Mr Love was born in Papua New Guinea and Mr Thoms was born in New Zealand. Both are citizens of their respective countries of birth but have resided in Australia since childhood, without Australian citizenship. Both identify as indigenous Australians and are recognised as indigenous by their communities in Australia. Love, as a member of the Kamilaroi People, and Thoms, as a member of the Gungarri People.
Both Love and Thoms were convicted of criminal offences that resulted in prison sentences of more than 12 months, which made them both subject to s 502 of the Migration Act 1958 (Cth) which mandated a cancellation of their visas and potential deportation.
At the conclusion of their prison sentences, Mr Love and Mr Thoms were placed in immigration detention and faced deportation back to their countries of birth. While the Immigration Minister revoked Mr Love's visa cancellation, and he was subsequently released from detention, Mr Thoms remained in detention until the decision of the High Court was handed down.
This case concerns s 51(xix) of the Constitution, which gives the Commonwealth 'power to make laws for the peace, order and good government of the Commonwealth with respect to... naturalization and aliens'.
Section 501 of the Migration Act 1958 (Cth) requires visa cancellation and the deportation of 'aliens' (i.e. non-citizens of Australia) who have a substantial criminal record. This law was validly enacted under s 51(xix) of the Constitution and is the law under which both Mr Love and Mr Thoms were detained.
The central issue of this case is whether indigenous people can be considered 'alien' under s 51(xix) of the Constitution.
The Parties' Arguments
The Commonwealth, as the defendant, argued that anyone without citizenship should be considered an alien under s 51(xix) of the Constitution and should be subject to laws made under that section.
On the other hand, the plaintiffs argued that indigenous people have a unique connection to the land, and so cannot be considered 'alien' under the Constitution. The connection indigenous people have to their land, the plaintiffs argued, was recognised in Mabo v Qld (No 2)  175 CLR 1 (Mabo), and whether a person is an Indigenous Australian should depend on the tripartite test set out by Brennan J in Mabo:
- [m]embership of the indigenous people depends on biological descent from the indigenous people and on mutual recognition of a particular person's membership by that person and by the elders or other persons enjoying traditional authority among the people .
Details of the Judgment
The majority held that indigenous people cannot be classified as 'alien' under s 51(xix) due to their special connection to Australian lands and waters.
As recognised in Mabo, indigenous people in Australia have a unique and longheld connection to traditional land and waters and so cannot be classified as 'aliens'.
The majority followed the tripartite test from Mabo and found that:
- Mr Thoms was an indigenous due to his position as a native title holder for the Gungarri people;
- the question of Mr Love's indigeneity needed to be referred back to the Federal Court to decide whether the recognition of the Kamilaroi group to which he identified conformed to that group's traditional laws.
Citizenship and aliens
According to the majority, being a non-citizen does not necessarily mean that a person is an alien. Citizenship is not the only way of belonging to a political community.
Conversely, indigenous identity does not necessarily constitute citizenship. Citizenship is acquired by following an administrative process.
'Aliens' were defined by the High Court as 'outsiders' or those who 'belong' elsewhere . In this context, it was found that indigenous people belong to the Australian land and cannot be considered aliens.
The minority held that the opposite of 'citizen' is 'alien', and that there should be no other classifications such as 'non-alien' and 'non-citizen'. Those without citizenship should be defined as aliens.
The minority held that the Commonwealth's constitutional power under s 51(xix) should not be limited by race, and so the provision should not be read as excluding indigenous people. This could run the risk of creating a whole new category of people.
The minority suggested that the tripartite test in Mabo should only be used in native title contexts because allowing indigenous people and communities to define indigeneity, and thus control whether a person is considered to be a 'non-alien', involves granting authority to a non-constitutional body or person. This would be beyond the court's jurisdiction.
While the case of Mabo recognised a special connection between indigenous People and the land, it cannot extend to recognising traditional law and customs. The minority stated this should be an issue reserved for native title law.
The minority suggested that constitutional status should be recognized through citizenship. While indigenous people can belong to their traditional land, this is different to the sense of belonging that a citizen possesses. Belonging to land is different to belonging to a political community.
This decision was followed by significant public and academic discussion.
The ABC published a piece by Anne Twomey, Professor of Law at the University of Sydney, detailing how the High Court's finding of the special position of indigenous people could become a complicated question for courts to resolve in future cases (Anne Twomey).
The Law Council of Australia asked the Minister of Home Affairs to provide information about any measures being taken to identify indigenous people in immigration detention whose ongoing detention may be unlawful as a result of this decision (Law Council of Australia).
The decision was also met with some criticism. Immigration Minister, Peter Dutton, stated that it could result in a loophole to be exploited by immigration lawyers. Political commentator Andrew Bolt asserted that this decision creates 'another right' for indigenous people, and would create inequality for non-indigenous people.
Marcia Langton, in her article 'Hysteria over High Court's Ruling is Hateful', published in The Australian on 15 February 2020, emphasised the importance of a more complex understanding of indigeneity that takes into account the longheld historical and genealogical connection to the land. She further noted the dangers of straying from the tripartite test of indigeneity leading to increasingly 'radicalised' and 'eugenicist' notions of indigeneity.
Eddie Synot, indigenous Law Centre Manager at the University of Sydney, further noted that Love and Thoms may also signify a reluctance by both courts and the broader Australian community to recognize and discuss indigenous sovereignty and nationhood (Jenkins and Wellington).
Subsequent Case Law
The principles of Love & Thoms were set to be considered in Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs & Anor v Montgomery, however, the proceedings were discontinued in July 2022, before the High Court decision could be disseminated. In Montgomery, a Maori New Zealand citizen lacking clear Aboriginal Australian descent was adopted in accordance with traditional laws and customs by the Mununjali community.
Montgomery would likely have determined the test for inclusion as an ‘Aboriginal Australian' under the Constitution. In Love & Thoms, both applicants were uncontroversially of ‘biological descent’ which satisfied the first step of Brennan J’s tripartite test from Mabo v Start of Queensland (No 2)  HCA 2022. As Montgomery self-recognised and was culturally adopted as an Aboriginal Australian, rather than relying on genetic descent, the court would have had to determine if he was of ‘biological descent’ in order to rely on Love & Thoms.
However, in Love & Thoms, Edelman J at  stated that while Brennan J’s tripartite test was useful in the case’s circumstances, it was not ‘set in stone’ as a test for determining Aboriginality. Furthermore, in Hirama v Minister for Home Affairs  FCA 648, Hirama was found to be an ‘Aboriginal Australian’ through his great-grandfather, who was adopted in accordance with traditional laws and customs. In contrast, the Commonwealth appellants sought to solidify the definition and opposed relying on traditional laws and customs to define Aboriginality (Ariconi and Glover).
After a change of government in May 2022, the Albanese Labor Government on 28 July 2022 discontinued the proceedings against Montgomery. A spokesperson for the Attorney-General, Mark Dreyfus, stated that ‘Love and Thoms has been the law of the land for more than two years now and the Albanese government will not seek to overturn [it]’ (Paul Karp).