Alexander v Minister for Home Affairs

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.