
That question will most immediately arise in decisions made under the Migration Act 1958 (Cth). But the manner in which the decision may be sought to be applied in other legislative contexts remains uncertain.”
Alexander Flecknoe-Brown pointed out that there are also implications for native title practitioners.
“No doubt native title practitioners will also be aware of the decision, but less because of the specific issue (ability to deport persons who are Aboriginal in law) than with the High Court’s consideration of the 3-part Mabo test…One consequence of that consideration is to return attention to how best to describe the composition of a native title claim group (or holders)”– Alexander Flecknoe-Brown, Barrister and author of the Federal Circuit Court Guidebook
Principles of constitutional interpretation
The decision of Love v Commonwealth is primarily concerned with constitutional limits on legislative power. Justice Flick and Allan observe that the case serves to clarify the limit of the “aliens” power with regard to Aboriginal Australians:
“As Chief Justice Kiefel states at , it is now regarded as settled that it is for Parliament, relying on s 51(xix), to create and define the concept of Australian citizenship and its antonym, alienage. The decision does not alter that position, save as to provide clarity that Aboriginal Australians are not aliens.
Furthermore, both authors added that that while the High Court appears to accept that legislative power under s 51(xix) is not unqualified, as a consequence of the differing judgments, the limits thereto remain uncertain.
“There is a tension between two settled principles … [first], that the power conferred by s 51(xix) is a wide power enabling Parliament to determine who will be admitted to formal membership of the Australian community, and [secondly, that] Parliament’s power to decide who will be an alien must be exercised within the limits of that concept.” (citing Gleeson CJ and Heydon J in Koroitamana v Commonwealth of Australia (2006) 227 CLR 31; 80 ALJR 1146;  HCA 28 at )
The High Court has resolved this tension with respect to Aboriginal Australians for the purposes of s 51(xix). The tension is unresolved in other areas,” said Justice Flick and Allan.
Alexander maintains that there may be broader effects on future constitutional interpretation:
“The decision identifies one kind of case in which a constitutional concept, although generally susceptible of legislative definition, contains an ‘irreducible minimum’ (or perhaps an insuperable maximum) which Parliament cannot alter.
Although the practice of defining an irreducible minimum is well-established, Love may signify a greater willingness by the Court as currently composed to give positive content to constitutional expressions, where the current Justices’ predecessors preferred a more elusive incremental approach,” he said.
‘Race-based limitation’ on legislative power
Alexander recognises that in one view the case may be interpreted as creating a “race-based limitation on legislative power” but dismisses this as invalid legal criticism:
“It is concerning that the expression ‘race-based limitation on legislative power’ might be used in some quarters as a pejorative expression, implicitly denigrating the decision as ‘reverse racism’… as well as presupposing that more legislative power is necessarily better. Both of those points represent political perspectives, but not a valid critique of the legal reasoning in Love.”
He also observed that Love v Commonwealth has raised questions regarding the status of indigenous Australians.
“It is clear enough that not everyone agrees that people who are in law indigenous (in the Mabo sense) ought to be immune from deportation. But clearly enough, further consideration is warranted in relation to how indigeneity intersects with Australian citizenship, and how it should be taken into account in the exercise of a wider range of governmental powers.”
Justice Flick and Allan consider that the decision itself does not lead to a race-based limitation on legislative power and note the call of the Chief Justice as to the proper role of the judiciary. However, they accept that there may be a possibility of future litigation founded on such an argument.
“Whilst the decision may have far-reaching consequences for constitutional interpretation and may not result in a race-based limitation on legislative power on the approach pursued by the majority, the prospect of future litigation founded upon such a limitation cannot be summarily discounted. This is not, however, to say that the decision provides the basis for such hypothetical litigation”– Justice Geoffrey Flick of the Federal Court and Senior Lawyer Allan Flick, joint authors of High Court Practice
Effecting deportations under a separate head of power
Attorney-General Christian Porter has discussed the possibility of effecting deportations of indigenous Australians under a separate head of legislative power. Alexander maintains that Love v Commonwealth may still apply in such a context:
“Gageler J (dissenting) suggested that Parliament might revert ‘to the approach of relying on the power conferred by s 51(xxvii) to make laws with respect to ‘immigration and emigration’. Alternatively, the Commonwealth Parliament might consider itself obliged to address them through racially targeted legislation enacted under s 51(xxvi)’ (at ). Nettle J (at ) and Gordon J (at ) made some oblique references to the same power, although the sense one gathers from their Honours’ reasons might be that the same limitation would apply to that power as well.
Love will have created a ‘negative implication’ operating as a freestanding constitutional guarantee, rather like the guarantee of just terms for acquisitions of property under s 51(xxxi) (see Re Wakim; Ex parte McNally (1999) 198 CLR 511; 73 ALJR 839;  HCA 27 at ),” he explained.
The future of Love v Commonwealth
Alexander stressed to Legal Insight that there is no telling whether the decision will be upheld or departed from if ever revisited by the High Court.
“It may well depend on the composition of the Court at the time (noting that two members of the majority, Bell and Nettle JJ, will retire within the next two years). However, as with Al-Kateb v Godwin (2004) 219 CLR 562; 78 ALJR 1099;  HCA 37, it may well be that there is no future opportunity to reopen and overturn the decision as such; it may simply be refined or distinguished, thereby progressively diminishing in relevance.”
Justice Flick and Allan highlighted the potential for further complexity.
“Whilst it is trite to acknowledge the differences between the reasons published by each member of the High Court, those differences in reasoning, and the lack of a single unified approach to resolving the aforementioned tension [between the principles that Parliament has power to determine who is an alien, and that such power needs to be exercised within the limits of the concept of “alien”], may have significant and far-reaching consequences from the perspective of constitutional interpretation.”
About the Participants
Justice Geoffrey Flick: The Hon Geoffrey A Flick is a Judge of the Federal Court of Australia and has an extensive background in all areas of federal law. He was admitted to the bar in 1974 and took silk in 1993. He has practised widely in most jurisdictions and extensively in the Federal Court since its inception. Justice Flick has also written widely, particularly on many aspects of administrative law, including Thomson Reuters’ subscription services High Court Practice and Federal Court Practice.
Allan Flick: Allan Flick is a Senior Lawyer at Clayton Utz. He specialises in commercial dispute resolution, with experience in a diverse range of dispute processes under both international and local laws, including complex commercial litigation, international arbitration and alternative dispute resolution, and extending to environmental and wildlife laws. He has recently begun writing for Thomson Reuters’ subscription service High Court Practice.
Alexander Flecknoe-Brown: Alexander Flecknoe-Brown is a Barrister practicing in commercial and public law, having worked on numerous matters raising constitutional issues, including on several occasions in the High Court. He is regularly briefed in judicial and merits review proceedings in the Federal Court, the Federal Circuit Court, the New South Wales Supreme Court, and the NSW Civil and Administrative Tribunal. He writes for Thomson Reuters’ subscription service Federal Circuit Court Guidebook.