BY EDDIE SYNOT

This is the first of two posts AUSPUBLAW is featuring on the High Court’s Love and Thoms decision. Elisa Arcioni and Rayner Thwaites’  accompanying post is here.

The High Court recently delivered its highly anticipated decision in Love v Commonwealth of Australia; Thoms v Commonwealth of Australia. While narrowly a question about the application of s 51(xix) (‘the aliens power’) of the Constitution to Aboriginal Australians, the cases necessarily touched on foundational questions about the place of Aboriginal and Torres Strait Islander peoples in the Australian community and the Commonwealth’s relationship with them.

Much has been made of the 4-3 majority decision. Comments have ranged from sensible warnings about the dangers of hypotheticals (Edelman J at [455]) – such as the creation of a new category of person for the Migration Act 1958 (Cth) or of a rival sovereignty – to calls for impeachment of judges and political intervention in the replacements for Bell and Nettle JJ as they near retirement. Criticism of the decision reached such levels of concern that the Australian Bar Association felt it necessary to warn that commentary ‘went beyond the bounds of robust criticism’.

What is at least minimally clear is the majority (Bell, Gordon, Nettle and Edelman JJ) position delivered by Bell J (at [81]):

I am authorised by the other members of the majority to say that although we express our reasoning differently, we agree that Aboriginal Australians (understood according to the tripartite test in Mabo [No 2]) are not within the reach of the “aliens” power conferred by s 51(xix) of the Constitution.

The fact that seven judgments were issued has made understanding the case’s implications a challenging task. This diversity of opinion has also made easy pickings for unfair and exaggerated criticisms.

One key criticism advanced by the minority judges has been that a law-making sovereignty was effectively recognised in Aboriginal and Torres Strait Islander peoples beyond the scope of common law native title accepted in Mabo (No 2). The minority inferred that the majority had extended the recognition of Aboriginality from Mabo (No 2) – which confirmed the three-part test of biological descent, individual identification, and communal recognition – beyond its use for determining native title only. The accusation is that the laws, customs and traditions that inform native title now also have recognition in their own right amounting  to the recognition of a competing sovereignty to the Crown which Mabo (No 2) clearly denied (Kiefel CJ at [25], Gageler J at [137] and Keane J at [196]).

The majority, however, is clear that their understanding of the common law recognition of Aboriginal Australians does not entail this kind of recognition (for example, Gordon J at [356]). Rather, the majority has confirmed the existing limit to recognition from Mabo (No 2) and looks to the implications of that recognition in considering whether Aboriginal Australians could be ‘aliens’ within the constitutional – not statutory – meaning of the word.

What the tension between these positions and the judgments’ reception does highlight, however, is the vulnerable recognition of Aboriginal and Torres Strait Islander peoples within Australia’s constitutional system. Originally excluding and denying Aboriginal Australians as political entities, the Australian state continues to struggle with the accommodation made for Aboriginal Australians between its earlier racial exclusions and those recognitions post-Mabo, including social justice reforms following the 1960s such as the federal franchise, the 1967 referendum, movement toward land rights, and the beginning of cultural heritage protections , that can’t help but rely on race as a positive indicator as it remains entrenched in Australian constitutionalism. This is highlighted by the fact of s 51(xxvi) (‘the race power’) of the Constitution that authorises Commonwealth legislation for Aboriginal and Torres Strait Islander peoples (see especially Gageler J at [126]).

Below I address how this legacy of race is present in the cases and how this continues to have implications for the relationship between Aboriginal and Torres Strait Islander peoples and Australian constitutionalism. I address how the cases operate within a complicated space created between Australian constitutionalism’s reliance on race and its later limited common law recognitions of Indigenous peoples. I finish by highlighting how the separate judgments are an important reminder of the importance of the reforms called for by the Uluru Statement from the Heart.

Understanding the Different Positions

Daniel Love and Brendan Thoms were born in Papua New Guinea and New Zealand respectively. Love and Thoms are citizens of their countries of birth, but both are also Aboriginal Australians (confirmed on the facts before the Court for Thoms but not Love). Both Love and Thoms had lived most of their lives as permanent residents of Australia before being convicted of crimes that attracted prison sentences of more than 12 months. Due to their convictions, Love and Thoms fell afoul of the Commonwealth’s increasingly punitive policy under the character test of the Migration Act that resulted in their visas being cancelled, their detention and the Commonwealth’s attempt to deport them. Love’s permanent residency was reinstated in 2018. Love was, however, challenging his visa cancellation and detention to inform a claim against the Commonwealth for false imprisonment. Thoms was released from immigration detention shortly after the High Court’s decision was handed down.

Chief Justice Kiefel, Gageler and Keane JJ dissented for varying but similar reasons. None of the dissenting judges agreed that the recognition of native title extended to other areas of law. Rather, the minority agreed that Aboriginality was irrelevant to the meaning of ‘alien’ under the Constitution, and that as both Love and Thoms were foreign citizens they came under the constitutional meaning of ‘alien’. They were therefore susceptible to the Commonwealth’s expansive power, as a sovereign nation, to decide membership of the Australian political community.

Justices Gageler (at [102]-[110]) and Keane (at [198]-[210]) revisited a well-worn history of British colonialism to explain this position, differentiating the status of Aboriginal Australians as ‘an ethnic group’ (at [177]) from those in New Zealand and North America. Justice Keane noted that ‘[p]olitical sovereignty is not an incident of native title’ (at [199]) and that Aboriginal Australians do not ‘enjoy a constitutionally privileged political relationship with the Australian body politic’ (at [178]). According to this tradition, other than the limited recognition of native title, any unique constitutional status held by Aboriginal Australians is limited to their categorisation as a ‘race’ or ‘ethnic group’.

The majority, however, did not identify any incident of political sovereignty from native title beyond the confirmed limits of recognition in Mabo (No 2). Rather, the majority explored the existing recognition of Aboriginal Australians and the ‘unique status’ of Aboriginal and Torres Strait Islander peoples. Justice Bell for example noted that the ‘position of Aboriginal Australians… is sui generis’ (at [74]), while Gordon J made reference to ‘the deeper truth’ of Mabo (No 2) (at [289]) noting also that ‘Aboriginal Australians occupy a unique or sui generis position… such that they are not aliens’ (at [334]). Her Honour clarified a limit to this status by noting that inclusion of Aboriginal Australians ‘as part of the “people of Australia” is directly contrary to accepting any notion of Indigenous sovereignty’ (at [356]).

Justice Nettle was more expansive in his exploration of this status, beginning by emphasising that while ‘the Crown’s acquisition of sovereignty… cannot be called into question… the consequences of the acquisition… are justiciable’ (at [265]). In reviewing those consequences (at [262]-[273]), Nettle J came to a conclusion that follows similar lines to the Canadian doctrine of an obligation of the Crown to Indigenous peoples. Following an examination of the development of international law on Indigenous peoples that recognised their distinct rights (at [273]-[274]), Nettle J opined that

it is implicit in the common law’s recognition of the status of membership of such an Aboriginal society, and the obligation of permanent protection owed by the Crown in right of Australia that it entails, that those who are recognised as having the status of membership of an Aboriginal society eo ipso owe permanent allegiance (at [279]).

The implications of such an exploration of the recognition of Aboriginal Australians remain unclear. Chief Justice Kiefel warned that such an expansion or interpretation of the recognition of common law native title, the basis of recognition in the common law, could have the converse effect of excluding Aboriginal Australians not able to prove native title (at [26]). Justice Keane addressed this issue also, noting that the recognition confirmed in Mabo (No 2) did ‘not extend to all the lands and waters under Australian sovereignty’, thus providing an inherent limit to the authority of the Court to recognise Aboriginality (at [194] and [210]). Yet Nettle J, in explaining the unique status of Aboriginal Australians and their connection to Australia, noted that the unique connection being recognised ‘is not dependent on the identification of any legal title in respect of particular land or waters within the territory’ (at [277]).

Justice Edelman also made reference to a more expansive Aboriginality not dependent on the formal recognition of native title. While noting that

[n]ative title rights and interests require a continuing connection with particular land… that particular connection 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]).

Even the loss of native title rights

does not extinguish the powerful spiritual and cultural connections Aboriginal people have generally with the lands of Australia. Those connections are inextricably part of Aboriginal identity as members of the broader community of the first people of the Australian land generally (at [452]).

The Legacy of Race

Effectively there exist differences of opinion across the judgments as to what the incidents of native title are, and the reliance on either common law native title or the concept of race to support an expansive understanding of Aboriginality. Does the broader recognition of an Aboriginality separate from native title impact that title or other areas of the law? Chief Justice Kiefel was concerned enough to note that a more expansive Aboriginality was ‘a significant divergence from the common law recognition of native title’ (at [26]) which ‘has its limits, both geographical and as to the area of the law to which it is relevant’ (at [29]). Justice Keane emphasised this issue also, noting that native title was recognised on the basis ‘of communal rights of a particular indigenous group to a particular territory’ and not a ‘political relationship between an individual indigenous person and the body politic’ (at [192]).

The uncertainty over the legal recognition of Aboriginal and Torres Strait Islander peoples, however, need not be unclear. Multiple references across the judgments are made to the arguments for constitutional reform in favour of a more meaningful relationship with Aboriginal Australians, noting that if that is the intention of the Australian people then it should be put to a referendum (for example at [178]). Reading Gageler and Edelman JJ’s judgments together on race and recognition is illuminating on this broader importance of the cases for constitutional reform.

Justice Edelman, after detailing the racial exclusion and treatment of aliens and Aboriginal Australians and recognising a metaphysical connection of belonging beyond native title, considered the implications of this recognition by noting that ‘the expansion of Aboriginal rights by Commonwealth legislation does not require an identical treatment of Aboriginal and non-Aboriginal people in the shaping of the political community’ (at [454]). Neither drawing on racial distinction, nor relying on immutable meanings of ‘race’ to characterise aliens and Aboriginal Australians, Edelman J held in direct contrast to many arguments made against Indigenous recognition that ‘to treat differences as though they were alike is not equality. It is a denial of community. Any tolerant view of community must recognise that community is based upon difference’ (at [453]). By doing so, for Edelman J, the deeper connection and belonging of Aboriginal Australians as recognised by the common law is not based on a racial distinction as claimed by the minority but ‘is an underlying fundamental truth that cannot be altered or deemed not to exist by legislation’ (at [451]).

Because the minority, however, did not find authority for an expansive Aboriginality and lacks any other constitutional mechanism to deal with Aboriginal Australians, they were forced back to the racial implications of the existing constitutional understanding of Aboriginality through ‘race’ (Kiefel CJ at [44]). Justice Gageler considered this specifically by noting that while ‘[u]nderstandably, the plaintiffs eschew encapsulation of their argument in racial terminology’ they nonetheless want to insert a racial exemption to s 51(xix) because, in the absence of grounds otherwise, the only way for the aliens power not to apply to the plaintiffs is to create a racial distinction via the ‘constitutional interpretation or constitutional implication’ of a reading of the aliens and race power (at [126]). Accordingly, Gageler J was clear that he could not ‘be party to a process of constitutional interpretation or constitutional implication which would result in the inference of a race-based constitutional limitation on legislative power’ (at [133]).

The irony of such a position that, in contrast to the recognition by Edelman J, wishes to avoid racial implications within a constitutional system both founded and structured by race, will not be lost on many. Yet Gageler J’s opinion wasn’t that the distinction should be based on race, but that the only option available is one based on race. Justice Gageler explained (at [135]):

Unlike, for example, the legislative powers of the Parliament of Canada, the legislative powers of the Parliament of the Commonwealth have not to date been constrained by the insertion of a constitutional guarantee of “aboriginal … rights”. If the scope of one or more of those legislative powers is now to be limited so as to result in constitutionally mandated differential treatment of some or all Aboriginal and Torres Strait Islander people, then the Constitution should be amended to produce that result by referendum, just as the Constitution was amended in 1967 to increase the scope of the legislative power of the Parliament of the Commonwealth to enact such special laws as the Parliament might deem necessary with respect to Aboriginal and Torres Strait Islander people.

As noted, it is unclear what the implication of the expansive affirmation of the already existing recognition of Aboriginal Australians will be, if any. As the issue was incidental to the application of the aliens power I believe it is unlikely that it could be used for any positive rights claim. This is especially so considering the minority’s continued reliance on the race power as the only constitutional mechanism to deal with Aboriginal Australians outside of a narrow common law recognition of native title, and the continued existence of what has become a broad interpretation of the race power that leaves room for the possibility of unilateral Commonwealth action based on race. Justice Gageler’s remarks regarding the Canadian constitutional difference and the need for political reform, if that is what the Australian people want, resounds however from within a set of judgments that, despite their differences on the expanse of common law native title recognition, have confirmed a unitary political community and sovereignty that rests with the Crown.

Conclusion

It remains clear that political reform outside of the High Court is needed to address foundational questions about the place of Aboriginal and Torres Strait Islander peoples. This case should be considered as confirmation of that need and of the legitimate right of Aboriginal and Torres Strait Islander peoples to be recognised and negotiated with in this way. Indeed, the recommendation of the Uluru Statement from the Heart for a First Nations Voice to be enshrined in the Constitution is a more moderate proposal than even those intentions for reform outlined by Gageler J. The First Nations Voice would place the Australian community on a new heading away from race and in recognition of Aboriginal and Torres Strait Islander peoples as the distinct political and cultural communities that they are: that ‘underlying fundamental truth that cannot be altered or deemed not to exist’ that Edelman J rightfully highlights (at [451]).

Eddie Synot is the Centre Manager of the Indigenous Law Centre at UNSW. He is a Wamba Wamba First Nations public lawyer and researcher. He is currently a PhD Candidate at Griffith Law School, Griffith University.

Suggested citation:  Eddie Synot, ‘The Rightful Place of First Nations: Love & Thoms’ on AUSPUBLAW (6 March 2020) <https://auspublaw.org/2020/03/the-rightful-place-of-first-nations-love-thoms>