Love V Commonwealth; Thoms V Commonwealth (2020): Indigenous Belonging, Alienage & Sovereignty

1. The Constitutional Breakthrough in Love and Thoms (2020)

Delivered on 11 February 2020, the landmark decision of the High Court of Australia in Love v Commonwealth; Thoms v Commonwealth (2020 270 CLR 152) represents one of the most profound constitutional jurisprudence developments since Mabo [No 2].^[1] The litigation challenged the Commonwealth Government's attempt to deport two Aboriginal men who were not Australian citizens under the Migration Act 1958 (Cth).^[2] The Commonwealth argued that under Section 51(xix) of the Australian Constitution (the 'aliens power'), any person who lacks statutory Australian citizenship is an 'alien' who can be summarily deported by executive decree.^[3]

2. The Tripartite Test of Indigenous Belonging

By a 4:3 majority (Bell, Nettle, Gordon, and Edelman JJ), the High Court rejected the Commonwealth's argument, establishing that Aboriginal Australians cannot be classified as 'aliens' under the Australian Constitution.^[4] The majority held that Aboriginal peoples possess a unique, spiritual, and sui generis connection to the continent that predates the British Crown.^[5] Adopting the classical tripartite test articulated in Mabo [No 2]—biological descent, mutual community recognition, and self-identification—the court ruled that an Indigenous person who satisfies this test belongs inherently to the land and cannot be an alien to the country of their ancestors.^[6]

3. Jurisprudential Implications for Bibbullmun Sovereignty

The reasoning in Love and Thoms provides monumental support for Bibbullmun sovereign jurisprudence.^[7] The judgments explicitly recognise that Aboriginal connection to Country is not created by statutory Australian citizenship, nor can it be severed by settler immigration laws.^[8] Justice Gordon emphasised that Aboriginal sovereignty over land arises from traditional law and custom instituted tens of thousands of years before the Crown's arrival.^[9] Justice Edelman acknowledged that Aboriginal belonging constitutes a foundational constitutional status that acts as an express limitation on Commonwealth legislative power.^[10]

4. Transcending Settler Alienage Toward Inherent Nationhood

While Love and Thoms established a vital shield against executive deportation, it highlights the ongoing constitutional anomaly of First Nations people within the Australian Commonwealth.^[11] Aboriginal people are recognised as non-aliens, yet continue to be denied sovereign treaty status and self-governing political autonomy.^[12] For the Bibbullmun Sovereign Nation, Love and Thoms is a powerful judicial weapon that shatters the myth of absolute Crown sovereignty. It confirms that the Bibbullmun people belong inherently to their ancestral Boodjar, possessing unceded rights that no settler parliament can extinguish.^[13]