Author Fionn Parker
Synopsis
This paper critically examines the High Court’s decision in Love & Thoms v Commonwealth, where it was held that Aboriginal Australians cannot be considered “aliens” under section 51(xix) of the Australian Constitution. The author argues that the majority’s reasoning in Love is legally unsustainable within the current framework of Australian constitutional law, primarily because neither the need for consistency with common law (as in Mabo) nor the spiritual connection to land are sufficient criteria for political membership in the Australian state as it is presently conceived.
To address this, the paper proposes a reimagining of Australian constitutional order through the lens of plural sovereignty. Drawing on James Tully’s theory, plural sovereignty is described as the coexistence of multiple, overlapping, and interacting sovereignties—specifically, those of the colonial state and Aboriginal Australians—subject to ongoing negotiation and mutual recognition. This stands in contrast to the traditional, singular, and hegemonic model of sovereignty that underpins modern constitutionalism.
The author contends that recognizing plural sovereignty provides a stronger legal and moral foundation for the Love decision. Legally, it allows for the recognition of “indigenous citizenship” as a legitimate form of belonging to the Australian political community, complementing statutory citizenship rather than undermining it. Morally, plural sovereignty better supports the values of belonging and consent, which are essential for just community membership. The paper critiques the assimilationist tendencies of the current legal order and suggests that plural sovereignty enables genuine recognition and negotiation, fostering a more inclusive and just relationship between the settler state and Aboriginal Australians.
In conclusion, the paper argues that embracing plural sovereignty not only justifies the exclusion of Aboriginal Australians from the category of “aliens” but also opens up broader possibilities for mutual cooperation, coexistence, and the realization of justice—captured in the concept of “Makarrata,” or coming together after a struggle.