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A High Court decision on citizenship, seen as being as important as Mabo, is being recontested in what some experts say is an attempt at an American-style politicisation of the judiciary. By Kieran Pender.

Immigration case raises concerns over High Court politicisation

Assistant Minister to the Attorney-General Amanda Stoker.
Assistant Minister to the Attorney-General Amanda Stoker.
Credit: AAP Image / Mick Tsikas

This is a story about a controversial court case and efforts to politicise the judiciary. It is a story about judicial independence and the unique connection between Indigenous Australians and their Country. Most immediately, it is about whether Shayne Paul Montgomery can remain in Australia.

When Minister for Immigration v Montgomery was heard in Canberra this week by the High Court, the relatively uncrowded courtroom belied the national significance of the case. But as the federal solicitor-general, Dr Stephen Donaghue, QC, faced off against his predecessor, Justin Gleeson, SC, surrounded by armies of barristers and lawyers, those present were under no illusions: for better or worse, the outcome in this case will reverberate through Australian law.

To understand this story, it helps to start in the 1970s. Under Gough Whitlam, the federal government enacted laws to provide senate representation for the ACT and the Northern Territory. The states were unhappy. Western Australia, New South Wales and Queensland went to the High Court, arguing that the expansion of the senate to include territorial representatives was unconstitutional. They lost in a narrow decision – four judges to three – known as the First Territory Senators’ Case.

The states remained displeased, as did the dissenting judges. Less than two years later, Queensland and Western Australia decided to try again. In that time, the bench had changed, as had the federal government. Long-serving justice Sir Edward McTiernan had finally retired, replaced by Sir Keith Aickin. Appointed by the new Fraser government, Aickin was considered a conservative, black-letter appointment. And so, the Second Territory Senators’ Case was seen by the states as a vehicle to return Australia to senate orthodoxy, with Aickin envisaged as the swinging vote.

It was a clever plan. Aickin did indeed find the territorial senators to be unconstitutional, as did chief justice Garfield Barwick. But it was too clever by half. The other five judges, including Sir Harry Gibbs and Sir Ninian Stephen, who had dissented in the first case, upheld the constitutional validity of the territorial senators. “When it is asked what has occurred to justify the reconsideration of a judgment given not two years ago,” wrote Gibbs, “the only possible answer is that one member of the Court has retired, and another has succeeded him.”

Fast forward four decades, and on the eve of the pandemic, in February 2020, the High Court was again placing itself at the centre of political controversy. In Love and Thoms v Commonwealth, two non-citizens in immigration detention had filed lawsuits arguing that the unique status of Australia’s Aboriginal and Torres Strait Islander people meant that they could not fall within the reach of the “aliens” power in the constitution, which authorises immigration detention and deportation. They won.

Across a 171-page judgement, every member of the court delivered separate, divergent reasons. Four accepted the argument that Indigenous Australians cannot be aliens, whatever their citizenship status. Three vigorously dissented. It was a hugely significant judgement, building on the landmark 1992 land rights case of Mabo. It broke new legal ground around the special constitutional status of Aboriginal and Torres Strait Islander people.

Love matters in the same way Mabo matters – they’re both important to who we are as a nation of peoples,” says Eddie Synot, a Wamba Wamba man and lecturer at Griffith Law School. “Despite its limitations, Mabo finally offered recognition – formally at least, according to the common law – of First Nations where it had previously been denied. The power and importance of that recognition – and its continuance in Love – cannot be underestimated.”

But it infuriated the federal government. “It frankly undermines our ability to keep the integrity of our migration system going,” Peter Dutton said at the time. “It’s very frustrating, very annoying, I’m very angry about it.” Senator Amanda Stoker, soon to become assistant attorney-general, described the case as “judicial activism mixed in with identity politics”.

Members of the government set out plans to relitigate the case. In a speech to the Samuel Griffith Society, a conservative legal organisation, Stoker noted that the High Court bench was about to change. Two members of the Love majority were due to retire – justice Geoffrey Nettle at the end of 2020 and justice Virginia Bell at the beginning of 2021. “There is a significant possibility,” said Stoker, “that a reconstituted bench would reconsider the decision in the event of challenge.”

Coalition politicians also raised the spectre of American-style ideological vetting of judicial appointments. Senator James Paterson described Love as “a reminder of the importance of considering the judicial philosophy of candidates for appointment to the High Court”. Stoker even called for an Australian equivalent to the United States’ Federalist Society, which has been influential in grooming conservative law students and lawyers and aiding their judicial ascent.

In late 2020, the government announced two new High Court judges, Jacqueline Gleeson and Simon Steward. Both were impeccably credentialled. But the latter has already demonstrated his conservative, black-letter judicial ideology on the bench. In a case last year, he openly doubted whether the implied freedom of political communication, Australia’s limited constitutional free speech protection, actually exists. The freedom was affirmed by a unanimous, seven-judge decision in 1997 and has been consistently applied ever since but remains a sore point for conservatives.

While these ideological battles raged, the judgement in Love led to the release of about a dozen non-citizen Indigenous Australians previously in immigration detention, including Montgomery. Born in New Zealand in 1981, to an Australian father and Māori mother, Montgomery came to Australia at 15. He lived in a shelter for homeless Aboriginal youth in Brisbane, where he was educated on local Indigenous culture. In his early adulthood, Montgomery was formally initiated on Mununjali Country in Queensland and was registered with Centrelink as an Aboriginal man. He believed that he had Aboriginal lineage and was accepted into the Mununjali community.

In 2018, Montgomery was convicted of aggravated burglary and sentenced to 14 months’ imprisonment. The then minister for Home Affairs, Dutton, cancelled his visa. After being released from prison, Montgomery was taken into immigration detention where he was awaiting deportation. But in early 2020, following Love, his lawyers began proceedings in the Federal Court. In late 2021, a judge ordered his release.

The government appealed this release. At the heart of its case, which was argued in the High Court over two days this week, is the claim that Love was wrongly decided and should be overturned. In its written submissions, the government says that the divergence among the Love majority means that it is not a binding precedent. In any event, the minister’s lawyers say, Love should be overturned because it was “entirely novel” and is afflicted with “substantial difficulties or uncertainties”.

Montgomery’s lawyers, led by Gleeson, who quit as solicitor-general after falling out with then attorney-general George Brandis, are damning in their response. They describe the government’s view as “disrespectful and wrong”. Gleeson and his colleagues add: “The Appellants are no more than disappointed litigants.”

In the courtroom in Canberra on Wednesday, Donaghue, for the government, argued that the definition of “aliens”, the constitutional term at issue in the case, should be left for parliament to decide, unless it sought to exclude people who “could not possibly answer that description”. His submissions were met with a mixed response from the bench.

And so the High Court finds itself in a bind. While Love has been lauded by many, reasonable minds can differ on its constitutional correctness. One of the dissentients was Justice Stephen Gageler, a moderate Labor appointee, considered the leading mind on the current court. Describing the majority’s position as “supra-constitutional innovation”, he insisted he could not “be party to” the creation of “a race-based constitutional limitation on legislative power”. The other minority judges, Chief Justice Susan Kiefel and Justice Patrick Keane, were equally strident.

But to overturn Love simply because the bench has changed would be contrary to the Second Territory Senators’ Case. It would only invite further politicisation of the court. “The decision in Love does not fall into the categories that permit a reconsideration of its principle,” says Professor Asmi Wood, an Indigenous law expert at the Australian National University. “Montgomery raises no new issues of law.”

One issue raised in the case is whether Montgomery, who has been culturally adopted but is uncertain about his lineage, is in effect sufficiently Indigenous. “Domestic adoption, foreign adoption, Aboriginal adoption all afford the adopted children the legal privileges of their adopted parents’ biological children,” Wood explains. The High Court, he says, “is bound by Love”.

Strictly speaking, as the highest court in Australia, the High Court is not bound by precedent – even its own. But it is usually extremely cautious when declining to follow past cases, as underscored by the events of the 1970s.

“The case of Montgomery is a hard one,” says Professor Gabrielle Appleby of the UNSW Sydney law school. “On the one hand there are considerations that could justify overruling the earlier decision … On the other hand, the case is being brought by the Commonwealth because there has been a change in judicial membership, a point that would not be lost on any of the judges.”

UNSW Sydney Professor George Williams suggests the High Court will be “understandably reluctant” to overturn Love after a change of judges. “To overturn in those circumstances could create a perception that High Court decisions may be manipulated through strategic appointments in order to meet political objectives,” he says.

Ironically, the strident political criticism may make the dissenting judges from Love even more hesitant to overturn it. “Because of the nature of some of the criticism of the Love case, the judges in Montgomery have been placed in a difficult position,” says Appleby. “There will certainly be a perception that, should they overrule the Love decision so soon after it was decided, this is at least partly explicable by reference to the political ideology of the judges and the new appointments to the bench. This perception would be detrimental to public confidence in the independence of the High Court.”

Eddie Synot tells The Saturday Paper he is currently assisting an immigration detainee in similar circumstances to the plaintiffs in Love and Montgomery.

“Beyond all the legal hypotheticals and arguments about constitutional principles and government power – all of which are important and have real consequences when pursued by ideologically bent governments and in the hands of seven judges – it matters much more to those affected individuals and their families in ways most of us will never understand,” he says.

Montgomery, via his lawyers at law firm Russell Kennedy, declined to comment. His fate, his liberty, and the risk of future politicisation of Australia’s judiciary now await determination. A decision from the High Court is expected later this year.

This article was first published in the print edition of The Saturday Paper on April 9, 2022 as "Bound by love".

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Kieran Pender is a writer and lawyer.

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