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From Schwartz Media, I’m Ruby Jones, this is 7am.

Two years ago, the High Court made a landmark decision that prevented the deportation of non-citizen Aboriginal Australians.

Now, the federal government is seeking to overturn that decision, after a man - Shayne Paul Montgomery - used the case to successfully challenge his deportation.

Today, lawyer and contributor to The Saturday Paper, Kieran Pender, on the case of Shayne Montgomery, and concerns around the potential politicisation of the High Court.

It’s Monday, April 11

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RUBY:

Kieran, in the US, we've seen some big stories around court stacking, so the appointment of very political judges by the government of the day, but that isn't really something that we've seen much of here in Australia, historically speaking. So why is that?

KIERAN:

So I think the first thing to say is that in Australia and in many countries, the judiciary is independent. The courts are independent and that's really central to our democracy and central to our constitution.

But of course, judges don't appear out of thin air. Governments have to appoint them. And so there's always been a concern around how that appointment process takes place.

Archival Tape -- News:

“President Trump is about to announce one of the most consequential moves a president can make his next choice to fill a vacancy on the Supreme Court.”

KIERAN:

Now in the US, that concern has been heightened lately by perceptions of court stacking, where the government of the day is appointing judges based on ideology to influence the outcome in cases.

Archival Tape -- News:

“President Trump's choice almost certain to be a more consistent conservative locking in a five vote majority if confirmed by the Senate.”

KIERAN:

And we see this most acutely in the context of the US Supreme Court

Archival Tape -- News:

“with maximum drama in prime time. President Trump announced the nomination and praised Brett Kavanaugh as a solid conservative.”

KIERAN:

So then we saw Trump rush through a number of Supreme Court nominees

Archival Tape -- News:

“and now to the Supreme Court showdown. President Trump has nominated Amy Coney Barrett to replace the late Justice Ruth Bader Ginsburg.”

KIERAN:

such that the US Supreme Court is effectively very conservative.

Archival Tape -- News:

One issues Coney Barrett's record shows support for gun rights on abortion. She has said that Roe v. Wade was wrongly decided.

KIERAN:

Now in Australia, historically, we haven't really had much debate around that much concern. Now, of course, we've had judges that are more conservative judges that are more liberal, but there wasn't a perception that the court was being deliberately politically targeted to influence the outcome in cases. But there's just an inkling that maybe we're heading in that direction, and that's a concern that's beginning to be ventilated following a case I've been following. It was handed down two years ago, called Love.

RUBY:

OK, so tell me about the Love case then who was involved and what was at stake?

KIERAN:

Love was a huge case.

Archival Tape -- Lawyer:

“Today marks a day where we have permanent protection for Aboriginal Australians from deportation.”

KIERAN:

A case that has significant consequences for Indigenous Australians for First Nations people around their unique constitutional status.

Archival Tape -- News:

“The High Court has ruled that Aboriginal people cannot be deported for criminal convictions in a four two three split decision. The High Court has ruled in their favour. It declared Aboriginal Australians have a special connexion to the country”

KIERAN:

Mr Love and Mr Thom's were noncitizen Australians. One was born in New Zealand, one was born in Papua New Guinea and they were in immigration detention awaiting deportation. And they filed lawsuits arguing that even though they didn't have citizenship because they had indigenous heritage. Aboriginal and Torres Strait Islander heritage, the government didn't have constitutional power to deport them because the power the government does have in the Constitution for deportation is called the aliens power. And they said that the word alien can't as a constitutional term attached to indigenous Australians. And they won.

Archival Tape -- Reporter:

“The symbolic nature of the ruling is still sinking in”

Archival Tape -- Advocate:

“and brought tears to my eyes as an Aboriginal person because it speaks to the very special relationship that we know we have with this place with this country.”

KIERAN:

And it saw about a dozen or so non-citizen indigenous Australians who had been in immigration detention ultimately released. And one of those was a man called Shayne Paul Montgomery.

RUBY:

Right. So could you tell me a bit about Shayne Montgomery, then Kieran? Who is he?

KIERAN:

Now Shayne Montgomery was born in New Zealand. He had an Maori father and an Australian mother, and he came to Australia when he was 15. He was educated on local indigenous culture. He was formally initiated into country and he was registered with Centrelink as an Aboriginal man. Now, Montgomery believed that he had some indigenous heritage, but he wasn't 100 per cent sure of that. But the point was that he was accepted into the community.

Now in 2018, he was convicted of aggravated burglary. He was sentenced to 14 months imprisonment and he had his visa cancelled. And so after he was released from prison, he was taken to immigration detention, where he was awaiting deportation.

And then all of a sudden, in 2020, this Love case comes down and it looks as if maybe he can't be deported. And so his lawyers go to the federal court and ultimately he's released.

But now the federal government is trying to overturn that decision by taking his case to the High Court, which means he could be deported.

RUBY:

Right. So Shayne Montgomery, he's one of the people who were released from immigration detention after the Love decision, but now the government is once again trying to deport him.

KIERAN:

Yeah, exactly.

And so Montgomery's fate hangs in the balance - whether he can stay in Australia or whether he's sent back to New Zealand - as does really the High Court and its future political status.

RUBY:

We'll be back in a moment.

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RUBY:

Kieran, you've been telling me about the case of Shayne Montgomery, so a few years ago, the federal government attempted to deport him based on his criminal record, but his lawyers successfully got him released back into the Australian community. But now it seems like that could be reversed again. The case is is going all the way to the High Court, and I'm just hoping you could tell me why that is why the government is actually wanting to to revisit this.

KIERAN:

The Love decision really infuriated the current federal government. It's a landmark case. People described it to me as, you know, the next case like Mabo, which really broke legal ground in 1992 around Indigenous land rights. And this was a case in Love that recognised the special constitutional status of Aboriginal and Torres Strait Islander people but the conservative government didn't like that at all.

Archival Tape -- Peter Dutton:

“I think there's significant repercussions and essentially creates another class of people, which I think is a very bad thing.”

KIERAN:

Peter Dutton, at the time at Home Affairs Minister, said that it frankly undermines our ability to keep the integrity of our migration system going.

Archival Tape -- Peter Dutton:

“What the High Court has said here is that creating another class of people and that that power within the Constitution doesn't apply to them and we can't the parliament can't legislate to overcome the interpretation of the restriction of the use of the Constitution. So that's that's where our hands are tied”

KIERAN:

and it put the High Court firmly in the crosshairs.

Archival Tape -- Stoker:

“I find the High Court's decision in Love of disturbing, it strays from the text of the Constitution into matters of values and policy.”

KIERAN:

Senator Amanda Stoker, who would shortly thereafter become the assistant Attorney-General, a position she still holds now, at the time, said It's very frustrating. I'm very angry about it. She described the cases judicial activism mixed in with identity politics.

Archival Tape -- Stoker:

“It divides that community amongst right along racial lines and for what noble pursuit? to allow convicted criminals to remain in Australia by virtue of their race, you know It is this horrid mix of identity politics with judicial activism.”

KIERAN:

And so the government started plotting to relitigate the case, and that's what they're trying to do. They've gone back to the High Court to try again.

RUBY:

OK, so tell me about how they going about doing that? Then what's the strategy here?

KIERAN:

So in late 2020, the government announced two new High Court justices, Jacqueline Gleason and Simon Stewart. Both were impeccably credentialed. They have all the qualifications and experience you'd expect of people appointed to Australia's highest court. But Stewart particularly has already demonstrated his conservative, black letter judicial ideology.

For example, in a case last year, Stewart openly doubted whether the implied freedom of political communication, a very limited free speech protection in our constitution, even exists. Now that's a freedom that's been around for several decades. It was affirmed unanimously by the court in 1997, but it remains a bit of a sore point for conservatives.

And those appointments are set against the post love calls from conservative politicians to increase ideological focus on the High Court.

Senator James Patterson, for example, described a Love case as a reminder of the importance of considering the judicial philosophy of candidates for appointment to the High Court. Senator Amanda Stoker even called for an Australian equivalent to the US group The Federalist Society,

Archival Tape -- US Senator:

“Every member of the court's six justice Republican majority is a current or former member of the Federalist Society.”

KIERAN:

which has been really influential in grooming conservative law students and lawyers.

Archival Tape -- US Senator:

“It receives millions in anonymous donations.”

KIERAN:

and helping them on their path to become judges one day.

Archival Tape -- US Senator:

“Each member rose to the top of the group's donor approved slates of nominees. Each was backed by the Federalist Society’s extended network of satellite groups.”

KIERAN:

And that's I guess, where the Love case comes in.

RUBY:

Right so we have politicians openly talking about how to influence the makeup of the High Court - taking inspiration from what has happened in the US. And it's against that background that the federal government is taking the Montgomery case - a case which it only recently lost - back to the High Court, under new judges. So what position does that put the High Court in?

KIERAN:

It really puts the High Court in a bit of a bind.

So the love case has been praised by many, and it's been a huge amount of academic praise for the case. But equally, reasonable minds can differ on whether it's correct as a matter of constitutional law.

So, for example, one of the people who dissented in the case was Justice Stephen Gageler, who's considered the leading mind on the court at the moment. He's a moderate Labor appointee. He's not an ideological appointee. Some have described the majority's position as sort of going beyond what judges should be doing and straying into political territory. And so there were genuinely held reasonable different views on Love.

But by bringing this challenge just two years after Love, in light of all of this criticism, the government has put the High Court in a bind.

If they overturn the case. So soon after, when nothing else has really changed other than two new appointments to the court. It's going to invite scrutiny and perceptions of politicisation.

Ironically, the criticism coming from the Conservatives only is going to make it harder for them to overturn for the conservatives to get their way. This strategy of trying to overturn the case.

RUBY:

Hmm, so it sounds like the High Court bench might be reluctant then to overturn the decision because of the message that that could send the perception of how it would look.

KIERAN:

Yeah, exactly. And I've spoken to a lot of people in the legal world who make that point. So George Williams that you NSW, who said that he thought the High Court would be understandably reluctant to overturn the case. It's extremely rare for the High Court to overturn their own decisions just a year or two later.

Although the High Court, strictly as the highest court in Australia, is not bound by precedent, even its own. It's very rarely departed from its own case law, and it's effectively unheard of for it to do so so soon after, only because the bench has changed.

And I think there's I guess that's the real question that we're awaiting the High Court heard this case over two days and in a few months time we'll get a decision and we'll see whether the judges who dissented in love are continue that dissent and perhaps with now a majority, or whether they reverse their position because they're worried about the politicisation of the High Court.

And as for Montgomery, his fate, his liberty awaits determination, it hangs in the balance, as does the future of the High Court.

RUBY:

Kieran, thank you so much for your time.

KIERAN:

Thanks.

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RUBY:

Also in the news today,

On Sunday, Anthony Albanese was forced to clarify his position on refugees.

He had initially said Labor supported Temporary Protection Visas, but the Labor platform is in fact to abolish the temporary visas and make them permanent.

But Mr Albanese did reiterate his support for turning back boats and processing asylum seekers in offshore facilities.

And Scott Morrison has continued to support Katherine Deves, who was his pick to run in the seat of Warringah against independent Zali Steggal.

In pre-election social media posts, Ms Deves expressed transphobic views and described a day of LGBT pride as a quote: ‘grooming tactic’.

Ms Deves has apologised for the comments, but NSW Liberal MP Matt Kean has publicly called for her to be disendorsed.