The Hon Alan Tudge MP is currently acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The High Court delivered a significant judgment today which has implications for our migration programs.

In Love v Commonwealth of Australia and Thoms v Commonwealth of Australia, the High Court acknowledged that neither Mr Thoms nor Mr Love were born in Australia and neither are Australian citizens under the Australian Citizenship Act 2007.

Both men are citizens of other countries and entered Australia on valid visas, which were mandatorily cancelled under the character provisions in the Migration Act 1958, due to their significant criminal histories.

The Migration Act gets its head of power under s 51(xix) of the Australian Constitution – the power to make laws for “aliens”.

The Court held that Aboriginal Australians are not within the reach of the "aliens" power under the Constitution. This may have implications for both the operation of the Australian Citizenship Act and the Migration Act.

On the face of it, it has created a new category of persons; neither an Australian citizen under the Australian Citizenship Act, nor a non-citizen.

The Government is currently reviewing the decision and its implications.

In light of the court’s ruling, Mr Thoms was this morning released from immigration detention. Mr Love had previously been released in September 2018.

The Department of Home Affairs will consider the best methods to review other cases which may be impacted.