Sydney barrister Perry Herzfeld, SC, acting for Lambourne, told the court the circumstances of the case were “extraordinary” and officials attempted to deport Lambourne on Thursday on a Fiji Airways flight, triggering a standoff between the airline and the government. The airline took the view that it would not board Lambourne without his consent from him in light of the court order on Thursday.
“The government then took the position that if Fiji Airways didn’t board him, the aircraft wouldn’t be permitted to leave at all,” Herzfeld said. The flight eventually departed without Lambourne on board, but he was escorted by police to a hotel where he was detained.
“We now understand that the government has, despite this court’s order, continued to try to arrange Justice Lambourne’s deportation, this time via a Solomon Islands flight scheduled for over the weekend,” Herzfeld said.
The court heard that President Taneti Maamau, acting as immigration minister, made a second deportation order after the court’s orders on Thursday on the grounds that Lambourne had been “declared a threat or risk to security”.
Monoo Mweretaka, Kiribati’s Deputy Solicitor-General, appeared in court on behalf of the Attorney-General and was grilled about why Lambourne was declared a security risk.
Court of Appeal Justice Peter Blanchard, a former New Zealand judge, said: “Might I say that what you are doing to Mr Lambourne has more potential to adversely affect Kiribati’s international wellbeing, judging by what I’m reading in international papers, than anything Mr Lambourne’s done.
“Nothing you’ve said so far comes close to convincing me that the government has got a case here. You may be able to produce one by next Friday.”
Asked why Lambourne could not reside at his home until the hearing next Friday, the Deputy Solicitor-General said: “You have to understand that Mr Lambourne’s wife is the leader of the Opposition, and there are supporters that always come to the house.
“We believe that once we put Mr Lambourne in the house, there would be something… going [to] happen.”
Blanchard replied: “So, the government’s motivation is, in fact, political?”
“No, no, no,” Mweretaka replied.
“Why did you mention the fact that his wife was leader of the Opposition?” Blanchard said.
Mweretaka said that “people always come to the house, so we don’t want any problem”. He alleged Lambourne was also breaching a recent visitor visa condition by working in Kiribati. Herzfeld said the allegations made against his client were “not accepted”.
The Court of Appeal – Blanchard, Rodney Hansen and Paul Heath – ordered on Friday that Lambourne be released on bail on the conditions that he resides at home and not visit the courthouse at Betio before next week’s hearing.
The court said it was “reasonably arguable” that any deportation under existing orders issued by the government would be unlawful, an issue that will be determined finally after next week’s hearing.
The court made clear that its previous order preventing Lambourne’s immediate deportation applied to the most recent deportation order. However, it is not clear whether the government will attempt to deport Lambourne over the weekend in defiance of that order.
The Attorney-General suspended David Lambourne as a judge in May, citing unspecified misconduct grounds.
The High Court presently is not functioning in Kiribati after the government also suspended the nation’s chief justice, distinguished New Zealand judge William Hastings, in late June. Hastings was due to hear a legal challenge by Lambourne to his suspension of him.
The government had previously sought to stop Lambourne re-entering the country from Australia but he returned this month on a visitor visa.
The Court of Appeal noted in its judgment on Friday that the Kiribati President attempted on Thursday to “recall, vacate and nullify” Lambourne’s appointment in 2018 as a High Court judge and to reappoint him for a term that expired on June 30 last year. The court said it doubted whether this was a valid use of specific power in the Constitution.
A Department of Foreign Affairs and Trade spokesperson said the government was “aware that suspended High Court Judge David Lambourne was served with a deportation order on 11 August and asked to leave Kiribati.
“DFAT is in direct contact with Mr Lambourne and officials from the High Commission in Tarawa are providing consular assistance. Due to our privacy obligations we cannot disclose further details.
“Our High Commission in Kiribati is continuing to monitor the situation closely and has sought further information from the government of Kiribati.
“The broader issues between the Government of Kiribati and its judiciary are matters for the government of Kiribati to resolve, consistent with its constitutional and legal processes.”
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