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Love v Commonwealth
Love v Commonwealth; Thoms v Commonwealth is a decision of the High Court of Australia. It is an important case in Australian constitutional law, deciding that Aboriginal Australians are not "aliens" for the purposes of section 51(xix) of the Constitution. The case was decided on 11 February 2020.
The High Court delivered its judgements on both Love v Commonwealth and Thoms v Commonwealth as one due to the virtually identical facts of both cases.
Daniel Love and Brendan Thoms were men who had failed their migration character tests as a result of serving jail sentences. Neither Love nor Thoms was an Australian citizen, but both identified as Aboriginal Australians. The government was trying to deport both men as aliens under the provisions of the Migration Act 1958, based on a 2014 amendment of the Act.
Love was a recognised member of the Kamilaroi people who was born in Papua New Guinea. He had been placed in immigration detention after he was sentenced to more than a year in jail for assault occasioning actual bodily harm. His permanent residency visa was revoked by Home Affairs Minister Peter Dutton, but this was later overturned and he was released from detention.
Thoms was a native title holder and a member of the Gunggari people who was born in New Zealand. He was also placed in immigration detention after serving part of an 18-month sentence for domestic violence. He remained in detention until the judgment was handed down.
The two men were aged in their 30s and 40s at the time of the court case. Both had lived in Australia since they were small children, and had close family in Australia. Both men were legal Australian permanent residents prior to their jail sentences.
The Attorney-General for the State of Victoria intervened and made submissions in support of both Love and Thoms. It argued that Aboriginality is equivalent to citizenship, on the basis the unique relationship between members of Aboriginal societies and the land and waters of Australia meant that Aboriginal Australians could not be considered "aliens" for the purposes of s 51(xix) of the Constitution.
In the judgment, each justice issued a separate opinion. A majority of the Court (Bell, Nettle, Gordon and Edelman) found that Aboriginal Australians (understood according to the tripartite test in Mabo v Queensland (No 2)) were not within the reach of the "aliens" power conferred by section 51(xix) of the Constitution.
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Love v Commonwealth
Love v Commonwealth; Thoms v Commonwealth is a decision of the High Court of Australia. It is an important case in Australian constitutional law, deciding that Aboriginal Australians are not "aliens" for the purposes of section 51(xix) of the Constitution. The case was decided on 11 February 2020.
The High Court delivered its judgements on both Love v Commonwealth and Thoms v Commonwealth as one due to the virtually identical facts of both cases.
Daniel Love and Brendan Thoms were men who had failed their migration character tests as a result of serving jail sentences. Neither Love nor Thoms was an Australian citizen, but both identified as Aboriginal Australians. The government was trying to deport both men as aliens under the provisions of the Migration Act 1958, based on a 2014 amendment of the Act.
Love was a recognised member of the Kamilaroi people who was born in Papua New Guinea. He had been placed in immigration detention after he was sentenced to more than a year in jail for assault occasioning actual bodily harm. His permanent residency visa was revoked by Home Affairs Minister Peter Dutton, but this was later overturned and he was released from detention.
Thoms was a native title holder and a member of the Gunggari people who was born in New Zealand. He was also placed in immigration detention after serving part of an 18-month sentence for domestic violence. He remained in detention until the judgment was handed down.
The two men were aged in their 30s and 40s at the time of the court case. Both had lived in Australia since they were small children, and had close family in Australia. Both men were legal Australian permanent residents prior to their jail sentences.
The Attorney-General for the State of Victoria intervened and made submissions in support of both Love and Thoms. It argued that Aboriginality is equivalent to citizenship, on the basis the unique relationship between members of Aboriginal societies and the land and waters of Australia meant that Aboriginal Australians could not be considered "aliens" for the purposes of s 51(xix) of the Constitution.
In the judgment, each justice issued a separate opinion. A majority of the Court (Bell, Nettle, Gordon and Edelman) found that Aboriginal Australians (understood according to the tripartite test in Mabo v Queensland (No 2)) were not within the reach of the "aliens" power conferred by section 51(xix) of the Constitution.