The Constitutional limits on defining an "alien"

In Love v Commonwealth of Australia [2020] HCA 3 (Love and Thoms), the High Court has upended several decades of settled law regarding the binary and mutually exclusive nature of the twin concepts of "citizen" and "alien". In doing so, the Court clarified that legislative power can limit the power of Parliament, and consequently the power of decision-makers.

In Love and Thoms two Aboriginal Australians who were citizens of their respective countries of birth had their visas cancelled after being convicted for offences in Australia. Mr Love was born in Papua New Guinea, but identified as a member of the Kamilaroi group and was recognised as such by an elder of that group. Mr Thoms was born in New Zealand, but identified as a Gunggari person and held common law native title in Australia.

The question for the High Court was whether Messrs Love and Thoms were "aliens" within the meaning of section 51(xix) of the Constitution. Under section 51(xix) the Parliament has "power to make laws for the peace, order, and good government of the Commonwealth with respect to … naturalization and aliens".

The High Court delivered seven separate judgments and split 4-3 on the question of whether Messrs Love and Thoms were aliens. A majority (Justices Bell, Nettle, Gordon and Edelman held that Aboriginal Australians "were not within the reach of the “aliens” power" in section 51(xix) of the Constitution. Therefore, they could not be removed from Australia under section 198 of the Migration Act 1958 (Cth).

The minority – Chief Justice Kiefel and Justices Gageler and Keane – expressed a spectrum of opinions on the extent to which the concept of citizen and alien are mutually exclusive. For Chief Justice Kiefel, it should be regarded as settled that it is for the Parliament, relying on section 51(xix), to create and define "the concept of Australian citizenship and its antonym, alienage". Justice Keane agreed with Chief Justice Kiefel that the "legal status of an alien in Australian law is now derived from the statutory description of citizenship". Although Justice Keane accepted that Aboriginal people have a connection to Australian land and waters, he emphasised that that is not the same thing as having a connection to a body politic. Such a connection is a formal one defined by the "law of the sovereign nation".

Justice Gageler interpreted the Plaintiffs' argument as being that there must be a third category of persons who form an exception to the category of "alien", observing that:

"Section 51(xix) is not to be read as admitting of the existence of a further category of non-aliens who are non-aliens by force of the Constitution itself, whose status is for that reason and to that extent off-limits to the Parliament… ."

Justice Gageler concluded that section 51(xix) must operate as a power to determine – through statute – who does and who does not have the legal status of alienage. He "could not countenance" the existence of a constitutional category of "non-citizen non-aliens".

The majority also expressed a spectrum of views, but by and large characterised the issue as one of constitutional rather than statutory interpretation. Justice Gordon considered Aboriginal Australians to be "uniquely connected with this country, and not falling within the concept of alien at any time since settlement". Unlike the dissenters, Justice Gordon reasoned that the definition of an alien was "a constitutional question, not a statutory question" and accordingly the terms of the Australian Citizenship Act 2007 (Cth) could not define who was an alien for the purposes of section 51(xix). She concluded:

"It is a connection to this country that means that Aboriginal Australians are not foreigners within the constitutional concept of alien under section 51(xix). And it is a connection which means that even if an Aboriginal Australian's birth is not registered and as a result no citizenship is recorded, or an Aboriginal Australian is born overseas without obtaining Australian citizenship, they are not susceptible to legislation made pursuant to the aliens power or detention and deportation under such legislation."

Justice Edelman agreed, and rejected the contention that the meaning of an "alien" could be tied to the "transient concept of whatever the Commonwealth Parliament chooses". He stated that the opposite of an alien is not a citizen, but a "belonger" to the political community. Aboriginal Australians are belongers, having "metaphysical bonds that are far stronger than those forged by the happenstance of birth on Australian land or the nationality of parentage". The metaphysical bonds (beyond physical connection to land) could not be "altered or deemed not to exist by legislation".

Justice Nettle went further and observed that the common law "must be taken always to have comprehended the unique obligation of protection owed by the Crown" to Aboriginal societies and each member of such a society. The Crown in right of Australia owes an "obligation of permanent protection" to a resident non-citizen of Aboriginal descent who identifies as a member of an Aboriginal society and is recognised as such according to laws and customs. The consequence of that obligation is "not casting that person out of Australia" as if he or she were an alien.

On behalf of the majority, Justice Bell concluded:

"… although we express our reasoning differently, we agree that Aboriginal Australians (understood according to the tripartite test in Mabo [No 2]) are not within the reach of the "aliens" power conferred by section 51(xix) of the Constitution.