Constitution, land, and sovereignty: love as a ‘race relations’ case?

This work analyses the Love v Commonwealth (Love) decision, already being reconsidered by the High Court of Australia in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Montgomery (Montgomery).

Both cases concern the right of Indigenous non-citizens to remain in Australia. They are each framed by analysis of the aliens power under s 51(xix) of the Constitution.
For the majority in Love, the common law construct of alien is the doctrinal device used to establish the status of Indigenous people in Australia.

More precisely, we posit that Love and its successors are cases about the legal consequences of Indigeneity, and the relationship between First Nations and the Australian State within Australian public law. It is axiomatic that unlike other colonised nations, the Australian state has not formalised legal relations with First Nations peoples within its territory. Consequently, First Nations people in Australia hold indeterminate status as peoples vis-a-vis the State. This has been amplified and contested in Love illustrating that the absence of a proper legal footing of First Nations as such has ongoing consequences for Indigenous people in Australia. Beyond an analysis of “alien”, we identify the thematic framing of the Love decision to identify its true character as a decision on First Nations’ relations with the colonial state.