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Kiefel CJ And The High Court Of Australia

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The dissenting judgement of Kiefel CJ and the majority judgement of Bell J in the High Court of Australia decision in Love v Commonwealth (2020) 94 ALJR 198, 204–212 [1]– [47], 212–218 [49]–[82] prompts significant discussion of the principal legal issue in interpreting section 51(xix) of the term “aliens” in the Australian Constitution and its implications for Indigenous peoples. Bell J, as part of the majority, held that the Parliament did not have the power to treat an Aboriginal person as an “alien” and the Migration Act 1958 (Cth) could not apply to Aboriginal Australians under section 51(xix); this was an exception deemed appropriate regarding the common law recognition of the native law title. In contrast, Kiefel CJ dissented that Aboriginal …show more content…

To compare judgements, the case of Love v Commonwealth will firstly be summarised. Love v Commonwealth is significant in addressing the principal legal issue of the interpretation of “aliens” in section 51 (xix) of the Australian constitution. This issue was raised by the High Court, as the plaintiffs, Brendan Thoms and Daniel Love, were of Indigenous ancestry but were non-citizens who were at risk of being deported as “aliens” due to their criminal sentence and cancellation of their visas. The plaintiffs submitted that as Aboriginal Australians, their deep connection to Australia recognised by common law means that they cannot be recognised as “aliens”, thus arguing that deportation contradicted their native title rights (Mabo v Queensland (No 2)). In contrast, the Commonwealth submitted they had the authority under s51 (xix) to determine who would be alien and thus asserted the possibility that the plaintiffs could be deported as they lacked citizenship under the Australian Citizenship Act 2007 (Cth). Unlike Kiefel CJ, Bell J held that the plaintiffs of Aboriginal Australian descent should not be considered as “aliens” within the meaning of section 51 (xix) of the Australian …show more content…

Kiefel CJ held that the plaintiffs’ argument of the common law in recognizing traditional laws and customs was misleading; Kiefel CJ clarifies that the common law only recognises native title and does not determine a person’s legal status in relation to the Australian polity. Furthermore, in constitutional terms, “belonging” refers to the formal legal relationship between a person and the community or body politic, not just a sense of connection to land. Kiefel CJ recognizes the constitutional implication that if the plaintiffs seek to imply this new principle of granting certain rights to Aboriginal persons regardless of their citizenship status, this would raise issues of race and sovereignty. Furthermore, this is not supported by existing common law or constitutional provisions, which raises concerns about judicial subjectivity. This demonstrates that Kiefel CJ’s approach considers the broader implications of interpreting the

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