Love v Commonwealth: Constitutional Recognition of Indigenous Australians?


In the recent case of Love v Commonwealth, in powerful judgments reminiscent of Mabo v Queensland [No 2], four judges of the High Court declared that Indigenous Australians can never be ‰Û÷aliens‰Ûª for the purposes of s 51(xix) of the Constitution. In strong dissents, three judges refused to introduce a race-based distinction into the head of power. With political debate about a referendum largely on hold, has the High Court achieved constitutional recognition of Indigenous Australians by judicial interpretation of the Constitution? By adopting Brennan J‰Ûªs tripartite test of indigeneity in Mabo, has the High Court inadvertently entrenched a rigid notion of what it means to be Indigenous? If the result in Love is another expression of the ‰Û÷deeper truth‰Ûª from which native title springs, are there any other expressions waiting to be uncovered? By recognising that Indigenous elders have the power to say who is and who is not Indigenous, has a majority of the High Court fractured sovereignty, or have they ruled out Indigenous sovereignty by bringing Indigenous people within the concept of ‰Û÷the people‰Ûª?

Daniel Love was born in PNG to a mother from PNG and an Kamilaroi father from Australia. Brendan Thoms was born in New Zealand to a New Zealand father and a Gunggari mother from Australia. Both relocated to Australia as children but never applied for Australian citizenship. When they were sentenced to a term of imprisonment, their visas were cancelled, and steps were taken to deport them to PNG and New Zealand respectively. The High Court found that they could not be deported as they are not ‰Û÷aliens‰Ûª.


Judge Nathan Jarro was called to the bar in 2004. As a barrister, his Honour practised widely initially in the areas of criminal and family law, and later in administrative, commercial and personal injury law as well as in alternative dispute resolution. He was appointed a judge of the District Court of Queensland on 26 March 2018. He is a Ghangulu and Bidjara man, and the State‰Ûªs first Indigenous judge.


Stephen Keim SC was called to the Bar in July 1985 and took silk in 2004. Stephen has a broad practice and has worked in most areas of law. He appeared for the plaintiffs in the High Court in Love v Commonwealth, and has also appeared in a number of other constitutional cases, including the recent case of Spence v Queensland.

Melia Benn was called to the bar in 2018, with previous experience as Counsel Assisting the Coroner and as a senior lawyer for the Office of the Director of Public Prosecutions. Melia is a descendant of the Mamu and Gungangji peoples, and is one of only two Indigenous women at the Queensland bar.

When and Where

Time: 5:15 pm for a 5:30 pm start

Date: Thursday, 2 April 2020

Venue: Clayton Utz, Level 28, Riparian Plaza, 71 Eagle Street, Brisbane QLD