High Court of Australia
HIGH COURT OF AUSTRALIA
KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ
Matter No B43/2018
DANIEL ALEXANDER LOVE PLAINTIFF
AND
COMMONWEALTH OF AUSTRALIA DEFENDANT
Matter No B64/2018
BRENDAN CRAIG THOMS PLAINTIFF
AND
COMMONWEALTH OF AUSTRALIA DEFENDANT
Love v Commonwealth of Australia Thoms v Commonwealth of Australia [2020] HCA 3 Date of Hearing: 8 May 2019 & 5 December 2019 Date of Judgment: 11 February 2020 B43/2018 & B64/2018
ORDER
Matter No B43/2018
The questions stated in the special case for the opinion of the Full Court are answered as follows:
1. Is the plaintiff an "alien" within the meaning of s 51(xix) of the Constitution?
Answer: The majority considers that Aboriginal Australians (understood according to the tripartite test in Mabo v Queensland [No 2] (1992) 175 CLR 1 at 70) are not within the reach of the "aliens" power conferred by s 51(xix) of the Constitution. The majority is unable, however, to agree as to whether the plaintiff is an Aboriginal Australian on the facts stated in the special case and, therefore, is unable to answer this question.
2. Who should pay the costs of this special case?
Answer: The defendant.
Matter No B64/2018
The questions stated in the special case for the opinion of the Full Court are answered as follows:
1. Is the plaintiff an "alien" within the meaning of s 51(xix) of the Constitution?
Answer: Aboriginal Australians (understood according to the tripartite test in Mabo v Queensland [No 2] (1992) 175 CLR 1 at 70) are not within the reach of the "aliens" power conferred by s 51(xix) of the Constitution. The plaintiff is an Aboriginal Australian and, therefore, the answer is "No".
2. Who should pay the costs of this special case?
Answer: The defendant.
Representation
S J Keim SC with K E Slack and A J Hartnett for the plaintiff in each matter (instructed by Maurice Blackburn Lawyers)
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