Wednesday, 7 September 2022
Questions without Notice: Additional Answers
First Nations Australians
Senator Thorpe, I have some partial answers to your questions. I may have to come back with some further answers tomorrow. In relation to your first question, the Montgomery case that you were referring to follows some similar litigation, the Love and Thoms cases, which I'm sure you're familiar with. Since the High Court's judgement in Love and Thoms, and as at 29 August this year, 13 noncitizens have been released from immigration detention on the basis that they meet, or the detaining officer suspects they meet, the tripartite test. Five noncitizens have been released from immigration detention directly or indirectly as a result of court judgements concerning whether it was reasonable for officers to suspect noncitizens were aliens in particular circumstances but did not involve conclusions that they meet the tripartite test. These individuals may still be required to be detained in the future, in the event further inquiries demonstrate more conclusively they do not meet the tripartite test and they do not hold visas.
In relation to your second question, the Department of Home Affairs continues to manage individual cases that raise claims of meeting the tripartite test and continues to consider the implications of the High Court's decision for Commonwealth programs in consultation with other Australian government departments, including the Attorney-General's Department, the National Indigenous Australians Agency, the Department of Finance and the Department of the Prime Minister and Cabinet. In relation to your third question, there are currently no plans to alter the visa scheme to introduce special conditions. As I say, if those responses don't fully answer your questions, I'll come back with some further detail. And, as I've mentioned to you, I'd encourage you to have some discussions with Minister Giles about those issues.