LOVE V COMMONWEALTH OF AUSTRALIA

The High Court of Australia ruled by a majority of 4-to-3 that indigenous Australians who do not hold Australian citizenship.

The question before the High Court was whether it is within the legislative competence of the Parliament under s 51(xix) of the Constitution to treat either plaintiff as an “unlawful non-citizen” (within the meaning of s 14(1) of the Migration Act), and thus to detain and possibly to deport him under ss 189, 196, and 200 of the Migration Act. After hearing all the contentions, the High Court held that— the constitutional concept of an alien is not coterminous with any persons whom the Commonwealth of Australia Parliament chooses to make statutory citizens. That long-standing assumption is correct. The political community is not a concept that is wholly a creature of legislation. For example, a child born in Australia to two parents who have only Australian citizenship is not an alien. The metaphysical ties between that child and the Australian polity, by birth on Australian land and parentage, are such that the child is a non-alien, whether or not they are a statutory citizen. The same must also be true of an Aboriginal child whose genealogy and identity includes a spiritual connection forged over tens of thousands of years between a person and Australian land, or “mother nature”.

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