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Love V Commonwealth




Clear facts and legal issues of the case

The case was brought about by Thoms and Daniel Love who are the plaintiffs. They were against the Commonwealth of Australia. This is because their Visas had been canceled by the Department of Home Affairs. They had also been detained and a deportation order made against them.

They however posed a challenge that since they were Aboriginal people, they could not be deported given that they are over the reach of the aliens’ powers. This position was to make it difficult for them to be deported for they would challenge the prosecutions on those grounds. Mr. Love was born in 1979 in Guinea and was a permanent resident of Australia since the year 1984. Looking back, Mr. Love is a descendant of the Kamilaroi people as traced from the lineage of his grandparents. As he was an express member of the Kamilaroi people. On the other hand, Mr. Thoms was a citizen of Australia by birth since the year 1988. He has lived in Australia permanently since the year 1994. Additionally, he is a native title holder and regarded as a member of the community.

In their case, the forfeiture of their Visas was according to Section 501, Article 3A of the Migration Act 1958 (Commonwealth) in which they were convicted for unrelated offenses. For the Commonwealth to determine the plaintiffs, it heavily banked on the aliens’ powers to validate the Migration Act to be applied against the two (Diong, 2020).

The greatest challenge before the court to determine whether Aboriginal Australians that are born in other foreign lands and do not have the Statutory Australian status can be considered in regards to the meaning of section 51(xix)” [294]

In the determination of this, the various judges came up with their judgment and they fell into two groups. The minority and the majority. Each of them had pressing reasons as to why they believed that the judgment that they made was corresponding with the provisions of the Commonwealth law. It was imperative that each of them directly makes a statement regarding their stand on the issue and the facts that were before them.

The High Court Reasoning

The court reasoning in the case formed two sides of the judges both of whom had their reservations about the decision that they had made about the case.

The majority side of the ruling comprised of Nettle, Gordon, Edelman JJ, and Bell affirmed that Mr. Love and Mr. Thoms held as plaintiffs in the case did not have fall within the reach of Section 51 (xix) because of a number of reasons. To start with, the majority of judges held that “alien” was not the opposite citizen but rather referred to “belonger” to a specified political community. As such, the two did not qualify to be treated as “non-aliens” and thus impossible to be deported on those grounds. Secondly, these judges also ruled out that the types of citizenship implicated in the case, by birth, and by descent were not the only avenues for belonging to the political community. The third point rendered by the majority judges was that there is recognition by the common law of the existence of a unique spiritual connection between the Aboriginal Australians. Therefore the traditional lands incongruous belonging to the Australians can be rendered as aliens to that land. Finally, the judges also held a position that there was a unique connection between the Torres Strait Islander and the Aboriginal peoples. This implied that the Aboriginal people have a unique position and cannot be easily be disregarded in political communities in Australia.

The minority judges on the other hand comprised Keane JJ, Gageler, and Kiefel CJ. They held their firm stand that Mr. Love and Thoms as the plaintiffs in the case did not fall under the scope of section 51(xix). According to them, the section 51(xix) should not mean that aliens and naturalization save in respect of members of the same race other than the Aboriginal race. These judges also affirmed that constitutional power drawn from the Commonwealth under section 51(xix) was not and should not just be limited to power. Their indulgence in any matters should not be tied to the race. The minority judges also held that even though the Aboriginal people have connections to the waters and lands of Australia, it is limited. As such, it cannot be overly be recognized in the common laws of indigenous sovereignty at large. Their connection is limited in the sense that they do not have access to overly everything within the boundaries of Australia. The judges also held that whether the Aboriginal people were aliens or not, that was a concession of sovereignty to an unconstitutional person which is beyond the jurisdiction of the Court.

The reasoning in the judgments that were rendered was appropriate because they involve the evaluation of all the relevant facts to the case in addition to providing sufficient scope for consideration. According to the majority judges, the determination of whether Mr. Love was Aboriginal was a question of fact which required the claim of Aboriginal descent. The differences in the stance taken by the two teams of the judges arose from a point of fact and not persuasion. The plaintiff needed not only to confirm the Aboriginal identity but also to political community influence that is implicated (Scott, 2017). The influence of the political community that the plaintiff belongs to would have been instrumental in building the important facts that would have been considered in the consideration of the case. Even though Mr. Thoms was directly recognized as a member of the Aboriginal community as his status as a native title holder was undisputed, the facts about Mr. Love were unclear. For that reason, the court made the decision that was in the best interest of all the parties that were involved in the case.

The combination of the various points of view in case contributed to the formation of the opinion that is resounding that the two would be deported from Australia.

Significance of the case for the development of constitutional law

Mr. Love V Commonwealth case contributed to the development of constitutional law in different ways. To begin with, the case shade some light on the limitations that come with the legislative power. Some of the people claimed that the case presented an opportunity to show the use of power in court often obstructed the rendering of justice in cases that involved racial disputes. Race-based limitation on legislative power was also a contributory force to the determination of the ideals and facts of the case.

The Love V Commonwealth case was also seen as an instrument of raising questions in regards to the status of the indigenous Australians and their response to the daily occurrences. While it was clear that the people who are originally indigenous Australian should be free from any kind of deportation, this case brought some facts about real practice. Upon the delivery of the judgment made in the case, there was further consideration of how the issues related to the administration of justice should be handled.

The constitutional rights of the Australian people have had to be relooked and revised about the judgment that was made in the case. For this reason, the case posed some immediate consequences which have changed the way the law is applied in Australia (William, 2018). The alien’s power and application of the Migration Act were put to test in the determination of this case. Most of the people also decried the decision by the majority of judges. Their decision amounted to re-writing the constitution of the country at a moment when the country was transitioning to amend the constitution based rights and privileges of the Aboriginal people. The sentimental exchange between the two sets of judges provided an opportunity for each of them to understand that it was necessary for a decision to be made.

The uprising controversy upon the decision that was made in the case gave way to a process of reviewing the constitutional law. More legislative institutions have been focussed on interpreting the constitutional law something of primary importance rather than just the application of the very law. The contribution of the various people to the application of the law makes it better when it comes to addressing the real issues that the people present in the court of law.

The case has also made a norm for the juries to be more aware about the thin line of offering justice and being persuasive about it. More resources and insights are therefore required in a court battle. The two sides must present water-tight cases presenting all the necessary facts and issues. The constitution has been revolutionized to include all of the facts. The plaintiff and the defendant must come to the side of the law with all of the relevant facts. The issue of misinterpretation of facts in the case has been significantly been reduced because more attention has been given to contentious issues that often divide the judges when making a judgment.

The political and/or social significance of the case

The political and social significance of this case has had a resounding influence on the lives of the Aboriginal people of Australia. The impact of this case is because of the social influence that the majority of the judges made while on this case. By agreeing to make a judgment on the Aboriginal people of Australia, it was an opportunity for them to realize the importance of having a judicial system that focusses on the revelation of the key facts of the cases and disregards all other irrelevant issues (Synot, 2017). The majority understood that Aboriginality is rooted in the cultural, spiritual, and historical connection of the land and waters of Australia. The connection that arises in the facts of the people is directly related to the way of life. The connection was not just made worse by colonization but existed even before the colonial times. The Aboriginal laws and customs arose from the time of practicing the Australian law but advanced when there was a need to change. The majority of judges choose to give that kind of ruling because it appeals to the social construct of the Aboriginal people. From the interactions, it was also likely that the people would have been easily been enjoined and celebrated the kind of ruling that had been passed. The judgment inclined to identify with most of the people who have a liking for the social perspective of the community.


Diong, C. (2020). ‘Aliens’, Indigenous Australians and the Constitution: Examining Love v Commonwealth. TR – Legal Insight Australia. Retrieved 12 September 2020, from https://insight.thomsonreuters.com.au/legal/posts/aliens-indigenous-australians-and-the-constitution-experts-discuss-love-v-commonwealth.

Scott, G. (2017). Love v Commonwealth; Thoms v Commonwealth [2020] HCA 3 – Government, Public Sector – Australia. Mondaq.com. Retrieved 12 September 2020, from https://www.mondaq.com/australia/constitutional-administrative-law/894892/love-v-commonwealth-thoms-v-commonwealth-2020-hca-3.

Synot, E. (2017). The Rightful Place of First Nations: Love & Thoms. Auspublaw.org. Retrieved 12 September 2020, from https://auspublaw.org/2020/03/the-rightful-place-of-first-nations-love-thoms/.

William, M. (2018). TimeBase – Love v CTH; Thoms v CTH [2020] HCA 3: Can Aboriginal Australians Be Aliens Under Law?. Timebase.com.au. Retrieved 12 September 2020, from https://www.timebase.com.au/news/2020/AT04994-article.html

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