Attorney-General of the Commonwealth v Montgomery & Ors

The High Court of Australia heard an application by the Attorney-General of the Commonwealth to remove certain constitutional questions concerning the detention of Mr Shayne Paul Montgomery from the Federal Court to the High Court. The dispute centred on whether section 189 of the Migration Act 1958 (Cth) mandates the detention of Mr Montgomery, who is an unlawful non-citizen. The Commonwealth sought to resolve this constitutional question promptly, arguing that its statutory duty to detain Mr Montgomery would be undermined if the question remained unresolved for an extended period, potentially pending the outcome of separate administrative law proceedings in the Federal Court.

The primary legal issue before the High Court was the constitutional validity of Mr Montgomery's detention under section 189 of the Migration Act, specifically in light of the High Court's decisions in *Love* and *Thoms*. The court was also required to consider whether a non-constitutional habeas corpus issue, relating to the reasonable suspicion of the detaining officer, should be determined by the Federal Court or removed to the High Court. The parties debated the appropriate sequencing of submissions and the practicalities of listing the matter for hearing, given the High Court's existing caseload and the ongoing proceedings in the Federal Court.

The High Court acknowledged the complexity of the issues, including the potential for both constitutional and non-constitutional grounds to be raised in relation to Mr Montgomery's detention. The court noted that while the Federal Court proceedings concerned the validity of a non-revocation decision regarding Mr Montgomery's visa, the ultimate question of his detention under section 189 was distinct and could be determined independently. The court ultimately decided to make orders for the removal of the constitutional aspects of the habeas corpus application to the High Court, with a view to hearing the matter in the new year, and to allow the Federal Court to proceed with the non-constitutional aspects of the case. The court also made directions regarding the filing of submissions and the order in which parties would be heard.