High Court reaches decision in Alexander v Minister for Home Affairs [2022] HCA 19
On 23 April 2021, the High Court of Australia was asked to determine whether the Minister for Home Affairs (‘the Minister’) could legally make a determination that someone’s Australian citizenship had ceased.
In Alexander v Minister for Home Affairs [2022] HCA 19 (‘the Alexander case’), the High Court considered section 36B of the Australian Citizenship Act 2007 (Cth) (‘the Citizenship Act’). This section theoretically gave the Minister in specific circumstances the power to determine that a person’s Australian citizenship had ceased.
On 8 June 2022, the High Court reached its verdict: there is to be no cancelling of Australia citizenship (for now).
Background to the Australian Citizenship aspects of the Alexander case
According to the then-Minister for Home Affairs Mr Peter Dutton, 230 Australians went overseas to fight with ISIS or other terrorists groups between 2012 – 2019. Delil Alexander was (according to ASIO) one of these Australian citizens planning to fly overseas to support ISIS.
Born in Australia with dual Australian-Turkish citizenship, Mr Alexander was accused of joining ISIS in 2013. He was arrested and imprisoned by the Syrian government on terrorism offences in 2018, which he alleges were based on evidence procured by torture. While Alexander was pardoned under Syrian law, he remains in indefinite detention: he has no lawful right to be in Syria, his citizenship in Turkey is under a different name, and on 2 July 2021, the Minister made a determination under section 36B of the Citizenship Act that his Australian citizenship had ceased.
The Law relevant to Australian Citizenship in the Alexander case
Section 36B of the Citizenship Act gives the Minister power to cancel Australian citizenship ‘for certain conduct’. This conduct must be of an extremely serious nature as outlined in subsection 36B(5) which mostly relates to supporting terrorism, that the conduct has meant that the person has ‘repudiated their allegiance to Australia’, and that it would be ‘contrary to the public interest’ for the person to remain an Australian citizen. Finally, under section 36B the Minister is not allowed to make the determination if that person would become stateless.
According to the High Court proceedings, the Minister was satisfied that Alexander had ‘engaged in foreign incursions while outside Australia’, meeting the requirement of subsection 36B(5)(h). The Minister also found that Alexander had ‘demonstrated a repudiation of his allegiance to Australia’ and that it ‘would be contrary to the public interest for Mr Alexander to remain an Australian citizen’.
On 2 July 2021, the Minister for Home Affairs determined that Delil Alexander satisfied these requirements and made a determination that his Australian citizenship had ceased.
Mr Alexander then commenced proceedings in the original jurisdiction of the High Court seeking, among other things, declarations that section 36B of the Citizenship Act is invalid, that is unconstitutional under section 51(xix) of the Australian Constitution, and that he is an Australian citizen.
The Findings on Australian Citizenship in the Alexander case
In a judgement dated 8 June 2022, the High Court determined that section 36B of the Australian Citizenship Act 2007 (Cth) is invalid, and that Alexander remains an Australian citizen.
The first issue raised on Alexander’s behalf was that terminating his Australian citizenship was ‘unconstitutional’.
The section of the Australian Constitution that supports the Minister’s powers in relation to Australian citizenship is section 51(xix), which states that Parliament has the power to make laws with respect to ‘naturalization and aliens’.
In his submissions, Alexander argued that this power could not be used against him; since he was an Australian citizen at birth, he couldn’t be regarded as an ‘alien’ afterwards.
The High Court rejected this argument, relying on various legal precedents that found that the Parliament has the power to ‘create and define the concept of Australian citizenship’, as well as the power to determine who is and is not an ‘alien’.
The other issue raised was that section 36B ‘reposes in the Minister for Home Affairs the exclusively judicial function of punishing criminal guilt’. In his submissions, Alexander argued that removing Australian citizenship amounted to ‘punishment.’
The Minister argued that while he accepted that judging and punishing criminal guilt is ‘exclusively judicial’, laws that do not impose detention do not necessarily meet this threshold.
The High Court rejected the Minister’s argument that Alexander was not receiving ‘punishment’, agreeing with Alexander that stripping him of his Australian citizenship was a punishment of criminal guilt and because of that the Minister did not have the right to make a determination that his Australian citizenship had ceased.
To summarise then: the majority of the High Court agreed that, while section 36B is supported under section 51(xix) of the Constitution, section 36B gives the Minister the invalid power of the ‘exclusively judicial function of punishing criminal guilt’.
What this means is that the Minister cannot have the power of personally punishing criminal guilt; that power only exists within the Courts (i.e. the Judiciary). By making a determination that Alexander’s Australian citizenship had ceased, the Minister had both judged Alexander’s criminal guilt (in joining a terrorist organisation), and then punished it (by causing his Australian citizenship to cease).
Conclusion – Australian Citizenship and the Alexander case
Alexander is now, once again, an Australian citizen, with the majority of the High Court also finding that the Department of Home Affairs will need to pay his legal costs. However, the reasoning provided by the High Court does leave the door open to future legislation that would allow the cancellation of Australian citizenship.
The reason the High Court found against the Minister was that the law was giving judicial power to the Executive (i.e. to a Government Minister instead of to the Courts).
However, the High Court also found that such a law would theoretically be allowed under section 51(xix) of the Constitution. The distinction between that theorised law and the current law is who gets to evaluate and then punish criminal behaviour.
If this power was given to the Courts, as opposed to the Minister, then the High Court may well find it legal. The joint statement released by the new Attorney-General and Minister for Home Affairs leaves the future of this legislation unclear, noting that the Australian Government will ‘examine the judgment and its implications in detail’.
Australian Citizenship and Immigration law is constantly changing. Get the right advice now!
As the Alexander case shows, Australian citizenship and immigration law is complex and constantly evolving.
Craddock Murray Neumann’s Immigration lawyers can give you the right advice on Australian citizenship or any other immigration matter, and the confidence to know that you are in the right hands when it comes to your Australian citizenship and immigration matters.
Please contact our team on 1300 123 529, or via email at visas@craddock.com.au. Our team of friendly and experienced immigration lawyers are at the ready to assist.
Please note that this page states the law as of October 2022. Australian immigration law is complex and changes frequently, and the law in relation to Australian citizenship may have been changed since we prepared this page.