In the High Court decision of Love v Commonwealth the predominant question in issue was whether the plaintiffs were ‘aliens’ within s 51(xix) of the Australian Constitution.[1] Both plaintiffs were males born overseas, one in Papua New Guinea and the other in New Zealand, who held long term residence visas in Australia.[2] Love and Thoms both had a parent with Indigenous heritage and never applied for citizenship under the Australian Citizenship Act 2007 (Cth), even though they had the right to do so.[3] Additionally, both men had been convicted of a sentence of imprisonment of 12 months or more, triggering a mandatory cancellation of their visas. The Minister for Home Affairs did not exercise their discretion to revoke the deportation order.[4] Love identified as a member of the Kamilaroi group and Thoms identified as a descendant of the Gunggari People.[5] Four of the justices developed new legal jurisprudence as they forged a path for systemic coherence wherein the Constitution cannot recognise Aboriginal societies as having a connection to Australia independent of, and predating the Constitution and Federation, as well as allowing Indigenous Peoples to be ‘foreigners’.

I Constitutional Interpretation

The minority’s view was that ‘alien’ equates to ‘non-citizen’ in the ordinary sense of the word.[6] The justices found that Parliament should be responsible for deciding who is an ‘alien.’ Their Honours asserted that the Constitution was intended to be enduring and that the correct approach to interpreting the instrument was to be ‘bound by [its] text and structure.’[7]Essentially, it is a formal, textualist approach, giving legislative authority priority over implied constitutional protections. Preference was given to the form, phrasing and composition of the Constitution, signalling tension and divergent views among the judges as to constitutional and statutory interpretation

Originalism involves discerning the ‘common, ordinary understanding of words at the time of a document’s adoption.’[8]Justice Gordon engaged in an evolutionary originalist interpretation of s 51(xix), while Edelman J’s moderate originalist interpretation also lead to the same finding that the term ‘aliens’ was unclear and equivocal at Federation.[9] The ‘essential meaning’ of ‘alien’ according to Edelman J was someone who does not belong in Australia.[10] The majority created a new category of persons that are ‘non-citizen, non-alien.’[11] Additionally, they held that adaptations can be made to accommodate Indigenous Peoples as there should be a ‘two-way connection’ that understands the reciprocal obligation of Aboriginals to land, thus shaping identity, rather than the proprietary common law view that emphasises control and exclusion.[12] The majority’s interpretation forged a new precedent that puts a significant constitutional limit on Parliament’s power. The decision embeds Indigenous recognition in constitutional interpretation.

Acknowledgment of systematic, historical, and institutionalised racism has become more integrated into the public consciousness. As such, the ‘living tree’ doctrine of constitutional interpretation has progressed to take into account societal values.[13] It is a ‘liberal interpretation…within certain fixed limits’.[14] Justice Nettle arguably adopted the living tree interpretation as His Honour found that permitting Aboriginal Australians to become ‘aliens’ would be antithetical to the law’s recognition of their customs, rights, and interests.[15] His Honour held that the connection to country enjoyed by Indigenous Peoples ‘is a connection which means that even if an Aboriginal Australian…is born overseas without obtaining Australian citizenship, they are not susceptible to legislation made pursuant to the aliens power or detention and deportation under such legislation.’[16] Justice Nettle’s formulation clearly evinces a perspective that considers historical and societal context. The living tree doctrine challenged parliamentary supremacy in defining aliens and allowed for the Court to constitutionalise Indigenous belonging.

Justice Gordon utilised the tripartite test in Mabo (No 2), to find that Indigenous descendants are native and autochthonous, and that this is accepted within their communities.[17] However, this interpretation has attracted rhetoric that aims at illegitimising and discrediting Aboriginality, as it undermines the identification of ethnic groups that have had significant ties to the land culturally, and existed in the country long before the Constitution was introduced. For example, Sky News host Andrew Bolt stated that Australians were ‘calling themselves’[18] Aboriginal and scholars referred to Indigenous identification as ‘subjective’.[19] It is a form of confirmation bias that essentially distrusts Indigenous voices. It also directly correlates with the criticism that the Love decision will lead to Indigenous Elders protecting criminals by claiming Aboriginality.[20]

On the other hand, Kiefel CJ turned to the decisions of Singh and Nolan to determine that longstanding affiliation with the community and country is not sufficient to bring about naturalisation of a person or change the status of their alienage.[21] Her Honour went on to establish that native title is protected at common law, however, Indigenous law is not a part of Australian domestic law and its traditions and customs do not have legal force and therefore cannot determine a person’s legal status.[22] Justice Gageler arrived at the same conclusion that the alien criteria does not apply to the plaintiffs, however, His Honour explained that the ‘slippery slope’ argument was a misunderstanding of the aliens power which could lead to incongruity and unpredictability in the application of the law.[23] This is notable as the argument contends that if the judiciary narrows the aliens power to a larger extent, it has the possibility of disturbing settled immigration law and pushing Parliament into problematic constitutional territory. This has the potential to interfere with the integral, normative principle of the separation of powers.

Justice Keane stood firmly on the notion that the law creates citizenship, rather than any history, culture, or identity.[24]Furthermore, His Honour held that ‘[t]here is no support in the text or structure of the Constitution for the contention that there is a special class within the people of the Commonwealth who, by virtue of their biological descent…enjoy a constitutionally privileged political relationship with the Australian body politic.’[25] This interpretation accentuates a formalist approach that upholds the primacy of text in favour of a ‘semantic fixation.’[26]  Justice Keane rejected that there be any argument relying on Mabo (No 2), distinguishing the cases on their facts and asserting that Indigenous law does not override Australian law, modify constitutional concepts, or reshape the reach of sovereign power.[27]

Ultimately, the Court found that Aboriginal Australians had enforceable constitutional rights, representing judicial acknowledgment of Indigenous identity, belonging, and self-determination. It rejected a purely textual liberalism approach and recognised that the Constitution may be interpreted within its broader historical and legal context.

II Rejecting assimilationist assumptions or corrupting equality before the law?

Assimilationist assumptions posit that all Australians should have identical legal status. Assimilationist ideology advocates for ethnic minorities to adopt and conform to the ‘superior’ culture.[28] Treating Indigenous Peoples as equal under the law is a false equivalence that ignores their connection to land and seas, and their existence pre-Federation. As Edelman J posits, it would be ‘bizarre’ to consider Aboriginals as aliens due to their distinctive temporal and spiritual relationship with country.[29]  If Australia were to recognise native title then it would be inconsistent to categorise Indigenous Peoples as ‘aliens’.[30] The majority rejected these assumptions by emphasising the ‘unique obligation of protection’ that Aboriginal people are owed[31] and the territorial link to the Australian polity.[32]

In contrast, equality before the law is a fundamental element of the rule of law upon which public confidence in the judiciary rests. This creates fairness and consistency, protects rights and freedoms, and enables accountaibility. Formal equality focuses on uniform rules applied identically to all, whereas substantive equality can be seen to be equity-focused, acknowledging systemic barriers, power imbalances, historical injustice, and social context.[33] Equality develops its meaning over time, however, the notion can only be addressed by drawing on our previous understanding of the concept.[34] Formalist approaches of equality continue to be valued on a macro scale; a foundational pillar of societies that allows for no person to be above the law.[35] Common law emphasises that Commonwealth laws apply to everyone without discrimination.[36] This prevents arbitrary treatment.[37] Creating a new category of persons, such as ‘non-citizen, non-alien’ effectively diminishes formal equality as it puts Indigenous Peoples beyond legal constraints, particularly that of the Migration Act 1958 (Cth). This categorisation allows for non-citizens who have committed a crime to remain in Australia despite their contraventions. They are not bound by the legal obligations and rules that all other non-citizens must abide by. As Jagot J stated in Farmer, ‘a sovereign nation may exclude all aliens [and] can …permit entry by an alien into its sovereign territory subject ‘to what conditions it pleases.’’[38] These conditions are not intended to be horizontal, rather, they should apply without discrimination that asserts a particular racial group as above the law.

Scholar Shireen Morris has fought back against views that the Love decision is a race-dividing interpretation of the Constitution that subverts equality before the law as she posits that the instrument inherently divides its subjects by race.[39] Drawing on Dawson J’s comments in Kruger v Commonwealth that ‘[g]uarantees of equality before the law…were specifically rejected’ in the drafting of the Constitution,[40] Morris has expressed that the failure to historically recognise Indigenous sovereignty has led to the exclusion of Indigenous Peoples as a constituent to Australia’s ‘political community.’[41] Moreover, Detmold contends that constitutional questions do not apply equally, rather they apply with equal respect and that discrimination between people on rational grounds ‘does not construct a separation of community between them.’[42] In the judgment, Gordon J held that the Constitution ‘expressly contemplates special laws for particular races’.[43] Fears of inclusion of Indigenous Australians into the political community causing race-based division were said to be ‘overstated’ according to Bell J.[44] The central claim is that inequality already exists in the Constitution.

III Challenging Westphalian views

Westphalian sovereignty is a ‘geopolitical’ structure binding sovereign agency to territorial statehood.[45] Westphalian views uphold colonial values and create racialized social hierarchies. At its core, its principles are political independence, legal equality of states under international law, and that no State should interfere in another State’s domestic affairs.[46]Indigenous Peoples are participants of the nation state.[47] Kinship ties are very important in Indigenous communities. These are devalued by Westphalian views that highlight territorial control over relationships and collective identity.[48]Even in the United Nations’ Declaration on the Rights of Indigenous Peoples, the freedom to exercise control over ‘external affairs’ of the Indigenous Peoples is excluded, as Article 4 restrains the right to self-determination by stating that ‘Indigenous peoples…have the right to autonomy or self-government in matters relating to their internal or local affairs.’[49] The freedoms given to sovereign nations do not extend to Indigenous communities.

Despite Westphalian values constraining Indigenous sovereignty and self-determination, judicial activism has been highly criticised. Justice Heydon has described judicial activism as ‘using judicial power for a purpose other than that for which it was granted’ and ‘the furthering of some political, moral or social programme.’[50] His Honour has attacked this judicial function on the grounds that judges should decide cases rather than make law, which breaches the duty of restraint. Justice Heydon relied on the words of Sir Owen Dixon to express that judicial activism undermines the principle of precedent and demonstrates judicial uncertainty and unpredictability, disrupting public institutions.[51] Sir Harry Gibbs agreed that this unpredictability is harmful as it relies on ‘the minds of judges themselves’.[52]

In response to the condemnation of judicial activism by prominent Australian legal figures and the media, Professor George Williams asserted that the label of judicial activist is commonly employed when, and only when, the High Court has expressed a ‘liberal or progressive’, rights-based or substantively egalitarian decision.[53] Conversely, when the High Court proceeds to uphold laws that impose an excessive burden or paternalistic regulations, criticists tend to refrain from commenting.[54] This is particularly so when the law restrains the rights of criminals or migrants. The Honourable Michael Kirby has labelled those same people who object to judges that delve into context and ‘express a desire to cure identified injustices’, removing themselves from a purely formalistic application of the law, as bullies.[55] The intolerance is what drives judges to be labelled activists and therefore illegitimate.[56]

IV Conclusion

The Love decision is notable as it signals a shift toward constitutional recognition of Indigenous peoples through judicial interpretation. The Court found that citizenship status does not solely determine constitutional belonging through the finding of a new category of persons, that is, ‘non-citizens, non-aliens’. The judges differed in their constitutional interpretation. The outcome prevents the deportation of Aboriginal Australians under immigration laws and affirms their unique connection to the land. Love forces Australia to confront the fact that equality does not always equate to sameness and the Constitution cannot ignore the first peoples of the land. In recognising the new category of persons, the Court did not fracture the rule of law. The Westphalian order that hinders Indigenous self-determination and the denunciation of judicial activism unveils a deeper reluctance to disturb the historically exclusionary foundations upon which the legal system has been constructed.

V Footnotes

[1] Love v Commonwealth; Thoms v Commonwealth (2020) 270 CLR 152.

[2] Ibid, 169.

[3] Ibid.

[4] Stephen Keim, ‘Reflections on Love and Thoms v The Commonwealth’ (Seminar Paper, Australian Association for Constitutional Law and the Law School of Monash university, 3 June 2020) 1, 2; Migration Act 1958 (Cth) ss 501(3A), 601(6)(a), 501(7)(c).

[5] Love (n 1) 152.

[6] Flyn Wells, ‘Heartbeat in the High Court: Love v Commonwealth (2020) 375 ALR 597 (2020) 41(2) Adelaide Law Review 657, 666.

[7] Daniel Lavery, ‘Judicial Distancing in the High Court: Love/Thoms v The Commonwealth’ (2020) 26 James Cook University Law Review 159, 167.

[8] Kevin Newsom, ‘The Road to Tradition or Perdition? An originalist Critique of Traditionalism in Constitutional Interpretation’ (2024) 47(3) Harvard Journal of Law & Public Policy 745, 748.

[9] Wells (n 6) 666; Mikaela Smith, ‘The divided decision in Love v Commonwealth – An analysis of Justice Gageler’s and Justice Edelman’s approaches to constitutional interpretation’, Australian Public Law (Blog Post, 17 March 2021) < https://www.auspublaw.org/blog/2021/03/the-divided-decision-in-love-v-commonwealth>.

[10] Love (n 1) 287.

[11] Ibid 312 (Edelman J)..

[12] Ibid 274 (Gordon J).

[13] Smith (n 79).

[14] Bradley Miller, ‘Beguiled by Metaphors: The “Living Tree” and Originalist Constitutional Interpretation in Canada’ (2009) 22(2) Canadian Journal of Law and Jurisprudence 331, 334 quoting Edwards v Attorney-General for Canada [1930] A.C. 124 (P.C.) 136.

[15] Keim (n 4) 5.

[16] Love (n 1) 284 (Gordon J)..

[17] Ibid 282-284.

[18] Johnny Sakr and Augusto Zimmermann, Judicial Activism and Constitutional (Mis)Interpretation: A Critical Appraisal’ (2021) 40(1) University of Queensland Law Journal 119, 138.

[19] Ibid 138.

[20] Ibid 139.

[21] Love (n 1) 174-175 (Kiefel CJ) citing Singh v Commonwealth (2004) 222 CLR 322, 398; Nolan v Minister for Immigration and Ethnic Affairs(1988) 165 CLR 178, 183.

[22] Ibid 179-180.

[23] Ibid 212.

[24] Ibid 221.

[25] Ibid.

[26] Lael Weis, ‘Constitutional Amendment Rules and Interpretive Fidelity to Democracy’ (2014) 38(1) Melbourne University Law Review 240, 246.

[27] Love (n 1) 226-228.

[28] Anastasia Batkhina, ‘More Similarity if Different, More Difference if Similar: Assimilation, Colorblindness, Multiculturalism, Polyculturalism, and Generalised and Specific Negative Intergroup Bias’ (2022) 30(18) Europe’s Journal of Psychology 369, 370.

[29] Love (n 1) 287.

[30] Smith (n 9).

[31] Love (n 1) 254 (Nettle J).

[32] Wells (n 6) 663.

[33] Anna Chorazwska, ‘The Principle of Equality as a Challenge to the Democratic Rule of Law’ (2024) 28(4) Scientific Journal of Bielsko-Bala School of Finance and Law 5, 5.

[34] James Harrigan and Ryan Yonk, ‘From Equality and the Rule of Law to the Collapse of Egalitarianism’ (2017) 22(1) The Independent Review27, 35.

[35] Isabel Trujillo, ‘Defining the Rule of Law in Terms of Liberty and Equality’ (2023) 137 Research Outreach (online) 6, 6.

[36] Leeth v Commonwealth (1992) 174 CLR 455, 483-484.

[37] Matsoukatidou v Yarra Ranges Council (2017) 51 VR 624, 642.

[38] Farmer v Minister for Home Affairs (2025) 425 ALR 116, 179.

[39] Shireen Morris, ‘Love in the High Court: Implications for Indigenous Constitutional Recognition’ (2021) 49(3) Federal Law Review 410, 412.

[40] Kruger v Commonwealth (1997) 190 CLR 1, 65.

[41] Morris (n 40) 425.

[42] M J Detmold, ‘The New Constitutional Law’ (1994) 16(2) Sydney Law Review 228, 232.

[43] Love (n 1) 283.

[44] Ibid 190.

[45] Harald Bauder and Rebecca Mueller, ‘Westphalian Vs Indigenous Sovereignty: Challenging Colonial Territorial Governance’ (2023) 28(1) Geopolitics 156, 158.

[46] Patrick Milton, Michael Axworthy and Brendan Simms, ‘Introduction: The Relevance of the Thirty Years War and Westphalia for the Middle East Today’ in Towards A Westphalia for the Middle East (Oxford University Press, March 2019) 1, 6.

[47] Bauder (n 46) 161.

[48] Ibid 158.

[49] United Nations’ Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN Doc A/RES/61/295 (2 October 2007, adopted 13 September 2007).

[50] Dyson Heydon, ‘Judicial Activism and the Death of the Rule of Law’ (2004) 10(4) Otago Law Review 493, 495.

[51] Ibid 496-497, 510-511.

[52] Sakr (n 19) 122 quoting Sir Harry Gibbs, ‘Judicial Activism and Judicial Restraint: Where Does the Balance Lie?’ (Conference Paper, Constitutional Law Conference, University of New South Wales, 20 February 2004) 1, 7.

[53] Morris (n 40) 429 quoting George Williams, ‘When the Umpire Takes a Stand’, The Sydney Morning Herald (Web Page, 12 November 2011) < https://www.smh.com.au/politics/federal/when-the-umpire-takes-a-stand-20111111-1nbag.html>.

[54] Ibid.

[55] Michael Kirby, ‘Judicial Activism: Power Without Responsibility? No, Appropriate Activism Conforming to Duty’ (2006) 30(2) Melbourne University Law Review 576, 590.

[56] Ibid 591.