Love V Commonwealth (2020) & Constitutional Alienage Jurisprudence
BIBBULLMUN SOVEREIGN NATION ARCHIVE • INDIGENOUS & ABORIGINAL CUSTOMARY LAW, NOONGAR & NYUNGAR ETHNOHISTORY, SOUTH-WEST WESTERN AUSTRALIA
Citation: Bibbullmun.com.au, 'Love v Commonwealth (2020) & Constitutional Alienage Jurisprudence' (2026) Bibbullmun Sovereign Nation Archive <https://www.bibbullmun.com.au/law-critique/native-title/bennell/love-thoms-alienage-jurisprudence.php>.
TABLE OF CONTENTS
Love v Commonwealth (2020) & Constitutional Alienage Jurisprudence
The Tripartite Test and Non-Alien Status: The High Court's Recognition of Inherent Spiritual Title Beyond Common Law and Section 51(xix) Limits
1. The High Court's Revolutionary Majority in Love (2020)
On 11 February 2020, the High Court of Australia delivered one of the most doctrinally significant constitutional judgments in its history in Love v Commonwealth; Thoms v Commonwealth (2020).[1][4]The question before the Court was whether Aboriginal Australians who are not Australian citizens can be legally classified as 'aliens' under Section 51(xix) of the Australian Constitution and subjected to mandatory administrative deportation from Australia under the Migration Act 1958 (Cth).[1][4]
By a four-to-three majority (Bell, Nettle, Gordon, and Edelman JJ), the High Court ruled that Aboriginal Australians have a unique, sui generis connection to the land and waters of Australia that makes it legally impossible for them to be classified as 'aliens' under the Australian Constitution, regardless of their formal citizenship status under statutory law.[1][2][3]
| Constitutional Element | Commonwealth Argument | High Court Majority Holding | Sovereignty Implications |
|---|---|---|---|
| Alien Power (s 51(xix)) | Commonwealth Parliament possesses absolute discretion to define who is an alien | Constitutional term 'alien' has an objective limit; cannot encompass Aboriginal Australians | Constitutional recognition that First Nations pre-date and limit the Commonwealth |
| Tripartite Test | Citizenship is a binary status determined strictly by statute | Adopted Mabo [No 2] tripartite test: descent, self-identification & community recognition | Customary society and traditional elders possess constitutional authority |
| Spiritual Connection | Connection to land is irrelevant to migration law | Connection to land is fundamentally constitutional, spiritual, and permanent | Sovereignty connection to country cannot be severed by statute |
2. Gordon J and the Recognition of Indigenous Legal Orders
In her powerful majority judgment, Justice Michelle Gordon made explicit what had remained latent in Australian law since Mabo:[1][3]> 'Aboriginal peoples are not outsiders, aliens to Australia. They are the first peoples of this country... The connection between Aboriginal Australians and Australian land and waters is not an alien connection. It is not a foreign connection. It is the very foundation of Australia.'[3]
Justice Gordon affirmed that the common law recognises the existence of traditional Indigenous normative systems that exist outside and prior to the Constitution.[1][3]
A person’s status as an Aboriginal person is determined not by an act of the Commonwealth Parliament, but by the laws and customs of the Aboriginal society itself, verified through biological descent, personal self-identification, and recognition by traditional community elders.[1][2][3]
3. Beyond Native Title: Constitutional Inviolability
The profound consequence of Love v Commonwealth for the Bibbullmun Sovereign Nation is that it decouples Indigenous identity and connection to country from the fragile statutory framework of the Native Title Act.[4][5]Even where statutory Native Title has been extinguished by Crown grants or surrendered under compromised ILUAs, the inherent, constitutional, and spiritual belonging of Bibbullmun custodians to their ancestral estates remains legally indestructible under Australian constitutional law.[3][4]
Complete AGLC4 Footnotes & Master References
All primary colonial dictionary entries, legal precedents, and archival sources for this monograph are documented on the dedicated footnotes page.
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