Love in the High Court: Implications for Indigenous Constitutional Recognition

Published date01 September 2021
Date01 September 2021
AuthorShireen Morris
DOI10.1177/0067205X211016584
Subject MatterArticles
2021, Vol. 49(3) 410 –437
Love in the High Court:
Implications for Indigenous
Constitutional Recognition
Shireen Morris*
Abstract
This article considers implications of the recent Love decision in the High Court for the debate
about Indigenous constitutional recognition and a First Nations constitutional voice. Conceptually,
it considers how the differing judgments reconcile the sui generis position of Indigenous peoples
under Australian law with the theoretical ideal of equality—concepts which are in tension both in
the judicial reasoning and in constitutional recognition debates. It also discusses the judgments’
limited findings on Indigenous sovereignty, demonstrating the extent to which this is pre-
dominantly a political question that cannot be adequately resolved by courts. Surviving First
Nations sovereignty can best be recognised and peacefully reconciled with Australian state
sovereignty through constitutional reform authorised by Parliament and the people. The article
then discusses political ramifications. It argues that allegations of judicial activism enlivened by this
case, rather than demonstrating the risks of a First Nations voice, in fact illustrate the foresight of
the proposal: a First Nations voice was specifically designed to be non-justiciable and therefore
intended to address such concerns. Similarly, objections that this case introduced a new, race-
based distinction into the Constitution are misplaced. Such race-based distinctions already exist in
the Constitution’s text and operation. The article then briefly offers high-level policy suggestions
addressing two practical issues arising from Love. With respect to the three-part test of Indigenous
identity, it suggests a First Nations voice should avoid the unjustly onerous burdens of proof that
are perpetuated in some of the reasoning in Love. It also proposes policy incentives to encourage
Indigenous non-citizens resident in Australia to seek Australian citizenship, helping to prevent
threats of deportation like those faced by Love and Thoms.
I Introduction
The landmark Love v Commonwealth (‘Love’) decision in the High Court considered whether
Indigenous non-citizens are ‘aliens’ under s 51(xix) of the Australian Constitution.
1
Delivering
* Senior Lecturer at Macquarie University Law School. The author may be contacted at shireen.morris@mq.edu.au.
1. Love v Commonwealth (2020) 375 ALR 597 (‘Love’).
Federal Law Review
ªThe Author(s) 2021
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Article
Morris 411
seven separate judgments, the High Court by a 4:3 majority found that Indigenous p eople, due to
their ancient connection with the Australian continent, do not constitute ‘aliens’ under s 51(xix)
regardless of their 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.
2
This article focuses on
implications for Indigenous constitutional recognition—an issue of historic significance for
the nation.
The article proceeds in five parts. The first part summarises the debate about Indigenous
constitutional recognition and explains the problem this reform seeks to fix. It notes that consti-
tutional recognition seeks substantive reform to the relationship between Indigenous peoples and
the Australian state, to ensure it is fairer than in the past. The Uluru Statement shows how this
should occur: it calls for a First Nations constitutional voice, to guarantee Indigenous peoples fairer
input into their affairs.
The second part explains the facts and highlights key differences in the majority and minority
approaches in Love. The third part considers two conceptual questions explored bu t not decisi-
vely resolved in the judgments. First, I consider how the judgments struggle to reconcile the
position of Ind igenous peoples under Au stralian law with the th eoretical ideal of
equality—concepts in tension both in the judicial reasoning and in constitutional recognition
debates. Though unresolved, the judgments in differing ways confirm, whether explicitly or
implicitly, that Indigenous peoples, as well as being equal citizens, are a distinct constitutional
constituency with a special relationship with the Australian continent and state. The majority
tended to see it as the Court’s role to confer more explicit recognition of the unique position of
Indigenous peoples, while the dissenters tended to defer to Parliament and the people, which is
perhaps why they prompted political action on Indigenous constitutional recognition. Drawing
on the judgments, I suggest that a First Nations voice aligns with the Australian Constitution’s
nuanced expression of the principle of equality and its layered, federal approach to reconciling
communitarian difference with national unity. A First Nations voice fits with the design and
philosophy of the Constitution.
Second, I consider the judgments’ 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 that cannot be adequately resolved by courts. Surviving First
Nations sovereignty can best be fully recognised and peacefully reconciled with Australian state
sovereignty through constitutional reform authorised by Parliament and the people. While Love
reaffirms the special place of Indigenous peoples in Australia, and the majority judgments in
particular traverse more nuanced conceptions of Indigenous sovereignty that allow for recognition
of Indigenous political communities, the decision of itself does not entail the substantive structural
reform that Indigenous constitutional recognition requires—its practical consequences are too
limited. Genuine constitutional recognition of the kind envisioned by the Uluru Statement requires
political action, which some judgments appear to prompt.
The fourth part explores two elements of the political backlash to Love, which carry implica-
tions for debates about Indigenous constitutional recognition. First, I argue that allegations of
2. Referendum Council, Final Report of the Referendum Council (Report, 30 June 2017) Recommendation 1 (‘Referendum
Council Report’).
2Federal Law Review XX(X)
sui generis

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