Parties Dispute Lawfulness of Applicant's Detention

Thoms v Commonwealth of Australia [2022] HCA 20 (8 June 2022)

The applicant was detained by officers.  The detaining officers held a reasonable suspicion that the applicant was an "unlawful non-citizen" to whom s 189(1) of Migration Act applied until delivery of judgment in Love.  The Court, in determining whether the detention was lawful, assessed s 189(1) of Migration Act.

Facts:

The applicant was born in New Zealand in 1988 and is a citizen of that country.  He first arrived in Australia in 1988 and began residing in Australia in 1994 pursuant to a Subclass 444 Special Category (temporary) visa granted to him on his date of entry.  On his most recent entry into Australia on 8 January 2003, he was again granted a Subclass 444 Special Category (temporary) visa which permitted him to reside temporarily in Australia.  That visa was cancelled on 27 September 2018 pursuant to s 501(3A) of the Migration Act 1958 (Cth) ("the Act"). The applicant did not hold any other visa.

On 28 September 2018, the applicant was detained by an officer of the Department of Home Affairs in the purported exercise of s 189(1) and he remained in detention until 11 February 2020.  On 5 December 2018, the applicant commenced proceedings against the Commonwealth in the original jurisdiction of this Court. In those proceedings, he sought: a declaration that his detention subsequent to the cancellation of his visa was unlawful and not supported by s 189 of the Act; a declaration that he was not an alien for the purposes of s 51(xix) of the Constitution; injunctions directing his release from detention; damages for wrongful imprisonment; and costs.  The parties later agreed to a Special Case in which the following question of law was stated for the opinion of the Full Court: "Is [the applicant] an 'alien' within the meaning of s 51(xix) of the Constitution?"

The Special Case was ordered to be heard concurrently with a related proceeding brought by Mr. Daniel Alexander Love.  The Special Case stated that the applicant also identifies, and is accepted by the Gunggari People, as a member of the Gunggari People; and is also a native title holder. 

The applicant and Mr. Love argued that, because they are Aboriginal Australians who satisfy the tripartite test in Mabo v Queensland [No 2], they have the special status of being a "non‑citizen, non‑alien" and as such are not within the reach of the aliens' power in s 51(xix) of the Constitution.  It was held that the [applicant] is an Aboriginal Australian and, therefore, is not within the reach of the 'aliens' power conferred by s 51(xix) of the Constitution.

On the same day, the applicant was released from detention.  On 6 July 2021, Jagot J of that Court ordered that the following question be heard and determined separately: "Was the detention of the applicant between 28 September 2018 and 11 February 2020 unlawful?" 

The applicant was initially detained and then continued to be detained as a result of the decisions of three officers of the Department of Home Affairs (respectively officers "A", "B" and "C").  On the basis of her review of the departmental records and the interview, officer A suspected that the applicant was an unlawful non‑citizen.  The applicant was detained pursuant to s 189(1) on the basis of that suspicion.

Issues:

I. Whether or not the detention of Brendan Craig Thoms between 28 September 2018 and 11 February 2020 was lawful. 

II. Whether s 51(xix) of Constitution supported the valid application of s 189(1) of Migration Act to the applicant during time of detention.

Applicable law:

Constitution, s 51(xix) - provides that the Minister may consider and dispose of applications for visas in such order as he or she considers appropriate.

Acts Interpretation Act 1901(Cth), s 15A - provides that every Act shall be read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth, to the intent that where any enactment thereof would, but for this section, have been construed as being in excess of that power, it shall nevertheless be a valid enactment to the extent to which it is not in excess of that power.

Migration Act 1958(Cth), ss 3A, 189 - provides: "If an officer knows or reasonably suspects that a person in the migration zone ... is an unlawful non‑citizen, the officer must detain the person."

Nolan v Minister for Immigration and Ethnic Affairs [1988] HCA 45 - held that a person born outside Australia to non‑Australian parents and who had not been naturalised was an alien. 

Re Patterson; Ex parte Taylor (2001) 207 CLR 391 - held that British subjects who had resided in Australia since before the commencement of the Australian Citizenship Amendment Act 1984 (Cth), as Mr Taylor had, did not fall within either the aliens or the immigration power. 

Ruddock v Taylor (2005) 222 CLR 612 at 621 [22]‑[25] - where Mr Taylor argued that because the decision to cancel his visa pursuant to s 501 was unlawful it followed that his detention was unlawful. 

Cunliffe v The Commonwealth [1994] HCA 44 - provides that Section 51(xix) most obviously confers power to make laws which bind aliens.  But, like other heads of power, it carries with it power to make laws affecting many matters that are incidental or ancillary to its subject matter.

Australian Communist Party v The Commonwealth [1951] HCA 5 - where it was argued that the trade and commerce power in s 51(i) of the Constitution is limited to goods which "are in truth imports".

Milicevic v Campbell (1975) 132 CLR 307 - where Mason J considered that the existence of a reasonable suspicion that goods may have been imported may itself constitute a sufficient nexus with the subject matter of the power in s 51(i).

Spence v Queensland [2019] HCA 15 - provides that the purpose of a law – the end sought to be achieved – may provide the key to determining whether a law is incidental to the subject matter of a power. 

Chetcuti v The Commonwealth (2021) 95 ALJR 704 - provides that since 1984, Parliament has relied upon the "naturalization and aliens" power in s 51(xix) of the Constitution as one source of power to sustain the Migration Act.

Analysis:

S 189(1) of the Act may clearly be taken as supported by s 51(xix) of the Constitution. Section 51(xix) most obviously confers the power to make laws that bind aliens.  But, like other heads of power, it carries with it the power to make laws affecting many matters that are incidental or ancillary to its subject matter. 

While s 51(xix) confers legislative power concerning a class of persons – aliens – it can support any law that has more than an "insubstantial, tenuous or distant" connection with aliens.  It is capable of supporting a law that affects the rights and obligations of persons who are not aliens.   

Section 189(1) of the Act may be seen to have a sufficient connection with s 51(xix) of the Constitution in its application to persons who are "reasonably suspected" of being aliens without a valid visa.  Mr. Thoms was reasonably suspected of being an unlawful non‑citizen throughout the entirety of his detention. 

Even though he is now known to be within the Pochi limit, at the time of his detention, which was prior to Love, it was not then recognised that Aboriginal Australians who satisfy the tripartite test in Mabo [No 2] are within that limit.  Accordingly, under s 189(1), an officer was required to detain Mr. Thoms because, throughout the duration of his detention, the objective facts and law at the time were such that an officer reasonably suspected him to be an unlawful non‑citizen.

The officers who detained Mr. Thoms had at all times during his detention a suspicion that he was an unlawful non‑citizen, within the meaning of s 14(1) of the Migration Act, because he was in the migration zone, was not an Australian citizen and did not hold a visa.

Conclusion:

The operation of s 189(1) upon a person who is within the Pochi limit, by reference to the criterion of reasonable suspicion that they are an unlawful non-citizen, is an operation which is "necessary to effectuate [the] main purpose" of the aliens aspect of the power in s 51(xix). 

There is a sufficient connection between s 189(1) and the aliens' power to the extent that it operates upon non‑aliens. Mr. Thoms' detention was not unlawful. 

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