Love And Thoms: Implications For Indigenous Constitutional Acknowledgement And Race Power In Australia

Discussion

The landmark decision that was forwarded by the High Court in the case of Love v Commonwealth; Thoms v Commonwealth [2020] HCA 2[1], considered the question that whether the Indigenous non-citizens would be regarded as ‘aliens’ as per section 51(xix), as provided in the Constitution of the nation of Australia. Forwarding 7 distinct judgements, the Australian High Court (through a 4 to 3 majority) held that the Indigenous persons, because of their ancient heritage in relation to the continent of Australian, shall not be regarded as ‘aliens’ as per section 51(xix) irrespective of their citizenship status. The decision of the High Court in the case of Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3[2] has been defined and demarcated as the most radical and essential occurrence of the judicial activism in the history of the nation of Australia. The decision has also been demarcated as the natural consequence of the progression and advancement of the law of the Australian nation ever since the case of Mabo v Queensland (No. 2) [1992] HCA 23[3]. The judgments in Love and Thoms[4] revisited the constant conceptual strains and rigidities in connection to the locus of the Indigenous populace under the Australian Constitution, giving rise to real-world policy questions as well as kindling fresh political repercussion pertinent to the continuing debates regarding Indigenous constitutional acknowledgement and a ‘First Nations’ constitutional power of speech[5]. This essay shall forward a discussion regarding the implications for the Indigenous constitutional acknowledgement as well as regarding the scope of race power in the present day.

The argument in connection to Indigenous constitutional acknowledgement initiates on the basis of understanding that the Indigenous individuals are a unique and an exclusive constitutional constituency having a special relation with the nation of Australian. The Indigenous constitutional acknowledgement pursues to modify and improve this relation in order to make sure that it is reasonable, fairer and just in comparison to the past. Therefore, the constitutional acknowledgement pursues more than an inert and emblematic statement of no functioning impact. Instead, the Indigenous populace pursues severe and thoughtful constitutional reform in order to ensure the fact that the previous wrongs and crimes are not repeated[6].

The case of Kartinyeri v The Commonwealth [1998] HCA 22[7] delivers the most complete and all-inclusive statement regarding the understanding and construal of section 51(xxvi) as provided in the Australian Constitution (which includes ‘the race power’) ever since Federation. In accordance to section 51(xxvi), the Australian Parliament shall possess the power of making the laws in relation to the individuals belonging to any race regarding whom it is believed compulsory to establish and give effect to special laws. However, it should be noted that even though the above said section has been utilized in order to support the abundant pieces of the Commonwealth legislation focused primarily at the Aboriginal individuals, the Hindmarsh Island Bridge Act (Cth) of 1997[8] was the initial Act that had been passed in accordance to the above said section, which was demanded and appealed to be damaging and disadvantageous to the welfare and interests of the Aboriginal individuals. In the specific judgment of the Kartinyeri case[9], several matters had been forwarded that were actually ‘common ground’ amidst the involved parties. First was the sole head of power in accordance to which Parliament might be able pass the Hindmarsh Island Bridge Act[10] was section 51(xxvi). Second was that the involved parties agreed and settled that section 51(xxvi) was initially positioned in the Australian Constitution in order to facilitate the Commonwealth Parliament into passing ‘special laws’ either for the purposes of benefit or for the purposes of disadvantage of the individuals belonging to any race. The particular section had been amended by the legislation in order to encompass the Aboriginal individuals within its sphere at the referendum in the year of 1967. The referendum actually reimbursed an awe-inspiring ‘yes’ vote, which was the leading of any referendum in the entire past of the Commonwealth of Australia. It should also be noted that from the record of the proceedings, it was evident that the involved parties as well as the Court acknowledged the fact that it is expected that the individuals who all are voting at the particular referendum presumed that the Aboriginal individuals would actually profit from their insertion into the sphere of section 51(xxvi). However, in the judgment of the above-mentioned case, the particular members in relation to the Court varied considerably on the importance and implication of the specific referendum regarding the understanding and construal of section 51(xxvi). Even the Heritage Protection Act[11] (along with the Hindmarsh Island Bridge Act[12]) had been passed as per section 51(xxvi)[13].

In the case of Kartinyeri v The Commonwealth [1998] HCA 22[14], it had been argued by the applicants that the ‘race power’ is possible to be utilized solely to pass the laws for the purpose of the advantage of the Aboriginal individuals. The above said argument ensued two primary lines. In the first place, it had been stated that the specific referendum in the year of 1967 essentially changed the meaning and sense of section 51(xxvi). In the second instance, it had been stated that the specific meaning and sense of the particular section had altered and transformed in the course of time, and by the year of 1967, the section had been changed so much by time that the section could solely be utilized for the purposes of advantages of any assemblage of individuals identified based upon race[15]. The 1^st statement accentuated the earliest backgrounds of the particular text. It observed the specific points in the time during which the particular text or writing of the section had been created or changed, thereby arguing the particular text is actually imbued with the meaning of such times and that such meaning shall continue to remain the same until the particular text is actually changed once again. The 2^nd statement requested the High Court to abandon or disregard the initial intent of section 51(xxvi) in indulgence to a lithe reading that would be receptive to the altering circumstances. It had been asserted by the applicants that the specific meaning in relation to the section had altered and transformed progressively ever since the Federation, and that such alteration or transformation could be drawn, although approximately, from the year of 1900 to the current years. Several occurrences contributed in respect of such change, which includes the international covenants and treaties, the 2^nd world War, as well as the policy and attitude changes in the nation of Australia ever since the War. However, the Commonwealth disallowed such argument[16].

The first statement or submission had been accepted by the Court because it incorporated the distinction amidst the meaning and the significance and emphasized upon the initial meaning as the basis or foundation of validity or legitimacy. However, the second statement or submission had been rejected by the Court. The Court actually uncovered the feebleness of the 2^nd statement or submission by piercing the counsel on the sphere of section 51(xxvi) at various times in history. The counsel on behalf of the applicants were unable to identify the specific point in the history of the nation of Australia when the attitudes in relation to the racial difference changed so much that the sense and the meaning in connection to the notion of ‘race’ changed fundamentally. When the counsel offered in respect of the court a past of the previous meanings and inferences regarding the specific text, it made an attempt to give the specific text a better determinacy in its advancement and evolution to the contemporary present day than it might withstand. However, the argument merely aided to stress upon the instability, variability and unpredictability of the meanings ever since the Federation. The argument aided to make the initial meaning look pleasantly stable and steady by contrast. Therefore, the alternative was to emphasize upon the function of previous meanings and intents, which included the ones at the Federation[17].

The constitution of the nation of Australia is everything about the voices. It should be noted that the federal structure delivers the apparatuses for the past political communities (which can be said to be the previous colonies) to be heard by power of majority at all times. The constitutional compact of the nation allows such political communities the constitutional acknowledgement in such manner that even the tiniest previous colonies (like Tasmania) are ensured an equivalent voice in Senate[18]. However, it must be mentioned that the ‘First Nations’, which can be said to be the most primeval of all the political communities, were not present during the negotiations in the course of the constitutional conventions. They were also wrongfully and unjustly left out of the compact or meet of 1901. Therefore, no constitutional apparatuses exist in relation to the Indigenous individuals to be explicitly heard in connection to their matters. Such is the case even in connection to the policies and laws that are made concerning them, regardless of the fact that there are more Indigenous Australians in comparison to the Tasmanians.

The case relating to Love and Thoms[19] gave rise to the main question as to whether any individual having Torres Strait Islander and/or Aboriginal (that is, Indigenous) ancestry, who does not have the Australian citizenship, could be considered to be an ‘alien’ in accordance to section 51(xix), which relates to the aliens’ power. It had been held by the majority that the primeval Indigenous link to the Australian continent supported constitutional inferences in a manner in which the Indigenous individuals shall not be considered to be an ‘alien’ to the nation of Australia. Hence, the aliens’ power cannot be exercised by the Indigenous individuals and no authority existed in relation to the Commonwealth to deport the non-citizens having Indigenous ancestry[20]. The decision forwarded in the Love and Thoms[21] case preserves and reaffirms in two manners; however, it does not decisively resolve the theoretical and conceptual tensions pertinent to the debates regarding the Indigenous constitutional acknowledgement. The first one is that the case gets involved with the tensions amidst the cultural and the historical actuality of the Indigenous variance in the nation of Australia, which is a fact that has been recognized in the law, and the unfulfilled theoretical ideal relating to equality prior to the law. The second one is that the judgements unsurprisingly shy away from effusively reconciling the notions of persisting the sovereignty of the First Nations with the sovereignty of the Australian settler state, indicating that such situation could be dealt with in a better manner politically[22].

The Indigenous individuals have a position of legal, political as well as historical difference in the nation of Australia. The equal treatment of the Indigenous people has not been confirmed in the Australian Constitution. This ascends from their instance as the original occupants of the Australian continent, the past statistic of discrimination and dispossession that have been suffered by them, as well as the modern actuality that the Indigenous individuals actually attract specific unique interests and rights that are not applicable in relation to the other citizens[23]. In the case of Kartinyeri v The Commonwealth [1998] HCA 22[24], each specific judge acknowledged the fact that the specific text that has been provided in the Constitution, had a specific meaning at the Federation and such meaning actually formed the basis of their modern construal of the provisions in regard to the Indigenous individuals.

Conclusion

In the conclusion, it can be said that as noted earlier, the argument in connection to the Indigenous constitutional acknowledgement proceeds based upon the interpretation that the Indigenous individuals are a different and separate constitutional constituency, having a special relation with the nation of Australian. However, the Indigenous individuals have also been encompassed as the equal citizens in the course of time, at least officially if not practically, although equal treatment has not yet been reflected in or guaranteed by the Australian Constitution. This essay has forwarded a discussion regarding the implications for the Indigenous constitutional acknowledgement as well as regarding the scope of race power in the present day, specifying that the Indigenous individuals have a position of legal, political as well as historical difference in the nation of Australia.

Behrendt, Larissa, and Taryn Lee. "Kartinyeri v Commonwealth [1998] HCA 22." Indigenous Legal Judgments. Routledge, 2021. 131-149.

Curphey, B. "No voice, no treaty, no truth: Indigenous Australians continue to be left out of the conversation." Guardian (Sydney) 1984 (2021): 1-2.

Gover, Kirsty. "The Potential Impact of Indigenous Rights on the International Law of Nationality." American Journal of International Law 115 (2021): 135-139.

Heritage Conservation and Preservation Act, 2010.

Hindmarsh Island Bridge Act, 1997 (Cth).

Kartinyeri v The Commonwealth [1998] HCA 22.

Love v Commonwealth; Thoms v Commonwealth [2020] HCA 2.

Mabo v Queensland (No. 2) [1992] HCA 23.

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