By Paul Gregoire and Ugur Nedim
The High Court determined last week that Abbott-era powers that permit dual citizens to be stripped of their Australian citizenship, if suspected of engaging in terrorism activity overseas, are unconstitutional.
The citizenship laws were initially drafted by then immigration minister Peter Dutton in 2015 and subsequently amended by him in 2020, whilst he held the home affairs portfolio.
Brought by the plaintiff’s sister, the recent case involved Australian-born Delil Alexander having his citizenship revoked by then home affairs minister Karen Andrews on 2 July last year, which left the 35-year-old man with the Turkish citizenship he’d inherited at birth.
Alexander travelled to Turkey in April 2013 and crossed the border into Syria to marry his wife as he’d planned.
However, in June that year, ASIO reported that his passage had been arranged by a Sydney-based recruiter for Islamic State, a listed terrorist organisation, and he’d “likely engaged” in foreign incursions.
The domestic spying agency also determined that Alexander entered Syria’s al-Raqqa province in late 2014. The Australian was taken subsequently captured by Kurdish militia in 2017, which led to Syrian authorities charging him with crimes against the nation and placing him on remand.
In January 2019, Alexander was sentenced to 15 years imprisonment. His sister claims he was tortured into confessing to unknown crimes. And she filed to appeal the Andrews decision as her brother was then stuck in Syrian custody after being pardoned and denied repatriation to Turkey.
Appealing cancellation
Alexander had his local passport cancelled in late 2013. In mid-2020, he was placed on a temporary exclusion order barring re-entry until last January, while ASIO conducted a Qualified Security Assessment, which found he’d likely engaged in terrorism, which led to his citizenship cancellation.
Section 36B of the Australian Citizenship Act 2007 (Cth) (the Act) permits the citizenship of an individual over 14 to be cancelled if they’ve engaged in terrorist activity overseas that demonstrates that they’ve “repudiated their allegiance to Australia”, without conviction, if in the public interest.
Heard in February this year, the appeal saw Alexander’s lawyers argue that section 51(xix) of the Australian Constitution permits parliament to make laws in regard to “naturalisation and aliens”, however this doesn’t extend to an individual who became a citizen at birth.
The plaintiff’s second contention was that section 36B permits the minister “to adjudge and punish criminal conduct by involuntary denaturalisation”, and the power to sanction in this way is confined to the judiciary under chapter 3 of the Constitution, so, therefore, it’s not open to the executive.
Enhancing terrorism machinery
As the Islamic State was rising in 2014, the Abbott government unleashed a new round of terrorism law-making with three key bills that involved bolstering ASIO and law enforcement, sanctioning foreign fighters, which are citizens who join foreign conflicts, and establishing the metadata regime.
Conceived by then immigration minister Dutton, the cancellation law were first flagged by former PM Tony Abbott at a cabinet meeting in mid-2015, with a number of ministers initially rejecting it, as, at first, it had sought to also permit citizenship cancellation for those without dual nationality.
The Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 was passed in the wake of an assessment of the nation’s terrorism machinery, which found foreign fighters were increasing, along with known extremist sympathisers and this saw potential for terrorist numbers to rise.
The legislation overhauled division 3 of the Act, to provide that citizenship be automatically revoked in cases where, as Dutton put it at the time, “citizens may, through certain conduct… demonstrate that they have severed that bond and renounced their allegiance to Australia”.
Via the Australian Citizenship Amendment (Citizenship Cessation) Bill 2020, Dutton further amended the regime, via the insertion of section 36B, so that citizenships were no longer automatically cancelled due to terrorist activity, but rather it was at the home affairs minister’s discretion.
Punishment is a judicial power
The High Court of Australia released its final findings last Wednesday. In terms of whether the cancellation of Alexander’s citizenship breached section 51(xix) of the Australian Constitution, the majority of the court found it did not.
Chief Justice Susan Kiefel and Justices Patrick Keane and Jacqueline Gleeson determined that parliament is open to “create a status of citizenship that allows for the exclusion of persons from membership of the body politic” if their conduct is “inimical” to the national interest.
However, as to whether section 36B violates chapter 3 of the Constitution, the majority found that it does, as the power to deprive a person of their ability “to enter and live at liberty in Australia”, is a punitive measure that should be imposed by a judge.
“The power to determine the facts which enliven the power to impose such a punishment is one which, in accordance with chapter 3 of the Constitution,” the three aforementioned justices found, “is exercisable exclusively by a court that is a part of the federal judicature.”
Justices Stephen Gageler, Michelle Gordon and James Edelman agreed with the overall finding, which left Justice Simon Steward to be the only dissenter, as he found that the power of denationalisation in section 36B doesn’t involve the executive exercising the power of the judiciary.
On 8 June 2022, the High Court ordered that Alexander’s citizenship be restored and that the home affairs minister pay court costs.
From the new government
In response to the Alexander decision, newly appointed attorney general Mark Dreyfus and home affairs minister Clare O’Neil released a joint statement, in which they outlined they’d be reviewing the implications of the decision.
“It is important to note that there is no threat to Australia as a result of today’s decision,” the ministers from the new Albanese government assured.
“The Australian government has a range of measures available to manage the risk posed to Australians by individuals offshore, including the temporary exclusion order regime, which can prohibit an individual returning to Australia for up to two years,” added Dreyfus and O’Neil.
Image: Peter Dutton at the 2018 Sub-Regional Meeting on Counter Terrorism in Indonesia by Australian Embassy Jakarta is licensed under CC BY 2.0
I am born Australian and made alien whilst living in Australia having never emigrated or naturalized anywhere. [2022]FCAFC81 had to answer, without reference to citizenship law, what lawful authority makes Australians alien? Instead of finding Constitution s51 holds no lawful power to make Australians alien, court relied on an earlier decision [2013] FCA 617 where AAT was found to have made the decision under review on 5Dec12 by seeing a document dated 16May13.
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