Attorney-General Mark Dreyfus blasted for call to drop deport case

The timing and propriety of the decision to drop a High Court case aimed at testing a ruling that the commonwealth had no right to deport Indigenous non-citizens has been attacked as manipulation.

Anthony Morris QC. Picture: Jack Tran

The timing and propriety of federal Attorney-General Mark Dreyfus’s decision to drop a High Court case aimed at testing a ruling that the commonwealth had no right to deport Indigenous non-citizens has been attacked as manipulation that sidestepped the judiciary and parliament.

Eminent Queensland QC Anthony Morris said that in dropping the case after the court had heard the arguments, but before it had delivered its decision, Mr Dreyfus had deprived the court of “the opportunity to publish its considered view” and the community of the chance “to learn what that view is, and to have it carried into effect”.

It was an “egregious instance” of using its position as a litigant to manipulate an outcome of maintaining “the state of the law as currently understood”, Mr Morris said.

The case against Shayne Montgomery, a culturally adopted Aboriginal and a New Zealand citizen under threat of deportation after his visa was cancelled on character grounds, was brought by the previous federal government.

It had hoped to use the action to overturn a contentious 2020 High Court decision known as Love & Thoms that said Indigenous people could not be deported even if they were not Australian citizens, as might be the case if they had been born overseas.

When the Montgomery case was dropped last week a spokesperson for Mr Dreyfus said a delegate of the Minister for Immigration had revoked the cancellation of Mr Montgomery’s visa, that as a consequence of that decision the commonwealth discontinued its appeal and the Albanese government would not seek to overturn Love & Thoms.

The Australian understands the court accepted the filing of the discontinuance and did not take any further action.

Mr Morris argued that had the government not dropped the case, the court’s decision, although hypothetical because the visa had been restored, could have still had the effect of upholding or overturning Love & Thoms.

He said there were “many legitimate reasons why parties may withdraw a case before final judgment”.

“However, when the commonwealth withdraws a matter from adjudication after it has been fully argued and a decision is pending – expressly because the government ‘will not seek to overturn’ a previous decision – it smacks of an abuse of process.”

The court should have been given the opportunity to deliver its view, he said. If that was a reversal of the Love & Thoms decision, the government could then have pursued an amendment of the Migration Act if it so desired.

“Rather than adopting that course, the executive branch of government has sidestepped both the judiciary and the legislature to ensure that its preferred outcome is achieved,” Mr Morris said.

The Love & Thoms case split the court four to three, with the majority finding that Indigenous people, even those born overseas, could not be considered aliens under the Constitution and therefore could not be deported on character grounds.

This prompted accusations the High Court had become activist and concerns as voiced by one of the dissenting judges of the creation of a “constitutional netherworld” of non-citizens who are non-aliens.

Mr Montgomery’s visa was cancelled while he was serving a prison term in 2018 and he was placed in immigration detention when released from jail. He appealed in the Federal Court and was released from detention last year.

The case moved to the High Court, which heard arguments in April.

Another legal expert, University of Queensland law professor and Samuel Griffith Society member James Allan, said in Spectator Australia Friday that the federal government’s decision to drop the case counted as “gaming the system”.

“All of us regular voters and citizens have a huge interest in the proper interpretation of our Constitution,” Professor Allan wrote. “This is not just the province of the lawyerly and political castes.”