Courting Calamity

24 September 2020
Courting Calamity - Featured image

This article from the Winter 2020 edition of the IPA Review is written by IPA Research Fellow, Morgan Begg.

Australia’s success as a multicultural nation has depended on our commitment to the idea that one law governs the multiplicity of Australians, regardless of their background. Yet in February this year the High Court set out a new and radical position fundamentally challenging the idea that all Australians are equal.

In the case of Love v Commonwealth of Australia/Thoms v Commonwealth of Australia (Love/Thoms), a majority of High Court judges concluded that Aboriginal Australians could not be considered “aliens”—even if they were born overseas and were not Australian citizens—within the meaning of s51(xix) of the Australian Constitution. The immediate policy implication of this decision is that Aboriginals and Torres Strait Islanders who do not have citizenship cannot be deported under the Migration Act 1958.

However, the decision exposes broader questions about the place of race in our political institutions and how our judges are making these kinds of decisions. The key problems with the majority’s decision in Love/Thoms are that:

  • the decision was an error at law which misunderstood the common law and the concept of sovereignty
  • the majority applied a retrograde and illiberal understanding of Australians according to their racial identity, which is dehumanising and inconsistent with equality before the law
  • this was a political rather than legal decision, highlighting an underlying and persistent problem of judicial activism in the High Court.

This decision has significant implications for the future of constitutional change, especially in the context of the constitutional recognition of Aboriginal and Torres Strait Islanders. The High Court has now effectively found a hidden form of constitutional recognition of indigenous Australians. To approve constitutional recognition would be an endorsement of the High Court’s dangerous decision and empower future courts to make similar decisions.

This was just the latest in almost a century of jurisprudence in which the High Court has subverted the plain intent of a Constitution which the Australian people endorsed by referendum and which only the Australian people have the authority to amend. Beginning with the Engineers Case (1920) through the Tasmanian Dams Case (1983) and WorkChoices (2006), amongst others, the pattern has been one in which power is centralised, and/or new rights and obligations are created beyond those enumerated in the Constitution.

The process by which High Court vacancies are filled must change.

From this point forward the process by which High Court vacancies are filled must change. That the decision was split four to three, with the Chief Justice in the minority, shows what is at stake in the selection of High Court justices. Decision makers and the Parliament should scrutinise prospective candidates to ensure the processes which produce decisions such as Love/Thoms are not repeated.

In the US there is now more extensive scrutiny of candidates for judicial office than ever before, and legitimately so given the activist turn on that court. While the media obsesses about the occasional bout of muckraking which from time to time accompanies Senate confirmation hearings, the better guide is the evaluation of the potential judges’ records of publication and judgments. This is a legitimate process and organisations such as the Federalist Society—which now has 60,000 members—play an important role helping decision makers consider candidates.

Some simple questions for judges—asked either of their records or directly—could include whether they would:

  • interpret the Constitution in line with the original intention as expressed by the drafters
  • interpret the Constitution as establishing a federation which decentralises political power to the states
  • respects racial equality by ensuring ethnicity is not a factor when interpreting the Constitution.


The two special cases before the High Court involved two individuals born outside Australia and who were not Australian citizens. The plaintiffs (those appealing against the Government’s decision) were Mr Daniel Love, a citizen of Papua New Guinea, and Mr Brendan Thoms, a citizen of New Zealand. Both held visas permitting their residence for a substantial period of time and neither had sought to become Australian citizens. After both individuals had been sentenced under Queensland criminal statutes, the Minister for Home Affairs revoked their visas using powers given by the Migration Act 1958. Thus they became unlawful non-citizens and were liable to be removed from Australia.

The Migration Act 1958 and the Australian Citizenship Act 2007 are enacted under section 51(xix) of the Constitution, which gives the commonwealth parliament the power to make laws with respect to “naturalization and aliens”. The plaintiffs did not challenge the validity of the legislation but rather argued the power of the Commonwealth to define who met the criteria of being an alien should be limited and that due to their aboriginal ancestry and their claim of an aboriginal identity they have a special status as a “non-citizen, non-alien”.

Justices Virginia Bell, Geoffrey Nettle, Michelle Gordon, and James Edelman each decided in favour of the plaintiffs (Love and Thoms). Each judge gave separate reasons for their decision. The justices formed the view that it is not open to the Parliament to treat a person of Aboriginal descent as an alien because Aboriginal Australians have (previously) been found by the High Court to have a special cultural, historical, and spiritual connection which is said to be recognised by the common law. The existence of that connection is inconsistent with the concept of alienage within the meaning of section 51(xix) of the Constitution.

The majority’s decision was a dehumanising application of identity politics.

The majority’s decision was a radical departure from precedent and was a dehumanising application of identity politics. It misinterpreted the law and inappropriately challenged the sovereignty of the Crown.

Chief Justice Susan Kiefel and justices Stephen Gageler and Patrick Keane dissented from the majority’s decision, each filing separate reasons.

The majority sought to apply the principles from the landmark Mabo (No 2) (1992), but misinterpreted the common law and misapplied precedent relating to other alienage decisions to arrive at its decision.

The majority’s decision rests on two key claims: that the power of the Commonwealth to set the criteria for who is an alien is limited, and that an individual who claims membership of an indigenous Australian group is within that limitation. Section 51(xix) of the Australian Constitution confers the power on the Commonwealth parliament to “make laws for the peace, order, and good governance of the Commonwealth with respect to … naturalization and aliens”. It is not subject to any prohibition, limitation or exception respecting any specific circumstances or kinds of people to which the concept of alienage could potentially apply. Etymologically, “aliens” means belonging to another place. As a matter of law, this does not refer to feelings of connection or perceptions from others in the community. As Kiefel noted, “rather it describes a person’s lack of formal legal relationship with the community or body politic of the country with which they contend to have a connection.” In Love/Thoms both plaintiffs lacked legal connection to the Australian political community.

It was nonetheless argued the plaintiffs’ situation was distinguished by reference to the special connection they, as Aboriginal Australians, have to the continental landmass which is administered by the Commonwealth. This argument reflects a misunderstanding of the High Court’s previous decision in Mabo (No 2), which was to accept the concept of native title as a class of property rights. In 2020 the majority reimagined that decision to be a recognition of indigenous laws and customs.

The High Court’s decision in Mabo (No 2) proceeded on the basis that evidence of indigenous laws and customs was relevant to determining whether native title rights existed, but this did not constitute incorporation of those indigenous laws and customs into the common law. This is important because the majority in Love/Thoms now argue the recognition of indigenous laws and customs render the connection of indigenous Australians to the land so strong that the common law must be taken to have recognised that Aboriginal persons “belong” to the land in a constitutionally meaningful way. Chief Justice Kiefel highlighted the difficulties in this position:

Closer to the heart of the plaintiffs’ is the 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, to answer questions of a constitutional kind about the relationship between an Aboriginal group and its members and the Australian body politic. Its use for such a purpose is wrong as a matter of law and of logic.

To create an exception in the Constitution based on racial and cultural grounds necessarily requires a determination by an authority of who is or is not a member of that racial or cultural group. This is also true for persons who claim an identity as indigenous Australians.

This decision is a direct assault on the sovereignty of the Crown.

In Mabo (No 2) the High Court developed a three-part test for aboriginality: namely that aboriginality depends upon biological descent from the indigenous people and on mutual recognition of a particular person’s membership by that person, as well as the elders or other persons enjoying traditional authority among those peoples. This gives rise to a fundamental difficulty which is that if aboriginality was something which would have constitutional implications, then indigenous elders would possess a power which would supersede the sovereignty of the Crown. As Justice Keane noted in his dissent:

…to suggest that members of Aboriginal groups have authority to make choices that bind the Commonwealth of Australia is to attribute to those persons a measure of political sovereignty. To assert that the ordinary application of laws made pursuant to s 51(xix) of the Constitution to foreign citizens born outside Australia such as the plaintiffs is displaced as a result of recognition by members of the Aboriginal group from which they claim descent, is to assert an exercise of political sovereignty by those persons.

Aboriginal, Torres Strait Islander, and Australian flags outside Parliament House.

Members of Parliament should recognise this decision as a direct assault on the sovereignty of the Crown as well as the lawmaking institutions which are derived from the Crown, such as the Commonwealth parliament.


The success of Australia rests on a core principle, which is that all Australians are equal under the Australian political system and in the eyes of the law. The adoption of a judicial creation of any race-based constitutional distinction forming a limitation on legislative power is, as Justice Gageler noted, a “supra-constitutional innovation”.

As Justice Keane explained:

One cannot read section s 51(xix) of the Constitution as if it provided that the Commonwealth Parliament may make laws with respect to “naturalization and aliens, save in respect of members of the Aboriginal race”. Such a reading is not required to make sense of the constitutional text; indeed, it does no little violence to that text. And to adopt race as a basis for differentiating between members of the people of the Commonwealth in terms of the application of laws is not a course that commends itself in terms of the exercise of judicial power given that justice is to be administered equally to all.

A key part of leading a dignified life is being subject to universal, reciprocal and coherent rules. An interpretation of the Australian Constitution that it does not have universal application and that members of some groups have different expectations under the Constitution is inconsistent with equality before the law. The plaintiff’s argument that “persons of the Aboriginal race owe a permanent allegiance to the Crown” is a denial of agency and individuality of indigenous Australians.

Justice Keane makes the point that the decision leaves no means by which a “permanent allegiance” could lawfully be repudiated. Given the chance to consider, would other persons of Aboriginal descent not confronted with the same immediate need to challenge deportation “so blithely embrace the rank paternalism” inherent in the argument?


A decision by parliament to pursue constitutional recognition of indigenous Australians will risk affirming if not extending the scope of the High Court’s decision. Since the High Court has taken the position that not all Australians are equal before the law and the Constitution, a preamble or other declarative provision of recognition would inevitably be interpreted in light of the decision to read racial division into the Constitution and the common law.

It is unlikely the Australian people would vote in a referendum to create constitutional race-based distinctions or privileges. However, the High Court has assumed for itself a power to make a decision which bears directly on a sensitive and divisive political debate. The question of constitutional recognition has been the subject of political discussion since 2007 when both major federal political parties committed to holding a referendum to amend the Constitution. The High Court has attempted to achieve recognition and bypass the democratic referendum process altogether.

The High Court has taken the position that not all Australians are equal before the law.

Justice Gordon noted that:

Aboriginal Australians are not outsiders or foreigners—they are the descendants of the first peoples of this country, the original inhabitants, and they are recognised as such. None of the events of settlement, Federation or the advent of citizenship in the period since Federation have displaced the unique position of Aboriginal Australians.

Whatever the merits of this view as an argument, in the absence of actual words in the Constitution providing this recognition it should not be available to the High Court to import this idea as a principle which has a constitutional effect. Nevertheless it did so.

A Yes vote on constitutional recognition now would mean not only affirming this judgment but empowering the High Court to go even further in the future. Justice Keane noted that the lack of constitutional recognition should have been an obstacle to the majority making the decision that it did:

A strong moral case can be made for special recognition of Aboriginal people in the Constitution because of their special place as the first inhabitants of the continent and the historical injustices suffered by them. Indeed, the case for special recognition is the subject of public debate at the present time. The point is that the debate about constitutional recognition is necessary precisely because the Constitution, in its current terms, does not have that effect.

The decision having been made, we can interpret Keane’s statement to mean even minimal symbolic constitutional recognition would be a mechanism for a future High Court to make decisions which assume Australians can and should be divided by race. The majority’s decision is an indicator it would take advantage of such an opportunity.

Chief Justice Kiefel flagged the issue of judicial activism when Her Honour said:

It is not for this Court to determine whether persons having the characteristics of the plaintiffs are aliens. Such an approach would involve matters of values and policy. It would usurp the role of Parliament.

The reasons the majority provides for their extraordinary decision were certainly confused and incoherent. This is because it was attempting to superimpose a decision which was based on politics and philosophy onto the framework of the Australian Constitution with which it is inconsistent.

Justice Edelman’s judgment was most illustrative of this. His Honour introduced his decision by declaring that the “identity of Aboriginal people, whether citizens or non-citizens, is shaped by a fundamental spiritual and cultural sense of belonging to Australia” which takes the form of “metaphysical bonds”. These ideas are not legal concepts but expressions of political values.

Chief Justice John Marshall of the Supreme Court of the United States stated in the landmark case of Marbury v Madison (1803) that “it is emphatically the province and duty of the judicial department to say what the law is.”

Judicial conservatives build on this maxim in their efforts to say what the law is, based on the meaning of the words and their construction of what the lawmakers intended for it to mean. These principles of statutory interpretation apply to constitutions just as much as Acts of Parliament.

High Court decisions are increasingly inconsistent with mainstream community values.

Unfortunately, many judges in Australia misinterpret this idea to mean they can decide what the law is according to their own subjective values. The concept that the constitutional heads of power would apply to different racial groups in different ways is a subjective determination and an invention of the High Court.

Love/Thoms is the latest in a long line of decisions which have rewritten the Australian Constitution from the shadows, leading to a backlash against such ‘judicial activism’ (more or less the opposite of legal conservativism).

Statue in Bruges Belgium. Photo: Emmanuel Huybrechts

One of the consequences for this is that the decisions of the High Court are increasingly inconsistent with mainstream community values. Also, because the decisions are based on subjective values of individuals, the decisions of the High Court will be radically different over time. Both of these consequences are a challenge to public faith in our legal institutions and in the High Court. Australians can no longer trust that the Constitution will be applied faithfully and predictably over time.

It is understandable that conservative-minded people might hesitate to change the way justices are appointed to the High Court. Part of the pragmatic argument for the status quo is that ALP Governments have quite a good record in appointing those who occasionally make legally conservative decisions, as the split in the High Court in Love/Thoms attests. But it must be admitted that every exercise of decision making in the manner which gave us Love/Thoms brings them closer to endorsing change, especially when there are number of vacancies to be filled in the near future due to compulsory retirements of sitting judges. As constitutional law and history scholar Professor Greg Craven so presciently said in the UWA Law Review more than 20 years ago:

There is an inseparable link between our present mechanism of judicial appointment—and the judicial independence which it supports—and the eschewing of judicial activism. So long as judges may be regarded as the interpreters of a law which is, if not microscopically determinate then at least broadly ascertainable, an appointment process which contains no political element can be justified. Once it is accepted, however, that the fundamental task of the judge is to mould the law according to his or her policy conceptions, the case for introducing an element of political accountability for an essentially political task becomes vastly stronger.

We are at that point. At the very least, decision makers and the Parliament should scrutinise judicial candidates to ensure that decisions with the deficiencies of Love/Thoms are not repeated.

The majority’s decision was a dehumanising application of identity politics.

In the US the Federalist Society was formed in 1982 as a network of student organisations in law schools as a direct response to the dominance of the living constitution theory in the American academia, an interpretative method which regards the boundaries of a constitution as “dynamic” and hence subject to the whims and values of sitting judges.

It has perhaps reached the apex of its influence under the Administration of President Donald Trump, who as a candidate in 2016 made a commitment to pick Supreme Court judges from a list of bona fide legal conservatives, with key input from the society’s executive vice president Leonard Leo. The list was subsequently expanded twice to include names such as Neil Gorsuch and Brett Kavanaugh, who have connections to the society and were nominated to the Supreme Court in 2017 and 2018 respectively.

According to a report in The Washington Post in January 2019, 25 of the 30 judges appointed to the federal appeals court—the level immediately beneath the Supreme Court in the judicial hierarchy—have been filled by Federalist Society members.

The Federalist Society’s grassroots ability to shape the legal debate at a legal and cultural level has led to a transformation in the American judiciary, where the once niche ideas about constitutional originalism is now firmly within the ideological mainstream. In Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution, Amanda Hollis-Brusky artfully traces that history and explores the conditions and networks that have enabled the society to be such an influential force.

As Hollis-Brusky reflects:

Federalist Society network influence is not defined as its power to change the votes of Supreme Court justices in key cases. Rather [it] captures and chronicles the subtle, complex, and dynamic ways in which this network and its ideas helped shape the content, direction, and character of key Supreme Court decisions. It is also plausible … that the Federalist Society network, working systematically over the course of several decades, made it easier for the Justices to make the difficult decision to change constitutional course in the first place—that they helped foster an environment conducive to constitutional change.

Love/Thoms illustrates the problem of judicial activism observed in the legal establishment in the US in 1982 and which can still be seen in Australia today. Whether Australia can chart a similar path for a conservative counterrevolution remains to be seen. What is not in doubt is that something must be done if we are to maintain the principle of equality before the law.

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