‘Otherness’ and Identity Politics in Constitutional Law

James Allan

University of Queensland

However one feels about the outcome of Love v Commonwealth of Australia, one of the most controversial High Court of Australia decisions in recent memory, there appears to be little doubt that the methods and legal reasoning used to get to where the judges ultimately got was unorthodox. Each High Court Justice provided a separate judgment, and as I explore below, some of the concepts used within these judgments significantly muddle the boundaries between constitutional law and identity politics.    

In keeping with one of this blog’s themes – that ordinary citizens often remain largely unaware of what constitutions are interpreted to mean, especially when judges use them to perform other functions – readers might be interested in further analysing the case.  In my view, it is one of the best examples of what is often characterised as judicial activism that you will ever come across.  I have given a 30-minute talk on the case to the Samuel Griffith Society. 

Here’s my quick summary of the Love case: It was a case on the question of deporting plaintiffs who were born outside Australia, who are foreign citizens and who have not been naturalised or made Australian citizens, but who claim to be Aborigines.  In a 4-3 decision, the case effectively constitutionalised identity politics.  In a weird sort of way it elevated the common law – judge-made law to be clear – above the Constitution itself.  It introduced a race-based limit on Parliament’s power.  It looked very much to be a clear case of outcome-oriented judging, meaning you start with the conclusion you want and then struggle to find rationales to get you there.  Moreover, the Love case more or less ignored or abandoned the established heads of powers interpretive methods – the ones that have been used by Australia’s top court to deliver the most pro-centre federalism case law in the world.  Worse, it did so in a case where no Australian State actually benefitted from that abandonment of established federalism orthodoxy.  Given the tools with which the judges had to work – remember, Australia has no national bill of rights – this case was a stunning example of judicial activism that has brought the task of constitutional interpretation to the widespread attention of the voting public, and indeed has influenced future judicial appointments. 

In providing a survey of Love I was tempted to take the reader through some of the key concepts that drove the thinking of the judges who were in the four-person majority.  Here we would open up the constitutional law textbooks and delve into the meaning of such arcane legal concepts – and I am not making this up, I assure you – but concepts such as “otherness”; or “deeper truths”; or, when it comes to Australia, of “connections [that] are spiritual and metaphysical” – all these core legal precepts and more, then being combined together, as in some holistic alternative medicine brew, to claim that judge-made law now recognises “that Indigenous peoples can and do possess certain rights and duties that are not possessed by, and cannot be possessed by non-Indigenous peoples of Australia.”  And that was just Justice Gordon. 

Consider, too, Justice Nettle who talks of how “different considerations apply … to … a person of Aboriginal descent”. (Now of course one wonders why different considerations would apply in a liberal democracy committed to the rule of law and to formal equality, as opposed to one committed to the sort of identity politics poison that the British author Douglas Murray skewers in his latest book.) Still, different considerations apparently apply for persons of Aboriginal descent because that is what this judge says.  If you are sceptical about that Justice Nettle goes on to re-educate you by noting that the Commonwealth’s claims to the contrary “intuitively … appear at odds with the growing recognition of Aboriginal peoples as ‘the original inhabitants of Australia”’ and of their “essentially spiritual connection with ‘country”’.  So our top judges,  all unelected, now decide key constitutional law cases based on intuitions that provide them with some sort of ineffable expertise as far as discerning ‘growing recognitions’ is concerned – by whom we are not told, and to be frank I would have thought that if you were looking for the group of people least likely to have their fingers on the pulse of what the community does and does not recognise you would be hard-pressed to do better than choose a cocooned committee of ex-barrister top judges who are genuflected to day in and day out.  But I defer to Justice Nettle here. 

These top unelected judges, continues Justice Nettle, are also able to discern ‘essential spiritual connections’.  (And let me note, too, that Justice Nettle put ‘country’ in scare quotes.  Not country, but ‘country’).  The key takeaway here, though, is that we have yet more crucial constitutional law concepts being thrown into the mix; we have now got ‘essential spiritual connections with ‘country’ joining ‘otherness’ and ‘deeper truths’ as things that a committee of unelected ex-lawyers happen to have extra special expertise about, and which they are able to use to remove decision-making power away from the elected Parliament.  By contrast, my view is that all issues related to identity ought to be left to the elected legislature, not 4 of 7 top judges.  

And yet there is more. Justice Edelman talks of “essential meaning[s]”, “metaphysical construct[s]”, “powerful personal attachment[s] to land” and then, remarkably I think, says “to treat differences as though they were alike is not equality.  It is denial of community.  Any tolerant view of community must recognise that community is based on difference”.   I have no clear idea of what that means, but neither it, nor any of the other political ramblings, have anything to do with the judges’ assigned task, which is to interpret a Constitution.  Moreover, if you want to talk about formal equality of the sort that underlies the rule of law then treating those claiming Aboriginal ancestry the same as you treat everyone else is not ‘denial of community’.  It is how any decent jurisdiction committed to liberal democracy acts – because of course Justice Edelman’s political ramblings about community could justify any group getting special treatment.  Does affording the Boers special treatment in the 1970s get a tick because you do not want to indulge in (and I quote) ‘denial of that community’ or because ‘community is based on difference’?  Let me be blunt, all this Gordon/Nettle/Edelman stuff is just about the worst sort of mumbo jumbo ever used in a constitutional law judgment.  And believe me, there is some amazingly tough competition for the prize of worst judicial mumbo jumbo – see, just staying in Australia, here. 

That was the temptation, which I could not wholly resist, namely to point out to readers some of the lunatic, post-modernist, steeped-in-identity-politics, blatantly activism-enhancing comments of these three Australian High Court judges, all appointed by the right-of-centre Liberal Party as it happens. 

That said, allow me briefly to provide a more orthodox account of the case, even though in many ways the most important criticism of it is the one I have just taken you through – namely, that supposed interpreters of our written constitution (one of the world’s oldest and most successful) decided to trade in their jobs as interpreters of legal text for the far more invigorating job of identity politics professors.  (My view is that if we must give identity enhanced protections then it ought to be done by the branch that is accountable to the people, the elected legislature).  

This more orthodox account forces us to delve into federalism judicial review of legislation.  In my native Canada, there is a two-list system of federalism and the approach to federalism interpretation is very different to that in Australia.  In Canada, the approach came out of the Privy Council in London in the 19th Century and the test centres on what is known as a law’s ‘pith and substance’.  You, as a judge, take a contested law and ask yourself what is that law’s ‘pith and substance’; what is its essential character.  If you decide that some contested statute, in substance, relates to X (one of the heads of powers on one of the lists), but incidentally and less substantively touches on Y and Z (from the other heads of powers list), then the challenged law is intra vires the legislative competence of the X list, the one that contains head of power X. 

Or put differently, Canada in effect has a two-step process: (1) What is the pith and substance of the impugned law? and (2) Take that essential character, that pith and substance, and ask which head of power it most fully falls under.  Does it fall under list one (s.91 in Canada, the powers of Ottawa) or list two (s.92, the Provinces’ listed powers)? 

Now compare that to Australia’s approach to federalism judicial review of legislation, sometimes labelled ‘interpretive literalism’.  How does it work in Australia, which copied the US form of federalism and opted for a one-list system (so only the powers of the centre are listed, and everything not listed goes to the states)?  Well, you look at the s.51 heads of powers and read them ‘as widely and liberally as the words used permit’.  And then you ask if the contested statute can fit under any of the s.51 heads of powers, read in this wide and liberal way. If so, this is a matter for the Commonwealth. If not, it is for the States. Now it is pretty obvious that the Australian approach to federalism judicial review is remarkably friendly to the centre. It is why Australia has what is probably the world’s most pro-centre federalism jurisprudence. 

I bring that all up because, in theory, the Love case was a federalism heads of power case. So, one would assume the judges would be playing the interpretive literalism game (something along the lines of the same-sex marriage case where the ‘marriage’ head of power was read in a wide and liberal way so that it included marriages between persons of the same sex and the power was held to rest with the centre). That is the uber pro-centre, orthodox approach to federalism judicial review. Like it or lump it. 

And yet, when we turn to Love we see the majority implicitly reject federalism heads of power orthodoxy with nary a mention. Worse, this Love decision is a completely bizarre case to break away from orthodoxy because no State or Territory gets to benefit from the limit on the centre’s power. One would have expected the majority to look at the head of power in play, s.51 (xix) ‘aliens,’ and then read that in a broad, liberal, extremely-friendly-to-the-Commonwealth manner. As they always have done. Then, using anything remotely coming close to that orthodox approach to federalism judicial review it looks like a sure thing that the Commonwealth legislation regulating deportation will stand and these foreign citizens claiming to be Aborigines will be deported. 

Here is another point to bear in mind. Federalism judicial review is premised on the judges having to choose between two elected legislatures, central or State. Judges ‘doing federalism’ act as umpires between two democratically elected legislatures. If legislature X does not have the power to do what the statute is doing then legislature Y does. And vice versa. But in the Love case we are talking about a statutory power to deport non-citizens. There was never any chance at all that if the Commonwealth could not deport Messrs. Love and Thoms, then one of the States could do it. So, in effect, the High Court majority judges took this power away from all elected legislatures. They turned a heads of power federalism case into a sort of rights-related judicial review case – the sort of case you see under bills of rights where it is held that no elected body can do what the statute purports to do. And they did that in a country with no national bill of rights.  Or put differently yet again, the implication in Love is that there is a sort of identity politics, bastardized race-based exception to one of the heads of powers – a judicially created limit on Parliament’s sovereignty that has nothing at all to do with federalism and no obvious connection to anything in the actual Constitution. 

So, how did Love happen? Well, it happened with a hefty dose of “otherness”, “deeper truths”, “different considerations for persons of Aboriginal descent”, the keen application of “intuitions”, discerning “essential spiritual connections” and “metaphysical constructs” – the list of dry, arcane constitutional concepts continuing on in that vein and none of which came from the legislature. 

James Allan is the Garrick Professor in Law at the TC Beirne School of Law at the University of Queensland 

Suggested Citation: James Allan, ‘Otherness and Identity Politics’ IACL-AIDC Blog (21 January 2021) https://blog-iacl-aidc.org/cili/2021/1/26/otherness-and-identity-politics-in-constitutional-law.