Being Here: Aboriginal Constitutional Citizenship

Daniel Love and Brendan Thoms are Australian Aborigines (a claim not yet fully established for one of them). They were born respectively in Papua New Guinea and New Zealand, and are citizens of those states who have been convicted of crimes in Australia. They have lived here for substantial periods of time, but have never sought Australian statutory citizenship. As a result of their crimes, they recently became subject to orders of deportation by the Australian government, against which they appealed to the High Court in the case named Love & Thoms v Commonwealth of Australia [2020] HCA 3 (Love, I shall call it for short, and love it is too, for it is love that forgives the crimes against it).

My own family on both sides came to Australia four or five generations ago. All of us were constitutional citizens (I’ll explain the term shortly). Why? They and I never signed a paper, took an oath, sang a song, or did anything to be a citizen except be—be here. Now, the same is true of any five generations of Aborigines, but in their case their citizenship only began to be recognised in the well-known various stages of the last century. But right through that fraught history they were be-ing—being here.

In Love the High Court held that the recognition of Aboriginal “being here” was the final step in the judicial establishment of their constitutional citizenship. (I should say immediately that the term “being here” is mine, and I shall explain it through the rest of this essay.) I was never naturalised. My citizenship has always been of the “being here” type—a non-alien constitutional citizenship, as compared with statutory naturalisation—and so has that of all my forebears and that of most Australian people and their forebears. And because of this citizenship, none of us can be deported for crime. That is the real constitutional citizenship; and what the High Court has done in Love is accord to Aborigines an equivalent citizenship, carrying with it the essential right of not being deported for crime. This is the last step in the recognition of their real constitutional citizenship. Why a citizen cannot be deported for crime I explain later.

The Aboriginal people “being here” as persons was recognised right from the start of European settlement. They were never aliens, not in 1788, and not in 1901 when the meaning of alien in the Constitution did not include Aborigines. And alien is the constitutional word, which citizen is not. Citizenship is in fact an invention of the parliaments which established the various processes of statutory naturalisation. And in the High Court of the last thirty or so years, Parliament’s invention of citizenship carried with it an unnecessary logic of an opposite to itself. What could the opposite word be? Well, alien fits the bill nicely, the judges thought. And then this opposite grew by degrees, illegitimately to supersede the constitutional provision as to alienage (section 51 (xix): legislative power as to “naturalization and aliens”).

Who are aliens? Those who are not here; those who be (have their being) somewhere else.

There is a complication of the question of Aborigines as aliens, which must immediately be recognised to be dismissed. Aborigines were from the start subjects of the Crown, and in that sense not aliens. In this essay I only address the deeper question regardless of their status with the Crown: that of their alienage or not by virtue of their be-ing here—their being. Justice Nettle (for the majority) addressed the Aborigines’ relation to the Crown, but then said (at 276):

Underlying the Crown’s unique obligation of protection to Australian Aboriginal societies and their members as such is the undoubted historical connection between Aboriginal societies and the territory of Australia which they occupied at the time of the Crown’s acquisition of sovereignty.

The learned judge then went on to offer a handsome account of Aboriginal being, quoting Mr Mick Dodson: “removed from our lands, we are literally removed from ourselves”. But I must explain “being”.

 

2: Being

I have talked of being here in an ordinary way; but being here is something extraordinary. Being is one of the deepest words in the language and its philosophy. I look at the table in front of me, and ask: What is its being? Well it’s just there, you say. But being is much more than that. What is its being there, really? Physics thinks it’s an illusion, but that’s a silly notion. Still, the question holds, and the greater part of philosophy has devoted itself to answering it. And there is a second kind of being, being for humans: What are we really? Whatever it is, that is our (human) being. And so, of the Aborigines in Australia in 1788 we might simply say they were there in Australia in the physical sense (as my table is in my room), and that gives a certain sense in which they are not aliens. But we can say a great deal more than that when we speak of them as having their (human) being here.

Being was the issue in Love. The well-known High Court decision in Mabo v Queensland (No 2) invented the idea of native title—an ownership issue not of the land as a whole but of parts of it—but this never quite sat with the question of Aboriginal being, for having title is a kind of ownership, which is inconsistent with being. Being cannot own the ground of itself. To have being in the land is not to own it. For this reason, Love is the more important decision.

 

3: Constitutional citizenship: the illusion of sovereignty

There can be no written constitution unless there are citizens—without citizens there would be nothing more than a piece of paper or a stone tablet with some writing on it. But there can be citizens without a written constitution, in which case the citizenry would be constituted into a political community by the common law. This reflection gives priority to citizenry over constitution: the citizens own the constitution.

Compare a simple written contract between two people. There can be these people without their contract; but there can’t be the contract without the two people. An essential feature of their contract is that they own it: their contract does not own them, it does not have sovereignty over them. It perhaps looks to each party individually as though the contract does own them, for each is bound by it. But they are not jointly bound, and they may jointly agree to cancel it whenever they like. Now suppose there are twenty parties to the contract. The cancellation possibility becomes much more difficult, for the contract being joint not several, its cancellation must be unanimous; this makes it sensible for the parties to put in the contract some special provision for majority cancellation.

And if the contract has 20 million or so parties, the problem of cancellation is huge: something like the referendum power of section 128 of our Constitution will be needed. (Amendment, you know, includes repeal: we could pass a referendum that says “all the words of the Constitution, including the word ‘indissoluble’ in the Preamble, are repealed”—this is not a stupid possibility, for our political community would then rest upon the common law.)

The sense of being bound to contract or to Constitution is clear and palpable, but in both cases our binding is essentially to the other parties—the people, in the case of the Constitution. To think we are bound by the Constitution—bound by its sovereignty (rather than our joint personal sovereignty)—is an illusion. As Justice Gordon said in Love (at 352), “sovereign power resides in the people in the sense that the powers of government belong to and are derived from the people”. This proposition is an important part of the reasoning in Love.

Now, Australian constitutional law has a considerable problem with the word citizen. This is for the obvious reason that the Constitution is monarchist, and so the word citizen was not used (except twice, irrelevantly to this essay): the clumsy expression, “subjects of the Queen resident in …” had to do. But we should not be hung up on the terminology, for the Constitution needs an owner; and for this I shall use the term “Constitutional citizen”.

There are thus, after Love’s recognition of Aboriginal “being here”, three forms of Constitutional citizenship: (i) Aboriginal non-aliens, (ii) general non-aliens—the people of “whereas the people …” in the Constitution’s preamble, plus their hereditary lines now living in Australia—who can no more have their citizenship determined by the authority of a statute than Aboriginal non-aliens can, and (iii) statutory citizenship, those aliens naturalised under the processes and definitions of Commonwealth statute law.

The second category has a difficult periphery: there were many aliens living in Australia on January 1, 1901, when the Constitution came into force, who were not then created citizens. Here we have to push back further and distinguish aliens and non-aliens by prior colonial criteria.

The third category is also a Constitutional citizenship: first in the sense that the naturalising statute must be valid under the Constitution, and second, and more importantly, naturalisation conclusively puts the naturalised person into the second category of Constitutional citizen. It could be argued that since the citizenship was effected by statute it could be revoked by the repeal of the statute, or by a limited repeal (cancellation) within a statute. That this is a fallacious possibility is obvious as long as one rejects the top-down idea of sovereignty. On naturalisation a person becomes non-alien, one of the people of “whereas the people …”, one of the owners of the Constitution and its statutes, who cannot be dispossessed by a mere statutory power. Naturalisation is not a case of getting citizenship from a statute, which might be taken back; it’s getting to be an owner of the Constitution, and therefore of the statute as well, which certainly the statute itself cannot take back.

 

4: The dissentient conception of sovereignty

Love was a four-to-three decision. All three dissen­tients thought, as the Chief Justice put it (at 37):

To suggest that traditional laws may be determinative of the legal status of a person in relation to the Australian polity is to attribute sovereignty to Aboriginal groups contrary to Mabo [No 2] and later cases.

But sovereignty is a false question in the issue of Aboriginal constitutional citizenship. As I have said, it is an illusory concept (see section 3 above); and it is false from the Aboriginal point of view as well. I have in my possession an exquisite lithograph by the Torres Strait artist Brian Robinson. It is drawn with images that are a mixture of both Islander culture and that of fifth-century Greece. It is titled He Ascended from Heaven with a Plank of Text. (And compare John 1:1— “In the beginning was the Word, and the Word was with God, and the Word was God.”) Fundamentally, the dissentients are wrong because there is no meaning to be extracted either way from the assertion that Aboriginal and Islander peoples are caught in something that is an illusion, as sovereignty is.

This illusion is the decisive element of the case: once it is overcome the arguments of the dissentients begin to crumble.

 

5: A deeper being

It was critical to the minority position that it deny that the spiritual connexion to the land asserted for native title in Mabo (No 2) extended to the question of Aboriginal Constitutional citizenship. Thus, Justice Keane (at 195):

The plaintiffs’ argument also confuses the spiritual connection of an indigenous person to particular lands and waters with a connection to the body politic that is inconsistent with alienage. In this regard, the plaintiffs’ submission is fatally imprecise. If, as is the case here, one is speaking of the body politic being the Commonwealth of Australia … was established only at Federation.

But the spiritual connexion of any particular group to a particular part of the land is just a particular case or token of the whole Aboriginal sense of being. Mabo (No 2) concerned a set of limited cases of the fundamental issue of Aboriginal being. What Keane is doing here is like defining the colour red as the colour of this particular cricket ball. Of course, this can be done in the way of an ostensive definition of red; but then the cricket ball points to the deeper definition. In this way Mabo (No 2) points to the deeper question of Aboriginal being that is decided by Love.

 

6: What the words of the Constitution are doing

The meaning of words is never enclosed wholly and abstractly within their form: there is always a question of what the words are doing—illocutionary acts (J.L. Austin), more simply speech acts (John Searle). And this quite obviously applies to Constitutional speech: in the case of section 51 (xix), the question is: What is the word alien doing? More precisely, what historically was the word doing?

Here the dissentients clearly overlook illocution. Justice Keane said (at 181):

One cannot read s 51(xix) of the Constitution as if it provided that the Commonwealth Parliament may make laws with respect to “naturalization and aliens, save in respect of members of the Aboriginal race”

—and the Chief Justice said the same (at 44), as did Justice Gageler (at 126).

But, of course it is the case that the Constitution didn’t make this specific qualification: it wouldn’t have occurred to the founders to think Aborigines might be thought alien. Nor to the first High Court: if a case had required their deciding whether an Aboriginal person was an alien, the answer from them too would have been, of course not. What the dissentients have done here is to try to enclose the issue of Love within a form of the words of the Constitution. They have thereby fallaciously ruled out the Constitution’s historical illocutionary action.

This was a major error. The historical action of the words, an essential part of the Constitution’s illocutionary action, was not to push the Aboriginal people into a disappearing corner of the Commonwealth called “alien”. It was simply to leave them be, leave them to their being. The establishment of the Constitution, with all its meanings, was a massive event, acting on the word alien in every corner of the Australian polis.

Justice Gageler said (at 131) that “section 51(xix) is not to be read as admitting of the existence of a further category of non-aliens who are non-aliens by force of the Constitution itself”. All he needed for the correct conclusion was to include the historical illocutionary force in his word force. Certainly, the decision in Love founds Aboriginal citizenship upon a limit of section 51 (xix), rather than positive extension. But the limit makes the force of illocutionary history.

This argument of illocutionary history is not a case of the notorious American doctrine of original intent, which purports to fix constitutional meaning permanently. History moves, and the meaning of alien can certainly change; but to make Aborigines into the aliens of section 51 (xix) would be completely contrary to the direction of our history.

 

7: Statutory citizenship

Australian citizenship is not mentioned in the Constitution (there are two references to foreign citizenship), and is in fact an invention of the Commonwealth Parliament coming out of its establishing the various processes of naturalisation—the other element of the aliens power in section 51 (xix). In this it was aided and abetted by the High Court, for whom the invention carried with it an unnecessary logic of an opposite to citizenship—alien—which grew by degrees, illegitimately to supersede the primary constitutional provision.

I shall call this invention the Us and Them Project. We can think of it as a project though it was a gradual one (over the last thirty years) and its sum may have been unwitting. Its essence was to combine all three forms of Constitutional citizenship (described in section 3) into a single category—us—governed by statutory definition and process. The Us and Them Project’s rejection of Aboriginal Constitutional citizenship was the aim of the argument on its behalf in Love. As Justice Edelman put it (at 453):

The Commonwealth effectively submitted that this movement towards equality before the law has required Aboriginal non-citizens to be stripped of their membership of the Australian political community in order to ensure that they are treated equally with other, non-Aboriginal non-citizens. In other words, the expansion of Aboriginal rights has assimilated Aboriginal people within a unitary, homogenous political community that is defined almost entirely by legislative norms of citizenship.

The learned judge here gives a nice description of the Project—the desire for a unitary and homogenous us, to be achieved by legislation.

General non-alien constitutional citizenship (section 3, second form) had also by the Project been tidied away into the single form. Love, in reversing this unconstitutional Project in relation to Aborigines, has also changed for the good our understanding of our general Constitutional citizenship. Many changes to Commonwealth statutes and regulations are now required.

What is the reason for such an unconstitutional adventure by the parliament and the late-twentieth-century court? It’s hard to say, but I rather think they had both been pleased by two things and committed themselves to celebrating them. First, there was the fact that Aboriginal and Islander constitutional recognition had made good steps forward, particularly through Mabo—no longer them, though not quite us. Second, Australia had become a free nation in the modern world of nations, suggesting that we might award ourselves a singular badge of citizenship through which to smile upon the world and accept its applause. The first pleasure fails because it insists upon finishing the Project by making Aboriginal and Islander people something they are not. The second ends up with the rest of the world as a homogenous “them”, entailing the deep foolishness of asserting that, in the name of our sovereign independence (us), our security relations with free nations such as Great Britain or New Zealand are the same as that with unfree nations (the illusion of the United Nations, compared with the real relations of free states), leading the High Court in Sue v Hill (1999) to amend the Constitution (without referendum) by cancelling the monarchy’s place in section 44 (see “How the Monarchy Solves the Dual Citizenship Fiasco”, Quadrant, December 2017, and “A Parliamentary Solution to the Dual Citizenship Problem”, Quadrant, July-August 2018).

The Project I have described placed in the Law Reports a number of precedents which the dissentients in Love felt bound to follow. But the truth is that at some point the flow of unconstitutional precedents needed to be stopped. Love was that point: one of the most truly conservative decisions in the history of the High Court.

 

8: Race

Much of the extensive public criticism of the decision in Love (including by the Commonwealth Attorney-General!) and much of the arguments of the dissenting judges turn on the question of race: the legitimacy of the majority’s reasoning, it is said, fails because it asserts a racial distinction. It does not. Race is a terrible word, what does it mean? Skin colour? No. Kind of nose? No. The three-part test of Aboriginality that originated in Mabo (No 2)—the person must (1) be a descendent member of the Aboriginal people, (2) identify as an Aboriginal person, and (3) be accepted by other members of the Aboriginal community as an Aboriginal person—mentions no such things. The discrimination asserted by Love is not one of race. It is between the two historical ways of achieving constitutional citizenship: the Aboriginal way of being and that general way of being that is typical of the Australians who created the Constitution.

Further, as well as being a non-racial discrimination, it is one without discriminatory effect at law. As a result of the case, Aboriginal Constitutional citizens are immune from deportation, but so are general Constitutional citizens.

 

9: Two kinds of return

Love always forgives. For crime, punishment is a form of forgiveness. Crime is the breaking of the bonds of a political community. By committing a crime I place myself outside my community and until this is forgiven I cannot resume my place. Punishment is the condition of the forgiveness that restores me to my place. And its great power in this regard is seen in the fact that when I have been punished the tables are turned: it would be the community who would do wrong if they refused my re-entry. My place in the community is in this way fully restored, and from this it follows—and here lies the love—that it is for my good that the community offers conditional punishment. This is the sense in which Simone Weil (in The Need for Roots, 1952) wrote of punishment as a need (affliction) in the soul of the criminal. (There are versions of her idea in both Kant and Hegel; and also in Aquinas, and in the Plato of Gorgias and The Republic.)

Thus if I have been validly punished for my crime, the community (Commonwealth) would be in breach of the condition of my punishment—their forgiveness which has brought me back into the Commonwealth—if it then deported me. And it is the same for Love and Thoms. (It is obvious from these remarks that there are two forms of entry and exit involved in the conditions of citizenship, and Love was a nice case of both.)

The one exception to this idea of citizenship conditional on forgiveness is war, and this includes war against a commonwealth from the inside. There is a war from the inside going on at the moment in Australia and we mistakenly classify the killing involved in this war against us as crime for which we prescribe punishment. This is a very dangerous muddle. How absurd it would be in an old-fashioned shooting war to arrest an enemy soldier observed shooting one of our soldiers and then put him on trial for murder. How absurd it was to contemplate putting the 9/11 principals on trial: the logic is that if captured they would be prisoners of war, interned until the war is over.

What else we might do in such cases is beyond the scope of this paper. I wish simply to establish a qualification on my remarks about conditional forgiveness: they do not apply to someone attacking us in the mode of war. Murder is not the point—in itself it is a crime that can be forgiven. In the mode of war, the intention is to kill the Commonwealth, not just its citizens; and it would be absurd for the Commonwealth to continue to harbour the attacker.

 

10: The philosophy of land and its being: locality

Is there a Western philosophy of land? Do the judges of the High Court have a philosophy of land?

Now, there is an ambivalence in these questions. I do not mean what is the philosophy of the judges as to the Aboriginal philosophy of land—I mean what is their position on (for the want of a better term) the Western philosophy of land? I do not see how one could do justice to the Aboriginal philosophy of land without having some (Western) understanding of it; the judge who merely thought the Aboriginal philosophy of the land was the serious question would be patronising that philosophy.

But is there a Western philosophy of land? Consider this. Suppose I’m out walking and I come to a steep hill, and decide to make a tunnel to further my progress. Have I burrowed through the land? No, for when I walk through my tunnel I’m not walking through the land—I’m then walking on the land, just as I am on a path in the open air. Certainly, I’m walking through some compacted rocky earth; but this is no more the land than the earth I excavated—in this latter case, I would not say, “I’m carrying off some land.” For another case, suppose I live for a while in a satellite orbiting the earth. What is my land? Fundamentally, it is that aspect of physical being that holds me immovably in the orbit. Or suppose we were fish—octopuses, perhaps, or whales: there’s no reason I can think of for human minds not to have evolved in fish, and then the water would be our land. Then where is the end of the land? Suppose our universe was destroyed in a major quantum fluctuation. Would there still be land? Yes. What was left behind of the laws of physics holding matter in place would be the land. So there would be land awaiting the next evolution of humans.

I burrow through earth, I swim through water, I fly through air, and I float in a satellite. I do none of these things through the land. Rather, the land is the foundation or ground of our being in these states. The land is our ground, our locality—it’s all the same thing. As Wittgenstein said: “I always find myself at a particular point of my visual space” (Notebooks 1914-16, 86e). The land is our spatial/temporal connexion to the world; and Wittgenstein’s “particular point” is his locality, the strange connexion of our (human) being to the land’s physical being.

What do we make of land? Without it our being is lost. What a bounty it is! Shall we worship it? Perhaps not, but we shall certainly not be saying that we own it. What would it mean to think that we owned the uncertainty of quantum mechanics? And what do we make of the incarnate Jesus, of God localising himself?—God as part of the land. God as part of our being?

The land is the locality of our bodies. The connexion of our bodies to land is a fundamental connexion of biology, and is of the same corporeal stuff, raising the same question of being, as the land. The question then is: what is the connexion of our minds to our bodies that makes our human being? Les Murray, our wise one, wrote (Blocks & Tackles, 1990):

When, to pluralise Shakespeare’s phrase, we “give to airy nothings a local habitation and a name”, the first local habitation they have is our own flesh and blood, and we do not exteriorise them without lending them some of our own intimate bodily nature, our gesture and breathing, our hurryings and hesitations, our very temperament and sexiness and weight. Again, just as our body is something of a constant, modifying the flights of our thoughts and dreams, and just as its very wordlessness is a property shared with the rest of speechless life and so serves as the representative of that life in the parliament of ourselves, fusions of thought and dream also arise from it without being called into existence by external stimuli.

In this section I’m suggesting that the setting of the case of Love is not a contest between Aboriginal being and Australian law. The latter, too, is an Australian being; and the case concerns the resolution of the historical meeting of those two beings.

 

11. The common law as being: the false sovereignty of the books

The issue of locality is not an inappropriate one to press upon common law judges. Hegel thought the common law “mischievous” because it was local rather than universal, a certain reminiscence of local history rather than a code worked through to the universal. He continued (in Philosophy of Right):

The reason alleged is that such judgments always retain a certain particularity and a certain reminiscence of history which men are unwilling to sacrifice. But the mischievousness of such collections is made clear enough by the practice of English law.

To Hegel the common law seemed irredeemably local. But our locality is our being. It is the opposite of universality, the latter an idea so large that it has no place to be—no place in being. In physics, experimental results are always local (even if it is an experiment with the planets it is with these (local) planets, not with the universe), and the equivalent is true of the common law, whose cases too are local. In both, the universal is secondary to the local; in both, the universal is a hypothesis constantly answering to the local. In both, being is local.

The common law is found in multitudes of law reports and books. But for the common law actually to be these books would be an illicit sovereignty. Its real substance is much deeper.

Local (human) being has any number of humans above one (one would be indistinguishable from the physical land). This allows us to think of the common law as substantive impartiality between two or more persons. Any law must be impartial in process—a substance must be applied impartially—but the common law differs in that its substance is impartiality itself. It has no other substance (nothing therefore to be imposed as a sovereignty). This is most clearly seen in the law of contract. If two persons are to have a lawful relation they must contract for it: for one to impose on the other by trick or force, or in any way at all, would break the substantive impartiality of their relation. Just this substantive impartiality is the fundamental substance of the law of contract. And beyond contract, anyone who assaults another steals their place in the world—steals their being. In this way, assault, a tort, also breaks the law of substantive impartiality, just like breach of contract. And when the force is historical the common law of Love asserts substantive impartiality between different kinds of being.

 

12. Being, freedom and self-determination

Is being free? Being—this is its definition—is the foundation of the whole of human life. Suppose one belonger (to use Justice Edelman’s term)—call him B1—attacks another—B2—in some aspect of her life; say, B1 assaults B2, or breaks a contract with her. This is an issue of freedom: B2’s freedom has been diminished (her life free of assault, or secure in her contract, has been diminished). Has her being also been diminished? Yes; as I’ve said, being is the foundation of the whole of her life, and now there is a part of her being with an absence above it—a part of her being not be-ing. But this may be rectified by suit to the common law’s substantive impartiality (see section 11), with freedom and being thereby both restored.

Now consider the case in terms of two being groups, the peoples of two kinds of being, and a wrong crossing from one to the other. To get straight to the point, we are considering (1) a being group of Australian Aborigines and (2) a being group of Australian general citizens (the terms of section 3), and the case is that B1, an Aboriginal citizen, assaults B2, a general citizen. The resolution is precisely the same as it was in the previous case of the internal wrong: it is a resolution of the common law. The common law is common both between persons and between the two beings (being groups).

More difficult, it might seem, is when the wrong goes the other way. When it is against the Aboriginal citizen there might seem to be a carriage of the general law into Aboriginal being. Here it is clear that sovereignty is a problem—the carriage of a sovereign law into Aboriginal being would wreak havoc upon it. But the law of being is the common law, which is not a law of sovereignty. Can the common law resolve the issue? Why not? Hegel’s law was a (top-down) sovereign law (section 11); but the common law comes from the ground (being) up, resolving individual cases by substantive impartiality according to their local facts. There’s no difficulty in the idea that the common law might give the facts on one side an Aboriginal colour and on the other a Western colour, and effect a substantive impartiality between each. This is done all the time in contracts between different peoples, and between different people within a people. In a contract between, say, an Australian Chinese woman with no English and an Australian man of some Western type, the common law court will seek to understand the distinct social circumstances of each party, and judge accordingly.

And the case of Love is itself an example of a common law court (the High Court) attempting just this kind of impartiality between difference.

That is the common law. There is also statutory law, contributing to the resolution of legal cases. But our hypothesis has it that both beings are members of the Australian Commonwealth, and so both (now) get to vote, and vote equally (democratically). So, any relevant statute is the statute of both sides of the case.

It has often been said in the social analysis of recent times that freedom implies self-determination. The simple and principal meaning of self-determination is that of an individual who determines their own boundaries of freedom—will I make this contract or that, will I construct a life as well as I can, free of this wrong and that? But the bigger meaning of self-determination is often contemplated: in our case the whole political self-determination—even secession—of Aboriginal being.

The land is not divisible between ways of being. There are many superficial divisions of the land: my house is divided from my neighbour’s, one state is divided from another; but these are not divisions of being. In the case of the two principal ways of being in our discussion, Australian Aboriginal citizenship, and Australian general citizenship, the land—the whole land—is the foundation of both of them; and it is logical nonsense to think of its division, or any sort of secession on the ground of being (as I said in section 5, a limited native title implies a being in the whole land: the distinction between titles is like the division between states). The way of being of each one of us is in the whole indivisible land of the Commonwealth of Australia. The idea that the decision of the High Court in Love is a contribution to the partition of Australian being, is nonsense.

The case is at one level the local history of two men, but more widely, it is a piece of the local history of the Commonwealth of Australia and its indivisible land, the being of all of us.

Michael Detmold is Professor of Law (emeritus) at the University of Adelaide.