Albanese Government withdraws from High Court challenge that sought power to deport First Nations people
Attorney-General Mark Dreyfus QC has withdrawn the High Court case against Mr Shayne Montgomery, which sought to overturn established legal precedent and give the Federal Government the power to deport Aboriginal and Torres Strait Islander people who are not Australian citizens from their own country.
Mr Montgomery, whose visa has been reinstated, is now able to live safely with his family and community. Importantly, the High Court’s landmark decision in Love; Thoms stands and will remain undisturbed so that Aboriginal and Torres Strait Islander peoples cannot be deported from their own country.
Mr Montgomery was born in New Zealand but was adopted at a young age into a Mununjali family in Brisbane. He lives in Australia with his family, including his five children, and community, and is recognised by Elders as a Mununjali man.
In the 2020 High Court decision of Love; Thoms the Court found that the Government does not have power under the Constitution to deport Aboriginal people. In 2021, in the Federal Court, Mr Montgomery successfully challenged his visa cancellation and ongoing detention and was released from immigration detention. However, the Morrison Government chose to appeal to the High Court and sought to challenge the Court’s decision in Love; Thoms, made just two years earlier.
On 28 July 2022, the High Court granted leave to the Federal Government to withdraw the case against Mr Montgomery. The High Court had heard arguments in the case in April but had not yet made a decision.
Russell Kennedy Lawyers is proud to have represented Mr Montgomery in his fight to remain in Australia and is relieved that Mr Montgomery’s future with his family, children and community is secure.
Arti Chetty, Special Counsel at Russell Kennedy Lawyers, said:
“Mr Montgomery has lost years of his life fighting to remain with his children, his family, including his parents and siblings, and his community. We are incredibly relieved for him that this ordeal is over.”
“Aboriginal and Torres Strait Islander people are the First Peoples of this land, with a connection that has existed for tens of thousands of years. The High Court has already decided that the Government cannot deport Aboriginal and Torres Strait Islander people, regardless of their citizenship or visa status, because of their unique connection with this land. Instead of accepting this, the previous government launched a legal attack not just on Mr Montgomery, but on all First Nations people who don’t have formal Australian citizenship. This attack profoundly impacted their families and communities and should never have occurred. “
“We are pleased that the Attorney-General has withdrawn the case. It may have led to Mr Montgomery being taken away from his community, preventing him from fulfilling his obligations as a Knowledge Holder, a teacher and mentor for the young people in the Mununjali community. Mr Montgomery’s Elders gave evidence in the case that Mr Montgomery has undergone ancient cultural processes including initiation on country, is a Knowledge Holder, and has been absorbed into the clan. Self-determination is a fundamental right that must be respected if we are truly committed to reconciliation and truth telling.”
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