In the case of Love v Commonwealth; Thoms v Commonwealth, decided in February 2020, the High Court of Australia determined that Aboriginal Australians cannot be classified as “aliens” under s51 (xix) of the constitution.

In proceedings brought earlier this year, the Morrison government sought to challenge the court’s decision in Love; Thoms in a matter concerning New Zealand-born Shayne Montgomery, who was adopted as a teenager into a Mununjali family following a period of homelessness.

Four years ago, Mr Montgomery — who has five Australian children — was convicted of non-violent aggravated burglary and was incarcerated, during which time it came to light that he was not an Australian citizen. His visa was cancelled by Immigration, and, following his release from prison, he was taken into immigration detention. 

In 2021, the Federal Court found in favour of Mr Montgomery, who challenged his visa cancellation and ongoing detention, and he was released from immigration detention. He is recognised by elders as a Mununjali man.

Now, A-G Dreyfus has dropped the case that was brought by the former government, with the High Court having granted leave to the Albanese government to withdraw the case.

As reported by ABC, a spokesperson for the A-G said: “Love; Thoms has been the law of the land for more than two years now, and the Albanese government will not seek to overturn [it].”

The High Court had heard arguments in the case in April, but had not yet made a decision.

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Mr Montgomery, whose visa has been reinstated, is now able to live safely with his family and community, said Sydney and Melbourne-based firm Russell Kennedy Lawyers.

“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,” the firm proclaimed.

‘Self-determination is a fundamental right’

Mr Montgomery was represented in the matter by Russell Kennedy, which said in a statement that it is “relieved” that Mr Montgomery’s future with his family, children and community is secure.

Russell Kennedy pro bono special counsel Arti Chetty said that Mr Montgomery had 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,” she said.

“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,” she outlined.

“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.”

The firm is pleased, Ms Chetty went on, 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,” she advised.

“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.”