Recent Cases

Thoms v Commonwealth of Australia [2022] HCA 20 (08 June 2022) (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ)


Constitutional law (Cth) – Powers of Commonwealth Parliament – Power to make laws with respect to naturalisation and aliens – Detention of unlawful non‑citizens – Where applicant “unlawful non-citizen” within meaning of s 14(1) of Migration Act 1958 (Cth) – Where applicant detained by officers in purported exercise of s 189(1) of Migration Act – Where majority of High Court of Australia determined applicant not “alien” within meaning of s 51(xix) of Constitution in Love v The Commonwealth (2020) 270 CLR 152 (“Love”) – Where applicant released from detention after delivery of judgment in Love – Where detaining officers held reasonable suspicion that applicant was “unlawful non-citizen” to whom s 189(1) of Migration Act applied until delivery of judgment in Love – Whether detention lawful under s 189(1) of Migration Act – Whether s 51(xix) of Constitution supported valid application of s 189(1) of Migration Act to applicant during time of detention.

Words and phrases – “alien”, “aliens power”, “detention”, “non-citizen, non‑alien”, “partially disapply”, “reasonable suspicion”, “so insubstantial, tenuous or distant”, “sufficient connection”, “unlawful non-citizen”.