Love/Thoms interpreted

Federal Court. Can it be said that "it is the proposition that “Aboriginal Australians (understood according to the tripartite test in Mabo (No 2)) are not within the reach of the ‘aliens’ power conferred by s 51(xix) of the Constitution” which is the ratio decidendi of Love/Thoms"? Does the majority reasoning in Love/Thoms as a whole require a single judge to "superimpose onto the Mabo (No 2) test, which was expressed by Brennan J as the method for determining membership of an Indigenous group, a requirement to prove native title in particular land and waters"?

Some of the questions to the Federal Court (FCA) were as follows:

Question 1: Can the the outcome in Love/Thoms be described as "the most recent example of the proposition set out by Gibbs CJ in Pochi v MacPhee [1982] HCA 60; 151 CLR 101 at 109, that the word “alien” involves a constitutional concept, to be interpreted by the Court, and that Parliament cannot define “alien” in a way which could expand its legislative power to include, under cover of that head of power, persons who could not possibly answer the description of “aliens”"?

Question 2: Can it be said that "it is the proposition that “Aboriginal Australians (understood according to the tripartite test in Mabo (No 2)) are not within the reach of the ‘aliens’ power conferred by s 51(xix) of the Constitution” which is the ratio decidendi of Love/Thoms"?

Question 3: If the answer to Question 2 is yes, can it be said that another way of expressing the ratio decidendi of Love/Thoms is to say that "the agreement of the majority was limited to Brennan J’s approach being “sufficient but not necessary to establish Aboriginality for s 51(xix)”"?

Question 4: Can it be said that "the primary guide to understanding the law as stated by the High Court is the language of that court’s reasons, and a judicial decision as to what those reasons mean is at best a guide to, but cannot control, the meaning of that language"?

Question 5: Does the majority reasoning in Love/Thoms as a whole require a single judge to "superimpose onto the Mabo (No 2) test, which was expressed by Brennan J as the method for determining membership of an Indigenous group, a requirement to prove native title in particular land and waters"?

Question 6: If the answer to Question 2 is yes, what is the content of the test set out by Brennan J in Mabo (No 2)?

Question 7: Is the Mabo (No 2) test modified or differently interpreted in Love/Thoms?

The FCA answered those questions as follows:

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