High Court finds citizenship-stripping provision invalid
Alexander v Minister for Home Affairs [2022] HCA 19
Summary
The High Court found that a citizenship-stripping provision in the Australian Citizenship Act 2007 (Cth) was invalid.
Section 36B of the Act provided that the Minister may determine that a person ceased to be an Australian citizen if the Minister was satisfied that the person engaged in specified conduct which demonstrated that the person had repudiated their allegiance to Australia; and it would have been contrary to the public interest for the person to remain an Australian citizen. It specified that the Minister must not make a determination if that would have resulted in the person not being a national or citizen of any country. Relevant to this case, one of the classes of specified conduct was engaging in foreign incursions and recruitment. The expression "foreign incursions and recruitment" had the same meaning as in s 119.2 of the Criminal Code (Cth) (which makes it an offence for an Australian citizen to enter, or remain in, a declared area in a foreign country), but did not include the fault elements required to establish that offence. It could also be applied retrospectively to conduct engaged in prior to its enactment.
The High Court determined that s 36B of the Act conferred upon the Minister exclusively the judicial function of adjudging and punishing criminal guilt, contrary to Ch III of Australian Constitution. For this reason, the plaintiff was declared to remain an Australian citizen despite the Minister’s determination under s 36B of the Act that the plaintiff had ceased to be an Australian citizen because the Minister was satisfied that he engaged in a foreign incursion, having allegedly joined the Islamic State and entered the Al-Raqqa Province in Syria.
Facts
Mr Alexander was born in Australia and held both Australian and Turkish citizenship. He left Australia for Turkey in 2013, then travelled to Syria, where he was married. His movements after that time and their purpose were not the subject of agreed facts. At the time of the judgment, he was in prison in Syria, despite having been pardoned by the President of Syria, in part because the Minister had determined he was no longer an Australian citizen.
The following are the brief facts:
ASIO reported that it was "likely" that Mr Alexander had joined ISIL (designated in the Criminal Code (Cth) (under various names) as a terrorist organisation) by August 2013, and that he had "likely engaged" in foreign incursions and recruitment by entering or remaining in al-Raqqa Province in Syria on or after 5 December 2014. In November 2017, Mr Alexander was apprehended by Kurdish militia in the village of Ziban in Deir El-Zour Province in Syria (which was not a declared area).
In March 2018, he was transferred to the custody of Syrian authorities and was subsequently charged by Syrian prosecutors with offences against the Syrian Penal Code. On 31 January 2019, Mr Alexander was convicted and sentenced by a Syrian court to a term of imprisonment for 15 years – subsequently reduced to five – on the strength of admissions he had made during an interrogation (he submits these were made under duress).
Mr Alexander was pardoned and his term of imprisonment expired. He remained in detention for a number of reasons, including that he could not be released into the Syrian community, nor be repatriated to Turkey or Australia.
The detention of prisoners in government-controlled prisons in Syria has been associated with serious human rights violations, including torture.
On 2 July 2021, the Minister determined, pursuant to s 36B(1) of the Act, that Mr Alexander ceased to be an Australian citizen. The Minister gave no statement of reasons for the determination (nor was the Minister required to do so).
Mr Alexander claimed that, according to his Syrian lawyer, the fact that he was no longer an Australian citizen was a reason for his continuing detention.
The Plaintiff’s arguments
Mr Alexander argued that s 51(xix) of the Constitution, which empowers the Commonwealth Parliament to make laws with respect to “naturalisation and aliens”, did not support s 36B in its application to him, because once a person attains the status of an Australian citizen, Parliament cannot rely on that power to make a law affecting a non-alien to turn them into an alien. Further, he argued that it could not support the retroactive operation of s 36B.
He also argued that s 36B(5)(h) was invalid, as it did not require an intention to engage in the conduct element of the offence against s 119.2 of the Criminal Code (Cth), and the conduct was by itself not objectively capable of constituting repudiation of the allegiance owed by a citizen to Australia.
Mr Alexander argued that s 36B offended the doctrine of separation of powers, as the Minister was given the power to adjudge and punish criminal conduct, which should be exercised only by the judiciary, subject to exceptions to the principle, in accordance with Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1. Involuntary denaturalisation was properly regarded as a punishment. (The defendants submitted that the rule in Lim does not apply to laws that do not impose detention in custody).
Decision
Section 51 (xix) of the Constitution, which empowers the Commonwealth Parliament to make laws with respect to “naturalisation and aliens”, left it open to the Parliament to make laws allowing for the withdrawal of citizenship from a person. The retrospective operation of those laws did not fall outside this power.
The purpose of s 36B was to give the Minister the power to strip Australian citizenship from a dual citizen if they engaged in specified conduct which demonstrated that the person had repudiated their allegiance to Australia; and it would have been contrary to the public interest for the person to remain an Australian citizen. This effectively excludes them from being at liberty in the Australian community, except in the unlikely circumstance of then being granted a visa.
Lim established (at 27) that "the adjudgment and punishment of criminal guilt under a law of the Commonwealth" was the most important of the "functions which, by reason of their nature or because of historical considerations, have become established as essentially and exclusively judicial in character". There were some exceptions which may allow for involuntary detention, such as in cases of mental illness or infectious disease, where the primary purpose is non-punitive.
Exile had long been understood and was properly characterised as a punishment.
Allocating to the Minister alone the power to adjudge and punish criminal conduct with denaturalisation amounted to allocating to the Executive an exclusively judicial function, which was contrary to Chapter III of the Constitution.
The fact that the punishment did not include the imposition of a detention in custody did not take it outside the realm of an exclusively judicial function, nor did the availability of judicial review of the Minister’s decision.
Nor was the principal purpose of the provision the protection of the Australian community, so as to qualify the power conferred as an exception to the principle in Lim.
Therefore, Mr Alexander remained an Australian citizen.
Commentary
This decision is of significance because it recognises that the exile of a citizen is a punitive action that has serious consequences for the individual involved. The High Court determined that s 36B was invalid because it involved the exercise by the Minister judicial power of the Commonwealth, which is exercisable exclusively by a court that is part of the federal judicature, with the safeguards that such entails.
The full case can be read here.
Tanya Smart is a partner at Hall & Wilcox.