Part of the ANU College of Law Visitors Seminar Series series
The 2020 High Court decision in Love v Commonwealth of Australia; Thoms v Commonwealth of Australia  HCA 3 (Love; Thoms) concerned the scope of the Commonwealth’s Constitutional powers to make laws in relation to ‘aliens’. The majority of the Court held that Aboriginal people cannot be defined as alien for the purposes of immigration and deportation laws.
Beyond the technical implications for deportation law and practice, and the personal impact for the individuals involved, the decision struck a chord with many Indigenous people. This is because the reasoning was founded on the notion that Aboriginal people belong to this land and cannot belong anywhere else in the world.
The decision speaks to identity. It demonstrates the courts developing understanding of foundational relationship Indigenous peoples have with their land and waters, after 30 years of native title. It also seeks to articulate Australia’s identity as a colonial country and constitutional polity.
The relationship between the Australian Constitution and Indigenous peoples is fraught. There is a question as to whether the courts inclusive interpretation of the ‘people’ that the Constitution serves sits well with our knowledge of the history of Indigenous peoples political exclusion, marginalisation and displacement.
This seminar, chaired by Craig Ritchie (AIATSIS), will outline the key findings of the High Court in Love; Thoms and recent interpretations by the Federal Courts. Lisa will consider the and applications of the decision beyond simply an interpretation of the aliens power, in particular for the definition of Indigeneity in Australian law and the implications for native title and traditional owner corporations.