Too Tired? Too Anxious? Need More Time? We’ve got your back.
in 2020, in Love v Commonwealth (2020) 270 CLR 152, a narrow majority of four High Court judges held that Aboriginal people who did not have Australian citizenship were not ‘aliens’ for the purpose of the aliens head of power in section 51(xix) of the Australian Constitution, and therefore could not be deported from Australia. In 2021, a New Zealand man successfully brought a case in the Federal Court, arguing that he also should not be classified as an ‘alien’ because he was culturally adopted as an Aboriginal person although not of Aboriginal descent. The then Commonwealth government appealed the Federal Court decision and indicated that it would be seeking to have Love v Commonwealth overturned. After the change in government in the 2022 federal election, the appeal was discontinued.
You are asked to provide an opinion on whether the majority ruling in Love v Commonwealth should be overturned. You need to provide this opinion in essay format. You should:
1) Set out succinctly and clearly the facts and legal issues of the case.
2) Explain key aspects of the reasoning of the majority judges in the case and provide your opinion on whether their reasoning was appropriate or persuasive and why. You can, if you wish, refer to the reasoning in the minority judgments in constructing your arguments. You can refer to
commentary on the case in order to support your arguments.
3) In providing your opinion on the reasoning of the majority judges, discuss whether, in your view, the history of race relations in Australia influenced their conclusions and whether this is/should be relevant to the resolution
of the legal issues.
HOW TO SET ABOUT THE ASSESSMENT TASK
You are writing a 2500 word essay and High Court judgments tend to be long and complex. You need to be able to work out what you think is important and significant about the majority judges’ reasoning in this case, and look for the paragraphs in each judgment in which this is covered. Then you should think about whether the reasoning is appropriate. Do you agree with the decision? Why or why not?
You may conclude that the reasoning of the minority judges is more persuasive or appropriate and if so you should explain this. There has been quite extensive scholarly and other commentary on the case, and referencing such commentary where appropriate may add substance to your arguments. Be careful, however, to assess the quality and nature of such commentary before referring to it in your arguments. Make sure that you reference such sources correctly and paraphrase and/or use quotation marks where appropriate.
In reflecting upon the relevance or otherwise of the history of race relations in the judges’ reasoning, you should think about broader issues of the dispossession of Indigenous people from their land through the colonisation process, and the fact that there is no acknowledgement of this or of Indigenous sovereignty in the
Constitution as it currently stands. Keep in mind that this case is one of a line of cases in which the High Court has looked at the application of particular sections of the Constitution to Indigenous people.
You will be assessed on your ability to explain clearly and succinctly the legal issues and the key aspects of the reasoning in the majority judgments, your capacity to analyse and provide an informed opinion on the reasoning in the judgments, your use of appropriate scholarly and other reasoned commentary, and your ability to clearly explain and provide an informed opinion on the significance of the history of race relations to legal reasoning in this case. You will also be assessed on your precision and correctness of expression and referencing. You must supply references and a bibliography in your legal advice in accordance with the Australian Guide to Legal Citation (4th edition).
Marks will be allocated in accordance with the research paper marking rubric.
Too Tired? Too Anxious? Need More Time? We’ve got your back.