KIEFEL CJ, GAGELER, KEANE, GORDON, EDELMAN, STEWARD AND GLEESON JJ
DELIL ALEXANDER (BY HIS LITIGATION GUARDIAN BERIVAN ALEXANDER) PLAINTIFF
AND
MINISTER FOR HOME AFFAIRS & ANOR DEFENDANTS
Alexander v Minister for Home Affairs
[2022] HCA 19
Date of Hearing: 16 & 17 February 2022 Date of Judgment: 8 June 2022
S103/2021
ORDER
The questions of law stated for the opinion of the Full Court in the amended special case filed on 22 October 2021 be answered as follows:
1.Is s 36B of the Australian Citizenship Act 2007 (Cth) invalid in its operation in respect of the plaintiff because:
(a)it is not supported by a head of Commonwealth legislative power;
Answer, "No".
(b)it is inconsistent with an implied limitation on Commonwealth legislative power preventing the involuntary deprivation of Australian citizenship;
Answer, "Unnecessary to answer".
(c)it effects a permanent legislative disenfranchisement which is not justified by a substantial reason;
Answer, "Unnecessary to answer".
(d)it effects a permanent disqualification from being chosen or from sitting as a senator or a member of the House of Representatives, otherwise than in the circumstances contemplated by ss 34 and 44 of the Constitution;
Answer, "Unnecessary to answer".
(e)it reposes in the Minister for Home Affairs the exclusively judicial function of punishing criminal guilt?
Answer, "Yes".
2.What, if any, relief should be granted to the plaintiff?
D J Hooke SC and S H Hartford Davis with S G Lawrence and D J Reynolds for the plaintiff (instructed by Australian Criminal and Family Lawyers)
S P Donaghue QC, Solicitor-General of the Commonwealth, and P D Herzfeld SC with J D Watson and L G Moretti for the defendants (instructed by Australian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Alexander v Minister for Home Affairs
Constitutional law (Cth) – Powers of Commonwealth Parliament – Power to make laws with respect to naturalisation and aliens – Cessation of Australian citizenship – Where s 36B of Australian Citizenship Act 2007 (Cth) provided Minister for Home Affairs may make determination that person ceases to be Australian citizen if satisfied, among other matters, that person engaged in specified conduct demonstrating repudiation of allegiance to Australia – Where plaintiff Australian citizen by birth and Turkish citizen by descent – Where, after departing Australia, plaintiff entered and remained in al‑Raqqa Province in Syria – Where al‑Raqqa Province a "declared area" for purposes of terrorism‑related offence in Criminal Code (Cth) – Where Australian Security Intelligence Organisation ("ASIO") reported in June 2021 that plaintiff joined Islamic State of Iraq and the Levant ("ISIL") by August 2013 and likely engaged in foreign incursions and recruitment by entering or remaining…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Alexander v Minister for Home Affairs [2022] HCA 19
Case
[2022] HCA 19
Decision Date
CaseChat Overview and Summary
The case of *Alexander v Minister for Home Affairs* concerned a challenge by Mr Alexander, an Australian citizen by birth and Turkish citizen by descent, to the Minister for Home Affairs' determination that he had ceased to be an Australian citizen under section 36B of the *Australian Citizenship Act 2007* (Cth). Mr Alexander had entered and remained in al-Raqqa Province in Syria, a declared area for terrorism-related offences, and was assessed by ASIO to have joined the Islamic State of Iraq and the Levant (ISIL) by August 2013. The Minister made the determination relying, in part, on an ASIO report that Mr Alexander had engaged in conduct demonstrating a repudiation of his allegiance to Australia. The matter came before the Full Court of the High Court of Australia by way of a special case.
The primary legal issues before the Court were whether section 36B of the *Australian Citizenship Act 2007* (Cth) was a valid exercise of Commonwealth legislative power, specifically under section 51(xix) of the Constitution, and whether it was invalid for conferring upon the Minister the exclusively judicial function of adjudging and punishing criminal guilt, thereby contravening Chapter III of the Constitution. The plaintiff also raised questions concerning permanent legislative disenfranchisement and disqualification from holding federal office, and whether there was an implied constitutional limitation preventing the involuntary deprivation of Australian citizenship.
The Court's reasoning focused on the characterisation of the power exercised by the Minister under section 36B. While acknowledging the Commonwealth's power to legislate with respect to naturalisation and aliens, the Court found that the provision, in its operation in relation to the plaintiff, was not a valid exercise of legislative power. Crucially, the Court determined that the Minister's power to make a determination of citizenship cessation on terrorism-related grounds, based on conduct that constituted a terrorism offence, was punitive in character. The Court held that this conferred upon the Minister the exclusively judicial function of adjudging and punishing criminal guilt, which is prohibited by Chapter III of the Constitution. Consequently, the Court answered that section 36B was invalid in its operation in respect of the plaintiff because it reposed in the Minister the exclusively judicial function of punishing criminal guilt.
In light of this determination, the Court declared that section 36B of the *Australian Citizenship Act 2007* (Cth) was invalid and that the plaintiff remained an Australian citizen. The defendants were ordered to pay the costs of the special case.
Orders
Orders of the court
The questions of law stated for the opinion of the Full Court in the amended special case filed on 22 October 2021 be answered as follows:
1. Is s 36B of the Australian Citizenship Act 2007 (Cth) invalid in its operation in respect of the plaintiff because:
(a) it is not supported by a head of Commonwealth legislative power;
Answer, "No".
(b) it is inconsistent with an implied limitation on Commonwealth legislative power preventing the involuntary deprivation of Australian citizenship;
Answer, "Unnecessary to answer".
(c) it effects a permanent legislative disenfranchisement which is not justified by a substantial reason;
Answer, "Unnecessary to answer".
(d) it effects a permanent disqualification from being chosen or from sitting as a senator or a member of the House of Representatives, otherwise than in the circumstances contemplated by ss 34 and 44 of the Constitution;
Answer, "Unnecessary to answer".
(e) it reposes in the Minister for Home Affairs the exclusively judicial function of punishing criminal guilt?
Answer, "Yes".
2. What, if any, relief should be granted to the plaintiff?
Answer, "It should be declared that:
(a) s 36B of the Australian Citizenship Act 2007 (Cth) is invalid; and
(b) the plaintiff is an Australian citizen".
3. Who should pay the costs of the special case?
Answer, "The defendants".
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
KIEFEL CJ, KEANE AND GLEESON JJ
GAGELER J
GAGELER J
Since 15 July 2021, neither Mr Alexander's family nor his lawyers have been able to contact him. Mr Alexander claims that, according to his Syrian lawyer, the fact that he is no longer an Australian citizen is a reason for his continuing detention.The Australian government's decisions about Mr Alexander Following Mr Alexander's arrival in Syria, the Australian government made several decisions in relation to him leading up to the determination of his citizenship. On 5 September 2013, the then Acting Minister for Foreign Affairs decided to cancel Mr Alexander's passport under s 22(2)(d) of the Australian Passports Act 2005 (Cth). That was on the basis that ASIO suspected on reasonable grounds that "if an Australian passport were issued to [Mr Alexander], [Mr Alexander] would be likely to engage in conduct that might prejudice the security of Australia or a foreign country"[2]. This decision did not affect his status as an Australian citizen, or any entitlement that he may have had to Australian citizenship or consular assistance.[2]See Australian Passports Act 2005 (Cth), s 14(1)(a)(i). On 19 June 2020, the Minister made a Temporary Exclusion Order ("TEO") in respect of Mr Alexander, pursuant to the Counter‑Terrorism (Temporary Exclusion Orders) Act 2019 (Cth). The effect of the TEO was to prevent Mr Alexander from entering Australia while it remained in force, which was until 30 January 2022. On 16 June 2021, the Director‑General of Security at ASIO provided a Qualified Security Assessment ("QSA") of Mr Alexander to the Minister. The purpose of the QSA was to advise whether it would be consistent with the requirements of security for prescribed administrative action to be taken under the Citizenship Act in respect of Mr Alexander. Although ASIO, in the QSA, did not make any recommendation in relation to Mr Alexander's citizenship, it stated that, if the Minister were satisfied that Mr Alexander had engaged in specified conduct and that conduct demonstrated that he had repudiated his allegiance to Australia, the Minister might make a determination in writing that he ceased to be an Australian citizen. The QSA stated that, based on "substantial classified reporting and some unclassified corroborating information", ASIO assessed that Mr Alexander "likely engaged in foreign incursions and recruitment by entering or remaining in al‑Raqqa Province in Syria, a declared area, on or after 5 December 2014" and "likely travelled to Syria in early‑to‑mid‑2013, and had joined the Islamic State of Iraq and the Levant ... by August 2013". On 2 July 2021, the Minister determined, pursuant to s 36B(1) of the Citizenship Act, that Mr Alexander 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[3], which demonstrated a repudiation of his allegiance to Australia[4]; that it would be contrary to the public interest for Mr Alexander to remain an Australian citizen[5]; and that Mr Alexander would not become stateless by reason of the determination[6]. In making that determination, the Minister relied, in part, on the QSA. The Minister was not required to, and did not, give a statement of reasons for the determination.[3]s 36B(5)(h) of the Citizenship Act.[4]s 36B(1)(b) of the Citizenship Act.[5]s 36E(2) of the Citizenship Act.[6]s 36B(2) of the Citizenship Act.The proceedings in this Court
Ratio Decidendi
Legal Principle Established
Established by:
KIEFEL CJ, KEANE AND GLEESON JJ,
GAGELER J,
GAGELER J