I’d like to share one of the projects I’m proudest of working on. It’s called Temporary. It tells the story of 6 asylum seekers and their experiences with Australia’s temporary protection laws, and the story of those laws themselves. Come meet them ❤️.

mostly retired from here anyway, but this might make it official.

Join millions who have switched to Grok.

RT @HumanRights4A: SO EXCITED!!! .Our friend and client AJL20 is free after being cruelly and pointlessly re-detained in 2021 after his #Ha….

My take on the High Court decision in Alexander, which overturned parts of Australia’s citizenship stripping laws a couple of months ago. There was public interest in this case. I didn’t say as much on here as I wanted (life). But if anyone still has questions, send them my way!.

I’ll be having what promises to be a rich conversation about what the Australian government owes its citizens with @IanKemish, @KMooreGilbert & @PeterGreste at Festival of Dangerous Ideas. 4pm today at Carriageworks, some tickets still available below 😊.

read the whole thread ❤️.

Hello! I’ll be on @RNDrive at 7.05 AEST to chat with Andy Park about the High Court’s Alexander decision and what it means for #citizenship stripping.

I’d like hazard a guess that the attention to Love in the decision today means that the likelihood of it being overturned in the coming months is pretty slim (in addition to the fact that it was only recently decided). But I’ve certainly been wrong with predictions before!.

Also interesting is that the Commonwealth is arguing that Love itself should be overturned, in a case called Montgomery that is yet to be decided.

An interesting question going forward will be what standard is required of immigration officers when dealing with people who are non-citizens and who claim to be Indigenous people satisfying the test in Love (drawn from the tripartite test in Mabo).

Because of this, s 189 is capable of applying to non-aliens, in the limited circumstance where they are reasonably suspected of being unlawful non-citizens - provided the detention ends once there is an objective basis to believe that the person is in fact a non-alien.

The High Court dismissed this argument. The constitutional aliens power provides support for laws ‘with respect to’ aliens. This can in some cases include laws that apply to people who are not aliens, provided the law has a ‘sufficient connection’ with aliens.

All of this followed from an earlier case - Ruddock v Taylor. Thoms had tried to distinguish this case on the basis that Thoms, unlike Taylor, was not an alien. He said that s 189 was only capable of applying to aliens.

The High Court said the Love decision didn’t retroactively turn what was a reasonable suspicion on all the evidence available at the time into an unreasonable suspicion. If Thoms had continued to be detained *after* the Love decision it would have been different, but he wasn’t.

At the time that Thoms was detained, the officer detaining him did reasonably suspect that he was an alien without a valid visa - he wasn’t an Australian citizen, his visa had been cancelled and Love hadn’t yet been decided.

The question in Thoms 2022 was whether a non-citizen non-alien can be detained under s 189. The High Court unanimously said they can - *provided* the immigration officer handling their case *reasonably* suspects them of being aliens without a valid visa.

When this provision was drafted, Parliament assumed that ‘non-citizen’ and ‘alien’ were synonymous terms, and that the constitutional aliens power supported basically the entire Migration Act. Post Love we know this isn’t true. Some Aboriginal people are non-citizen non-aliens.

The relevant provision of the Migration Act is s 189. It says that if an immigration officer reasonably suspects that a person in/attempting to enter Australia is an unlawful non-citizen, they must be detained.

Thoms argued that his detention during this time was invalid, because the Migration Act did not and could not authorise the detention of a non-alien. The High Court unanimously disagreed with Thoms’ argument.

The case handed down today deals with the period when Thoms was in detention - between 2018 when he lost his visa, and 2020 when he was successful in the Love litigation.

Prior to the Love decision, Thoms had been in detention. He’d had his visa cancelled and if Love had gone the other way, he’d have been deported from Australia. But after the Love case was decided in his favour, he was released from detention.