Posted 05/07/2022 by Leah Ferris
On 8 June 2022, the majority of the High Court of Australia invalidated the ability of the Minister of Home Affairs under the Australian Citizenship Act 2007 to determine that a dual national who has engaged in terrorism-related conduct is no longer an Australian citizen.
This decision will have significant implications for the Government’s ability to revoke the citizenship of dual nationals who are alleged to have engaged in terrorism-related conduct but have not actually been convicted of an offence.
Cessation of citizenship on terrorism-related grounds
Provisions allowing for the termination of citizenship on terrorism-related grounds were first introduced into the Australian Citizenship Act by the Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (the 2015 Act). Following a review conducted by the Independent National Security Legislation Monitor (INSLM) of these provisions, the then Morrison Government, with the support of the Opposition, passed the Australian Citizenship Amendment (Citizenship Cessation) Act 2020 (Citizenship Cessation Act).
The key amendments contained in the Citizenship Cessation Act aimed to replace ‘the current operation of law model, whereby a person automatically ceases their Australian citizenship through their conduct, with a Ministerial decision-making model’ (Attachment A, page 1).
Sections 36B and 36D of the Australian Citizenship Act provide the Minister with two ways to make a determination (which can only be made with respect to dual citizens) that a person ceases to be an Australian if:
- the person has been convicted of certain terrorist-related offences and sentenced to at least 3 years total imprisonment (paragraphs 36D(1)(a) and (b)) or
- the Minister is satisfied that the person has engaged in certain specified terrorist-related conduct (paragraph 36B(1)(a)) and
in either case the Minister is satisfied that the conduct demonstrates a repudiation of their allegiance to Australia and it would be contrary to the public interest for the person to remain an Australian citizen (paragraphs 36B(1)(b) and (c) and 36D(1)(c) and (d)).
Importantly, under section 36D the power of the Minister to make such a determination is triggered by the conviction of the person by a court in Australia, whereas under section 36B the power is triggered by the Minister being satisfied that the person engaged in certain conduct, rather than by the conviction of the person by a court in Australia.
The High Court’s ruling
In July 2021, the then Minister for Home Affairs, Karen Andrews, made a determination pursuant to section 36B that Delil Alexander, a dual Turkish-Australian citizen who is currently imprisoned in Syria, ceased to be an Australian citizen. The determination stated that ‘the Minister was satisfied that: Mr Alexander had engaged in foreign incursions while outside Australia, which demonstrated a repudiation of his allegiance to Australia; that it would be contrary to the public interest for Mr Alexander to remain an Australian citizen; and that Mr Alexander would not become stateless by reason of the determination’ [para 15].
Mr Alexander (by way of his sister acting as his litigation guardian) challenged the validity of the determination on a number of grounds, including that it was contrary to Chapter III of the Constitution for conferring upon the Minister ‘the exclusive judicial function of adjudging and punishing criminal guilt’. Chapter III of the Constitution provides that the judicial power of the Commonwealth will be vested in the courts, as opposed to the executive branch of the Commonwealth
In considering whether section 36B constituted an exercise of judicial power, Justices Kiefel, Keane and Gleeson compared its operation with section 36D of the Australian Citizenship Act. They noted that the Minister’s power under section 36D can only be exercised ‘in relation to a person who has been convicted and sentenced of an offence or offences by a court’ [para 86]. In contrast, the Minister's discretion under section 36B ‘arises upon the Minister him or herself being satisfied that the conduct elements of the offence have occurred’[para 86].
They concluded that ‘the power [contained in section 36B] to determine the facts which enliven the power to impose such a punishment is one which, in accordance with Ch III of the Constitution, is exercisable exclusively by a court that is a part of the federal judicature’ [para 96]. In separate judgements, Justices Gageler, Gordon and Edelman also concluded that section 36B was invalid as a law that purports to confer exclusively judicial power upon the Executive, with only Justice Steward ruling in favour of the Government.
Previous concerns about the Constitutional validity of section 36B
Concerns were previously raised by legal academics about the constitutional validity of the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 (which became the 2015 Act), including ‘that parts of the Bill may lack the support of a constitutional head of power, potentially falling outside the scope of the ‘aliens’ power under section 51(xix) of the Constitution, and may constitute a vesting of judicial power in the Executive, in breach of the separation of powers’ (pages 38-39).
As part of his review, the INSLM considered whether the provisions in the 2015 Act raised any constitutional issues, stating that he did not consider there to be ‘any significant constitutional defects’ in the current legislation or in relation to his recommendations [pages 16–20].
However, this did not prevent the Immigration Advice and Rights Centre and the Law Council of Australia from raising concerns about the proposed operation of section 36B in their submissions to the Parliamentary Joint Committee on Intelligence and Security’s (PJCIS) inquiry into the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019.
In their additional comments, Labor members of the PCJIS stated:
The debate about whether the citizenship cessation provisions are constitutional obviously can not be resolved by this Committee. Labor members note that the Government has provided assurances to the Committee, and the Australian people, that the existing citizenship cessation provisions are on a strong constitutional footing. The worth of those assurances will ultimately be determined by the High Court.
Ramifications of the decision
The new Albanese Government has already responded to the decision, stating: ‘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’.
Section 10 of the Counter-Terrorism (Temporary Exclusion Orders) Act 2019 allows the Minister to make a Temporary Exclusion Order which may prevent an Australian citizen aged 14 years or older who is overseas from returning to Australia for up to two years at a time. According to the High Court’s judgement, Mr Alexander has previously been the subject of such an order [para 12].
It is unclear how many people will have been directly affected by the decision. In May 2022, the Coalition stated that ‘To date, under the Coalition’s citizenship cancellation laws, 22 dual nationals have ceased to hold Australian citizenship as a result of their engagement in terrorist conduct’.
Subsection 17(2) of the Citizenship Cessation Act provides that, in relation to citizenship that ceased under sections 33AA or 35 of the Australian Citizenship Act as in force before commencement (that is, the provisions introduced by the 2015 Act that provided for renunciation of citizenship by conduct and for cessation of citizenship due to service outside Australia in armed forces of an enemy country or a declared terrorist organisation) ‘the amended Act applies as if the designated non‑citizen determination had been made under subsection 36B(1) of the amended Act’. The Explanatory Memorandum to the Citizenship Cessation Act states that subsection 17(2) ‘makes it clear that after commencement, the amended Citizenship Act will apply to such a person as if a determination had been made under the provisions of this Act’ (para 276). This raises questions as to whether any determinations to cancel a person’s citizenship based on the pre-existing renunciation and cessation provisions in the 2015 Act would also be invalidated by the High Court’s decision.
In preparing this Flagpost, the author has relied on previous analysis prepared by Claire Petrie and Cat Barker.