Love verses Commonwealth discussion

You are to read an extract from the case Love v Commonwealth (2020) 94 ALJR 198, 198-218. This extract comprises the judgments of Kiefel CJ [1]-[48] and Bell J [49]-[82].

Please note these are the only judgments you are required to read. You DO NOT have to read the entire case.

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PART A (worth 20 marks)

You need to locate and read the most authoritative version of the case cited above. You need to write a case note in response to the following headings:

a) Introduction: This should include identification of the case name and citation, court and judge/s. Even though you are only going to address the judgments of Kiefel CJ and Bell J in the discussion of the legal reasoning, in this section you should note all members of the court, and who

comprised the majority and dissent.

  • Material Facts: What are the circumstances that gave rise to the dispute? Think about the facts that are relevant to the legal reasoning. You only need to provide enough factual information to explain how the legal issues arose; you do not need to present facts of no relevance to the legal issues. Identify the parties clearly and be consistent with how you refer to them throughout the assignment.

c) Procedural history: Provide an overview of the procedural history of the matter (if any).

d) Legal issues: What is the legal issue(s) (or legal questions) that the court has to answer?

e) Legal Reasoning: What did the judge/s decide and what were their reasons for that decision?

In this section you are required to clearly identify the reasons for the decision that Kiefel CJ reaches, and the reasons for the decision that Bell J reaches. It will be important to be able to explain the differences in their approach.


f) Orders: What is the outcome of the case? What orders were made?

In this section you should note the overall decision reached in the case, and where Kiefel CJ and Bell J sat in relation to that overall decision.

PART B (worth 15 marks)


Critically evaluate the case using critical race theories/scholarship, particularly those that address Indigenous people in Australia and their relationship to the Anglo-Australian legal system.


This part can be given the sub-heading ‘Critical Analysis.’


Note that the readings that have been required across seminars on the history of the Anglo- Australian legal system in Australia, Constitutional Law, recognition of Indigenous peoples, and critical legal theories will be useful to you to undertake this analysis – you are however expected to conduct some further research.

There is no fixed way in which to present this critical analysis and there are multiple different ways in which you might approach this part. Different students will indeed provide very different responses but still do well. You must ensure, however, that your analysis is connected to the case itself.


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