Changes in policy (and politics), not politicisation – The federal government’s decision not to pursue the appeal in Montgomery
Julian R Murphy and Shireen Morris
16.08.2022
The federal government’s recent decision to discontinue the proceedings in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor v Montgomery, a high-profile case concerning the constitutional status of Aboriginal and Torres Strait Islander people, has attracted criticism from the shadow Attorney-General and some conservative legal commentators. These commentators argue that the decision not to pursue the appeal, in which the government challenged the earlier High Court decision in Love v Commonwealth [2020], risks politicising the Court.
In this post we argue that when the decision is seen in its proper context, the government’s change of position is justified. First, because it concerns matters of immigration policy and discretionary decision-making that are properly the province of the executive. Second, the government’s decision may help depolarise public debate on this issue, to facilitate more respectful and informed public deliberation in the lead up to a referendum on a constitutionally guaranteed First Nations Voice.
We accept that repeated changes in government litigation position, as occur in the USA, are not conducive to public confidence in the stability and impartiality of the government’s approach to litigation. However, in respect of Montgomery there was a reasonable argument that the challenge to Love, coming so soon after a change in the composition of the Court, itself risked politicising the Court in the eyes of the public. The danger was that the government would be seen to be taking advantage of its own appointments. That risk was not far-fetched given conservative commentators and members of the Morrison government had explicitly anticipated a challenge to Love on the basis of changes in the Court’s composition. The discontinuance has taken the heat out of damaging calls to politicise the judicial appointment process which followed the decision in Love.
Background
As has been well documented on this blog, the High Court handed down its decision in Love in 2020. By a 4:3 majority (comprised of Bell, Nettle, Gordon and Edelman JJ), the Court held ‘that Aboriginal Australians (understood according to the tripartite test in Mabo [No 2]) are not within the reach of the “aliens” power conferred by s 51(xix) of the Constitution’. Accordingly, persons of Aboriginal descent, who identify as Aboriginal and are recognised as such by persons enjoying traditional authority in that community (under the three limbs of the test in Mabo [No 2]), could not be detained in immigration detention or deported from Australia under legislation supported by the aliens power, even if they were not Australian citizens.
In the wake of the Love decision, some individuals in immigration detention (or otherwise at risk of deportation) brought proceedings in the Federal Court seeking habeas corpus to compel their release from detention and/or other associated relief to confirm that they could not be deported, on the basis that they were Aboriginal Australians and therefore beyond the reach of the ‘aliens’ power. Some claims were successful; others failed, including on the basis that they could not prove their recognition by Elders or others enjoying traditional authority.
One particularly complex issue involved persons who identified as Aboriginal and were recognised as such, but could not prove definitively that they were biologically of Aboriginal descent (for example, because they never knew their parents and were raised by an adoptive community).
Mr Montgomery fell into this category. A citizen of New Zealand born to a Māori father and an Australian mother, Mr Montgomery arrived in Australia as a child and later commenced a relationship with an Aboriginal woman and had Aboriginal children. Mr Montgomery came to identify, and be recognised as, a member of the Mununjali clan of the Yugambeh people of south Queensland. He was adopted into that community. He understood, but had no evidence, that his Māori ancestors had at one stage married into an Australian Aboriginal clan.
The Australian government recognised Mr Montgomery’s Aboriginality, at least insofar as he was afforded government benefits (ABSTUDY) for Aboriginal people. Thus, while Mr Montgomery satisfied the second and third limbs of the test in Mabo (No 2), on the issue of descent he was unable to point to any Aboriginal ancestor.
Mr Montgomery’s Australian visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) as a result of criminal offending and he was placed into immigration detention. He subsequently made a request under s 501CA that his visa cancellation be revoked. The Minister refused that request and Mr Montgomery brought proceedings in the Federal Court, challenging the Minister’s decision and seeking habeas corpus, including (initially) on the basis that Mr Montgomery was an Aboriginal Australian and thus beyond the power of deportation.
Ultimately, however, Mr Montgomery did not ask the Federal Court to determine for itself whether or not he was an Aboriginal Australian according to the tripartite test in Mabo (No 2). Rather, he argued that, regardless of the final answer as to whether he was Aboriginal Australian, his detention was unlawful because the responsible Commonwealth officer did not form a reasonable suspicion about his Aboriginality as required by the power to detain in the Migration Act. Justice SC Derrington of the Federal Court accepted this argument, holding that regardless of whether or not Mr Montgomery was Aboriginal, the detaining officer’s suspicion as to his non-Aboriginality was not reasonable, and thus his ongoing detention was unlawful.
The Minister (then under the Morrison Government) appealed to the Full Court of the Federal Court, and the appeal was removed to the High Court. On appeal, the Minister argued, in part, that Love was wrongly decided and, accordingly, that the detaining officer did not need to hold any suspicion as to whether or not Mr Montgomery was Aboriginal.
The appeal was argued over two days in April 2022. The High Court reserved its decision and, in the usual course, could have been expected to deliver that decision in the second half of the year. In the interim, however, the Albanese Labor Government was elected and, on 28 July 2022, the new Minister discontinued the appeal in the High Court after revoking the original decision to cancel Mr Montgomery’s visa.
Politics and policy
The most obvious immediate explanation for the decision to restore Mr Montgomery’s visa and the resulting discontinuance of the appeal is the change in government. It is to be expected that a new government will have different administrative decision-making policies to its predecessor. For example, the Labor government’s widely publicised decision to end the Nadesalingam family’s detention, send them back home to Biloela and grant them permanent visas, demonstrates the executive’s broad discretion with respect to immigration matters. A change in discretion may be especially pronounced where a particular issue has been politicised by a previous government, prompting reversal of the strategy by the new government.
Similarly, a new government may not wish to defend in court decisions that were made under the previous government’s policies (with which the new government may disagree). That is especially so in the immigration context, where discretionary decisions as to whether an individual should have their visa restored are usually determined according to directions issued by the responsible Minister (which regularly change as government policies change). In the present case, the new Minister (Andrew Giles) took a different view to his predecessor (Peter Dutton) and determined that Mr Montgomery ought have his visa back (although both decisions were made through a delegate). It is unsurprising, then, that the Minister and the government were not particularly interested in pursuing an appeal aimed at defending the previous government’s decision.
Whether or not such changes in approach to individual decisions (and resulting changes in litigation position) politicise the Court in the eyes of the public is debateable, but we accept that it ought to remain an important consideration. For reasons that others have elaborated on, preventing perceptions of politicisation might in fact weigh in favour of the discontinuance in Montgomery, because the Morrison government’s initial appeal could have been perceived as leveraging its recent appointments to the Court.
Politicians should not politicise the courts, but Ministers are entitled to make administrative decisions within the full scope of the discretion granted to them by their statutory (or non-statutory) powers. Where these decisions are often guided by the government of the day’s policies, these decisions and the ensuing approach taken in the courts to defending such decisions may appear political. However, as we explain, there is nothing inherently undesirable about government decisions to change litigation position, so long as such decisions remain carefully considered, institutionally justifiable and relatively rare.
Government changes in litigation position
It has historically been rare for the federal government to change its position in a case before the courts. That is especially so when the change of position concerns issues of constitutional law. On these issues, it can generally be expected that the government, with all the accrued institutional knowledge of the Attorney-General’s Department and the advice of the Solicitor-General, will adhere to positions (recorded in ‘Commonwealth constitutional policy’) which have been carefully considered and arrived at in contemplation of their system-wide implications.
However on thorny, unusual or rarely litigated constitutional issues, the government’s position is not always so clear. In these areas, changes of position are not unprecedented. In 2020, the Morrison government changed its position in respect of the constitutional validity of Western Australia’s border restrictions. Initially, the government intervened in support of Mr Palmer’s challenge to the law, but later withdrew from the case in the Federal Court, and did not intervene when it reached the High Court. This reversal can probably be viewed as motivated at least in part by political considerations, because the Commonwealth withdrew despite continuing to maintain that the border closure was ‘likely unconstitutional’.
The Albanese government’s discontinuance in Montgomery is, however, different in two respects. By discontinuing the appeal, the Albanese government did not take a positive position on the correctness of Love and the constitutional issue of Aboriginal ‘aliens’. That would have been a true change in position. Instead, the government’s discontinuance appears to have been based on two institutional or systemic considerations. The government appeared to be animated in part by the law’s hostility to hypothetical questions, that is, ‘questions of law which, because they have been overtaken by events, have become of academic interest only’, as the discontinuance came after the restoration of Mr Montgomery's visa, which deprived the appeal of any immediate effect. The discontinuance was also publicly justified by reference to concerns about stability in the law and stare decisis, with a spokesperson for the government saying that Love has now been the ‘law of the land for over two years’ (but not making any comment on its correctness).
Implications for constitutional recognition
It might just be coincidence that the day after the Albanese government discontinued the appeal in Montgomery, the Prime Minister released draft proposed wording of the constitutional change to enshrine a First Nations Voice. However, it could also have been sensible political strategy.
The Montgomery decision, like the Love decision, was bound to prompt division and polarisation, at least insofar as the judgment was likely to be received by some segments of the media and the commentariat. In the wake of Love, for example, some legal scholars and commentators accused the High Court of judicial activism, suggesting that any constitutional change would encourage the Court to undertake further unauthorised creativity. So heated was the debate after Love that the Australian Bar Council made a statement calling for more respectful debate. It is likely that any judgment in Montgomery would have prompted further clashes in the culture war.
The irony is that one of the greatest benefits of a constitutionally guaranteed First Nations Voice is the proposed non-justiciability of the constitutional amendment. This means Parliament retains authority over all questions about the design and institutional evolution of the Voice, and no laws could be invalidated for failure of Parliament or the Executive to comply with advice received. As one of us has argued before, ‘a First Nations constitutional voice is the only proposal for Indigenous constitutional recognition that answers concerns about judicial activism, because it is the only proposal specifically designed to uphold parliamentary supremacy and eliminate High Court uncertainty, through non-justiciability.’ As the Referendum Council made clear, the proposal for a First Nations Voice is deliberately intended to avoid uncertain judicial adjudication of policy questions involving Aboriginal and Torres Strait Islander people. It respects parliamentary supremacy. Its approach is to move sensitive and contentious issues out of the courts and into the political arena, while ensuring Aboriginal and Torres Strait Islander peoples get a fairer voice in the making of laws and policies with respect to their affairs.
Notably, the dissenters in Love including Justices Gageler and Keane gestured to the ‘national conversation’ about a constitutionally guaranteed First Nations Voice precisely because they viewed political processes as the best place to resolve the complex issues of Indigenous policy raised by the case. This is consistent with the fact that Aboriginal and Torres Strait Islander communities themselves, rather than an all-white High Court, are best positioned to make policy decisions about their affairs in partnership with Government. It also acknowledges that Courts cannot unilaterally reset the political power relationship between Indigenous peoples and the Australian state: that requires structural and constitutional reform, which is why the Uluru Statement asks for a constitutionally guaranteed Voice. And in any case, High Court rulings in such complex areas will usually raise more questions than they resolve, which will in turn require policy action. Such policy action should occur in true partnership with Aboriginal and Torres Strait Islander peoples.
Conclusion
We would not want to leave this subject without saying something about the people whose lives will be most immediately affected by the government’s decision to discontinue the appeal in Montgomery. Most obviously, Mr Montgomery will no longer be at risk of being confined in immigration detention. Twelve other Aboriginal people are reportedly to be released from immigration detention, if they have not been already. These people will be reunited with their families, the Aboriginal and Torres Strait Islander communities of which they are part, and the broader Australian political community, to which Love held that they belong. Our decision not to focus here on these ‘human consequences’ – to use a phrase from migration authorities –is not to minimise their significance.
We want to finish by emphasising that there are concrete policy actions the government can take to proactively prevent the recurrence of confusing situations in which Indigenous non-citizens find themselves vulnerable to deportation. Government should incentivise and encourage Aboriginal and Torres Strait Islander non-citizens to become citizens, if they wish. Policies to make it easier for them to do so include discounting or waiving citizenship application fees for Indigenous people, fast-tracking their applications, and providing tailored support for application processes. The High Court has made clear that Aboriginal and Torres Strait Islander non-citizens ‘belong’ to this continent, to use Edelman J’s language in Love. This decision should be respected. Policy can now be adjusted to prevent Aboriginal and Torres Strait Islander people from facing threats of deportation, avoiding the need for expensive, slow and divisive litigation.
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Julian R Murphy is a Barrister at the Victorian Bar and a PhD candidate at Melbourne Law School.
Shireen Morris is Director of the Radical Centre Reform Lab and a senior lecturer at Macquarie University Law School.
Suggested citation: Julian R Murphy and Shireen Morris, ‘Changes in policy (and politics), not politicisation – The federal government’s decision not to pursue the appeal in Montgomery’ on AUSPUBLAW (16 August 2022) <https://www.auspublaw.org/blog/2022/08/changes-in-policy-and-politics-not-politicisation>