AUSPUBLAW congratulates Mikaela Smith on winning the 2020 Sir Anthony Mason Constitutional Law prize, and is pleased to publish an edited version of her winning essay.



In the recent case of Love v Commonwealth; Thoms v Commonwealth (2020) (‘Love’), the High Court grappled with issues surrounding what it means to belong to the Australian political community, and the difficulty of interpreting the meaning of words in the Constitution when faced with unique and unprecedented circumstances. By a 4:3 majority, the High Court decided in favour of Mr Love and Mr Thoms, finding that Aboriginal Australians, understood according to the tripartite test in Mabo v Queensland [No 2] (1992) (‘Mabo’), were not aliens. The decision shed some light on the scope of the Commonwealth Parliament’s ‘aliens power’, that is, the power to legislate with respect to ‘naturalization and aliens’ conferred by s 51(xix) of the Constitution.

After providing a brief background to the facts and issues in Love, this post analyses and compares the judgment of a majority judge, Edelman J, with that of a minority judge, Gageler J, specifically in terms of their differing approaches to interpreting the constitutional meaning of the word ‘alien’. Justice Gageler employs a stricter originalist approach, in contrast to Edelman J’s more moderate originalist approach, which looked to the ‘essential meaning’ of the term ‘alien’ and the intended meaning of the word in the Constitution. The post then considers how Gageler and Edelman JJ approached the relevance of the decision in Mabo and the recognition of native title. This post takes the position that the strength of Edelman J’s approach was his acknowledgement that the Constitution is a text intended to endure and be adaptable to changing values and situations.  In my view, Edelman J correctly found that Aboriginal Australians ‘cannot answer the description of “aliens” in the ordinary understanding of the word’ (Love [427]), and are therefore beyond the reach of the aliens power.


Mr Love was born in Papua New Guinea and Mr Thoms in New Zealand, and the plaintiffs are citizens respectively of those countries. Both were permanent residents in Australia and identified as Aboriginal Australians, but were not Australian citizens. Mr Thoms also has recognised native title rights at common law. Both served time in prison for criminal offences and subsequently were informed that they would be deported as their permanent visas had been revoked pursuant to s 501(3A) of the Migration Act 1958 (Cth). The issue in Love was whether Aboriginal Australians could be considered aliens for the purposes of s 51(xix) of the Constitution. If they were not aliens, the plaintiffs could not be deported pursuant to the Migration Act, which relies upon the aliens power for its validity. The majority, comprising Bell, Nettle, Gordon and Edelman JJ, found that Aboriginal Australians were beyond the purview of the aliens power (Love [81]). Chief Justice Kiefel, Gageler and Keane JJ dissented, finding that it is for the Commonwealth Parliament to determine the legal status of alienage.

Interpretation of the Aliens Power

Originalism in constitutional interpretation

In constitutional interpretation, originalism seeks to give effect to the original ‘intentions of the lawmaker’. In broad terms, this involves ascertaining the meaning of a constitution based on ‘ascertainable facts of the intentions of the drafters’. Originalism can encompass different approaches. For example, there are differences between the originalism of Justice Antonin Scalia (formerly of the US Supreme Court) which involves looking at the ways the words were commonly understood at the time at which a constitution was drafted, and originalist approaches which attempt to ascertain the subjective or objective intentions of the original lawmaker. Further, distinctions can be drawn between strict originalism and more moderate originalism. Strict originalists are of the view that a constitution has a fixed meaning, the meaning of the text as it was when it was drafted, that does not change over time, except through formal mechanisms for amending or changing a constitution. A moderate originalist approach attempts to read the text and provisions of a constitution so that the language may embrace new circumstances or exemplifications which fall within the overall meaning.

Originalism in its various forms and degrees can be contrasted with non-originalist approaches, which favour an interpretation which meets new circumstances and contemporary needs, and which may interpret a constitution in light of shifts in societal values or changes in common law. An example is found in references in Canadian jurisprudence, described by Michael Kirby as the conception that a constitution is a ‘living tree which continues to grow and to provide shelter in new circumstances’.

Whilst originalist approaches may be appropriate at times, the primary limitation with a strict originalist approach is that it may be difficult to apply originalist interpretations to novel factual scenarios or cases which arise in a contemporary context. This issue becomes apparent in the context of the aliens power and its interpretation. This is because since the Australian Constitution was drafted, there have been many fluctuations in the understanding and interpretation of ‘alien’ and who may be treated as such, including as a result of the landmark decision in Mabo which recognised the native title rights of Aboriginal Australians at common law. A moderate originalist approach which takes account of political and social developments since federation is desirable in cases where there is difficulty ascertaining the framers’ intentions, or transporting those intentions to a contemporary setting. Indeed, Michael Kirby writes that the Australian  Constitution must be construed as a living document so that (as far as its words and structure permit) it serves effectively the governmental needs of contemporary Australians. Such a construction gives the Constitution an enduring living force, and acknowledges that although the nature of a constitution does not suggest changeability, it is also true that the Australian Constitution, especially the provisions granting power to the Commonwealth Parliament, was drafted in broad terms. Therefore, a moderate originalist approach is preferable insofar as the language of the document can be construed such that it can be applied with a degree of flexibility to changing circumstances.

Justices Edelman and Gageler both used an originalist approach in interpreting the constitutional meaning of ‘alien’. However, their different conclusions can be explained by comparing the more moderate originalist approach of Edelman J with the stricter approach of Gageler J. Justice Edelman’s decision can be understood in light of his extrajudicial reflection on constitutional interpretation, that:

There are particularly difficult questions of context that arise where words are used in a manner intended to endure for a long time. These are (i) when the meaning of words can change, (ii) if so, how to know when meaning can change…The answer to these questions lies in the distinction between essential and non-essential meaning.

This distinction between essential and non-essential meaning led Edelman J to identify the essential meaning of ‘alien’ which could then be applied to the plaintiffs’ circumstances in Love, involving Aboriginal people who are not Australian citizens. Justice Edelman’s distillation of the essential meaning, which endures over time, from the non-essential meaning, which may fluctuate and change over time, therefore provided an interpretation which simultaneously sought to give effect to the meaning of the word at the time of federation as well as to apply that meaning to a novel factual scenario.

Justice Edelman’s judgment

Justice Edelman’s interpretation of the constitutional meaning of the word ‘alien’ was originalist in the sense that he considered the essential meaning of the word at the time of federation. He determined this to be ‘belonging to another person or place’ (Love [403]). He persuasively demonstrated, referring to legislation enacted around the time of the Constitution and the Constitutional Convention debates, that at the time of federation, the term ‘alien’ was understood in racial terms. By this he meant that at federation, British citizens who were members of Asiatic or Indian races were considered aliens when they came to Australia, whilst Aboriginal Australians were not considered to be aliens ([392], [404], [413]). His reasoning was reinforced by consistent iterations by the High Court, that ‘the Parliament cannot, simply by giving its own definition of “alien”, expand the power under s 51(xix) to include persons who could not possibly answer the description of “aliens” in the ordinary understanding of the word’ ([433]; Pochi v McPhee (1983)).

Justice Gageler also discussed this passage. However, he interpreted it as simply meaning that the content and scope of the aliens power is ultimately a matter to be determined judicially (Love [87]), whilst Edelman J considered this passage to mean that there must be a limit on the Parliament’s power to legislate with respect to aliens, even if that limit is difficult to define. Justice Edelman found that there must be an ‘essential meaning’ to the term ‘alien’ that transcends the transient and fluctuating definition of citizen determined by the Commonwealth Parliament ([394]). That is to say, ‘alien’ cannot simply be defined as the antonym of ‘citizen’, as that would enable Parliament to define the scope of its own power with respect to aliens, given citizenship is a statutory concept ([427]). Rather, his definition of the essential meaning meant that Aboriginal people could not be aliens, as they ‘belong to Australia and are essential members of the “community which constitutes the body politic of the nation state”’ ([398]; Nolan v Minister for Immigration and Ethnic Affairs (1988) (‘Nolan’)). Justice Edelman’s attempt to define the ‘essential meaning’ of ‘alien’ can be considered originalist in that he traced and analysed the interpretation and understanding of the term from the time of federation, and through this, he came to a sufficiently broad meaning which encapsulated the understanding of the word at the time of federation through to the present. Such an approach acknowledges that the Constitution was intended to endure over time and that it is the role of the High Court to interpret the text and apply it.

Justice Gageler’s judgment

Justice Gageler found that an alien is a non-citizen, and that the Commonwealth Parliament can define alienage through citizenship legislation ([93]). In reaching this conclusion, he considered the text of the Constitution, and determined that its intention was to create a nation state, and that s 51(xix) conferred on the Commonwealth Parliament a power to determine who is a part of Australia’s body politic ([91]). This was demonstrative of his originalist approach insofar as his interpretation of the word ‘alien’ was predominantly based upon the purpose of the Constitution and the principles of federation, and did not consider developments in common law or that the present facts are unlikely to have crossed the minds of those who drafted the Constitution. Whilst this stricter approach may be appropriate in some cases, the weakness in Gageler J’s approach was that it is difficult to apply a strictly originalist interpretation when it is unlikely that the framers could have contemplated the unique scenario in Love. Further, Gageler J looked to past interpretation of the aliens power, specifically propositions that have emerged from decisions, including that the power is ‘wide’ (Koroitamana v Commonwealth (2006) [11]; Hwang v Commonwealth (2005) [18]); that the legal status of ‘alienage is antonymous to the legal status of citizenship’ (Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992), citing Nolan); and that citizenship itself is a statutory concept which is for Parliament to create and define (Love [92]-[101], citing Koroitamana v Commonwealth (2006) [9], [62]). Ultimately, he found himself unable to 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’ ([133]).

The primary issue with Gageler J’s reasoning and decision is that to decide against the plaintiffs, in a case that was strongly connected with recognition of native title at common law, would yield an outcome which Edelman J describes as a ‘hopeless and incoherent contradiction’ ([454]). This refers to the incongruity that would occur if our legal system were to simultaneously recognise native title, and then classify Aboriginal Australians as aliens and foreigners to the Australian community. Further, Gageler J did not account for the fact that the Constitution was ‘born into a common law world’, and consequently that there may be cases where it is appropriate to recognise developments in common law, such as in Mabo, when interpreting the Constitution (see discussion by Winterton at 34, and commentary by Slack and Hartnett at 49).

Native Title

In Mabo and subsequent cases, the common law developed in tandem with the Native Title Act 1993 (Cth), to recognise the ‘powerful spiritual and cultural connection’ between Aboriginal people and the land through the doctrine of native title (450]-[451]). However, the judgments delivered by Edelman and Gageler JJ differed in terms of the relevance of common law recognition of native title to a case concerning the scope of the aliens power granted to the Commonwealth Parliament by the Constitution.

Justice Edelman’s judgment

Justice Edelman considered that even where rights to native title have been lost or cannot be proven, the connection of Aboriginal Australians to the land remains ([451]). His judgment was strongly informed by the common law’s recognition of native title, and the ‘fundamental truth’ of the spiritual connection between Aboriginal peoples and the land, which cannot be altered by transient legislative definitions of citizenship ([451]). Justice Edelman took an approach to interpretation of the scope of the aliens power which was strongly supported by reiterations of the High Court over past decades that while the Commonwealth Parliament’s power to legislate with respect to aliens is expansive, it has limits ([433]). Justice Edelman considered, referring to its preamble, that the Native Title Act recognised that Aboriginal Australians inhabited the lands before European settlement, and Mabo and subsequent cases recognised their deep connection with the lands of Australia ([454]). As previously noted, he observed that there would be a ‘hopeless and incoherent contradiction’ within our legal system if it could simultaneously recognise native title at common law and yet treat Aboriginal Australians as aliens ([454]).

In my view, this observation is powerful, as it demonstrates a broader reflection on the interpretation of the Constitution in the context of our entire legal system including the common law. However, Kiefel CJ criticised it, stating that it is an ‘erroneous assumption that the connection to land necessary for recognition by the common law of native title may be used in an entirely different area of the law’ ([31]). While Kiefel CJ critiqued this use of the common law’s recognition of native title in a different legal context, were the minority judgments to be accepted, the inescapable result would be a strange situation whereby a person who held native title rights could simultaneously be considered an alien. That is, it would be possible for a person who was able to prove their Aboriginality and connection with the land of Australia at common law, as Mr Thoms had, to be deported on the basis that they were ‘alien’ to the Australian political community. It is for this reason that the majority thought native title to be so significant in this case.

Justice Gageler’s judgment

Justice Gageler’s critique of the majority points out that by finding in favour of the plaintiffs, the majority was essentially concluding that there exists a category of non-citizen non-aliens, who would reside beyond the reach of the aliens power, inhabiting what he termed a ‘constitutional netherworld’ ([131]). He conceded that he was ‘not unmoved by growing appreciation of the depth of cultural connection to country and of the extent of historical dispossession of Aboriginal and Torres Strait Islander peoples’, but he ultimately concluded that a race-based limitation on the aliens power was ‘not legally sustainable’ ([127]-[128]). This alluded to the potential ramifications of placing such a limit on the power of the Commonwealth ([134]), and the unforeseeable ‘complications and uncertainties’ that may ensue ([139]). Whilst Gageler J’s fear of the unknown consequences of the majority’s decision may be valid, the majority was careful to limit the scope of their decision to Aboriginal Australians who satisfy the tripartite test of Aboriginality in Mabo, which requires biological descent, individual identification, and communal recognition. Although the minority, Kiefel CJ ([25]), Gageler J ([125]) and Keane J ([199]-[205]), implied that the majority’s decision in Love recognises Aboriginal sovereignty, which was carefully rejected in Mabo, the decision does not have this effect. Rather, it adopts an established test for Aboriginality to recognise that Aboriginal Australians have a unique and fundamental relationship with the lands of Australia and therefore cannot be excluded from the political community. While it may be more straightforward to maintain a dichotomy whereby ‘alien’ simply means ‘non-citizen’ ([131]), Edelman J’s approach reflects an interpretation which considers the contemporary context and thereby avoids the potential contradictions and inconsistencies that would otherwise arise. Such an interpretive approach is imperative for the Constitution to remain a living document which can flexibly apply to unprecedented cases.


Love presented the High Court with a complex issue which highlighted the difficulty in interpreting the constitutional meaning of the term ‘alien’. A comparative analysis between Edelman J’s and Gageler J’s approaches highlights some of the issues generated by an inflexible originalist interpretation, which rejects the proposition that the common law developments relating to native title could be relevant to Constitutional interpretation. Justice Edelman’s identification of the ‘essential meaning’ of alien for the purposes of s 51(xix) as ‘belonging to another person or place’, and his application of this meaning to the unique circumstances of the plaintiffs, demonstrates an approach which can be described as moderate originalism. That is, he drew from the meaning of ‘alien’ as understood around the time of federation, whilst also having regard to the fact that the Constitution was intended to have enduring application and be able to adapt to contemporary developments and values. This approach remains faithful to the text and structure of the Constitution whilst acknowledging that the meaning and application of the words were not fixed, and were not intended to be so, at the time it was drafted.

Mikaela Smith is a fourth year student at the University of Technology Sydney with a passion for constitutional and administrative law. 

Suggested citation: Mikaela Smith, ‘The divided decision in Love v Commonwealth – an analysis of Justice Gageler’s and Justice Edelman’s approaches to constitutional interpretation’ on AUSPUBLAW (17 March 2021) <>