In the case of Love v Commonwealth, the High Court of Australia is considering submissions by two Aboriginal men born overseas, as to whether the Commonwealth can deport them. Neither man has been naturalised and their overseas birth means that they are not citizens.

While both parties accept that the men are not citizens, the case turns on whether it is possible for an Aboriginal Australian to be an ‘alien’ and therefore liable for deportation from Australia. This is therefore a constitutional matter, rather than a matter falling under the relevant statute. The issues are legally complex, but the case raises important questions that speak to the law’s capacity to regularise the status of the relationship between Indigenous Australians and the State. Of particular interest to me is the possibility of a broader comprehension by the common law of the legal construct under Aboriginal Law, of ‘connection to country’.

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