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Lavery, Daniel --- "Judicial Distancing in the High Court: Love /Thoms v Commonwealth" [2020] JCULawRw 11; (2020) 26 James Cook University Law Review 159


Daniel Lavery[1]*

I Introduction

Very few decisions of the High Court of Australia in recent decades have exposed the complement of the court to such variant fundamental views on the methodology of constitutional interpretation than the February 2020 decision of Love/Thoms v Commonwealth.[1] Seven judges wrote seven judgments, the matter decided by a bare majority.

And it was not merely the outcome that was divided, the views expressed by the individual judges on foundational issues were in marked contrast. Justice Gordon, in the majority, writes that ‘European settlement did not abolish traditional laws and customs, which establish and regulate the connection between Indigenous peoples and land and waters.’[2] Kiefel CJ, in the minority, states:

It is not the traditional laws and customs which are recognised by the common law. It is native title [...]. The common law cannot be said by extension to accept or recognise traditional laws and customs as having force or effect in Australia. They are not part of the domestic law.[3]

Justice Nettle found in the Imperial constitutional law a fundamental duty to protect Indigenous societies, speaking of ‘the Crown’s unique obligation of protection to Australian Aboriginal societies and their members’.[4] Keane J flatly denies any such ‘unique obligation’.

Aboriginal persons in Australia were not subjects of the Crown with a special claim to the protection of the Crown that differentiated them from other inhabitants of the continent; nor were they subject to some special obligation to the Crown as a reciprocal of such “special protection”.[5]

The majority views of Bell, Nettle, Gordon and Edelman JJ prevailed, with the Chief Justice and Gageler and Keane JJ in the minority.

While the minority judgments are easier to comprehend because of their narrow focus on the Constitution and what is ‘constitutional law’, it is the more expansive, less constrained majority judges who are explored further afield and took some aspects of constitutional law beyond the text and structure of the Constitution – in appropriate circumstances – to places quite unfamiliar to Australian jurisprudence.

II The Facts

Daniel Love was born in Papua New Guinea, Brendan Thoms in New Zealand. Each is a citizen of their respective countries of birth. Both resided lawfully in Australia for substantial periods as visa holders, but neither sought to become an Australian citizen. Each was convicted of assault occasioning bodily harm under the Queensland Criminal Code and sentenced to imprisonment for 12 months or more. Their visas were cancelled by a delegate of the Minister for Home Affairs under the Migration Act 1958 (Cth), the effect of which was that both arguably became unlawful non-citizens and subject to deportation. Relevantly, both Love and Thoms had Indigenous Australian mothers. Love identified as a member of the Kamilaroi People, and Thoms as a member of the Gunggari People.

III The Issue

Section 51 of the Constitution provides that Parliament has power to make laws ‘for the peace, order, and good government of the Commonwealth with respect to: [...] (xix) naturalisation and aliens’. The special cases stated for the opinion of the Court was whether each of Love and Thoms was an ‘alien’ within the meaning of s 51(xix).

Another unusual feature of the case was that after the matter was heard in May 2019, the Court wrote to the parties inviting submissions on the question of ‘whether members of an Aboriginal society have such a strong claim to the protection of the Crown that they may be said to owe permanent allegiance to the Crown’.[6] In response, the Commonwealth issued s 78B Judiciary Act notices and the Attorney-General of Victoria intervened in support of both Messrs Love and Thoms. A further hearing was then held with Victoria submitting that members of an Aboriginal society are not within the reach of the aliens power in s 51(xix) by reason of the ‘recognised mutual and unique relationship between members of Aboriginal societies and the land and waters of Australia’.[7]

IV The Decision

The members of the High Court divided 4:3, with the majority holding that although Love and Thoms each did not have the status of an Australian citizen, they were not aliens.[8] Each member of the majority wrote a separate opinion, but all authorised Justice Bell to state: ‘although we express our reasoning differently, we agree that Aboriginal Australians (understood according to the tripartite test in Mabo) are not within the reach of the ‘aliens’ power conferred by s 51(xix) of the Constitution.’[9] Instead, the Indigenous plaintiffs occupy a unique constitutional status as ‘non-alien non-citizens’. The minority Justices each wrote separate opinions concluding that the plaintiffs were ‘aliens’ and subject to deportation. The situation is best summed up by Arciona and Thwaite:

The minority concluded that the constitutional status was determined by statutory citizenship, such that alien is the antonym of citizen. The majority position was that the relationship between statutory and constitutional membership is looser such that one can be both a non-citizen and a non-alien, i.e. outside statutory membership but inside constitutional membership.[10]

The decision drew national media attention, not because of any difference in methodology between the judges, but rather because the decision was seen by some commentators as ‘a disturbing development on our constitutional law’.[11] ‘High Court’s Race Ruling a Low Blow to Democracy’, a headline trumpeted.[12] It was ‘the most radical judgement [sic] in Australian history’ said one commentator.[13] Another wrote:

The High Court’s ruling is inconsistent with democracy. It entrenches inequality on the basis of race. It sows social discord by subordinating the safety of Australians to the pursuit of social justice. It violates the principle of equality before the law. It represents elitism of the lowest order.[14]

Additionally, the Minister for Home Affairs said the decision ‘creates another class of people, which I think is a very bad thing’ and that he was seeking advice to restrict its application.[15] So what exactly was the cause of this undemocratic, unequal, discordant and low order elitism, this ‘most radical’ decision in Australian legal history, this ‘very bad thing’? It may be best to start with the more conventional minority position.

A The Minority

The minority judges, Kiefel CJ and Gageler and Keane JJ, arrived at their conclusion by following the same essential methodology, but with a difference of emphasis. It was a ‘black-letter’ approach, exemplified by the Chief Justice. She started by iterating that it is for Parliament to create and define the concept of Australian citizenship and its antonym, alienage.[16] The power given under placitum (xix) to define who is an ‘alien’ was limited only by the circumstance that Parliament could not attribute that status to persons who could not possibly answer the description on an ordinary understanding of that word.[17]

The argument put by the plaintiffs did not challenge that parliamentary power, rather they had argued that neither the Migration Act nor s 51(xix) applied to an Australian Aboriginal person. The plaintiffs’ creative argument, simply put, was ‘that Indigenous Australians, because they are ab origene, from the very beginning, could not be alien to the Australian political community’.[18]

Kiefel CJ noted that placitum (xix) is not expressed to be subject to any prohibition, limitation or exception in respect to Aboriginal persons. In these circumstances, she stated, that the task of the Court in interpreting such a provision of the Constitution, ‘is to expound its text and where necessary ascertain what is implied in it.’[19] ‘Needless to say’, the Chief Justice proceeds to say:

questions of constitutional interpretation cannot depend on what the Court perceives to be a desirable policy regarding the subject of who should be aliens or the desirability of Aboriginal non-citizens continuing to reside in Australia.[20]

The Chief Justice analysed the relevant case law around the Migration and Australian Citizenship Acts and concluded they offer no support to the plaintiffs’ arguments which do not rest on any existing common law principle. Then it must be new principle yet, she noted, ‘the common law cannot be developed inconsistently with the Constitution’.[21] She said that the new common law principle contended by the plaintiffs may be expressed ‘that persons of Australian Aboriginal descent who have, or whose ancestors had, some connection with land in Australia are to be permitted to be physically present and not be subject to removal from Australia’[22] and ‘a rule of this kind points up an issue of race’.[23] The Chief Justice concluded:

Mabo may have been a landmark decision but it did not provide a philosophical basis by which such questions might be answered. It and the cases which follow explain what is native title. They hold that it [native title] will be recognised when the necessary facts are present. But they do not speak more broadly.[24]

Chief Justice Kiefel issued a parting shot that, if it is not the common law where such principle might be found, ‘it might be understood to bear the characteristics of a higher principle of which natural law might conceive’. She dismissed this possibility, saying ‘such conceptions are generally not regarded as consistent with constitutional theory. And they are regarded by some as antithetical to the judicial function since they involve an appeal to the personal philosophy or preferences of judges.’[25]

Justice Keane likewise adopted a strict black-letter approach and found that each plaintiff is an alien within the meaning of s 51(xix), stating:

The circumstance that each plaintiff is of Aboriginal descent does not take him outside the scope of s 51(xix). Section 51(xix) cannot be read as if it distinguished between persons of Aboriginal descent on the one hand and persons descended from other races on the other, so that the former are excluded from its scope.[26]

The judgment of Gageler J differs in that he takes time to examine the historical background, presenting a less dogmatic, more sympathetic view of the plaintiffs’ argument. He notes ‘the historical fact acknowledged in Mabo that indigenous persons “were dispossessed of their land parcel by parcel” in a process of dispossession which “underwrote the development of the nation”’.[27] And, further, he acknowledges the preambular statement in the Native Title Act that Indigenous peoples have become ‘the most disadvantaged in Australian society’. But Gageler J also states, ‘[t]he body politic of the Commonwealth of Australia is uniquely responsible for that consequence, and it is uniquely placed to redress that consequence.’[28] In dismissing the plaintiffs’ argument, he writes:

Morally and emotionally engaging as the plaintiffs’ argument is, the argument is not legally sustainable. The common law antecedents of the Constitution provide no basis for extrapolating from common law recognition of a cultural or spiritual connection with land and waters within the territory of the Commonwealth to arrive at constitutionally mandated membership of or connection with the political community of the Commonwealth.[29]

B The Majority

Every Justice in the majority expressed their reasoning differently but Justice Nettle perhaps best expresses the takeaway rationale that Parliament can define ‘aliens’ as it sees fit other than to apply it to persons who could not possibly answer the description on an ordinary understanding of that word (following Pochi v Macphee from 1982) and that members of an Indigenous Australian society could not fit that description.[30]

The ‘text and structure’ methodology of Kiefel CJ and the other minority judges is necessarily constrained but it is in spectacular contrast to that of the majority judges who range far and wide in arriving at this joint conclusion. Justice Bell calls into aid the 2007 UN Declaration of the Rights of Indigenous Peoples in countering a Commonwealth argument that to hold that its legislative power could not extend to treating an Aboriginal Australian as an alien is to identify a race-based limitation on such power. She said:

It is not offensive, in the context of contemporary international understanding, to recognise the cultural and spiritual dimensions of the distinctive connection between indigenous peoples and their traditional lands, and in light of that recognition to hold that the exercise of the sovereign power of this nation does not extend to the exclusion of the indigenous inhabitants from the Australian community.[31]

It is notable that Bell J rejected an argument presented in the (constitutional) language of race and instead answered in the (international) parlance of indigeneity.

Nettle J, too, ranged widely in his exploration of the issues, from the history of the common law to statements of Justice Frankfurter of the United States Supreme Court,[32] from the customary international law to the earliest correspondence and cases from colonial ‘New South Wales’. Appropriately, he settled on the Crown’s acquisition of sovereignty over the now Australian territories ‘from 1788’, and while wholly accepting that any Act of State is not justiciable, says that ‘by contrast, the consequences of the acquisition of sovereignty in and for municipal law are justiciable, and are to be determined by common law doctrines earlier grounded in the law of nature and now developed in step with customary international law.’[33]

This methodology is in direct counterpoint to the Chief Justice’s approach. However, on the face of his judgment, Nettle J does not appear to be engaging in any extra-judicial excursion: he is merely accepts the historical circumstances that, from 1788 a European power was engaged in annexing vast tracts of indigenous territories in New Holland and that the customary international law of that epoch is relevant both to the mode under which the European power acquired the territory and the consequences of same. And, further, that much of the customary principles on the incipient international law on the acquisition of territorial sovereignty have their origins in the law of nature. Without challenging any Acts of State, Justice Nettle is asking of the consequences of such acquisitions of territory. He journeyed as far back as the Valladolid Debate in 1550, [34] explores the customary international law of that epoch and does so relevantly and elegantly. One of the inevitable and primary consequences of that acquisition of territory centred on the fact that the New Holland territories acquired were populated by over 500 Indigenous societies. It is Justice Nettle who finds in the Imperial constitutional law a fundamental duty to protect those Indigenous societies, what he describes as ‘the Crown’s unique obligation of protection to Australian Aboriginal societies and their members’.[35]

Justice Gordon, in opening her opinion, left no doubt as to her position.

The fundamental premise from which the decision in Mabo v Queensland proceeds – the deeper truth – is that the Indigenous peoples of Australia are the first peoples of this country, and the connection between the Indigenous peoples of Australia and the land and waters that now make up the territory of Australia was not severed or extinguished by European “settlement”.[36]

Likewise, she was not constrained by where the Australian constitutional law finishes, and another constitutional law starts, quoting the ‘Great Chief Justice’ of United States Supreme Court, John Marshall, from one of the seminal, self-defining decisions of the US Supreme Court, Marbury v Madison in 1803, that it ‘is emphatically the province and duty of the judicial department to say what the law is’.[37]

Underscoring the separation between the judiciary and Parliament, she quoted Justice Fullager from the Australian Communist Party case: ‘[a] power to make laws with respect to lighthouses does not authorize the making of a law with respect to anything which is, in the opinion of the law-maker, a lighthouse.’[38] Accepting of the Pochi v Macphee limitation, Justice Gordon said that the constitutional term aliens ‘conveys otherness, being an “outsider”, foreignness’ and that term ‘does not apply to Aboriginal Australians, the original inhabitants of the country’.[39] ‘An Aboriginal Australian’, she stated, ‘is not an “outsider” to Australia’.[40]

However, Justice Gordon does not merely rely on this ordinary understanding of the constitutional concept of an alien, she also relies on another ground.

Native title is one legal consequence flowing from common law recognition of the connection between Aboriginal Australians and the land and waters that now make up Australia. That Aboriginal Australians are not ‘‘aliens’’ within the meaning of that constitutional term in s 51(xix) is another.[41]

In the longest judgment, Justice Edelman took but a few paragraphs to get to the point:

The Commonwealth relies upon the aliens power in s 51(xix) of the Constitution to support the validity of the Migration Act in its application to Mr Love and to Mr Thoms. But an Aboriginal person cannot be an alien to Australia. Aboriginal people belong to Australia and are essential members of the ‘‘community which constitutes the body politic of the nation state’’. Insofar as the Migration Act purports to apply to Aboriginal people of Australia, such as Mr Love and Mr Thoms, as aliens, it must be disapplied.[42]

Then, in an essay more philosophical than a typical Australian judgment, Edelman J asks – wholly engaging with the plaintiffs’ argument – what is the ‘Australian political community’. He does not accept that the constitutional ‘alien’ is an antonym of the statutory ‘citizen’, but instead raises the concept of ‘a belonger’. His opinion is the most nuanced of all, because in reviewing the relevant Australian case law he treats earlier minority and majority judgments alike, extracting relevant principle from both.

Another example is the nuance in his consideration of the North American ‘Indian’ in US constitutional law, where he observes, their legal position cannot be directly compared to Indigenous Australians but (quoting Professor Leti Volpp from an article in the University of California Irvine Law Review) concepts such as alien and citizen inadequately address the relationship between the nation–state and indigenous peoples. ‘Indians’, Volpp writes, ‘have been considered citizen and alien, as well as neither citizen nor alien’.[43] Edelman J notes ‘the basic difficulty in characterising American Indians as aliens is the same as that for Aboriginal people of Australia: ‘[w]e call an alien a foreigner, because he is not of the country in which we reside’.[44] It is this philosophical wrestling with ‘the relationship between the nation-state and indigenous peoples’, particularly those nation-states with a common law heritage, which is especially interesting. It is no coincidence that, like Australia, only three other nation-states failed to adopt the Declaration of the Rights of Indigenous Peoples in 2007, and all were countries with a common law heritage and with pre-existing indigenous populations.

It was Edelman J who also provides the lightest moment in the long decision when he addressed a submission by the Solicitor-General of the Commonwealth with relish. The Solicitor-General submitted that numbers of over-60s foreigners would seek to become members of an Indigenous community and thus ‘non-citizen non-aliens’ and unable to be deported. Justice Edelman does what amounts to a constitutional ‘drive by’, writing:

It might be doubted that there are significant numbers of foreign sexagenarians awaiting their acceptance as indigenous by Aboriginal communities in Australia. This is the type of ‘exercise in imagination’, ‘extreme example’, ‘absurd possibility’ or ‘distorting possibility’ about which this Court has repeatedly warned in constitutional interpretation, including in relation to the aliens power.[45]

V Discussion

It is a rare event in recent High Court history when every judge of a full seven-member court writes their own opinion and, perhaps even rarer, when the Court divides 4:3 not merely on a question of constitutional interpretation but on the more fundamental issue of the methodology of interpreting the Australian Constitution. The core issue at the heart of this Love/Thoms decision is, more abstractly, what are the metes and bounds of ‘constitutional law’ in Australia or, more exactly, what are the principles and sources, both written and unwritten, which properly inform our formal constitutional framework?

For the minority judges, particularly Kiefel CJ and Keane J, the province of ‘constitutional law’ has a very limited depth of field; it is bound by the text and structure of the Constitution. The majority judges know no such limits. As already observed, Bell J has no difficulty venturing into contemporary international law, Nettle J journeys to a months-long 16th century ‘Old World’ debate on whether persons of the ‘New World’ had souls, Gordon J identifies consequences other than recognition of their native title when there are ‘first peoples of the country’, and Edelman J draws from a journal article – an uncommon source in Australian jurisprudence but unexceptional in US Supreme Court jurisprudence – to ask where these Indigenous peoples are situated within the ‘Australian political community’.

A Race, ‘Aborigines’, ‘subjects of the Crown’, sovereignty and country

All seven judgments raise issues of race, ‘Aborigines’, ‘subjects of the Crown’, sovereignty and country. Had the issue concerned a lighthouse, to use Justice Fullager’s famous example, this decision may not have generated any headlines but when the issue of race is picked at, especially whether ‘Aborigines’ are to be privileged over other Australians, and when the very sensitive issue of ‘sovereignty’ is raised, then the matter is primed to generate heated debate and garner media attention.

The notion of race, in Australian constitutional terms, is an extremely difficult concept to navigate. Our ‘founding fathers’ were bathed in racist ideologies, and very frequently in the Federation Convention debates, deeply racist views were expressed and then such terminology appeared in the text of the Constitution. Until 1967, the Constitution spoke of ‘persons of the Aboriginal race’, and although there is now no mention of ‘Aborigines’ or ‘Aboriginal race’ in the Constitution, that history leaves an inevitable stain. There has been an attempt to assert that just because our constitutional forebears were imbued with these notoriously-racist beliefs, this is irrelevant to constitutional interpretation and ‘not a relevant fact’.[46] Such an argument is disingenuous. Such views were consciously injected into the corpus of the Constitution and infect it into the present. ‘[T]he sad truth is Australia may be the last Constitution in the world that permits the community to be divided along racial lines’, Professor George Williams recently noted.[47] Discussion of ‘race’ in the constitutional law discourse is impossible to avoid, and because this discourse is 120 years deep, it sometimes fails to note that the notion of race is not an objective reality but discredited, pseudo-scientific 19th century theory. In this respect, in the Love/Thoms decision, Justice Keane strikes a truly jarring note when he distinguishes ‘between persons of Aboriginal descent on the one hand’ and ‘persons descended from other races on the other’,[48] leaving an impression that the notion of an ‘Aboriginal race’ and of ‘other races’ is real rather than a false historical division of humanity from centuries past.

The other unfortunate constitutional reference, removed by reason of the 1967 referendum, was to ‘Aborigines’. These ‘Aborigines’ were seen as a distinct homogenous race in the mindset of the constitutional authors but, in reality, were a group of hugely diverse Indigenous peoples. Rainforest and saltwater peoples, desert peoples, plains and freshwater peoples – all very different. Different languages and mythologies, different traditional laws and customs, different material cultures, and – most importantly – all having a distinct bounded territory to which they had an especial connection – their country. The Yolngu People are not the Wuradjuri, the Noonggar are not the Walpiri, the Ngunnawal People are not the Butchalla, and the Yawuru People are not the Darumbal. Approximately 500 such Indigenous peoples lived in vital societies in New Holland and Van Dieman’s Land in the late 18th century. These peoples were originally called ‘Indians’ until the hegemonic term ‘Aborigines’ became the convenient, catch-all descriptor.

Historian Inga Clendinnen has said of the term that it ‘obscures almost as much as it illuminates’[49] but she is wrong as the term illuminates very little; it largely obscures the reality of hundreds of different Australian peoples. Like the term ‘African’ – which term journalist/writer Ryszard Kapuscinski called a ‘gross simplification’ – it is a race-based colonial construct, largely meaningless in a post-colonial setting. The collective term ‘Aborigines’ is a remnant of our colonial history and, much like the notion of ‘race’ and of the Australian Indigenous peoples being characterised as ‘backward peoples’,[50] it is an historically fake notions from which we presently have the unenviable task of attempting to escape. The word ‘Aborigine’ no longer appears in the text of the Constitution and it may now be time to erase this equally gross simplification from the constitutional legal lexicon.

All seven Justices are accepting of the special spiritual and cultural connection between these Indigenous people and their ‘country’.[51] It is significant, however, that while Justices Bell, Nettle, Gordon and Edelman all adopt the term country[52] to describe that distinct tract of land and/or sea territory to which an Indigenous society has a special spiritual connection, none of the minority judges do.

B The Colonial Law

Justice Gageler makes the salient point that remedial policy is within the province of the Commonwealth of Australia, ‘uniquely’ so he states, and – as a necessary corollary – such remedies are not within the gift of the judiciary. But that may be insufficient excuse for judicial inaction as it is within the judicial province to declare the law as and when matters come before the judges, as Gordon J stressed. Edelman J correctly states that this case calls into issue the relationship between the Australian nation-state and its Indigenous peoples. That relationship between the peoples of New World who were there and the Europeans who emigrated has been a live legal issue for over 500 years.[53]

The juridical questions faced by the Australian jurisprudence in viewing its Indigenous peoples is, of course, not novel to the colonial New Holland/Australian circumstances or to the Imperial constitutional law. Professor Brian Slattery has pointed out that these same issues required resolution in all modern states where the British asserted territorial sovereignty and then permanently colonised territories already inhabited by indigenous peoples.[54] Legal principles concerning aboriginal peoples and the Crown developed at the same time as other doctrines in the Imperial constitutional law and shared the same essential juridical character. Many of these basic tenets can be discerned as early as the 1700s in Crown practice in the British North American colonies. Of these colonial law principles, Slattery has written:

They emerge more fully developed during the next century and are reflected, if only partially, in the major Indian document of this era, the Royal Proclamation of 1763. Just as the eighteenth century colonial law harboured rules governing such matters as the constitutional status of colonies, the relative powers of the Imperial Parliament and local assemblies, and the reception of English law, it also contained rules concerning the status of native peoples living under the Crown’s protection, and the position of their lands, customary laws, and political institutions.[55]

The principles concerning the Crown’s relationship with indigenous peoples and their territories formed part of the special branch of law formally known as the Imperial constitutional law, but more commonly called the Colonial Law. In that Colonial Law, in most common law jurisdictions was a doctrine of aboriginal rights, usually some basic common law principles that spoke to the relationship between the Crown and aboriginal peoples and which regulated topics such as indigenous land rights, customary law, and political institutions, including the original terms upon which the Crown assumed sovereignty over the indigenous peoples and their territories.[56]

The doctrine of aboriginal rights is not part of the English common law, in the narrow sense of the phrase, but it was and remains part of the Anglo-Australian constitutional common law. Largely unwritten, generated principally by practice, it forms as integral a part of the basic Imperial common law as any other of the fundamental constitutional doctrines which underpin our formal foundational framework, such as the reception of English law in the colonies.

This [Colonial] law was inherited by the United States and Canada upon independence, although it assumed variant forms in the two countries due to differences in the constitutional structure. It now forms part of their basic common law. Since imperial constitutional law applied not only in North America but also to other British possessions, the same basic principles were arguably incorporated in the basic law of such Commonwealth nations as New Zealand and Australia.[57]

The unfortunate historical circumstances where the Australian Indigenous peoples were first believed to be ‘not numerous’, then seen as a doomed and dying race and now settled on in the jurisprudence as ‘backward peoples’[58] has left the lamentable legacy of an almost complete absence of understanding in the Australian jurisprudence of these aspects of our Imperial constitutional history and of this ‘basic common law’. Justice Brennan, in the Mabo (No 2) decision had the unenviable task of telling the Indigenous peoples of Australia they were seen as ‘backward peoples’, sovereign-less, and that ‘the British acquisition of sovereignty over the Colony of New South Wales was regarded as dependent upon the settlement of territory that was terra nullius consequent on discovery’.[59]

The acquisition of territorial sovereignty by the Crown over Australia is now said to be claimed under this Occupation of Backward Peoples doctrine. Under this doctrine, the British acquired an original, plenipotent sovereignty that instantaneously swept across the 3,000,000 square kilometres of claimed territory of ‘New South Wales’ on 7 February 1788, and across the balance of continental New Holland in 1824 and 1829. The Australian territories were treated as sovereign-less because the Indigenous societies were seen to be ‘backward peoples’, being human but without a full complement of human rights, and so low on a scale of civilisation that they were not possessed of anything resembling ‘sovereignty’, their territories terrae nullius.

The Indigenous peoples of Australia are unique in this way. Australia is the only country with a common law heritage that relies of this Occupation of Backward Peoples doctrine, viewing the first peoples of this country as ‘backward’ and thus ‘sovereign’-less, to found its own territorial sovereignty. The diverse and scrambling nature of the judicial responses in Love/Thoms reflects the poverty of the municipal jurisprudence concerning these aspects of the Imperial constitutional law. It is Justice Nettle who most exhibits an understanding of the doctrine of aboriginal rights in this corpus of law. He starts to draw together the fundamentals of an inter-societal accommodation that, if the Crown purports to annex the territories of these first peoples, one of the fundamental obligations on that Crown is the irreversible fiduciary duty to protect these Indigenous societies and the members of those societies The minority judges, in particular Kiefel CJ, fail to appreciate any such doctrine in the Imperial constitutional legal underpinning to the text and structure of the Australian Constitution and view the recognition of the doctrine of communal native title in Mabo (No 2) as an isolated event or as in some way covering the field and not permitting the Australian constitutional common law to make any other particular accommodations for its Indigenous peoples. It is not any new doctrine inconsistent with the Constitution which is being proposed here but mere reliance on a relevant set of pre-existing constitutional common law principles which underpinned the colonial foundations of Australia, well prior to nationhood and any Constitution.

This present-day orthodox theory of territorial sovereignty – and its wilful, scaly blindness – is under increasing contemporary pressure. Mabo (No 2) established that native titles housed in the traditional laws and customs of the Indigenous peoples survived the assertions of British sovereignty. In the High Court Yorta Yorta decision,[60] three Justices theorised that the traditional laws and customs of the Indigenous peoples were generated by ‘normative’ systems which necessarily must likewise have survived the assertions of sovereignty. In this Love/Thoms decision we see a number of Justices unconvinced that an original, plenipotent British sovereignty swept across the millions of square kilometres of Indigenous territories at instants in 1788, 1824 and 1829 and met nothing in its rathe passage. Justice Nettle says that sovereignty was burdened by a ‘unique obligation of protection to Australian Aboriginal societies and their members’.[61] Gordon J speaks of a ‘deeper truth’ where ‘the first peoples of this country’ were not severed or extinguished from connection to the land and waters of their countries which now constitute Australian territory.[62] A majority of the High Court bench have now refused to accept that these ‘first peoples’ can be alien to the present Australian nation, however that nation is configured and constituted.

The threads of this orthodox theory of territorial sovereignty do appear to unravelling before our eyes. Can these Australian territories really be seen to be terra nullius and ‘sovereign’-less when our jurisprudence recognises there were and are ‘first peoples’? Must we still assert that these Indigenous peoples are ‘backward peoples’ to claim an ‘original’ sovereignty? These issues were not troubled in the Love/Thoms decision but one topic did cause pause for thought. Every Justice adopts the conventional shibboleth that these ‘Aborigines’ – at some point in time, and it differs in the judgments – became ‘subjects of the Crown’. The plurality position seems to be that it is the arrival of the common law on Australian shores which caused this change of status. Several sources are given for this change, ranging from Chief Justice Kiefel saying it was ‘explained’ in Mabo (No 2)[63] to Nettle J quoting correspondence to such effect from the Secretary of State for War and the Colonies in 1837.[64] It does seem axiomatic that the Indigenous population must have become subjects of the Crown, but did they? Can one unilaterally annex the territories of these ‘backward peoples’ with neither process nor compensation, claiming them to be human but ‘sovereign’-less, subjugate those persons for a further 150 years, denying them the basic civil, political and legal rights enjoyed by other subjects, and then glibly hypothesise that they most certainly became ‘subjects of the Crown’? Even under the law of Conquest, the new sovereign respected the property rights of new subjects, only assuming that property which belonged to the old sovereign. The orthodox theory and the historical facts are in a state of profound cognitive dissonance on this point. In most disciplines, a hypothesis is abandoned if the facts do not support it. In this theory of Australian territorial sovereignty, the unsound legal hypothesis is upheld, the inconvenient historical facts are consigned to the footnotes.[65] This issue needs to be further explored.

VI Conclusion

The Love/Thoms decision underscores the difficulty faced by the seven most senior Australian judges in situating the ‘Aborigines’ in the constitutional framework of the modern Australian nation state. Justice Gageler says he cannot consign them to ‘inhabit some constitutional netherworld’,[66] yet have not these ‘Aborigines’ always occupied some ambiguous space in the formal Australian constitutional assemblage?

As improbable a victory as this decision may have appeared at first blush, it has exposed yawing gaps in the Australian jurisprudence concerning the Colonial Law principles which necessarily buttress our formal constitutional structures. It is one thing to dismiss as irrelevant some of the more obscure aspects of the Imperial constitutional law, another to be intellectually blind to relevant doctrines which the jurisprudence finds too uncomfortable to address, preferring instead to recite the ‘nursery version’ of the story of Australian sovereignty.

Four of the seven Justices accepted that the Australian Indigenous peoples and their respective countries are a fundamental premise to any theory of our ‘constitutional law’. It is correct, as the junior counsel for Love and Thoms have written, that the decision should not be regarded ‘as amounting to ‘judicial recognition’, in a broad sense, of Aboriginal Australians in the Constitution.’[67] But, it is probably now not correct to assert, as Justice Keane did, that there is no ‘special class’ within the people of the Commonwealth ‘who enjoy a constitutionally privileged political relationship with the Australian body politic’.[68] The majority view suggests the contrary. What has certainly occurred, however, is that a majority of the High Court has established the habitation of the Indigenous peoples of Australia in their respective territories in 1788 as a constitutional fact. That these peoples are the first peoples of Australia is that ‘deeper truth’.[69] In the Canadian jurisprudence, this occurred some 40 years ago and was stated so simply, yet profoundly, by Justice Mahoney of the Federal Court of Canada: ‘the fact is that when the settlers came’ these peoples ‘were there’.[70] It has been established in the Australian jurisprudence in 2020, albeit by the barest of majorities, that there are ‘first peoples of this county’, and that no black-letter Constitution can change or erase this most basic of constitutional facts.

The long-term game will surely go to the puisne judges, Justices Gordon and Edelman. Justice Gordon has potentially well over a decade left on the Court bench, not needing to retire until 2034. It is she who states most clearly the ultimate constitutional circumstance; the Indigenous peoples are the first peoples of Australia.[71] Justice Edelman, still aged in his 40s, has nearly two and a half decades remaining perhaps, a significant length of time for him to put an indelible mark on the Australian jurisprudence. Both he and Justice Gordon speak in terms of indigeneity, forsaking discredited notions of race and of ‘Aborigines’, both adopt the notion of country, both seem less anxious and avoiding of discussions of sovereignty, of drawing back the colonial curtain that is the tattered text of the time-worn Constitution and perhaps attempting to address some of the more obvious fictions and elisions behind that curtain.

It is probable that lawyers and law students who study this decision will comprehend that it opens up pathways once unseen to the Australian constitutional law. It would have been most interesting to see where Justice Nettle may have taken the jurisprudence had his tenure allowed. Unfortunately, he will not bring his learning to any further development to this aspect of the law, as his retirement is imminent at the time of writing. Indeed, the High Court will lose four members to mandatory retirement in the next four years. This decision – and the language of the decision – hints that there may have been a generational change in the Court’s complement, one where the membership is not as guarded, looking beyond the ‘text and structure’, peering clear-eyed at the unenviable historical record and the unfortunate constitutional legacies behind that text and structure and – perhaps – interrogating the many false hypotheses upon which the orthodox theory of territorial sovereignty resides in Australian jurisprudence. The Mabo (No 2) decision was seen at the time as a ‘judicial revolution’ but the doctrine of communal native title was known to, and had developed within, the Imperial constitutional law for centuries. That ‘landmark’ decision was merely the High Court wakening from its colonial torpor, former Chief Justice Robert French noting it was ‘not a revolutionary doctrine’.[72] The Love/Thoms decision shows obvious judicial distancing within the High Court complement but it may prove to be another milestone for the Australian jurisprudence in the development of a persuasive and coherent post-colonial constitutional theory of territorial sovereignty. On the sovereignty issue, it is well to remember that in the Mabo (No 2) litigation, less than 30 years ago, the Solicitor-General of Queensland told the High Court members that Australian ‘sovereignty’ connoted an absolute title in the soil, that if any so-called ‘native title’ existed it was extinguished upon the assertion of sovereignty and that the Meriam People could thereafter have ‘lawfully been driven into the sea’.[73] Six members of the High Court of Australia found such propositions wholly unacceptable in 1992 and it seems more probable now, should the occasion arise, that other false propositions hiding behind the orthodox theory of territorial sovereignty will likewise and inevitably be shown to be unacceptable to a more-responsive, less-unseeing Australian jurisprudence.

* BA, LLB (Hons), LLM, PhD, Adjunct Research Fellow, College of Business, Law and Governance, James Cook University. The author wishes to thank Michael Drew and Stephen Keim for their helpful comments on the draft.

[1] [2020] HCA 3; (2020) 375 ALR 597 (‘Love/Thoms’).

[2] Ibid 671 [297].

[3] Ibid 606 [37].

[4] Ibid 666 [276].

[5] Ibid 635 [162].

[6] Ibid, quoting Bell J at 613 [67].

[7] Ibid.

[8] There was an issue concerning Mr Love’s indigeneity which needed to be the subject to further proof.

[9] Love/Thoms (n 1), 616 [81].

[10] Elisa Arciona and Rayner Thwaites, ‘Aboriginal Australians not vulnerable to deportation’ (2020) 65 Law Society of NSW Journal 68, 69.

[11] Chris Kenny, ‘Court on the horns of an indigenous dilemma’, The Weekend Australian, 22-23 February 2020, 16.

[12] Jennifer Oriel, ‘High Court’s Race Ruling a Low Blow to Democracy’, The Australian, 17 February 2020, 12.

[13] Morgan Begg, ‘Left is fighting to control our High Court’, The Australian, Monday, 9 March 2020, 12.

[14] Oriel, n 12.

[15] Evan Young, ‘A very bad thing’: Peter Dutton slams High Court’s Aboriginal ‘aliens’ ruling,, accessed 2 November 2020.

[16] Love/Thoms (n 1) 599 [5].

[17] Ibid 600 [7], citing Gibbs CJ in Pochi v Macphee [1982] HCA 60; (1982) 151 CLR 101, 109.

[18] Stephen Keim, ‘Reflections on Love and Thoms v The Commonwealth’, Address to a national seminar organised by the Australian Association for Constitutional Law and the Law School of Monash University, 3 June 2020, 2. Keim SC represented Love and Thoms.

[19] Love/Thoms (n 1) 600 [8].

[20] Ibid. This observation, it may be noticed, is seemingly addressed to the other members of ‘the Court’ rather than any broader readership.

[21] Ibid 607 [42].

[22] Ibid [43].

[23] Ibid 608 [44].

[24] Ibid [45].

[25] Ibid [46].

[26] Ibid 632-33 [147]. Justice Keane’s distinction between ‘persons of Aboriginal descent’ and ‘persons descended from other races’ is discussed below.

[27] Ibid 627 [121].

[28] Ibid 628 [121].

[29] Ibid 629 [128].

[30] Ibid 668 [284].

[31] Ibid 614 [73].

[32] Ibid 657 [253].

[33] Ibid 660-1 [264]. Emphasis in the original, footnotes omitted.

[34] Juan Gines de Sepulveda put the case that Spain was entitled to wage war on the Indians of the New World as they were heathens outside the purview of the Christian faith. Soul-less and non-human, the Indians could thus be deprived of their life and property. Fra Bartolome de Las Casas argued that Spain had no such right, that although the Indians were outside the Christian faith, they nonetheless possessed souls and, therefore, were human. For the classic modern treatment of the Valladollid Debate, see Lewis Hanke, All Mankind is One: a study of the disputation between Bartolome de Las Casas and Juan Gines de Sepulveda in 1550 on the intellectual and religious capacity of the American Indians (Northern Illinois University Press, 1974).

[35] Love/Thoms (n 1) 666 [276]. Nettle J has since iterated this view in Chetcuti v Commonwealth of Australia [2020] HCA 42; (2020) 95 ALJR 1 [39].

[36] Ibid 669 [289]. Footnotes omitted.

[37] Ibid 677 [328].

[38] Ibid 677-8 [329].

[39] Ibid 670 [296].

[40] Ibid.

[41] Ibid 685 [364].

[42] Ibid 692 [398].

[43] Ibid 709 [447].

[44] Ibid [448], quoting the US Supreme Court in Cherokee Nation v Georgia [1831] USSC 6; (1831) 30 US 1, 56. The emphasis was added by his Honour.

[45] Ibid 711-2 [455]. Footnotes omitted.

[46] Singh [2004] HCA 43; (2004) 222 CLR 322, 337 (Gleeson CJ).

[47] George Williams, ‘Racism was built into the System’, The Australian, Wednesday 19 February 2020, 12.

[48] Love/Thoms (n 1) 632-3 [147].

[49] Inga Clendinnen, True Stories, (ABC Books), 1999, 15.

[50] Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 (‘Mabo (No 2)’, referred to as merely ‘Mabo in the ALR but ‘Mabo [No 2]’ in the unreported version of the Love/Thoms decision). The territories of ‘backward peoples’ like the Australian ‘Aborigines’ were deemed to be terra nullius and sovereign-less, see Brennan J, at 32, and with whom Mason CJ and McHugh J concurred.

[51] For the Chief Justice this connection is described as ‘not only material or physical, but also spiritual and cultural’ (605 [28]), for Bell J ‘essentially spiritual’ (614 [70]), for Gageler J and Keane J ‘spiritual and cultural’ (626 [115] and 642 [194] respectively), for Gordon J it is ‘spiritual or metaphysical’ (670 [290]), for Edelman J it is a ‘powerful spiritual and cultural connection’, a “religious relationship”, (709 [450], quoting from Milirrpum).

[52] Ibid 614 [70], 666 [276] and 679 [336] respectively. Edelman J adopts the phrase “connection to country” from previous native title and land rights cases, at 690 [392].

[53] As early as 1537 the Papal Bull, Sublimus Deus, declared the Indians of the New World ‘were truly men’ and ‘the said Indians and all other people who may later be discovered by Christians, are by no means to be deprived of their liberty or the possession of their property’.

[54] Brian Slattery, ‘Understanding Aboriginal Rights’ (1987) 66 Canadian Bar Review 727, 739.

[55] Ibid 737.

[56] Ibid 732.

[57] Brian Slattery, ‘Aboriginal Sovereignty and Imperial Claims: Reconstructing North American History’ (1991) 29 Osgoode Hall Law Journal 681, 702-3.

[58] Mabo (No 2) (n 50) 32.

[59] Ibid 34.

[60] Members of the Yorta Aboriginal Community v Victoria and Others [2002] HCA 58; (2003) 214 CLR 422, 441 (Gleeson CJ, Gummow and Hayne JJ in a joint opinion).

[61] Love/Thoms (n 1) 666 [276].

[62] Ibid 669 [289].

[63] Ibid 600 [9].

[64] Ibid 667 [277].

[65] The historian, John La Nauze, wrote that ‘the Australian Aboriginal’ appears in our history only as a ‘melancholy anthropological footnote’, see ‘The Study of Australian History, 1929–1959’ (1959) 9 (33) Historical Studies 1, 11.

[66] Love/Thoms (n 1) 630.

[67] Kate Slack and Arron Hartnett, ‘Reflections on the recent High Court decision in Love v Commonwealth of Australia [2020] HCA 3: The Constitution, Indigenous rights and immigration law’, 2020 (2) Balance (Journal of NT Law Society) 16, 19.

[68] Love/Thoms (n 1) 639 [178].

[69] Ibid 669 [289].

[70] Hamlet of Baker Lake v Minister of Indian Affairs and Northern Development (1979) 3 CNLR 25, emphasis added.

[71] Love/Thoms (n 1) 669 [289].

[72] Robert French, ‘The Role of the High Court in the Recognition of Native Title’ [2002] UWALawRw 1; (2002) 30 (2) University of Western Australia Law Review 129, 130.

[73] Mabo (No 2), Transcript of Proceedings, 30 May 1991, 280.

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