Summary
"Always was, always will be". This traditional protest
call, the theme of NAIDOC week for 2020, ordinarily relates to the
idea of indigenous connection to land, and is at the core of native
title preceding and co-existing with common law sovereignty. But
can this statement also be applied to the idea of being Aboriginal
Australian? In Love v Commonwealth and Thoms v
Commonwealth, the High Court considered the intersection
between being Aboriginal Australian and that of 'alien'
within the meaning of section 51(xix) of the
Constitution.1
By a majority of 4 to 3, the Court decided that Aboriginal
Australians who are born overseas and are not citizens of Australia
are nevertheless not within the reach of the 'aliens' power
in s 51(xix) of the Constitution.
