Love and Thoms: implications for Indigenous constitutional recognition

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The landmark Love and Thoms decision the High Court by a 4:3 majority found that Indigenous people, due to their ancient connection with the Australian continent, are not ‘aliens’ under s 51(xix) regardless of citizenship status. The judgments revisited ongoing conceptual tensions relating to the position of Indigenous peoples under the Constitution, raising practical policy questions and igniting fresh political backlash relevant to ongoing debates about Indigenous constitutional recognition and a First Nations constitutional voice. This article focusses on implications for Indigenous constitutional recognition – an issue of historic significance for the nation.

The first part recaps the debate about Indigenous constitutional recognition and explains the problem this reform seeks to fix. The second part explains the facts and highlights key differences in the majority and minority approaches in Love and Thoms. The third part considers two conceptual questions explored but not decisively resolved in the judgements. First, I consider how the judgements struggle to reconcile the sui generis position of Indigenous peoples under Australian law with the theoretical ideal of equality. Second, I consider the judgements’ predictably limited findings on Indigenous sovereignty and suggest that the Court’s adherence to precedent on such issues demonstrates the extent to which this is a primarily political question. The fourth part explores two elements of the political backlash to Love and Thoms. I argue that allegations of judicial activism enlivened by this case, rather than demonstrating the risks of a First Nations voice, actually illustrate the foresight of the proposal: a First Nations voice was specifically designed to be non-justiciable. Second, I refute the claim that Love and Thoms introduced a new, race-based distinction into the Constitution.

The fifth part offers some high-level policy suggestions to address two practical issues arising from Love and Thoms. With respect to the three-part test of Indigenous identity, I warn against further entrenchment of arguably discriminatory burdens of proof, relevant to the potential design of a First Nations voice. I also suggest some proactive policy incentives to encourage Indigenous non-citizens resident in Australia to seek Australian citizenship, helping preclude threats of deportation like those faced by Love and Thoms.
Original languageEnglish
JournalFederal Law Review
Publication statusAccepted/In press - 2020

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