Indigeneity, Race and the Australian Constitution: A Response to Professor James Allan’s Characterisation of the Majority Decision in Love; Thoms

Harry Hobbs

University of Technology Sydney

EDITORS’ NOTE: This blog post is a response to James Allan’s post “‘Otherness’ and Identity Politics in Constitutional Law” forming part of the Symposium on Constitutional Idolatry, Literacy, and Identity.  

Disputes over citizenship, alienage and deportation focus attention on questions of membership and belonging, of ‘exclusion and inclusion’. These issues are challenging for all political communities. Still, they pose particular difficulties for settler states like Australia, whose very existence as a nation is intimately tied with the dispossession of Aboriginal and Torres Strait Islander societies. Despite occupying the Australian continent and protecting country for at least 60,000 years, Australia’s First Peoples were cast out from the constitutional community at Federation in 1901. Can colonial states, built on the exclusion of First Peoples, perpetuate that exclusion by prohibiting access to country and kin on the basis that they do not ‘belong’? In an acerbic post on the IACL-AIDC blog, James Allan criticises a recent High Court of Australia decision that considered this question. 

In Love v Commonwealth; Thoms v Commonwealth (2020) 94 ALJR 198 the Court was asked whether two Aboriginal people – Daniel Love and Brendan Thoms – who were not citizens of Australia could be deported under the Migration Act 1958 (Cth) as ‘aliens’. Reflecting the tensions that lay at the heart of this case, all seven members of the High Court delivered separate judgments. Each Justice reached their own conclusion, but a four-member majority agreed on one central point: Aboriginal Australians, understood according to the three-part test in Mabo v Queensland (No 2) ‘are not within the reach of the “aliens” power conferred by s 51(xix) of the Constitution’. In other words, the Australian government may not deport Aboriginal people under the aliens’ power, even if they are not citizens of Australia. The three judges in the minority disagreed and would have allowed deportation. 

Situated at the intersection of several highly charged issues in Australian politics, including Indigenous affairs, immigration, national security and criminal law, the decision provoked an immediate backlash in some quarters. Attorney-General Christian Porter declared that the High Court had created ‘an entirely new category of people’. The Minister for Home Affairs, Peter Dutton, announced that the government would seek legal advice to allow them to ‘rectify’ the decision and deport the men—as well as other Aboriginal non-citizens—in a different way. As is de rigueur in decisions on Indigenous affairs, several conservative politicians and legal commentators accused the majority of engaging in ‘judicial activism’. In addition, they repeated previous calls for the appointment of ‘capital-C conservative’ judges to overturn ‘the most radical judgment in Australian history’. 

Others went beyond this rote incantation, boldly declaring the decision ‘an illegitimate exercise of judicial power that ignores the separation of powers and endangers the community’s confidence in the High Court as the trusted guardian of the Constitution’. Former Senator John Stone even urged Parliament to open impeachment proceedings — if the judges who comprised the majority refused to resign their commission voluntarily.  

Allan does not go so far, though he does go close. For Allan, the ‘unorthodox’ decision is replete with ‘political ramblings’ and ‘just about the worst sort of mumbo jumbo ever used in a constitutional law judgment’. Accusing the majority of a ‘stunning example of judicial activism’, Allan asserts that the judges ‘start[ed] with the conclusion [they] want[ed] and then struggl[ed] to find rationales to get [them] there’. Those rationales are not persuasive for Allan but constitute nothing more than some sort of ‘holistic alternative medicine brew’ that constitutionalises ‘identity politics’. 

At times, Allan moves beyond the caustic. In dismissing the notion that Aboriginal and Torres Strait Islander peoples’ connection with the Australian continent should have any legal significance, Allan wonders aloud why – if the majority judgements are predicated on protecting a distinct community – it could not equally justify ‘affording the Boers special treatment in the 1970s’. It is not clear if Allan really believes that legal and political efforts to protect and promote the rights of Aboriginal and Torres Strait Islander peoples are the same as Apartheid — recognised in international law as a crime against humanity. It is more likely that this remark is a deliberately provocative comment aimed at eliciting offence. In any event, it suggests that despite his best appearances, Allan’s criticism may well have less to do with the methods of constitutional interpretation adopted by the majority than with the outcome of the decision itself — a criticism he levies at the Court.  

The result in Love; Thoms may have surprised people, but all seven judgments follow orthodox rules of constitutional interpretation. Furthermore, in taking seriously the connection that Aboriginal and Torres Strait Islander peoples have with country, each member of the Court develops our understanding of the constitutional relationship between First Peoples and the Australian community in productive ways.  

Can Aboriginal People be ‘Aliens’? 

The Australian Constitution was drafted before Australia was independent of the United Kingdom. Reflecting the approach adopted in the UK, there is no concept of ‘citizen’ or ‘citizenship’ in the instrument. This does not mean of course that the Australian Parliament cannot make laws to regulate citizenship; the High Court has held that the naturalisation and aliens power in s 51(xix) can support such laws.  

In Love; Thoms, the Court had to consider the relationship between the constitutional concept of alienage and the statutory concept of citizen. The Commonwealth argued that anyone who is not a citizen must, by definition, be an alien. The plaintiffs argued that the terms are not antonyms; one can be a non-citizen and a non-alien. The majority agreed with the plaintiffs. They did so by ascertaining the meaning of the constitutional concept of ‘alien’—an ordinary process of constitutional interpretation.  

Without tracing each judgment in detail, it is sufficient to note that the majority reached their conclusions through ordinary legal methods. They drew on statutes, case law, and historical understandings of these terms to identify the meaning of ‘alien’ in Australian law today. Three Justices held that the constitutional term ‘aliens’ ‘conveys otherness, being an “outsider”, foreignness’ (Gordon J at [296]), ‘belonging to another…place’ (Bell J at [61]), or a ‘“foreigner” to the Australian political community’ (Edelman J at [437]). These justices then considered the relationship that Aboriginal people have with Australia. In their view, that relationship is ‘sui generis’ (Bell J at [74]) and ‘unique’ (Gordon J at [333]). In the words of Edelman J, ‘Aboriginal people have been inseparably tied to the land of Australia generally, and thus to the political community of Australia, with metaphysical bonds that are far stronger than those forged by the happenstance of birth on Australian land or the nationality of parentage’ (at [396]). On this basis, ‘despite the circumstance of birth in another country, an Aboriginal Australian cannot be said to belong to another place’ (Bell J at [74]).  

Justice Nettle differed in his approach but reached the same result. His Honour held the aliens-power is ‘not entirely untrammelled’ and that it would not extend to encompass individuals whom ‘have so strong a claim to the permanent protection of … the Crown in right of Australia’ ([252]). In tracing the history of British settlement and the more recent common law recognition of Aboriginal and Torres Strait Islander peoples’ connection to country, Nettle J concluded that the Crown had a ‘unique obligation of protection to Australian Aboriginal societies’ (at [276]). Members of those societies can therefore not be ‘aliens’ for the purposes of the Australian Constitution.  

The Justices in the minority also adopted orthodox rules of constitutional interpretation, but they reached a different conclusion. Drawing on both case law and statute, their Honours agreed with the Commonwealth’s submissions: a non-citizen is an alien. Furthermore, while they acknowledged the connection that Aboriginal people had with country, they disclaimed any constitutional or legal significance. As Keane J noted, Aboriginal and Torres Strait Islander peoples have ‘a spiritual and cultural connection’ to particular lands and waters. However, his Honor explained, that relationship ‘is not one of formal legal status between an individual and a sovereign power’, and membership of the polity is ‘created by the law of the sovereign nation’ (at [194]). 

Race and Indigeneity 

Allan criticises the majority for introducing a ‘race-based limit on Parliament’s power’. Each of the Justices in the minority made a similar point. Chief Justice Kiefel contended that the plaintiffs’ argument brings up ‘an issue of race’ (at [44]). Justice Gageler asserted that accepting their submission would insert ‘a race-based constitutional limitation on legislative power’ (at [133]). Justice Keane argued that such a finding would run contrary to the fact that ‘considerations of race are irrelevant to the requirements for membership of the Australian body politic’ (at [177]).  

I read the decision differently. Aboriginal people fall outside the aliens power not on the basis of race but based on Indigeneity. Each of the majority judgments is predicated on what Gordon J describes as the ‘deeper truth’ of Mabo (No 2) (at [289]). That is, the metaphysical connection Aboriginal and Torres Strait Islander peoples have to the Australian community and the lands and waters of the Australian continent generally, as a result of their status as Indigenous peoples; a connection that predates colonial settlement by 60,000 years. As Gordon J explains, ‘Aboriginal Australians have a unique connection to this country; it is not just ancestry or place of birth or even both. It is a connection with the land or waters under Indigenous laws and customs which is recognised under Australian law’ (at [373]). Justice Edelman found likewise, holding that underlying the particular connection to traditional land, recognised as ‘native title’, ‘is the general spiritual and cultural connection that Aboriginal people have had with the land of Australia for tens of thousands of years’ (at [451]). 

However, this is not to suggest that the majority judgments are entirely free from the notion of ‘race’. Unlike the situation in the United States, Canada or Aotearoa New Zealand, there is no history of treaty-making in Australia and no larger record of treating Aboriginal and Torres Strait Islander communities as sovereign entities exercising an inherent right to govern themselves. Without that foundation, Australian law has generally engaged with Aboriginal and Torres Strait Islander peoples through the language of ‘race’. This was not a natural or inexorable decision, but a consequence of the particular articulation of legislative power in the Constitution. 

Section 51(xxvi), as amended in 1967, empowers the federal Parliament to make special laws for the people of any race, including Aboriginal people. Owing to that language, race is ‘a constitutional term’ (Gordon J at [370]) and legal accounts of Indigenous identity in Australia necessarily implicate matters of race. ‘Race’ is thus present in this decision to the extent that ‘race’ is already structurally embedded in the Australian Constitution.  

Let me be clear, Indigenous claims are not necessarily race-based. It is the language of the Australian Constitution and the absence of any recognition that Aboriginal and Torres Strait Islander peoples are distinct political communities, that acts to position them in that manner. This can cause problems. As Kirsty Gover has argued, race is a conceptually conflicted basis for the protection of Indigenous rights. Among other challenges, it frames Aboriginal and Torres Strait Islander peoples through the prism of a racial or ethnic group, a lens that, owing to painful histories of discrimination, is treated with suspicion within liberal democratic states.  

In Love; Thoms, the majority adopts the Mabo (No 2) test for traditional membership; this is ‘a criterion based on race’. Nonetheless, while race is implicated in the decision because of the language of the Australian Constitution, the majority judgments rest on a broader account of Indigeneity. As Edelman J explains, it is that ‘spiritual connection forged over tens of thousands of years between person and Australian land, or “mother nature”’ (at [466]), that grounds a constitutionally significant relationship between First Peoples and the Australian community.  

Final Thoughts  

The decision makes clear that Aboriginal and Torres Strait Islander peoples who satisfy the three-part test in Mabo (No 2) are not aliens for the purposes of the Constitution. But it goes no further than that. Each member of the Court confirmed that Australian law does not recognise Aboriginal sovereignty, nor a right to self-government. Justice Gordon, for example, noted that ‘[r]ecognition of Indigenous peoples as part of the “people of Australia” denies that Indigenous peoples retained, or can now maintain, a sovereignty that is distinct or separate from any other part of the “people”’ (at [356]). 

This position confirms a long line of case law in Australia that extends right back to the colonists’ initial (and the modern Australian state’s continuing) failures to meaningfully engage and deal respectfully with Aboriginal and Torres Strait Islander peoples and communities. It also demonstrates that constitutional reform ‘outside the High Court’ is necessary to address fundamental questions concerning the appropriate place and status of Aboriginal and Torres Strait Islander peoples within Australia. 

This view is supported by remarks from two justices in the minority. Justices Gageler and Keane both expressly recognised that the plaintiffs’ arguments were ‘morally and emotionally engaging’ and acknowledged that ‘a strong moral case’ (Gageler J at [128]) could be made for ‘special recognition of Aboriginal people in the Constitution’ (Keane J at [178]). Nonetheless, in their Honours view, the separation of powers and conventional rules of constitutional interpretation precluded judicial intervention, for these issues ‘fall to be addressed by the Commonwealth Parliament in the outworking of those political processes’ (Gageler J at [130]).  

The continued push for a national First Nations Voice to advise the Commonwealth parliament on laws affecting First Peoples, and the developing treaty negotiations and truth-telling processes across the country, indicate that those political processes are underway. As Aboriginal and Torres Strait Islander peoples explained in the Uluru Statement from the Heart, through Voice, Treaty and Truth, their ‘ancient sovereignty can shine through as a fuller expression of Australia’s nationhood’. It is through a political settlement that the constitutional relationship of First Peoples and the Australian Community can be made whole.  

Harry Hobbs is a Lecturer in the Faculty of Law at the University of Technology Sydney. Harry thanks Eddie Synot for comments on an earlier draft.  

Suggested Citation: Harry Hobbs, 'Indigeneity, Race and the Australian Constitution: A Response to Professor James Allan’s Characterisation of the Majority Decision in Love; Thoms' IACL-AIDC Blog (23 February 2021) https://blog-iacl-aidc.org/2021-posts/2021/2/23/indigeneity-race-and-the-australian-constitution-a-response-to-professor-james-allans-characterisation-of-the-majority-decision-in-love-thoms.