This week’s High Court of Australia case, Love v Commonwealth, on the question of deporting plaintiffs who were born outside Australia, are foreign citizens and who have not been naturalised or made Australian citizens, but who claim to be Aborigines, was in my view a disgrace.
By 4-3 it effectively constitutionalised identity politics; in a weird sort of way it elevates the common law — judge-made law to be clear — above the Constitution itself; it introduces a race-based limit on the parliament’s power; it looks very much to be a clear case of outcome-oriented judging, meaning you start with the conclusion you want and then struggle to find rationales to get you there.
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