Love v Commonwealth: The Section 51(xix) Aliens Power and a Constitutional Concept of Community Membership

Abstract

Love v Commonwealth represents a significant shift in the High Court of Australia’s jurisprudence on s 51(xix) of the Australian Constitution. Whereas previous cases have alluded to the existence of theoretical limits to the scope of the s 51(xix) aliens power, the result in Love v Commonwealth involves the declaration and enforcement of such a limit in practice, with the majority holding that Aboriginal Australians are beyond the scope of the power. Perhaps more significantly, the majority approach to the aliens power positions the Court to develop a substantive concept of constitutional membership. The minority analyses of s 51(xix) instead adopt a sovereignty framework approach: they proceed on the basis that legislation relying on s 51(xix) can validly apply to any person so long as the criterion attracting its application has a plausible connection to the ordinary understanding of alienage. The minority approach rejects the notion of a constitutional concept of community membership and would instead give the Commonwealth Parliament a broad discretion to determine matters of membership and alienage. It is in the majority’s rejection of this approach that a concept of community membership emerges. While Parliament, on the majority view, retains a degree of control over the composition of the constitutional community, its power to exclude persons from that community is subject to significant limitations, including by reference to a concept of territoriality. This case note focuses exclusively on the emergence, in the majority reasons, of a constitutional concept of community membership.