Delil Alexander (by his litigation guardian Berivan Alexander) v Minister for Home Affairs & Anor

[2022] HCATrans 11

[2022] HCATrans 011

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S103 of 2021

B e t w e e n -

DELIL ALEXANDER (BY HIS LITIGATION GUARDIAN BERIVAN ALEXANDER)

Plaintiff

and

MINISTER FOR HOME AFFAIRS

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

KIEFEL CJ
GAGELER J
KEANE J
GORDON J
EDELMAN J
STEWARD J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE, SYDNEY AND MELBOURNE

ON THURSDAY, 17 FEBRUARY 2022, AT 10.00 AM

(Continued from 16/2/22)

Copyright in the High Court of Australia

____________________

KIEFEL CJ:   Yes, Mr Solicitor.

MR DONAGHUE:   May it please the Court.  Your Honours, I was nearing completion of my submissions with respect to the content, properly construed, of 36B(1)(a) and I will complete my submissions on that before coming to the other two criteria and then to the aliens power point.

With respect to the conduct that can engage (1)(a), being the conduct listed in subsections (5) and (6), therefore picking up Division 119, all of the conduct listed in subsection (5) is already criminal, was already criminal when 36B was enacted, if the conduct was committed with the requisite fault elements specified in the Code.

The Parliament did not need to, and in our submission did not attempt to, enact an additional regime directed to punishing that conduct.  What it did instead was to look at the same conduct but to do so through a different lens.  In particular, what Parliament did was select the conduct identified in subsection (5) to define a field of conduct that might warrant closer examination, that being the closer examination under (1)(b) and (1)(c) to which I am coming, of the question whether a person who is engaged in that conduct has acted in a way that is inconsistent with their continued membership of the Australian political community, the body politic of the Commonwealth of Australia.

KIEFEL CJ:   Mr Solicitor, I think your submissions on this point recognise that subsection (5), the matters – the conduct listed there – replicate some of the conduct in section 119 of the Criminal Code.

MR DONAGHUE:   Exactly so, your Honour, and not just 119 but lots of offences in the Criminal Code.

KIEFEL CJ:   Yes.

MR DONAGHUE:   My point is that that conduct, all of it, is dealt with by the criminal law where certain fault elements exist.  But the fact that it is dealt with by the criminal law where the fault elements exist does not mean that Parliament cannot come at the same conduct and use it for a different purpose.

KIEFEL CJ:   But is it also the case that 36B then gives to the Minister a choice as to the penalty to be provided for that same conduct?

MR DONAGHUE:   No, your Honour, not at all, in our submission, because insofar as the penalty is being imposed, that is the problems of the criminal law and it requires fault elements.

KIEFEL CJ:   Well, if we take the word “penalty” away, let us say “outcome”, the Minister then chooses whether or not the outcome for the conduct is going to be a loss of citizenship as distinct from the penalty which would follow from the prosecution of a criminal offence.

MR DONAGHUE:   In my submission, your Honour, no.  The Minister looks at that conduct and then asks the statutorily‑required questions:  does that conduct satisfy me that you have demonstrated that you have repudiated your allegiance, broken the bonds of citizenship with the country, and is it in the public interest to cancel, and if so, there is a consequence that arose that, in our submission, is a consequence that is exactly in common with one that has always been able to arise for a set of reasons that plainly have nothing to do with punishment.

So, as I am going to come to later in my submissions this morning, loss of citizenship is something that could happen for a long time when a woman married an alien.  Now, obviously, the woman was not being punished for marrying the alien but, nevertheless, she lost her citizenship.  Loss of citizenship could happen when you chose to become a citizen of another country.  Now, you might have wanted to maintain your citizenship of Australia, you may have had no desire at all to lose that citizenship, but the fact that you chose to align yourself with another country meant that you lost it.

Those consequences are not punitive, and they are exactly the same consequences that follow under section 36B because, by reference to objectively stated and criteria that I am going to endeavour to persuade your Honour are fit for the purpose, Parliament is saying our rules for membership of the community do not allow you to remain a member of that community. 

The fact that the prosecutorial question is a separate one, and, as your Honours will appreciate, a person can still be prosecuted even if the Minister chooses to cancel their citizenship under section 36B, or chooses not to cancel citizenship under 36B, the criminal process will play its course quite unaffected by this decision.  So, it is not ‑ ‑ ‑ 

KEANE J:   Mr Solicitor, could a woman who married an alien during the period you are referring to be prosecuted for an offence of marrying an alien?

MR DONAGHUE:   No, your Honour.

KEANE J:   No.

MR DONAGHUE:   But, your Honour, I do not wish your Honours to misunderstand me – this is not a case like perhaps, Magaming, where there is an executive choice that chooses the track that you go down – you go down one track or a different track, and the executive choice gets challenged.  This is a case of completely separate processes directed to completely separate ends.  So, the criminal process is totally able to run its course whether or not anything happens under 36B.

EDELMAN J:   Mr Solicitor, if the sanction of denationalisation were included as one of the penalties in the Criminal Code consequent upon a finding of commission of an offence, you would not then submit that that is not punishment, would you?

MR DONAGHUE:   Your Honour, if it were listed as a sanction to be imposed by a court following the adjudgment and determination of criminal guilt, then I would accept it could be imposed as a punishment.  But, your Honour, that submission does not mean that everything that can be done following a determination of criminal guilt is always a punishment when it is done by someone else for a different purpose ‑ ‑ ‑ 

EDELMAN J:   But nor does it mean that a sanction of denationalisation for non‑punitive purposes, such as marrying an alien, means that every time that denationalisation is imposed it must therefore be for a non‑criminal purpose. 

MR DONAGHUE:   But your Honour’s question uses the word the “sanction” of denationalisation, and, in my submission, that is the challenge – that is the premise that we challenge because there is – it would, in our submission be a very odd state of affairs if conduct such as marrying an alien a long time ago, or voluntarily assuming foreign citizenship, until quite recently, was something that Parliament could say – we think that that is inconsistent with you remaining a member of the Australian body politic, even though many people…..there is no such inconsistency. 

But, if Parliament could say, well, we define that as inconsistent with maintaining your Australian citizenship and we remove it, it would be very odd, in our submission, if something that much more obviously demonstrates inconsistency with membership of the body politic is outside the realm of Parliament’s choice, because it is bad enough that it is also criminalised.

It makes no sense, in our submission, to accept the case of marginally inconsistent conduct as a basis to lose citizenship, and then to take it away in the cases that call most obviously for exclusion of membership of the body politic, just because Parliament has also, by reference to different criteria in a different process, said that criminal punishment might be imposed as a different consequence of conduct of the same kind. 

What I am endeavouring to do at this point in the submissions, your Honours, is simply to say that the conduct‑based starting point, which is, I have accepted in answering to the Chief Justice and in our own submissions - we accept overlaps, heavily overlaps, with the conduct that can be criminalised, is nothing more than the starting point for a process that then goes in a completely different direction. 

So, it just says this conduct warrants scrutiny.  Why does it warrant scrutiny?  Well, in the case of the (5)(h) conduct, the foreign incursions and foreign recruitment, the special case gives your Honours quite a bit of information about why it might be that Parliament would form the view that foreign incursions and foreign fighting is inconsistent with – or warrants examination to see whether it is inconsistent with membership of the body politic. 

Can I just make your Honours have been alerted to these paragraphs in the special case.  If you take up the special case book volume 1 and turn to page 65 you will see there a section of the special case – it starts on the previous page – dealing with foreign fighters.  But if your Honours would note paragraph 57:

relatively few returning foreign fighters posed a direct threat.  However, those that did were responsible for some of the most lethal terrorist attacks carried out over the past three decades.

Then the next paragraph, in deciding or differentiating between which returning foreign fighters pose a problem and which do not, studies have indicated that one critical factor in that distinction is:

the extent to which a host terrorist organisation prioritises attacks outside the conflict zone.

ISIL, or ISIS, very much does prioritise attacks outside the conflict zone and your Honours see that if you go back in the special case book to paragraph 35, actively:

opposed to Western interests, including those of Australia . . . openly called for attacks against Australia, and Australian citizens and interests . . . promoted its opposition to Australia through propaganda material, foreign fighter videos and vitriolic speeches by senior leadership . . . 

As at 2016, more than 60 Australians had . . . entered . . . to fight for Islamic State . . . used foreign fighters to carry out terrorist attacks outside of the Middle‑East.

So here we are dealing with a cohort of people who have been members of an organisation that has the feature that has been critical in differentiating the risk, and that risk then is of, in our submission, a very sobering kind.  So that if your Honours look at paragraph 61:

Foreign fighters have also played a critical role in creating and strengthening terrorist groups, and radicalizing and recruiting terrorist networks.

There is a list of very well‑known major terrorist attacks in which foreign fighters have played a major role.  In paragraph 62, such plots have been far more deadly than those where there are no foreign fighters, about six times as many deaths per attack.  In paragraph 64, there is agreement recorded as to the way that foreign fighters:

may pose an ongoing terrorist threat –

I will not read all of that to your Honours, but we rely upon the:

demonstrated resolve and commitment –

. . . 

likely to be skilled in weapons handling . . . improvised explosive devices –

et cetera, greater levels of radicalisation, greater capacities to recruit.  At 77 on page 70 of the special case, ASIO’s specific assessment of the risk arising from returned Islamic State fighters.  You will see in 76, it is believed:

Of the Australians who have fought in Syria or Iraq, about 120 are believed to –

have died:

about 65 remain . . . 

ASIO assesses that the return of Australians . . . has the potential to exacerbate the Australian threat environment for many years to come –

for the reasons that are there identified.  So, this is the conduct that Parliament says not that it results in the loss of your citizenship, not that you are to be punished for, but that enlivens the Minister’s capacity to ask the question:  have you engaged in conduct that demonstrates you have repudiated your allegiance to Australia and that, in our submission ‑ ‑ ‑

STEWARD J:   Mr Solicitor, can I ask you just a question about how you construe 36B, “if the Minister is satisfied that” there has been conduct under (5), “if the Minister is satisfied that” it demonstrates repudiation, and is also satisfied that “it would be contrary to the public interest for the person to remain”, is there any residual discretion that the Minister may thereafter have to not cancel the citizenship?  In other words, is “may” to be read as “must” in a finance‑facilities type way or there is discretion?

MR DONAGHUE:   There is discretion, your Honour, is our submission.  One would expect, having jumped all of those hurdles, that the circumstances in which it might be exercised might be quite narrow, but there is discretion consistent with the ordinary Acts Interpretation Act provision.  So, you might, for example, if you had not already taken the matters into account under the public interest 36E, you might consider ties to Australia or matters of that kind – family in Australia – they would be permissible matters under the section.

So, our submission, your Honour, as to that conduct, is that as a way of specifying conduct that might warrant the Minister asking the questions under (b) and (c), the conduct identified in (a) is entirely explicable and totally unobjectionable – it is not doing anything more than using the device of conduct that has been criminalised to say this might have a separate and different consequence for your entitlement to remain a member of the Australian political community. 

GORDON J:   Mr Solicitor, can I ask you one question about that.  You describe this paragraph as the starting point, and you have described it just then as being a method of specifying conduct which gives rise to the questions raised in (b) and (c).  Yesterday, in response to questions from the Bench, you said that there was merits review of section 36B(1)(a), by reference to section 36K. 

MR DONAGHUE:   Yes.

GORDON J:   Can I ask a question about that, because I think it affects the starting point – or it may affect the starting point.  That provision was carried over from the repealed section 33AA, where the existence of the fact, engaged in conduct with the intent, was a jurisdictional fact and, in those circumstances, I think may explain why section 36K was in that form. 

Here, as I read it and as I understood your submission, the jurisdictional fact is not engaged in conduct with intent, as it was in the old 33AA, but a separate and distinct question about whether the Minister is satisfied that a person has engaged in conduct absent the fault elements which you have just described as being conduct which is otherwise criminal elsewhere. 

When you have jurisdictional review of that sort of jurisdictional fact, it would not, on any view, as I understand the existing state of the authorities, engage any form of merits review.  Some work has to be given, I think, to this new concept that there is to be given to a state of satisfaction of the Minister. 

Is there any High Court jurisprudence – and I must say in my researches this morning I could not find any – that would arguably say, listen, I am entitled to merits review different to that which would otherwise exist, and, as I think at present, it is really – if one looks at the last one, at least Viane – there has to be at least some evidence, rather than no skerrick of evidence - which have considered this issue where you have merits review of the underlying fact, here the underlying fact being the conduct giving rise to the state of satisfaction?

MR DONAGHUE:   Your Honour, there is quite a lot in that.  Can I try to answer your Honour first by making the point that, as your Honour will appreciate, one of the main differences between 33AA and the current regime, is that 33AA operated automatically without any ministerial satisfaction.  So, there was no equivalent – the submission I just made about the conduct being the starting point under (b), I would not have made under 33AA, because there was no question about repudiation of allegiance or the public interest. 

In place of those two components – the (b) and (c) component, there were instead the mental elements to which your Honour has referred.  So, it was not that the mental elements have gone and been replaced with nothing else, the mental elements have been taken out of 33AA and replaced with a different question.  So that under the old regime, if you committed the offence with the mental elements, the Act just operated like a guillotine, and descended and your citizenship was gone – subject to the review process that your Honours noted – now found in 36K. 

Now that, having taken out – and I will come to some of the reasons for the change later - but having shifted to this regime, without that automatic operation and now with the capacity for me to submit that what is happening is that the Minister – the conduct just poses the question - we come to – well, what happens if the Minister is satisfied that the conduct existed so as to pose the question by (b) and (c), the Minister’s satisfaction is wrong. 

On usual judicial review under section 75(v) or 39B of the Judiciary Act, you would be able to impugn that satisfaction on the familiar Avon Downs kind of grounds.  But just showing that the Minister was factually wrong, would not be enough to show that the Minister’s satisfaction was not legally open – factual error would not equate to jurisdictional error. 

In our submission, what 36K(1) does explicitly in relation to (1)(a) and (1)(c), is that it says there is to be automatic revocation based on the finding of the court as to whether or not the person engaged in the conduct, whether under 75 of the Constitution or under this Act or under any other Act, if the court finds the person did not engage in the conduct – so that is asking a different question, not was it open to the Minister to be satisfied, but what does the court itself think on the evidence before it as to whether the person engaged in the conduct. 

So, while you would not normally ask that question on judicial review, if Parliament says, “Well, if the court makes that finding, then this section will automatically deem to be revoked what happened earlier”, that is how it works.  So, it is a modification of the way that judicial review would usually function and because it turns the question so that if – and perhaps to take the example here, our friends have at least implicitly invited your Honours to think that perhaps the reason that the plaintiff stayed in the declared area was because he could not leave.  If he could not leave, if he really could not leave, then his conduct was involuntary and his conduct, being involuntary under Part 4.2 of the Code, that goes to whether the conduct element is made good, as our friends I think now concede. 

So, if our friend could come to this Court or the Federal Court and say, “I was in the declared area because I could not leave, my conduct was involuntary”, and if the Court accepted that submission, then you have not got through the gateway in paragraph (8).  The plaintiff has not engaged in conduct that poses the question by (b) or (c) and the court would just say, “I am satisfied you could not leave, therefore your conduct was not voluntary, therefore you didn’t commit the conduct element, and that’s the end, you win”, because the gateway element of the necessary conduct to pose the question has been found not to exist. 

I hope that grapples with your Honour’s question, but that is my submission as to how the regime works.

GAGELER J:   Mr Solicitor, it really would not be judicial review, would it?  You would have to come along in this Court seeking a declaration probably under section 75(iii), a declaration of past fact.

MR DONAGHUE:   In my submission, your Honour, what you could do – and interestingly the section says section 75, not just section 75(v), so it would embrace what your Honour puts to me under 75(iii), but if one came to the Court and said, “Well, I challenge this determination on the ground that I didn’t engage in the conduct because it wasn’t voluntary and, in any event, the Minister erred in failing to take into account mandatory relevant considerations going to the public interest under 36E”, you could come and review the Minister’s decision in a proceeding of that kind, and one of the orders you could seek was a declaration that you did not engage in conduct of the relevant kind.

It could not be said, as it perhaps could be said – as it could obviously be said in a normal judicial review proceeding, well, the court should not make that finding because that is merits review findings on the fact.  But the answer to that would be, well, 36K specifically contemplates that the court may make a finding of that kind, just as it may make a finding that the person is not a dual citizen. 

So, you might remember a few years ago there was quite a bit of press given to the cancellation of a very well‑known terrorist’s citizenship and there was a debate as to whether he was or was not a citizen of Fiji.  That question could be litigated for the correctness of his status as a citizen or not and, if the court found that he was not a citizen of Fiji, then again automatic revocation, so not satisfaction review.

EDELMAN J:   Mr Solicitor, is in effect 36K, certainly (1)(a) and (1)(c), really operating as a jurisdictional fact but not a jurisdictional fact that is a condition precedent to the exercise of the Minister’s jurisdiction, but one that is a condition subsequent to the exercise of the Minister’s jurisdiction?

MR DONAGHUE:   Yes, your Honour, that is a fair way of describing it and I think I did describe it as a jurisdictional fact yesterday not of – because obviously 36B itself is based on satisfaction.  You could not show an error in the original decision, but subsequently I accept that characterisation of what is involved. 

Your Honours, that then takes me I hope briefly to the question of the significance of what your Honours have seen in subsection (6) and the exclusion of the fault elements which our friends invite your Honours to treat as meaning that someone could engage in this conduct in a way that did not actually shed any light on whether they should lose their citizenship.

We submit that that is wrong for four reasons that I will touch on briefly.  First, as your Honours will understand, we say, well, because it is just a gateway, you cannot lose your citizenship because of engaging in that conduct, it just poses the question, so our friends leap out of account (1)(b) and (1)(c) and their over‑breadth complaint fails for that reason alone. 

Second, we submit that if the fault elements had not been excluded, then the situation would have been, under this regime, that the Minister would have had to decide whether satisfied not just that the conduct elements had occurred, but also whether the fault elements had occurred.  In effect, the Minister would have had to decide, am I satisfied that the person committed a criminal offence, even though a court has not yet so found. 

Now, as Mr Herzfeld will develop later, in fact, in Today FM, this Court held that such a finding by an administrative body is not offensive to Chapter III, but I will leave that to him to develop.  My point for present purposes is that the exclusion of the fault elements expressly shows that the Minister is not required to form a conclusion about criminal guilt.  I

It is separating, in a way that we submit is favourable to validity rather than the other way, separating the question that the Minister has to ask by saying, I do not want you to consider criminal guilt, that is a matter for the courts, and that is what the EM says, I want you to consider something else, the repudiation questions under (b) and the public interest questions under (c).  So, far from pointing towards this being a process that cuts across the criminal process, it emphasises the separation between the two.  The third point is the one I just foreshadowed in answering a question ‑ ‑ ‑

GORDON J:   Mr Solicitor, can I ask one question about that, does it have to – it does not have to cut across, it just has to be a separate - I think we had this discussion yesterday and I accept that you made those submissions this morning about it not being an alternative norm.  The fact that it does not cut across is not a complete answer, is it?

MR DONAGHUE:   Well, your Honour, it depends what I am answering, but to the extent that it is a judicial power concern, and I do not want to stray too far into Mr Herzfeld’s territory, but to the extent that it is a judicial power concern, it is a complete answer in this sense, that the exclusively judicial function identified is the adjudgment and punishment of criminal guilt. 

So that where one has a process that looks at some conduct and then attaches a set of decision‑making criteria to them that avowedly do not focus upon criminal guilt, specifically do not require you to consider fault elements, which would be a mandatory central aspect of criminal guilt, but say that you should look at something else, then that takes you away from the reason that it is said that there is a problem from a Chapter III perspective.  So that is my short answer, but Mr Herzfeld will give you a longer one.

The third point I wanted to make by way of fault elements is that the suggestion, and I probably actually do not need to say much about this again, that one can lose their citizenship even though they have been, against their will, placed in a situation where they are in a declared area, is wrong because of section 4.2(2) of the Code, the voluntariness point, and I think our friends conceded that in paragraph 37 of their reply, so that takes away some of their over‑breadth examples.

Fourth, and this is a point I touched on briefly yesterday, but I just want to underline a little bit, is that even without the fault elements, the capacity for the declared area provisions to capture conduct of an innocent kind is very substantially reduced by the exemptions that one finds in section 119.2(3) and 119.4 in the Criminal Code and, your Honours, I hope, recall that those provisions contained a list of legitimate reasons, “legitimate purposes”, they are called, that mean, in our submission, that conduct that would otherwise have fallen within 36B because of section 119.2 does not, as a matter of proper construction of 36B, the conduct that enlivens 36B cannot be conduct of the kinds listed in subsection (3), which includes journalists, bona fide visits to family members, humanitarian work, as well as a whole range of official duties.

It was that range of conduct that caused the Independent National Security Legislation Monitor when he conducted a review of these provisions – I will not take your Honours to it, but you have it in volume 13, tab 76 of the material – and the INSLM concluded at paragraph 8.30 of his report that:

the circumstances in which an adult person would wish to travel to either of the current declared areas other than to provide support to the terrorist organisation engaged in hostile activities in the area are extremely narrow.

That is, the Independent Security Legislation Monitor was satisfied that really what was captured by these provisions was reprehensible conduct. So, the exclusion of the fault elements has been rather overstated by our friends as a matter of significance for those four reasons.

Can I turn then to the second criteria, 36(1)(b):

the conduct demonstrates that the person has repudiated their allegiance to Australia -

and your Honours will understand that we invite you to view this section as a funnel.  One starts with the range of conduct that I have just been dealing with that poses the question and then what can ultimately lead to a loss of citizenship narrows and narrows as you go down the criteria – which is the very effect that you see described in paragraph 49 of the explanatory memorandum – which I will not take you to – but it says:

it serves to narrows the class of people that may otherwise be subject to the provisions -

and that, textually, is obviously what it does.  In our submission, when (b) says “the conduct”, it is requiring the Minister to consider the same conduct that posed the question under (1)(a) and to decide whether that conduct – that specific conduct engaged in by that person – satisfies the Minister reasonably that they have repudiated their allegiance to Australia.  So, as the EM also points out in paragraph 46:

A person who, for example, unknowingly participated in conduct . . . is unlikely to satisfy the Minister that they have repudiated their allegiance –

by unknowingly engaging in the conduct.

So, in our submission, the plaintiff is quite wrong to assert that what is done under (a) may or may not demonstrate absence of continuing commitment – well, they might be right about that under (a), but the legislation does not leave that possibility open – it expressly requires the Minister to…...does the conduct tell us anything about – indeed does it satisfy you – the Minister – that they have repudiated allegiance to Australia.  Your Honours might recall ‑ ‑ ‑

KEANE J:   Mr Solicitor, just before you go on, in your view would 36B be valid if (1)(a) did not exist and all we had was criteria (b) and (c)?  In other words…..vital to validity or simply just a narrowing of the power?

MR DONAGHUE:   Just a narrowing of the power – beneficial in fact to people who might lose their citizenship because it means that, if you have not done any of the terrorist‑related things, you are not at risk under 36B – but it is not critical to validity, in my submission – which is, I suppose, another way of saying that we would submit that (b) and (c) alone would give you a sufficient connection to power.

Our friends devoted almost no attention to 36(1)(b) and you heard a submission, I think from Mr Hooke, yesterday that dismissed it as calling for what he said was a “false inquiry” – that was at page 25 of the transcript, line 1034.  In writing our friends criticised it as meaningless or vague or lacking in sufficiently stable legal content such that, as we understand it, they invite your Honours to just ignore that paragraph.

In our submission, that approach to the construction of this section is not open for two reasons:  first, as a matter of substance, the criticism of the use of the word “allegiance” – which our friends say is a statement of conclusion rather than a meaningful legal limit – is difficult to reconcile with the fact that the Constitution itself uses that word in section 44(i) of the Constitution, as Justice Gageler pointed out yesterday.

Not only does the Constitution use the word, but it is a word with a very long history in the law of both the United Kingdom and Australia in the context of alienage questions – and even though it does, we accept, present some questions, or difficulties of interpretation, the Court cannot abandon the task of interpretation simply because it may present some difficulties.  I am going to come to one authority on that in a moment.

The second reason that your Honours, in our submission, cannot just put the question to one side as meaningless or vague or unhelpful is that it is quite clear, and the same authority I am going to come to demonstrates this, that vagueness, unlike the position in Australia, unlike the position in the United States, is not recognised by Australian constitutional law as a ground for invalidity. 

The case is a case that was not in the joint book but that we asked to be provided to the Court yesterday, Brown v Tasmania, with which of course your Honours are well familiar. So, not in the joint book, it is (2017) 261 CLR 328, and there was a discussion of this topic, particularly in the judgment of your Honour Justice Gordon and your Honour Justice – and if I could take the Court to both of those discussions. At paragraph 148, the joint judgment of your Honour the Chief Justice and Justices Bell and Keane, who likewise recognised in a shortly‑stated sentence:

It is well understood that our Constitution –

unlike the US constitution:

does not say that the uncertainty of laws violates a constitutional safeguard.

Your Honours cite King Gee, which is one of the cases Justice Gordon discusses.  So, can we start in Justice Gordon’s judgment on page 470 of the report at 448, where your Honour says, in the first sentence:

There is no principle in Australian constitutional law that is equivalent to the United States constitutional law doctrine (or doctrines) about vagueness.  And there is nothing to support the proposition that –

the Lange questions require consideration of vagueness:

the Australian legal system does not consider that a vague law “impermissibly delegates basic policy matters to policemen, judges –

et cetera, and then your Honour quotes, in paragraph 449, Justice Windeyer in R v Holmes:

“[c]ourts must wrestle, and are accustomed to wrestle, with difficult language.  They are required to find its meaning, not permitted to abandon the task”.  Indeed, “[w]hatever the difficulties of construction may be, [a] [c]ourt is bound to give some meaning to the section, and upon no proper principles could a court ever hold that an Act of the legislature was to be regarded as a nullity because of the uncertainty of the language used”.

Many cases cited.  Then, King Gee, Justice Dixon, who was speaking of delegated legislation, but expresses his remarks somewhat more broadly, again, and then over the page in Cann’s v The Commonwealth, leading to the conclusion at 452:

These observations accord with the well‑established approach to statutory construction:  “the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have”.  That duty remains constant, regardless of whether the words of a statutory provision are uncertain or unclear.  Courts cannot abandon the task.

So that even if our friends were right, and for reasons I am about to come to, in my submission, they are not, that one cannot give – or that it is very hard to give context to (1)(b), that does not advance their attack on the validity of the provision, and does not entitle the Court to just cast them aside as if it does nothing.  It presents the challenge of interpretation that the Court must then answer. 

Your Honour Justice Edelman at paragraphs 505 to 507 addressed the same point, under the heading, “Uncertainty of statutory words does not affect constitutional validity” and in the interests of time I will not read out any of this to your Honours, but we rely on paragraph 505 through to 507, including the quote from Professor Zines picked up in Thomas v Mowbray by Justices Gummow and Crennan:

Given a broad standard, the technique of judicial interpretation is to give it content and more detailed meaning on a case to case basis.

So that that is what we would submit your Honours would do, to the extent that 36B is perceived to present a challenge of interpretation.  In our submission, when one in fact confronts that challenge of interpretation, the statutory context assists in giving meaning to the concept, the conduct demonstrates that the person has repudiated their allegiance to Australia, and it most immediately assists from the preceding provision, 36A, expressly stating the purpose of the subdivision in which 36B appears.  It is enacted because Parliament recognises that:

Australian citizenship is a common bond, involving reciprocal rights and obligations –

and that citizens may, through certain conduct incompatible with the shared values of the Australian community, demonstrate that they have severed the bond and repudiated their allegiance.

So, Parliament had it in mind that the Minister should be looking at whether the conduct under (5)(a), in which the particular person has engaged, is incompatible with the shared values of the Australian community such that it demonstrates they have severed their bond or repudiated their allegiance.  That seems to be what Parliament contemplated would be being considered.  As to what those shared values might be, one gets some further assistance from the preamble to the Act itself, if your Honours go back to the start of the Act, page 1 of my print, where, without reading it all out:

The Parliament recognises that Australian citizenship represents full and formal membership of the community . . . common bond, involving reciprocal rights and obligations -

and it then gives some content to them, admittedly in the conduct – in the context of people who are conferred with citizenship, but in my submission, your Honours would not countenance a situation where people conferred with citizenship have a higher level of reciprocal rights and obligations than those who are born with such citizenship.  There should be, in our submission, a common standard.  Those shared values include shared “democratic beliefs”, respect for “rights and liberties”, “upholding and obeying laws”.

KIEFEL CJ: Mr Solicitor, even though the object is so expressed in section 36A, the whole process upon which section 36B(1) proceeds is, as you have acknowledged at the outset this morning, the fact that the conduct is criminal conduct. It is already regarded by the law as wrongful. That cannot be put out of the picture in relation to the Minister’s assessment, can it?

MR DONAGHUE:   It is only wrongful, your Honour, if it is accompanied by the mental state and the Minister knows nothing about the mental state – so it may or may not be wrongful.

KIEFEL CJ:   No.  The Criminal Code itself has two premises.  It has regard to conduct which is wrongful, sufficient to warrant punishment, and the fact that a person is an Australian citizen whilst they do it.  So these are the matters upon which 36B(1) proceeds and the Minister assesses, and it is that basis which, to an extent – maybe not completely – informs the rationale under (b) and (c) – the repudiation and the public interest.

MR DONAGHUE:   Well, your Honour, in my submission it is that conduct that poses the question to be answered.  But in the same way the Minister could say, I know that you have been in the declared area, I know that you entered the declared area, I know nothing about the circumstances otherwise of your entry into the declared area, and I had no capacity to form any assessment as to whether you committed a criminal offence against 119.2 or not, but that – and there would be, as I have already acknowledged, a question as to voluntariness that could possibly be raised – but, subject to that, the Minister might say, well that conduct which might or might not be criminal, and about which I can form no view about its criminality, nevertheless poses the question of repudiation of allegiance. 

An example might be, your Honour, if one considers a solicitor who commits fraud – the criminal offence of fraud.  When a professional disciplinary body comes to consider whether that person is a fit and proper person to remain a member of the legal profession, they are not precluded from considering that conduct because the person committed an offence.  It is just that they look at that conduct through a different lens as to whether the person remains a fit and proper person to practice, and it would, in our submission, be quite wrong to say that because the conduct is bad enough to be criminal, it cannot bear on the separate question of propriety to remain a practitioner. 

In the same way, we submit it is wrong to say that because the conduct is bad enough to be criminal, it somehow protects you from losing your citizenship when less bad conduct does not protect you from losing your citizenship.  It is an asymmetry of a kind that we submit the law should not countenance. 

GLEESON J:   Mr Donaghue, how does the obligation identified in preamble (d) apply in considering the exercise of the power in 36B?

MR DONAGHUE:   Well, your Honours, it is one of the range of matters that might inform whether or not somebody has by their conduct demonstrated repudiation of allegiance to Australia.  But if you do not know whether the person has committed an offence or not, it probably will not inform it very much.  If you do know that the person has committed an offence, then that might well be something that could properly be taken into account.

KIEFEL CJ: Mr Solicitor, accepting that, as you say, the process under section 36B is addressed to a different outcome, and your example of the solicitor in fraud, there is an aspect of commonality between the criminal offences under the Criminal Code here and section 36B, and the example that you have given.  I think you would accept that under the purpose of the sanctions under the Criminal Code of punishment by detention, one aspect of that, one purpose would be deterrence, as it would be for the offence of the sentences for fraud under the law.  Section 36B in the provision it makes for cessation of citizenship also has a purpose, does it not, of deterrence?

MR DONAGHUE:   Yes, your Honour, I do not need to deny that.  But again, not everything that has the purpose of deterrence is therefore for that reason necessarily criminal.  One upholds professional standards by the deterrent effect of knowing that if you breach them then your professional livelihood may come to an end and your right to practice be removed.  I should perhaps - if I modify my example slightly it might make it a better example. 

If we take the case of a solicitor who is accused of fraud, accused of large‑scale fraud by stealing from their clients but has not yet been tried, as I understand the way the profession regulates itself that person does not get to say, “I must be allowed to continue to practise while the criminal processes wend their way through the system, notwithstanding the risk that I pose to my clients”.  There is a criminal process that, if all of the elements can be made good, will result in a criminal sanction, but that does not mean that you cannot act through a different lens for a different purpose by reference to the same conduct to say, “We’re going to suspend your right to practise”.

KIEFEL CJ:   Yes, but importantly deterrence does not reflect anything in 36B(1)(b) and (c).  It reflects the notion of the acceptance of the law that what is involved is wrongful conduct.  The same for your fraud example.  That is accepting that the conduct is wrongful and ought to be deterred.  That is a factor to weigh in relation to the outcome that is imposed as a result of it.

MR DONAGHUE:   But, your Honour, that seems to have the effect that – or would have a number of effects.  It would mean, for example, to foreshadow where I am going to come to, that if fighting for a foreign army against Australia is a criminal offence, then you cannot lose your citizenship for fighting against a foreign army, because the criminal law has dealt with the topic and therefore citizenship law trying to deal with it in parallel is in some way cutting across that process. 

It would seem to me that conduct that is not serious enough to be criminalised might be selected by Parliament pursuant to the aliens power as conduct that should result in the loss of your citizenship, such as my applying to become a US citizen, for example, and that Parliament can say you lose your citizenship just for doing that.  But the moment the thing that you do becomes criminal, Parliament loses its power.  In our respectful submission, that is not a sustainable line to draw as to the criteria Parliament can properly adopt in deciding who can and cannot remain a member of the community.  It carves out ‑ ‑ ‑

KIEFEL CJ:   It is not so much an approach as to question of power.  It is a question of characterising the process that is being undertaken.  But perhaps this is deflecting from the real question here, which might be the quality and nature of what is meted out when the Minister is satisfied, that is, what is involved in the cessation of citizenship and whether that amounts to punishment, but that might be a topic that I think Mr Herzfeld is taking up.

MR DONAGHUE:   That will be so, your Honour, although I do pause to emphasise that what is meted out to the person who loses citizenship under 36B is exactly the same as what is meted out to a person who loses citizenship when they apply for foreign citizenship under the old provisions – exactly the same.  No more serious, no less serious.  So that there is not some calibration by which something that is very severe is imposed on a person under section 36B, whereas something less severe is imposed on people whose conduct less clearly represents a repudiation of their allegiance to Australia, everyone just loses their membership.

EDELMAN J:   Mr Solicitor, can I ask what scope you say there is left for section 36B(1)(b) in light of your submissions about 36B(1)(a)? In particular, you took us to a reference to the INSL Monitor’s review which concluded that there is diminishingly little scope for a conclusion that if any of the conduct engaged in under 36B(1)(a) had occurred the person would not be involved in terrorist activity. So how much scope really is there for the Minister to conclude that a person who has been engaged in terrorist activity has not breached the shared values of the Australian community?

MR DONAGHUE:   Well, your Honour, one poses the question when you have engaged in the conduct under (a).  Of course, that conduct here on the facts is the 119 conduct to which your Honour refers, but there is a whole range of other kinds of conduct.  The question under (b) is common to them all so it has to have the capacity to respond to all of the variety of factual circumstances under (a).

But if one posits the possibility that what happened in this case was that the plaintiff arrived with his new wife in al‑Raqqa Province and saw on his first day the beheading of 200 soldiers at the airport after the matter was taken and thought “My god, what have I done” and left, then that person might have well - would have engaged in the conduct that raises the question under paragraph (a) because they would have entered the declared area after the relevant time.

But you might be able to say, looking at the facts of that case, well, actually, that was a foolish young man who when confronted with the reality of the choice that he made immediately sought to return to the fold in Australia.  The Minister might reasonably say in those circumstances, well, you might have committed the offence if you voluntarily entered the area for that purpose, you might have to face the criminal law, do not think that you repudiated your allegiance to Australia - that is a possible example.  They could no doubt be ‑ ‑ ‑

GORDON J:   Can I pick up on that, Mr Solicitor?  Does that mean as a result of what you just answered to Justice Edelman – and I think this is the way in which the plaintiff was putting it – that this concept of repudiation by reference to the criteria set out in 36A is indeterminant, that is, what do they mean and, in effect, the meaning of them is given to be determined by the Minister from time to time.

MR DONAGHUE:   No, your Honour ‑ ‑ ‑

GORDON J:   In that context, does repudiation giving rise to incompatibility – picking up something you said earlier this morning – include inconsistency?

MR DONAGHUE:   Inconsistency or incompatibility with the shared values of the community.  Your Honour, in my submission ‑ ‑ ‑

GORDON J:   If that is right, then there is at least, as I understand it - inconsistency is different from conduct which gives rise to repudiation in the classical term.

MR DONAGHUE:   Your Honour, the first time that somebody seeks judicial review of a decision of the Minister under section 36B on the ground that the satisfaction under (1)(b) was not adequately formed, or was not lawfully formed, the court confronting that case will have to construe (1)(b), consistently with the principles that your Honour and Justice Edelman explained in Brown.

Exactly how the Court answers that question we will not know, until the question requires an answer – but it has a legal answer – in my submission it has a legal answer informed by 36A in the preamble, and it is not for the Minister to decide what the legal answer it.  If the Court thinks that the Minister’s interpretation of the provision is wrong, then the Court, of course, says so – that being the province and duty of the judiciary. 

So, whether or not the task is hard – and sometimes it might be hard – but one important effect of (1)(b) is that often it might be easy.  So, your Honours have heard quite a few times about the pharmacists.  So, let me grapple with the pharmacy example.  The pharmacist is said to have committed the conduct element required by (5)(h) because one of the offences in Division 119 – 119.4 – talks about stockpiling poisons.  It is put against us, well, the poor old pharmacist who stockpiled poisons pursuant to their job in Australia might lose their citizenship. 

Whatever the hard questions that might arise about (1)(b), it is not a hard question to say that conducting a pharmacy in Australia is not conduct capable of repudiating your allegiance to Australia.  The example is wrong because (1)(b) has legal work to do in excluding cases of that kind, and many other cases – that could be multiplied – where it is just obviously not the case that the conduct element, even if it gets through paragraph (a) for some reason cannot satisfy (b). 

Then you no doubt will get harder cases.  Perhaps the case Justice Edelman put to me, or that I discussed with Justice Edelman in my example, where it might be that different views could be reached, and the Minister’s view will have to be reached legally on a correct understanding of the law, and that can be tested in judicial review.  So, I do not accept that it is an indeterminate standard or incapable of being given legal force.  It presents an interpretive question to be answered by the technique that I have sought to describe. 

Your Honours, can I turn very briefly to the third limb – (1)(c) – again, the narrowing of the funnel.  One only gets here after answering (a) and (b).  Then there is a very wide‑ranging question that the Minister has to answer as to whether or not it would be contrary to the public interest for the person to remain a citizen, informed, perhaps unusually, for a public – well, not unusually, but certainly there are many public interest powers that do not have this – by a list of mandatory considerations to be found in section 36E, the detail of which I will not come to for just a moment. 

But, in our submission, as your Honours know, that kind of condition on a statutory power or public interest condition is quite common on the Commonwealth statute book.  The public got an unexpected insight into this in the recent Djokovic challenge where that particular cancellation power was a public interest power, and judicial review on powers of that kind is familiar. 

I will not take your Honours to the passage – I think we have given it in our oral outline - yes, we have in paragraph 8 of the oral outline, to Pilbara – this Court’s decision in Pilbara v ACCC, where six Justices of the Court in the passage cited in that paragraph, paragraph 42, said that:

It is well established -

citing many cases – Browning and others I think:

that, when used in a statute, the expression “public interest” imports a discretionary value judgment to be made by reference to undefined factual matters.

Well, here they are partly defined by 36E.  The Court continued that such a power, while broad is:

“neither arbitrary nor completely unlimited” -

So that judicial review is well up to the task of policing the limits of a lawful satisfaction under that provision.  It is particularly so when it can be policed in part on the ground of a failure to take account of mandatory relevant considerations, were that to occur, of the kind listed under 36E.  The factors listed in 36E(2), make sure that the Minister cannot – a person cannot lose their citizenship under this provision unless all of those matters have been taken into account.  So, we know that the Minister must lawfully reach a state of satisfaction taking account of severity of the conduct, of the threat the person poses, of their age, of their best interests if they are a child – whether or not they are likely to be prosecuted - which, as Mr Herzfeld will explain, is about not cutting across the criminal process - connections to country, international relations.

So that again, in our submission, provides an important level of protection to ensure that there is not arbitrary loss of citizenship under these provisions, but instead a structured requirement to have regard to a whole range of matters that might well be thought relevant, able to be policed and enforced if necessary by judicial review.

Our friends have said many times, including in writing at least in their reply at paragraphs 4, 9, 15, 38 basically that there is no possibility of effective judicial review under section 36B. They have not made that good. Parliament plainly disagreed. Your Honours will have seen the note under section 36B(1) which expressly refers to review in this Court under section 75 and in the Federal Court under 39B. Mr Hooke said yesterday that judicial review was next to worthless. Well, in our submission, that just denies the regular experience of the courts in reviewing very similarly structured powers, indeed, powers with much broader limits than one sees in the context of this particular provision.

Your Honours Justice Gordon and Justice Gleeson both asked me yesterday about the lack of detail in the cessation document and how someone was to make good a challenge in relation to a document of that kind. Can I make two points in response to that submission. The first is that we are unable to see any reason why a decision under section 36B of the Citizenship Act is not reviewable under the AD(JR) Act. There is no exclusion in Schedule 1 or Schedule 2 of the AD(JR) Act in relation to decisions of this kind. They are, in our submission, decisions of an administrative character under an enactment, so one would expect they would be reviewable. That being so, there is no reason why there cannot be a request for reasons made under section 13 of that Act if the person seeks such reasons, which in this case did not happen. So, the factual record in this case is as it is because an available mechanism to obtain reasons was not used. That is my first answer.

My second answer is that, even if it were to be the case that the absence of reasons, for example, impeded the capacity to seek judicial review, in practical terms created a forensic obstacle to pursuing judicial review – and one does see powers like that from time to time – it is not at all clear how it is said by the plaintiff that that connects to the validity challenge that your Honours are confronting.  An argument that insusceptibility to review did contribute to invalidity was put to the Court in South Australia v Totani in the context of difficulty reviewing the declared organisation provisions that were at issue in that case. 

Your Honours do not have Totani and I do not need to take your Honours to it.  But that argument was expressly rejected – Totani, sorry, for the record is (2010) 242 CLR 1. Justice Hayne at paragraphs 194 to 195 expressly rejected the argument that difficulty with judicial review was a basis upon which invalidity would be found, and the Chief Justice, Chief Justice French, at paragraph 27 and Justices Crennan and Bell at paragraph 415 agreed with Justice Hayne. So, a majority of the Court rejected an attack of that kind.

Now, I do not want in putting that submission to be taken to concede that there is any problem with judicial review here.  In my submission, there is not.  But even if there were, it is not at all clear in the face of Totani how that advances the validity challenge at all. 

Your Honours, I am sorry that has taken me as long as it has, but I have at last arrived at the aliens power part of the case, having said what I wanted to say about construction, and I do so with some trepidation, given that there are obviously many recent occasions upon which the High Court has looked at section 51(xix) and there are evidently some disagreements among members of the Court as to the analytical approach that should be taken to the reach of that power.

I am not proposing, to the extent that I am able, to reopen all of those debates, although I appreciate I may be unable to do so.  What I ask your Honours to do is to take as the starting point what was described as the settled understanding by four of your Honours in Chetcuti which you will find at volume 12, tab 63.  Chetcuti, of course, was decided after Love.  In paragraph [12] of Chetcuti, you will see in the joint judgment of your Honour the Chief Justice and Justices Gageler, Keane and Gleeson, the statement:

In challenging his detention on the ground that he is not within the reach of the aliens power, the appellant does not seek to disturb the settled understanding that the aliens power encompasses both power to determine who is and who is not to have the legal status of an alien –

That is what we have called the first aspect of the power:

and power to attach consequences to that status -

that is, people who have the status of an alien pursuant to the exercise of the first aspect of the power.  That is the second aspect of the power.  It is the first aspect of the power that is in issue in this case, section 36B being a law that determines who is or who is not to have the status of an alien, the legal status of an alien. 

In making that statement as to the settled understanding of the law, in footnote 16 your Honours cite a number of authorities, including Te, Shaw, paragraph 2, which is also a statement of four members of the Court, when you take the agreement at 190 into account, and Koroitamana.

Your Honour Justice Gageler in Love, in a passage that I will not take the Court to, but it is paragraph 84 in Love, made the point that the Privy Council in the case of Cunningham v Tomey Homma [1903] AC 151 at 156 had recognised that same feature, the first aspect of the power, in the identically‑worded Canadian head of power, some 100 years ago, and just after Federation. That understanding of the power is also aligned with the understanding expressed by Dicey pre‑Federation in his 1896 work that Quick and Garran cite, quoted in Singh, that I am going to come to, probably after the morning adjournment, but I will point it out to your Honours then.

So, in our submission, and I particularly – I appreciate, in making this submission, that some of your Honours do not accept it, as is clear from your judgments in Chetcuti, but in my submission the Court should, consistently with the current body of authority captured in paragraph 12, analyse this case on the basis that the aliens power includes, as its first aspect, the power to determine who is and who is not to have the legal status of an alien.

EDELMAN J: Mr Solicitor, can I just understand the way you interpret paragraph 12? In what you are calling the first aspect, is that a way of understanding section 51(xix) such that it is to be understood not as a power to make laws in relation to aliens, but a power to make laws in relation to persons that, subject to outer limits, Parliament considers to…..

MR DONAGHUE:   Yes, your Honour, the short answer is the second aspect is what your Honour – when your Honour said not to make power in relation to aliens, well, it is that, that is the second aspect of the power, but it also includes what your Honour then went on to put to me, which is the power to determine who does or does not have the status of an alien, subject to the limitation identified in Pochi that, in exercising that first aspect of the power, Parliament cannot treat as an alien someone who could not possibly answer that description on the ordinary understanding of the word.

EDELMAN J:   So just unpacking that, then, does that mean that, subject to the very outer limit, it is open to Parliament to decide who will meet the criteria of an alien, or, put another way, that “alien” has no essential characteristics other than the outer limit of what an alien might not be?

In our submission, that is correct.  As we say in our reply submissions, that would permit the aliens power to recognise a change in the person’s status as occurred in Ame and as occurred in relation to British subjects who are not Australian citizens – which, of course, was what informed the decisions in Singh, Nolan and Shaw.  This does not appear to have a place in the Commonwealth’s construction of the power and, we say, with respect, that that approach is wrong.

Secondly, the Solicitor‑General, in identifying the Pochi people, said that they included a person born in Australia to two Australian parents who had not repudiated their citizenship.  The rider at the end of the example that the Solicitor gave is a major problem, in our submission.  In our submission, the idea of repudiation – if it determines the outer reach of the aliens power – can only be a question of constitutional fact.  But our learned friends deny that constitutional facts are relevant to the scope of power because, they say, it was all determined by positive law as altered at the will of the Parliament.

The Solicitor went on to say, in response to a question from Justice Steward, that 36B(1)(a) is unnecessary to validity.  So, your Honours can imagine a version of section 36B which did not contain paragraph (1)(a).  If the Minister considered that a citizen had repudiated their allegiance – with or without it being demonstrated by conduct – perhaps, on the basis of some hearsay statement about something that somebody had said or, perhaps, thought – that would enable Parliament, on the Commonwealth’s submissions, to turn a second generation Australian citizen born in Australia into an alien because the qualification to the Solicitor‑General’s example being repudiation of citizenship would take them outside the Pochi exception. 

That means that, subject to the aboriginality exception in Love, no Australian is beyond the reach of the first part of the aliens power in the way that the Commonwealth puts it.  Our learned friend, the Solicitor, denied that at the end of his address but said that terrorism – whatever the threshold be or repudiatory conduct – would constitute repudiation.  But on the Commonwealth’s argument, it would be within power for the Commonwealth to attach repudiation – or the power to find repudiation on a range of matters, for example, within the scope of character tests which your Honours are familiar with in section 501 of the Migration Act. 

The way in which the Commonwealth ultimately puts its justification of the power rather begs the question of how the Court is ever to define what conduct is repudiatory. That, with respect, is not a coherent or a logical view. The Court is entitled, despite the Commonwealth’s urging against testing the limits of the power, to test the consequences of the Commonwealth’s construction of section 51(xix).

As Justice Edelman pointed out, more than half the people in Australia are either dual citizens or entitled to it and are capable of being aliens even without any broadening of the approach by incorporating a requirement that there has been no repudiation.  But as we point out it does not stop there, because even those who were never capable of being aliens under Pochi, are capable of being turned into them under the Commonwealth’s construction. 

The next point we make in relation to the approach to power that the Solicitor identified is that the dichotomous approach to the aliens power is, in our submission, not a robust one.  The way that the Commonwealth puts it appears to be an acceptance that a citizen is outside the reach of the aliens power.  They only become within the aliens power after the exercise of a citizenship‑stripping power, which itself is predicated upon the aliens power, and they thereupon become an alien and then within power.  It is, in our submission, a circular argument, as we said in‑chief and, quite plainly as it is has been articulated, one which supports itself by its own bootstraps. 

Now, your Honours, section 36B, in our submission, is fundamentally different in character from a law which determines whether an unborn person will at birth be an alien or not.  Attempts to align the two concepts, in our submission, are misplaced.  Section 36B, in our respectful submission, takes its character from the rights and liabilities that it modifies or destroys, being those that appertain to the status of citizenship.  We address those at paragraph 15 of our written submissions in‑chief.

Section 36B is a law which destroys existing rights.  It is not a law which in terms defines a character or a status.  It is a law that creates a new exposure in the form of a former citizen through a series of coercive liabilities including detention and deportation.  In our submission it is quite incompatible with attaching to power in respect of aliens as properly understood. 

In relation to ground 5, your Honours heard a great deal of rhetoric and your Honours heard at different stages conduct – descriptions such as all of the innocent reasons for going there are removed, your conduct is such that you forfeit your membership in the body politic, reprehensible behaviour and there were more.  All of that rhetoric, in our submission, points to the punitive nature of the power under section 36B, and points to the retributive and vengeful nature of the exercise that is undertaken.

We would respectfully embrace the observation that fell from Justice Gageler in relation to the need to use extrinsic material beyond the terms of section 36A. The purpose that the Parliament had in enacting the provisions, or at least the purpose that it gave for them, is contained in 36A and the Court need not go beyond that.

What your Honours do not find is an approach that indicates a protective measure, and as Justice Gageler pointed out to my learned friend, Mr Herzfeld, one of the very matters that the brief ASIO document which did not, it seems, inspire the enactment of the amendments, rather it followed the Security Monitor’s report, was precisely the question of whether the citizen would be the subject of prosecution in Australia.  That points, in our submission, to this scheme being precisely what we said in‑chief, and that is a parallel system of criminal justice – a de facto criminal justice. 

Could we add to the references that we gave your Honours in relation to the judicial function - the essential characters of judicial power, the judgment of the Court in Rizeqv Western Australia 262 CLR 1 in the joint reasons of Justices Bell, Gageler, Keane, Nettle and Gordon at paragraph 52. I will not read it to your Honours, I will just give your Honours the reference.

We would respectfully embrace the Chief Justice’s observations to the Solicitor‑General this morning that precisely what the Minister is doing under this section is considering what the consequences will be of the conduct that is identified.  That, in our submission, is precisely the judicial function and precisely the function of adjudging or punishing criminal guilt. 

We should observe that in his characterisation of the way in which we put the case Mr Herzfeld wrongly focused on the conjunctive description of the function in Lim without acknowledging the disjunctive qualification of it in the subsequent decision of Falzon, to which we took your Honours yesterday. 

Your Honours, I think have the point of distinction between the licensing cases upon which the Commonwealth relies to distinguish disciplinary action from judicial punishment, and I will not delay on that.          It was put this afternoon, your Honours, that we say that citizenship can never be divested.  That, with respect, is a very serious mischaracterisation of our case. 

We accept that there are a number of historically established exceptions to the proposition that we put as a general rule.  The first, is change in territorial sovereignty, and that is Ame.  The second, is a voluntary renunciation by the citizen which, we would accept, would be valid under the immigration power – and that is found in section 33.  The third is the breach of a condition to the grant of a naturalised citizen of naturalisation which arises as Meyer v Poynton demonstrated under the naturalisation power itself.  That includes, in our submission, a fraud on the process of naturalisation.

The fourth is in an appropriate statutory context protected by Chapter III and subject to what your Honours find in relation to implied

limitations under grounds 2 and 3 as the imposition of a punishment for criminal offending.  But, we say that is not apt to arise under the aliens power.  If it is apt to arise at all, it arises as an incident of the ancillary power under 51(xxxix) in its application to the powers of the judicature and in respect of offences that are otherwise supported by appropriate heads of power. 

So, we do not say that there is a universal rule of indelibility.  We say there are exceptions but that they are solidly grounded in historic antecedents.  The Commonwealth does not – and does not endeavour to – bring denationalisation in this case within any of those historical antecedents.  There is not so much as an attempt.  In our submission, that is because it is simply not available to it to do so.     

Mr Herzfeld made some submissions it seems by way of an attempt to distinguish this power from the punishment for criminal conduct by suggesting that retroactive effect could involve conduct that was not contrary to the law at the time that it occurred.  That, in our submission, is a distraction from the true issue in this case.  The reason we say that is because, in this case, as we demonstrated in‑chief, there was a deliberate decision taken – a deliberate legislative decision taken – to align the conduct provision – the applicability of the conduct provision in 36B(1)(a) – with the amendments to the Criminal Code provisions to include the offences that ground the conduct in 36B(5).

So, this is not a case about applying something to conduct that was not contrary to law at the time and thereby taking it outside the adjudgment or punishment of criminal guilt.  This is a statute which is deliberately aligned with the criminal offence provisions for the purpose of making it, in all senses, formative, substantive and temporarily a parallel system of justice.  It, plainly, in our submission, offends Chapter III. 

Your Honours, unless there is anything further, those are our submissions.  But could we raise one other matter?  Your Honours are aware of the parlous circumstances in which Mr Alexander exists at the present time.  We are mindful that there is a complexity that attends the issues in the case, but we would ask your Honours, if it becomes possible to do so, whether your Honours would consider announcing orders before reasons are ready, in those circumstances.

KIEFEL CJ:   We will take that submission into account, Mr Hooke.

MR HOOKE:   Thank you, your Honour.

KIEFEL CJ:   The Court reserves its decision in this matter and adjourns to 9.30 am tomorrow.

AT 4.15 PM THE MATTER WAS ADJOURNED