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

[2022] HCATrans 8

[2022] HCATrans 008

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 WEDNESDAY, 16 FEBRUARY 2022, AT 10.00 AM

Copyright in the High Court of Australia

____________________

KIEFEL CJ:   I will announce the appearances for the parties. 

MR D.J. HOOKE, SC appears with MR S.H. HARTFORD DAVIS, MR S.G. LAWRENCE and MR D.J. REYNOLDS for the plaintiff.  (instructed by Australian Criminal and Family Lawyers)

MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia, appears with MR P.D. HERZFELD, SC, MS J.D. WATSON and MR L.G. MORETTI for the defendants.  (instructed by Australian Government Solicitor)

KIEFEL CJ:   Yes, Mr Hooke.

MR HOOKE: May it please the Court. Your Honours, the special case concerns the constitutional validity of section 36B of the Australian Citizenship Act 2007 (Cth). It presents a number of issues. The first is an issue about legislative power which, as your Honours will have seen, is now limited to the power in respect of aliens under section 51(xix) of the Constitution, reliance upon other heads having been now abandoned.  If the Court finds, contrary to our submission, that the impugned provision is supported by the aliens power, there are then a number of implied limitations on legislative power which we invoke.

We propose to commence by taking your Honours through some aspects of the special case. That process can be undertaken relatively briefly because most of the special case and the material in the special case book was addressed to the defence power in section 51(vi), which is no longer relied upon. That material can, as we see it, be effectively put to one side.

We will then turn to the Citizenship Act itself – its legislative history, and the legislative materials around it. Having done that by way of introduction, we propose, subject to the Court’s convenience, to address the issues in this order: first, ground 1 being the question of validity under the aliens power; secondly, ground 5 which is the limitation derived from Chapter III of the Constitution; and then, Mr Hartford Davis will address ground 3, which is the limitation to protect franchise derived from sections 7 and 24, and then ground 2 which is the limitation that we contend is to be derived from references to “the people” in the Constitution concerning a limitation preventing the deprivation of citizenship.

Before turning to the special case book, could I say something very briefly and compendiously about what we say about citizenship and alienage. We say it against this background. The plaintiff, Mr Alexander, acquired Australian citizenship as a right of birth pursuant to section 10(1) of the Australian Citizenship 1948 – and I will take your Honours to that in due course – but it is in volume 2 of the joint book of authorities, at page 436.

The limited circumstances in which citizenship could cease under the legislation in force at the time that the plaintiff acquired his citizenship were found in Division 4 of Part III of the 1948 Act – to which I will take your Honours in section 17 to 23.  Subject only to the application of the impugned provision at 36B of the 2007 Act, Mr Alexander has, at all times, enjoyed the status of being a citizen – that is, one of the people to whom the Constitution refers and, as your Honour the Chief Justice described it in Love, at paragraph 19:

part of the community of the Commonwealth of Australia –

having:

the relationship with the Crown in right of Australia that a member of that community has.

That is to say, as your Honour the Chief Justice continued, at paragraphs 32 and 33 in Love, in distinguishing a spiritual connection of Aboriginal Australians from the constitutional connection that your Honour found:

But that is not “the belonging” spoken of in the constitutional sense.  In the constitutional context it refers to a characteristic which a citizen has with respect to the sovereign State of which they are a citizen and which an alien does not.  A citizen may be said to belong to their country.  A non‑citizen or alien does not belong . . . 

In the constitutional context “belonging” refers to the formal legal relationship between a person and the community or body politic in question.  In Australia it is apt to describe the connection between a citizen and the body politic.  It reflects a conclusion reached about that relationship rather than a premise upon which the relationship may be founded.

The majority in Love, of course, found that the scope of non‑alienage was broader than was described in your Honour the Chief Justice’s reasons.  But all members of the Court, as we would apprehend it, reached a conclusion in relation to non‑alienage that would encompass your Honour’s description that I have just read out – albeit that the majority would go further. 

So, in our submission, for our purposes in this case, the reasons of all members of the Court in Love in describing who is and who is not within reach of the aliens power would place Mr Alexander firmly out of its reach. It may be accepted, your Honours, that section 51(xix) supports legislation determining those to whom the status of alien is to be attributed.

The plurality in Shaw v Minister for Immigration (2003) 218 CLR 28 at 35 in paragraph 2 said as much. But their Honours continued in the same paragraph, and I will take your Honours again to this passage in due course, to record that the power to effect removal of citizens by naturalisation in that case would be exercised by a law with respect to naturalisation, not with respect to aliens. That is a concept that finds support in a number of decisions of the Court – indeed reaching back as far as Meyer v Poynton, which seems to be the genesis for the conceptual principle described by the plurality in Shaw.

Later in that case at paragraph 9 the plurality referred with approval to the accepted doctrine from Chief Justice Gibbs in Pochi v Macphee 151 CLR 101 at 109, where his Honour said – and your Honours are well familiar with it:

It is true that s. 51(xix) presents some difficulties. Clearly the Parliament cannot, simply by giving its own definition of “alien”, expand the power under s. 51 (xix) to include persons who could not possibly answer the description of “aliens” in the ordinary understanding of the word. This question was not fully explored in the present case, and it is unnecessary to deal with it. However, the Parliament can in my opinion treat as an alien any person who was born outside Australia, whose parents were not Australians, and who has not been naturalized as an Australian.

Justices Mason and Wilson agreed with the Chief Justice and the limitation in those terms has been endorsed by this Court on many occasions since.

EDELMAN J: Mr Hooke, on the number of occasions where that limitation has been endorsed by this Court, it appears to have been treated as creating a position where the limit is the only way of determining the scope of the power, in other words, that the aliens power extends to anything Parliament wishes to do, subject to the limit that Parliament cannot characterise it in such a way that it would deprive “alien” of its ordinary meaning. Do you accept that approach and, if so, is that an approach that can be found in any other head of power in section 51?

MR HOOKE:   Can I answer your Honour’s question a little elliptically.  We accept that the power must be in relation to aliens as understood in ordinary usage, that is, to adopt Justice Fullagar’s analogy in the Communist Party Case, Parliament could not say that a lighthouse is an alien and therefore legislate in respect of things in an utterly false way.  But we would also say that the limitation is to be understood in the sense that it cannot operate to provide its own source of power.  So it cannot, in our submission, operate on someone who is not - and in this case never has been - an alien, and declare him to be an alien by taking away his citizenship which was the fundamental…..that removes him from the description of “alien”, and then by application of the impugned law say, well, he is now an alien, therefore he was always within the power.  It cannot be a self‑fulfilling prophecy.

EDELMAN J:   In other words, Mr Hooke, is that really to say then that the limitation – it is not really a limitation in the sense that the way one needs to understand the power is not to say “alien” means whatever Parliament wants it to mean subject to limits, but the limitation is really the meaning of the power - the meaning of “alien” is the ordinary meaning, although there might be uncertainty at the boundaries of the ordinary meaning. 

MR HOOKE:   Yes, your Honour, and perhaps also in answer to your Honour’s question it becomes a question at some level of at what point in time the inquiry as to validity is made.  Is it made at the time that the asserted power comes to be exercised under the impugned provision, in which case Mr Alexander was not an alien, or does one make the inquiry after the application of the power, which we say is an impermissible and inappropriate approach because it facilitates the self‑fulfilling prophecy? 

GAGELER J:   Mr Hooke, the difference between a lighthouse and an alien is that a lighthouse is a physical construct and alienage is a legal construct.  Is it part of your case to say that the plaintiff was not an alien independently of the operation of the positive law that applied to him at birth?

MR HOOKE:   No.  Could I also give your Honours, in response to Justice Edelman, a reference to Chief Justice Gleeson in Singh 222 CLR 322 at 329 at the end of paragraph 4, where his Honour said, having referred to his Honour’s earlier decision in Te:

Within the class of persons who could answer that description, Parliament can determine to whom it will be applied, and with what consequences. 

So what his Honour is saying there, in our submission, is that what his Honour has previously elsewhere said in relation to the power of Parliament to legislate to determine who will be an alien and what the consequences of that will be is a reference to legislating in such a way in respect of those people who could answer that description and, in our submission, a person who was a citizen, particularly a citizen from birth, is not within the class of persons who could answer that description on any understanding of the ‑ ‑ ‑

GORDON J:   Mr Hooke, that submission you have just put seems to me, at least on its face, to be inconsistent with that which you just answered to Justice Gageler because you place reliance upon birth independent of the statutory and positive law of the grant of citizenship.  In other words, as I understood the way you just put that answer by reference to Chief Justice Gleeson, is that birth and it may be some other indicia are themselves a category of persons that could not, on any view of the world, be an alien.  Do you accept that?

MR HOOKE:   No, it is because the citizenship was conferred as a right at birth without qualification.

EDELMAN J:   Mr Hooke, does that not then mean that the definition of whether someone is an alien cannot be determined other than by reference to what Parliament has legislated?  Does that not then become circular, particularly if Parliament’s legislation is itself dependent upon the alien power?

MR HOOKE:   No, your Honour, because, in our submission, there has to be – and this is where the naturalisation and denaturalisation cases muddy the waters somewhat, because in that circumstance one has a person who was an alien and then ceases to be by reason of the enactment, and that status is capable then of being changed, we would say, under the naturalisation power rather than the aliens power.

But for the sake of argument, in respect of a naturalised citizen, one would at least be dealing with a subject who had at one stage been an alien and on an extended view of the power might be subject to its exercise at some later point.  We would submit not because, in our submission, once they enter membership of the community they are beyond reach of the aliens power, and if there is a power of denaturalisation to be exercised in respect of that person then it arises under the naturalisation power by which their citizenship was acquired rather than on the ‑ ‑ ‑

EDELMAN J:   Mr Hooke, under the immigration power for decades we have had a test that has worked very, very well for when someone is integrated into the community – to use your language – but that is not a test that depends upon any positive statutory law.  Why, if an immigrant is an alien, should there be a different test for when an immigrant is integrated into the community from when an alien is integrated into the community?

MR HOOKE:   Because Parliament, in its wisdom, has legislated to provide that membership of the community apropos of alienage shall be by way of citizenship.  That is subject, of course, to the Court’s holding to Love.  There is a statutory status which is acquired in respect of non‑alienage, or a large category of non‑alienage, which is citizenship, and that lends itself to – as the Chief Justice explained in Love – a clear and dichotomous…..  The question of whether alienage ought to be determined by reference to a broad concept of absorption into the community or into the body politic is…..in our submission, we do not need.  We are certainly not…..if that were an approach that commended itself to the Court.

There is much to be said, consistent with the approach the majority took in Love, that someone who is born here and has always lived here and been part of the community ought not be treated as an alien.  That is not a large extension.  The example that the Solicitor-General gave in Love and in, I think, Chetcuti, of the child born to parents who were Australians ‑ ‑ ‑

STEWARD J: Mr Hooke, I am sorry to disturb you, but can I just understand this aspect of your argument – I apologise if I have not understood. Is your proposition that a person cannot have the status of being a non‑alien outside the parameters of the Citizenship Act? Is that the proposition?

MR HOOKE:   No, your Honour.

STEWARD J:   …..

MR HOOKE:   What we say is that whatever the breadth of categories of people who are non‑aliens, it necessarily includes those who are citizens and particularly those are citizens from birth.

STEWARD J: So, taking an example, if the Citizenship Act said that to be a citizen you needed to be born here and be a third‑generation Australian, that would be a class of non‑alienage which would be smaller than the constitutional meaning of that term. Would that be right?

MR HOOKE:   Yes, it is.

STEWARD J:   Thank you.

MR HOOKE:   We say that the class of people who hold citizenship are a class within those who are incapable of having the status of alien.  Could I take your Honours then, as I indicated, to volume 1 of the special case book.  Your Honours will find behind tab 5 the amended special case.  As I have said, the narrowing of the issues means that much of the material in the books is no longer relevant, so I can fairly briefly take your Honours to the key aspects of the factual matrix that bear upon the debate as we see it.  Can I invite your Honours, first of all, to paragraph 5?  Your Honours will see:

The Plaintiff’s parents were born the Republic of Turkey . . . They are, and at all relevant times have been, citizens of the Republic of Turkey.

At paragraph 6:

The Plaintiff’s parents arrived in Australia as refugees in 1985, at which time they became lawful residents of Australia . . . The Plaintiff’s mother and the Plaintiff adopted the surname “Alexander” on 18 October 1995.

The Plaintiff’s mother acquired Australian citizenship on 22 June 1988.

At paragraph 8, your Honours see that:

The Plaintiff was born in Sydney on 5 August 1986. He became an Australian citizen by birth pursuant to s 10(1) of the AustralianCitizenship Act 1948 (Cth) as then in force.

In addition, at the time of the Plaintiff’s birth . . . he also acquired Turkish citizenship –

as a matter automatic operation of the law of Turkey.  Can I just interpolate there – and I will take your Honours to the Act, as I said – but the conferral at birth of an unqualified right to Australian citizenship was a legislative choice the Parliament, at that time, had made.  It conferred an unqualified citizenship as a right – subject only to the terms that were found in the Act at the time of conferral of that citizenship.  That was the legislative choice that informed the plaintiff’s membership of the Australian body politic.  Moving on, at paragraph 12, your Honours see that:

On 16 April 2013, the Plaintiff departed Australia –

saying that Turkey was where he would spend the largest amount of time, he would be away for three months and:

the country of his future residence was Australia.

At paragraph 13:

Prior to his departure from Australia, the Plaintiff informed his family that the purpose of his travel was to arrange a marriage, and that he intended to return to Australia.

At some stage, he entered Syria from Turkey because:

On 3 May 2013, the Plaintiff married [his wife] in the Governorate of Idlib, Syria.

At paragraph 16, your Honours see that ASIO reported in June 2013 that they assessed that his travel to Syria was facilitated by a convicted terrorist identified in the special case book.  Reference is made then to some telephone intercepts.  At paragraph 17, it is recorded that the plaintiff’s sister, the litigation guardian, claims that:

while he was in Syria, the Plaintiff informed her that he wanted to return to Australia but was unable to leave Syria because “all the roads are closed and there is no way to get out, we are stuck”.

Could I give your Honours a cross‑reference to paragraph 45.  Your Honours will see there that three lines into the paragraph:

In March 2015, a senior Commonwealth public servant reported to the Parliamentary Joint Committee on Intelligence and Security that there was no means of entering or exiting al‑Raqqa Province without needing to transit through some form of Islamic State control.

That of course is entirely consistent with the plaintiff’s sister’s account of what she was told by Mr Alexander while he was in Syria and it is consistent with him not at that time being a part of or involved with ISIL, in our submission.  I should also say that the Commonwealth makes the submission that your Honours would make no findings of fact or draw any inferences on the basis of the hearsay material that is in the special case.  We would in that respect say this. 

Your Honours are aware of the circumstances in which the plaintiff presently finds himself and has for some time now.  Your Honours are aware from the special case that since July of last year neither the plaintiff’s family nor have his lawyers, including the Syrian lawyers, have been able to make any contact with him at all. 

When your Honours turn to the question of finding facts and drawing inferences, your Honours would take the approach that one draws from Blatch v Archer and cases that have followed it in the many years since and have regard to the capacity of…..to adduce evidence of questions of fact when your Honours consider how the fact‑finding process is to be undertaken.

One of the things that we would say in relation to that is that evidence, albeit hearsay evidence, of contemporaneous conversations about matters of fact such as that recounted at paragraph 17 of the special case, are matters that your Honours would give some more weight, particularly where in that example it is corroborated quite independently by the information provided by the Commonwealth Public Service to the Parliamentary Joint Committee on Intelligence.

KIEFEL CJ:   Mr Hooke, is the relevance of that fact that it goes to the question of repudiation?

MR HOOKE:   It may go to the question of repudiation, your Honour, to the extent that repudiation is a matter relevant to the root analysis of citizenship or part of that, but as the Court has explained, allegiance, the antithesis of which is repudiation, is a consequence of citizenship, not a source of it.  So, in our submission, when the Commonwealth places the root of the consideration in questions of allegiance or repudiation, they invert the proper inquiry.  In our submission, allegiance is something that is always owed by a citizen and it cannot be repudiated.  But yes, we say that that fact is relevant to the question of repudiation. 

At paragraph 19, your Honours see that ASIO assesses that the plaintiff had joined ISIL by August 2013, and, fairly nebulously:

likely entered or remained in al‑Raqqa Province in Syria on or after 5 December 2014.

That date is relevant because it is the date on which the al‑Raqqa Province was declared by the Minister for Foreign Affairs for the purposes of Division 119 of the Criminal Code.  At paragraph 20, your Honours see that:

In November 2017, the Plaintiff was arrested by Kurdish militia in the village of Ziban in the Province of Deir El‑Zour, Syria (which was not a declared area).  In March 2018, the Plaintiff was transferred to the custody of Syrian authorities. 

At paragraph 21, your Honours see agreement that:

The conflict in Syria is marked by a range of human rights violations including unlawful attacks against civilians.  There have been reports of government forces arbitrarily detaining persons simply for being perceived to be opponents of the State.  There have also been reports of instances in the north‑east of the Kurdish Autonomous Administration arbitrarily detaining people suspected of affiliation to Islamic State in inhumane conditions.  The detention of prisoners in government‑controlled prisons in Syria has been associated with serious human rights violations including torture.  There are reports of prisoners dying in government‑controlled prisons in Syria as a result of torture and other ill treatment. 

Consistent with that, at paragraph 22, your Honours see that:

The Plaintiff’s sister states that the Plaintiff told her that, both while detained by the Kurdish militia and Syrian authorities, he was tortured and that while being tortured by the Kurdish militia he was forced to sign a paper without reading its contents.

The Plaintiff was subsequently charged by Syrian prosecutors with offences against the Syrian Penal Code.  On 31 January 2019, the Plaintiff was convicted and sentenced –

to a lengthy term of imprisonment.  In paragraph 24, your Honours see that:

A general amnesty law . . . was decreed by the President of Syria on 2 May 2021 -

and:

In June 2021, the Plaintiff informed his family that he had recently received a pardon -

Notwithstanding that, your Honours see at paragraph 25 that:

The Plaintiff remains in custody.  Prior to 15 July 2021, the Plaintiff told his family that he was being transferred to Branch 235 –

which is a Syrian Intelligence Prison in Damascus.  Your Honours see there the fact in relation to the inability to contact him since that time:

The Plaintiff claims that, according to his Syrian lawyer, a reason that he remains in detention in Branch 235 is that he is no longer an Australian citizen -

The intervening fact is at paragraphs 28 and 29 of the amended special book case:

On 16 June 2021, the Director-General of Security, ASIO, furnished a classified Qualified Security Assessment . . . to the Minister for Home Affairs . . . The purpose of the QSA was to “provide security advice to the Minister -

and your Honours will find that document behind tab SC‑3 at pages 90 and following of the annexures to the special case.  There are two matters of significance in relation to the document as far as it goes.  The first is that ASIO did not make any recommendation in relation to action under citizenship in respect of Mr Alexander.  The second is that the assessment that was provided was a qualified security assessment, which is defined under the ASIO Act, as opposed to an adverse security assessment, also defined under that Act, the latter being one that recommends a need to take some action in consequence of a security threat posed by the individual.

At paragraph 29 of the special case, on 2 July 2021 the Minister for Home Affairs made a determination that the plaintiff ceased to be an Australian citizen under section 36B(1) of the 2007 Act, and the determination is found in two places, behind tab SC‑5 and also behind tab SC ‑6, there being an error in relation to the date of the decision – sorry, I withdraw that – the determination itself is behind tab SC‑5 at page 103.

The reasons for the decision do not extend beyond a bare statement of satisfaction in each of the matters identified in the terms of the statute.  It was about two weeks after that that it seems that the plaintiff was transferred into Branch 235.

We would note in passing, at paragraph 31A that the plaintiff has applied for a review of the qualified security assessment in the Administrative Appeals Tribunal. That has yet to be considered. At SC‑6 and SC‑7, your Honours will see and I need not go to them, letters sent to Mr Alexander at an address in Glebe in Sydney, purporting to give notice of the determination under section 36B.

I have already taken your Honours to those paragraphs in the special case dealing with the particular consequences for Mr Alexander of the deprivation of his citizenship, to which we would add the acknowledgment by the Commonwealth of the practical outcome of citizenship cessation at paragraph 65 of the special case being frequently to situate individuals offshore.  That, of course, is plainly the case in respect of a citizen who is the subject of a cancellation whilst offshore because they would no longer have a right to re‑enter Australia.

The sequence of events which is, in our submission, telling as a matter of inference – going to the effects upon Mr Alexander of this exercise of power, is that he was sentenced to a period of imprisonment.  He received a pardon.  The qualified security assessment was conducted and citizenship was then cancelled.  Instead of being released he was transferred to a security prison and has since been uncontactable. 

His Syrian lawyer says the reason for this is his loss of Australian citizenship.  There is no other reason evident on the special case.  Indeed, the other facts in the special case being the fact of the amnesty and pardon would suggest that he would have been released the best part of 12 months ago. 

In our submission, the Court would infer, as we submit, that one of the practical impacts of the operation of section 36B in this case is a very serious deterioration in the condition and position of a man who has, all of his life, been a citizen of this country, and in which, in the ordinary course, he would have been resident now.

The paradigm juridical effect, of course, for a citizen who is within Australia at the time power is exercised under section 36B, is the liability to be detained and deported under the Migration Act and, of course, the loss of fundamental rights, including disenfranchisement. 

Can I with that background take your Honours to – I should just before leaving the special case book, as a matter of background and context, give your Honours some geographical reference.  The declaration of al‑Raqqa Province, your Honours will find behind tab SC‑14 starting at page 164 of the special case book and annexed to the declaration and forming part of it, at pages 166 and 167, are two maps of – at 166 a map of Syria and at 167 a detail of al‑Raqqa Province. 

Your Honours see – if your Honours turn the map to its landscape format, that at the top of the page to the north is Turkey and to the south lies Syria.  In dark grey your Honours see al‑Raqqa Province and to the left – to the north‑western corner of Syria – your Honours see Idlib Province.  Idlib, your Honours will recall, is where the plaintiff went to get married. 

On the other side of Syria to the east is a province with a slightly different spelling but which we apprehend to be Deir El‑Zour Province, which is the region in which the village is situated where the plaintiff was arrested by the Kurdish militia in late 2017; paragraph 20 of the special case, I am reminded.  So what your Honours see from that is that the areas where the plaintiff was positioned by his marriage and by his arrest are external to Al‑Raqqa and we simply give your Honours that reference by way of geographical context. 

Could I then invite your Honours to take up volume 2 of the joint book of authorities and behind tab 6 your Honours will find the Australian Citizenship Act1948.  This print is in the form in which the Act stood at the time of the plaintiff’s birth in 1985.   Your Honours will see at section 5 that:

In this Act, unless the contrary intention appears—

“alien” means a person who does not have the status of a British subject and is not an Irish citizen or a protected person -

Under section 7, which is not included in the joint book of authorities unfortunately, an Australian citizen under this Act has the “status of a British subject” – section 7(1) – so that puts such a person outside the Parliament’s definition of an “alien” under the Act as it stood when Mr Alexander was born. Only because it is referred to in the definition of “alien”, your Honours will see “protected person” defined in relevantly irrelevant terms at section 5(3A). At section 10 your Honours find the conferral of citizenship by birth, relevantly in this case, subsection (1):

Subject to this section, a person born in Australia after the commencement of this Act shall be an Australian citizen.

The exceptions or the qualifications to that that follow in subsections (2) to (5) are immaterial, but section 10 relevantly, in our submission, illustrates the legislative choice made by the Parliament as it obtains to this man.  Whether it was different in relation to somebody with different circumstances is a matter that your Honours need not necessarily address in this case.

Sections 10A and 10B address citizenship by adoption and by descent.  Division 4 concerns loss of citizenship as it obtained at the time this man acquired it.  Section 17, which was repealed in 2002, deals with the acquisition of dual citizenship.  That provision was, it seems, always controversial and in the second reading speech in relation to the Bill by which it was repealed there was incorporated into Hansard an advice from eminent Queen’s Counsel to the effect that the provision was ultra vires the Constitution.  It was in part for that reason that the repeal took place.

Section 18, which is now reproduced in different terms in section 33 of the current Act, provides for renunciation of citizenship and provides for the circumstances in which that renunciation is to take place, in subsection (1), and provides for the circumstances in which the Minister may or shall not register a declaration primarily in circumstances of war or unless satisfied or if it would make the person stateless.

Section 19 deals with loss of citizenship by reason of service in the armed forces of an enemy country. That has had a different iteration since the 1948 Act but is now incorporated in section 36B in subsection (5)(j) but provided in section 19 for its operation by force of law so that a citizen under the law of a foreign country who serves in the armed forces of a country at war with Australia should, upon service, cease to be an Australian citizen. Section 21 – which is now found in section 34, deals with a naturalisation obtained, in essence, by fraud.

GAGELER J: Mr Hooke, on this branch of your argument, does section 19 of the Act in the form that you are taking us to suffer the same vice as section 36B and, if not, why not?

MR HOOKE:   We would say not in terms of power because section 19, we would say, subject to issues of Chapter III – section 19 would be supported by the defence power because it deals with a person who is serving in an army with Australia. So, in our submission, that would be supported by the defence power.  It would not be supported by the aliens power.

KEANE J:   It does not require that the armed forces of the other country are engaged in hostilities with Australia or are likely to be engaged in hostilities with Australia?

MR HOOKE:   It does not ‑ ‑ ‑ 

KEANE J:   What does it have to do with the defence power?

MR HOOKE:   Well, the section is predicated upon the persons serving in the armed forces of a country at war with Australia.

KEANE J:   I am sorry, quite right.  I beg your pardon.

MR HOOKE:   Not at all, your Honour.  The other basis upon which that power could be supported is the incidental power in section 39, because serving in the armed forces of a country at war with Australia would constitute an offence under the Criminal Code.

GAGELER J:   Mr Hooke, I think, following the logic of that argument, you would also say that section 19 is supported by the external affairs power, would you?

MR HOOKE:   That may be so, your Honour.

GAGELER J:   I think that is problematic for this branch of your argument, Mr Hooke, because what that would mean would be that a person’s Australian citizenship would be able to be terminated – not under the aliens power – but under the external affairs power by reference to any conduct that the person might engage in outside of Australia.  I mean, that is where the logic of the argument takes you.

MR HOOKE:   Well, we would not support the power under the external affairs power.  In our submission, if section 19 of the 1948 Act takes its force from the defence power and potentially from the ancillary power, it is – as I said in answer to Justice Keane, it is subject, of course, to Chapter III limitations, in our submission, because it involves conduct that is, on any view, an offence and a serious offence and it was and remains on the statute books as such. 

But we do not say, and the Commonwealth does not say, that section 36B is supportable under the external affairs power and, in our submission, that is where the law would lie. It is certainly not, in our submission, supportable, by the aliens power.

GAGELER J:   So the submission is, as I understand it, that you can create the status of citizenship under the aliens power.  You cannot take away the status of citizenship under the aliens power, but you can take away the status of citizenship created under the aliens power under another head of power.  Is that the way ‑ ‑ ‑

MR HOOKE:   If the provision is supported by an appropriate head of power, and subject to the other safeguards in Chapter III, and in the implied limitations – and subject of course to the implied limitations for which we otherwise contend, so it is a very qualified yes, your Honour.

EDELMAN J:   Mr Hooke, the effect of this submission then is that the meaning of an alien, whether that be for whether a person is an alien or whether it is for the purpose of whether a person is going to become an alien, is determined not by reference to autonomous constitutional concepts like every other head under section 51, but it is determined by reference to legislation in relation to citizens under the aliens power and also legislation under other powers such as the defence power or possibly the external affairs power. Is that really ‑ ‑ ‑

MR HOOKE:   No, your Honour, because the question of whether a person is an alien person being a citizen does fall to be determined by whatever might be the result of the exercise of some other power.  The question of whether a person is an alien is a dichotomous question of status that either could be answered one way or another at a particular point in time. 

Now, a person who was an alien yesterday may not be an alien today because they have been naturalised.  A person who under a valid exercise of the power is not an alien today but is an alien tomorrow because – to take an example – there is a renunciation that the Minister accepts and which comes into force is not within the reach of the power yesterday but is tomorrow because of the change of status. 

But that is not to say that one evaluates the question of alienage by reference to what might be the consequence of any particular legislative provision should it come to operate at some point in the future.  That does not put a person today within reach of the aliens power and ‑ ‑ ‑

STEWARD J:   Mr Hooke, I am sorry – no, you finish your answer first, I apologise.

MR HOOKE:   Not at all, your Honour.  I was just going to add that, to the extent that citizenship does bring about a different approach to the consideration of concepts of alienage it is because, in our submission, citizenship is a sui generis status.  It is a status which records the membership of the citizen in the body politic, in the people recognised by the Constitution.

In a sense, it is a constitutional master status, because it determines the position of the citizen apropos of body politic, apropos of the Parliament, apropos of the Executive under the Constitution.  Also, it determines how many, many federal and State Acts and regulations apply, or do not apply for that person to their rights, to their duties, to their privileges, to their obligations – their liabilities.  It is something that is special, and it is something that requires to be treated differently – and to be treated in our submission with some reverence.

STEWARD J:   Mr Hooke, can I ask, is section 18 of the 1948 Act dealing with renunciation on your view a valid law?

MR HOOKE:   We would say that it is valid under the immigration power, your Honour.

STEWARD J:   Thank you.

MR HOOKE:   It has been recognised in that way.

GORDON J:   Can I pick up on that, Mr Hooke?  The immigration power is dealing with a certain category of people – that is putting it in neutral terms.  At least for my part, I would be grateful if you could give consideration to the separation out of citizenship and the grant of citizenship to those people who are naturalised – as distinct from those who, consistent with at least the majority in Love, and arguably some other authority – in respect of those people who are not aliens on any view and who are granted rights of citizenship, to pick up your point, for the purposes of pensions and the like – arguably either under the implied nationhood power and/or external affairs and to the extent to which they are granted passports and the like because I think at the moment, at least for my part, I am a bit confused about the way in which your argument is put.  It seems to confuse two ideas.

MR HOOKE: Of course, your Honour. I should make it clear that it is the immigration aspect of the power under 51(xxvii) that we say would support section 18. I said at the outset, I think, your Honour, that it may be that there is a difference in the status of a citizen from birth as opposed to a citizen by naturalisation, that being because naturalisation is a change in status that is conferred by the Citizenship Act upon terms – and it may be – and it does not fall for determination on the facts of this case – it may be that citizenship by conferral does not enjoy the security that citizenship from birth enjoys. But that is a question, in our submission, for another day, and a question that might involve the naturalisation power rather than the aliens power. Does that address the inconsistency that your Honour Justice Gordon raises with me?

GORDON J:   It may be that I misunderstood the submission, Mr Hooke, so I thank you. 

MR HOOKE:   Your Honours, in 2007 the Parliament enacted the Australian Citizenship Act 2007, and that is found in volume 1 of the joint book of authorities behind tab 3.  That Act made some changes in legislative choice.  It included the preamble that your Honours will find at 268 of the joint book of authorities and it removed from the definitions section the definition of “aliens” which had been found in the 1948 Act.  “Australian citizen” was defined by section 4 to mean:

For the purposes of this Act . . . a person who:

(a)is an Australian citizen under Division 1 or 2 of Part 2; or

(b)satisfies both of the following:

(i)the person was an Australian citizen under the Australian Citizenship Act 1948 immediately before the commencement day;

(ii)the person has not ceased to be an Australian citizen under this Act.

The plaintiff of course satisfied section 4(1)(b).  At section 12, your Honours find the replacement of the old section 10, which has provided since that time that:

A person born in Australia is an Australian citizen if and only if:

(a)a parent of the person is an Australian citizen, or a permanent resident, at the time the person is born; or

(b)the person is ordinarily resident in Australia throughout the period of 10 years beginning on the day the person is born.

So, a child born in Australia and of an Australian parent – of a citizen parent or permanent resident – acquires citizenship at birth, and a person born in Australia otherwise is a citizen only after they have lived here for 10 years from the date of birth.

EDELMAN J:   Mr Hooke, why are not those definitions in section 12(1) just enunciations in very broad terms of what would be the ordinary understanding of a non‑alien – in other words what does it add to your argument to search for legislation that has defined the ordinary understanding of a non‑alien, if in the 2007 Act it is really just crystallising what might be general and ordinary understanding?

MR HOOKE:   Well, your Honour, it may do no more than that.  The purpose in taking your Honours to this iteration of the legislation is really by way of legislative history and comparison with what existed at the time that Mr Alexander became a citizen with his birth.

EDELMAN J:   But what I am trying to ask – let me put it in the negative, for example.  Suppose section 12 were amended to provide that a carve‑out from this section is anyone born to a parent who happens to have foreign citizenship, whether or not they have Australian citizenship.  So any parent that might happen to have a foreign passport cannot give rise, by birth, to a child who is an Australian citizen.  Could legislation in that boot‑strapping way define someone who might ordinarily be regarded as a non‑alien to be an alien?

MR HOOKE:   Your Honour, the answer to that question depends upon whether, other than aboriginality, the aliens power – I will withdraw that and approach it in a different way.  It depends upon whether the concept of alienage outside aboriginality is treated as the contrary state to citizenship.  If citizenship and alienage – aboriginality to one side – are treated as opposite sides of the coin, then the Parliament could legislate to carve‑out in the way that your Honour posits.  However, if the Court were of the view that the concept of non‑alienage is broader than the statutory definition of “citizenship” then different and larger questions arise of the kind that your Honour raised with me early in my submissions in relation to ‑ ‑ ‑

EDELMAN J:   If your position, Mr Hooke, is the former, what at some stage I would like you to deal with is whether there is any other head of power in section 51 where the meaning or the converse of the meaning defined by reference to the converse concept is almost entirely determined by a statutory enactment.

MR HOOKE:   Your Honour, could I take that on notice, but say this in immediate response.  The position that we principally take is that it is unnecessary for us on the facts of this case to go that far because this man has all of his life been within the statutory definition of “non‑alien”.  So, to that extent, we say we do not need to go as far as asking the Court to broaden the scope of non‑alienage.  But as I said earlier, we would not be heard against the proposition that it would be proper to do so.  Perhaps the fallout from Love indicates that that is an appropriate course for the Court to take.

If one looks, for example, at the application of section 36B to an Aboriginal Australian who has citizenship but the Minister makes a determination under 36B(1) in respect of that person and decides to cancel their citizenship, they nonetheless remain a non‑alien. In respect of people who have lived in the country all of their lives and who have enjoyed the status of citizen all of their lives, it rather begs the questions, why would the position be different for them?

On the current jurisprudence of the Court, it would seem that, other than the Aboriginal Australian, the answer is, it is, because their non‑satisfaction of the definition of “citizenship” axiomatically puts them into the category of “alien”.  But, Love, and questions of principled construction do rather beg the question why the position should be different in respect of them when one considers that they have always been a part of the Australian community – civilly and politically.  But I will take your Honour’s observation on board.

KIEFEL CJ:   I see the time, Mr Hooke.  The Court will adjourn for 15 minutes.

MR HOOKE:   May it please the Court.

AT 11.22 AM SHORT ADJOURNMENT 

UPON RESUMING AT 11.40 AM:

KIEFEL CJ:   Mr Hooke, will you be turning to Chapter III and the punishment question shortly?  I think you are on mute, Mr Hooke.

MR HOOKE:   I apologise, your Honour.  I have a little more to cover with ground 1 and then I will move to Chapter III.

KIEFEL CJ:   Yes, thank you.

MR HOOKE:   Before the adjournment, Justice Edelman asked me a question relating to classification and definition of “alien” by reference to other heads of power.  We, in the time available, have not identified any other head that we would see as operating within the confines of a statutory definition of, in this case, “citizenship”, which by obverse - defines the scale of the constitutional term. 

In Love at paragraph 86, Justice Gageler identified some powers:  “bankruptcy”, “copyrights” and “marriage”, which his Honour considered operated by way of juristic classification by force of positive law enacted by the Parliament, which his Honour compared to the aliens power.

With great respect, we would submit to the contrary.  In our submission, the other heads identified by Justice Gageler have quite a different character to the aliens power, at least in relation to citizenship, because they regulate matters of interpersonal rights and relations rather than, in the case of citizenship, the fundamental constitutional relationship between a citizen and the Commonwealth.

EDELMAN J:   Mr Hooke, the notion of a topic of juristic classification – in constitutional terms – came from Justice Windeyer in the marriage case, the Attorney‑General (Cth); Ex rel McKinlay v Commonwealth and in the passage where he mentions the topic of juristic classification, very, very shortly afterwards he says that, nevertheless, so far as Parliament can regulate by law they have to do so without impairing the essence of marriage, which is not a statutory concept, the essence of marriage being whatever this autonomous constitutional notion is.  My question to you was whether there is any power where, consistently with the Communist Party Case, the constitutional meaning can be defined by reference to a statutory concept?

MR HOOKE:   We would say, with respect, no.  But what we do say is that insofar as a statutory concept is relevant – a statutory status of citizenship is a subset firmly embraced within the non‑alien status, so, firmly placed outside the reach of the aliens power.  Can we illustrate it this way?  At the time of his birth Mr Alexander was the subject of a parliamentary decision that he would be a citizen, and not an alien.  No matter whether one takes an open juristic classification approach or an intrinsic belonging approach, or an absorption into the community approach, he was placed outside the aliens power at that time, and that is where he has stayed, in our submission. 

GAGELER J:   Mr Hooke, this might be just stating the obvious, but the end game for your client is not that he wants to be a non‑alien, it is that he wants to be and remain a citizen, is it not?

MR HOOKE:   Yes, your Honour.

GAGELER J:   It is a little different from Mr Love’s case, for example, in that respect.

MR HOOKE:   Yes, I accept that, your Honour, yes. 

EDELMAN J:   Mr Hooke, is that right?  Does your client really want all of the trappings of citizenship, or is the one thing that he wants the inability to be deported or prevented from entering Australia?  In other words, do other trappings of citizenship like a right to vote or a right to participate in various aspects of the political community matter to him?

MR HOOKE:   Your Honour, at a subjective level, that is a question that is impossible for me to answer.  What he wants is to come home and to that extent citizenship is important because, apart from anything else, it would entitle him to the protection and assistance of the Commonwealth in getting him out of where he is and back to his home and his family. 

EDELMAN J:   I suppose, to put it in simpler terms, what my question is, at the core of being a non‑alien as well as at the core of being a citizen there are notions of not being able to be permanently deported.  But there may be a difference between the two concepts in that citizenship is a very large collection of different rights that might not correspond precisely with a constitutional concept of non‑alienage. 

MR HOOKE:   Yes, quite so, your Honour. Quite so.  He wants to be placed in the position that he ought to have been in and ought be in but for what we say is this legislative overreach.  So, it is the full package that he wants but of course, once he is not an alien he is beyond the reach of the power to take his citizenship away.  We would say they would be part and parcel with one another in this case.  They may not be in all cases but in this case they are.

Could I also return to a question that Justice Gageler asked me earlier in the morning about the potential applicability of the external affairs power in relation to citizenship?  We have addressed in our written submissions in‑chief the reasons why we say the external affairs power would not apply – would not ground a power in relation to citizenship – the essence of which is that citizenship is something that is intrinsically internal.

We have not gone to those submissions in light of the abandonment of reliance by the Commonwealth on the external affairs power, but we would rely on those submissions in answer to your Honour’s question.  The short point is we would not accept that the external affairs power would support a power of this kind.

I was taking your Honours before the adjournment to Division 3 of Part 2 of the 2007 Act at tab 3 of the joint book of authorities which deals with cessation.  I have taken your Honours to section 33 which was renunciation.  Section 34 picks up a briefer provision that was in the 1948 Act, which is revocation of citizenship obtained by descent or by conferral in circumstances effectively of a fraud upon the process – which is a much more detailed and involved provision to similar effect to the earlier provision.

Section 35 was the old section 19 which was a person ceasing to be a citizen if they have served in the armed forces of a country at war with Australia.  Section 36 dealt with children whose responsible parents ceased to be citizens.  So those were the grounds for removal or cessation of citizenship in 2007. 

In 2015, there were amendments – and the amending Act appears behind tab 8 in volume 2 of the authorities.  At page 453 of the joint book of authorities, your Honours see the insertion of section 33AA which deals with renunciation by conduct.  Your Honours see that it picks up in subsection (2), conduct – through to (h) – of the kind now reversed in 36B – all the way through to (j).

Importantly, subsection (3) provided that the foregoing provisions only apply if the conduct is engaged in with identified intents.  Those are significant because they involve what is lacking from section 33 – which is any consideration of intention or fault or anything else that tends to engage culpability or, to pick up the language of the section, a notion of renunciation.

Subsection (4) provides, effectively, a deeming provision in relation to intent in the case of membership or acting with or for a declared organisation.  Subsection (6) removes the fault elements of the offence provisions picked up earlier in that subsection but against the background of a separate intent provision in subsection (3).

STEWARD J:   Mr Hooke, do you accept the validity of some or all of 33AA?

MR HOOKE:   Your Honour, subject to Chapter III questions and the other…..limitation issues that we raise, the applicability or the availability of a head of power in respect of, for example, defence could arise in relation to subparagraphs (a), (b), (c), (d), for example, of subsection (2).  They fall almost within the – serving in an army…..all of Australia to an extent that they might be actions taken against Australia or Australian interests.  So, to that extent, they might be supportable under the defence power.

They may also, again subject to Chapter III and subject to the other implied limitations we raise, arise under the ancillary power if otherwise supported in terms of punishment of offences.  But perhaps it would not be supportable, certainly in this case, under the aliens power, indeed, under any case under the aliens power, in our submission, because it is foundationally predicated on Australian citizenship and the person the subject of the exercise of the power having that status.

Section 35 is the “Service outside Australia in armed forces of an enemy country” or expanded to include “a declared terrorist organisation”, and that in 2020 was incorporated into section 36B. The current form of the Act is in volume 1, tab 1 of the joint book of authorities. At page 22 of the book, your Honours see the preamble we have used. “Australian citizen” is defined in the same way, and “Citizenship by birth” is defined in the same way in the Act as enacted.

Sections 33 and 34 remain the same.  Section 34A includes a revocation of naturalisation on the basis of residence requirements.  Subsection (c), which starts at page 89, deals with citizenship cessation determinations.

In volume 14 of the joint book of authorities at tab 89 is the revised explanatory memorandum for the 2020 amendments, if your Honours would have that open with the Act. I will pass over section 36A but return to it. Section 36B provides in subsection (1) that in relation to “a person aged 14 or” over they will cease “to be an Australian citizen” – so it is predicated again on the holding of citizenship – “if the Minister is satisfied” of the matters in paragraphs (a) to (c). The cessation in subsection (3) takes force:

at the time the determination is made -

and it is permanent.  Section 36L provides that a person who is the subject of citizenship cancellation under this power or under section 36D may never again be an Australian citizen, subject to the revocation power under 36H.

What we observe in relation to subsection (1) is, first of all, that it takes as its base of operations someone who is by definition not an alien.  Secondly, we observe that the elements of paragraph (a), being outside Australia or while in Australia but having since left Australia, would seem to be an attempt no longer sought to be justified to invoke the external affairs power.  Paragraph (b):

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

I said in opening that, in our submission, that is to reverse the inquiry because the allegiance of which it speaks is a consequence of the citizenship, not vice versa, so to treat a repudiation of allegiance as a foundation of the cessation of citizenship, in our submission, is a false inquiry.

In any event, we would…..that it is difficult when the fault elements of the conduct which supports the determination is stripped away to attribute repudiation on a faultless basis as it were.  The explanation of that drafting – the exclusion of fault – is said to be in paragraph 78 of the explanatory memorandum, at page 5635 of the joint book of authorities.  It is said to be to recognise the provisions:

not concerned with whether a person has committed a criminal offence, since that is a matter for a court to determine.

That, in our submission, is plainly a drafting device designed to try and avoid the effects of Chapter III – to which, of course, we will come in a short time.  But, nevertheless, it depends for its operation upon the physical elements of each of those identified offences.  To take your Honours back then to section 36A, your Honours see that it is described as being the “Purpose of this Subdivision” I will not read it to your Honours, but your Honours see that it turns upon the concept of repudiation of allegiance – not repudiation of citizenship but repudiation of allegiance. 

We say that that is, with respect, misconceived.  We say that it is inconsistent with the writing of a number of members of the Court in Love – Justice Gageler at 89, Justice Edelman at 429, Chief Justice Kiefel in the passages to which I took the Court in opening and elsewhere.  So, to that extent, the extent that it informs the construction of 36B, it does not do so in a way that assists the Commonwealth in defending the validity of the division under the aliens power.  It goes off, as it were, on a false premise. 

It is put against us also that one of the criticisms that can be made of citizenship‑stripping powers is that they can render a person stateless.  This might in a sense tie in more directly to ground 5 of the Chapter III point, but it is relevant to the question of allegiance to others.  The Commonwealth in writing seems to suggest that the fact that a person holds dual citizenship of itself puts them within reach of the aliens power.  That is, in the modern era at least, a novel proposition and one that has been rejected by this Court on a number of occasions and, in our submission, ought to be rejected equally here. 

But the proposition put by the Commonwealth that the subject of a determination under section 36B can never be stateless because of subsection (2) is again to misstate the effect of the provision. What is required is only a state of ministerial satisfaction in relation to a person being a national or citizen of another country. It does not require proof at the level of objective fact and, to the extent that the Commonwealth asserts that the position is protected because there would be a mandatory revocation of the determination if a court on judicial review found that as fact that there was citizenship or nationality, there was no citizenship or nationality elsewhere.

That, in our submission, misrepresents the nature of judicial review because, of course, in exercising that kind of power a court under section 75(v) of the Constitution would never come to make a finding of fact at the time that would engage the mandatory revocation power.  Another observation we make in relation to the provision is that by – sorry, I will withdraw that and find it.  I am sorry I have lost ‑ ‑ ‑

GORDON J:   Mr Hooke, while you are pausing, may I ask a question.  Is another way of putting your false premise argument along the lines that was addressed by Chief Justice Knox in Yates and picked up in the Communist Party Case and that is that the constitutional validity of a law cannot be made to depend upon the opinion of the Executive, that the law or act done pursuant to the law is within or relates to the subject matter of the head of power, here the aliens power, unless it can be judicially reviewed – and here it is unable to be effectively reviewed under the provisions as well as functionally unable to be reviewed?

STEWARD J:   Does that mean that you are asking us – and thank you for that clarification – you would have to have as the default element knowledge that it is a declared area?

MR DONAGHUE:   To commit the offence, your Honour, yes.

STEWARD J:   Yes.  All right, thank you.

MR DONAGHUE:   But here we leave those fault elements aside for the purposes of identifying the conduct under 36B.  But – and this is really - your Honour’s question prompts me to perhaps try to be a little clearer about why I am taking your Honours through the painful definition chains – my objective in doing this is to show that these declared area provisions are quite targeted. 

They acknowledge that they are different in form from the offences that actually require active involvement in a terrorist act, but they are nevertheless, as the chain of definitions I just took your Honours through showed, definitions that require an area to be controlled relevantly by a terrorist group, a proscribed terrorist group that has to have the particular characteristics just mentioned, and that group has to be engaging in hostile activity, itself a concept that your Honours see defined in quite some detail in 117.1 of the Code, in essence engaging in conduct with the intention of achieving the overthrow of a foreign government by force, intimidating the public, causing death or bodily injury to persons who hold office, unlawfully damaging or destroying government property.

So that you cannot just declare any old area.  It has to be an area that has a listed terrorist organisation engaging in activities as defined by that “engaging in hostile activity” definition, and the Minister has to do through a legislative instrument that is disallowable by the Parliament according to the normal disallowance provisions in the Legislation Act, section 42, and in addition to that normal disallowance process, Parliament contemplated in 119.2(8), if your Honours could go back to that, so 119.2, the offence provision, at the end ‑ ‑ ‑

GORDON J:   I am sorry, Mr Solicitor, I do not seem to have a subsection (8).  Do you mean the sunset provision in subsection (6)?

MR DONAGHUE:   No, your Honour, I have gotten ahead of myself, I am sorry.  It is 119.3(7).  I apologise to your Honours.  So the power pursuant to which the Minister makes a declaration of a declared area has at the end of it in subsection (7) a specific contemplation that:

The Parliamentary Joint Committee on Intelligence and Security may:

(a)       review a declaration; and

(b)report the Committee’s comments and recommendations to each House of the Parliament before the end of the applicable disallowance period –

So there is a disallowance provision under section 42 and a mechanism for parliamentary review of the declaration so as to inform Parliament properly prior to the making of a decision or not. All of that was explained – and I will not take your Honours to the EM that accompanied the enactment of these provisions, but you have it in volume 14, tab 90 – to deter - the point of the declared area offence provisions was:

to deter Australians from travelling to areas where listed terrorist organisations are engaged in a hostile activity -

That is 234 of the EM, and 243 said:

Those that travel to a declared area without a sole legitimate purpose or purposes may engage in a hostile activity with a listed terrorist organisation.  These people may return from a declared area with enhanced capabilities which may be used to facilitate terrorist or other acts in Australia.

Now, I should – perhaps I am taking this slightly out of order, but it might be convenient for your Honours to see now that if you go back to 119.2, you will recall the offence is entering the area declared by the Minister under a legislative instrument of the kind I have just described, but one then needs to have regard to subsection (3), “Exception – entering or remaining solely for legitimate purposes”. 

So you do not commit an offence against this provision if you enter or remain in for the purpose solely for one of more of the following:  providing humanitarian aid; satisfying an obligation to appear before a court; performing an official duty for the Commonwealth, a State or a Territory; performing an official duty for a foreign government; performing an official duty for the United Nations or the Red Cross; journalists making news report of the area; making a bona fide visit to  family members; any other purpose prescribed in the regulations.

So this is not a blunt instrument.  It may be that we are not picking up the fault elements that I have identified to your Honour Justice Steward, but, nevertheless, when one looks at the conduct that can constitute this offence, all of the innocent reasons for going into an area that is controlled by a terrorist organisation engaging in hostile activity are taken out, and one is left with, in my submission, conduct that is prima facie capable of satisfying the Minister as to repudiation of allegiance.  “Prima facie capable”, I say, because this is just conduct element (a), we are just dealing with a class here.

Whether the actual conduct of the person who is to lose their citizenship does demonstrate repudiation of allegiance remains to be determined at paragraph (b), but in terms of the funnelling process, Parliament has started with the universe of all possible conduct and said, in 36B(5), the possible conduct that exposes you to cancellation of your citizenship is terrorist‑related‑type activities or going to a declared area for a reason that is not one of the innocent reasons listed in subsection (3). 

As a starting point, in our submission, that is not bad, as a categorisation of the kind of behaviour that is capable of demonstrating repudiation or inconsistency with allegiance to Australia, and then you have the other criteria.

I promised your Honour, in particular your Honour Justice Gleeson, that I would come to how this was all actually – and your Honour Justice Gordon - engaged on the facts of this case – and so, can I ask your Honours to take up the special case book and to turn to page 58.  There, in the special case, it is recorded in paragraph 44 that:

On 4 December 2014, the Minister for Foreign Affairs declared al‑Raqqua Province in Syria to be a “declared area” for the purposes of section 119.3 of the Criminal Code –

and you can see that the special case annexes a copy of the Minister’s declaration, a copy of the statement of reasons for the declaration, and a process‑type document.  The declaration itself does not tell you anything informative.  It is attachment 14 to the special case at pages 164 and 165 of the book – I think that is the map your Honours saw earlier.

But, if your Honours go to page 169 and following of the special case book, you will find there the Minister’s statement of reasons for the declaration of “Al‑Raqqa Province”.  So, this is what we know about why the Minister chose to make the declaration of the area that the appellant entered.  If you start at the bottom of page 169, “Geographic basis of the group’s activities”, and your Honours will see that the first paragraph says this is a public document:

corroborated by classified information.

At the bottom of that page:

Since January 2014, ISIL has focussed on capturing and consolidating control over large areas of Iraq and Syria.  It operates across much of Iraq and Syria, but is based in the Iraqi provinces of Niewa and al‑Anbar and the Syrian province of al‑Raqqa, which serves as its de facto capital.

We are told where it is, and then at the top of the next page:

ISIL’s activities in these areas of Iraq and Syria, and calls by ISIL’s leadership, have attracted thousands of foreign fighters, including Australians, who have travelled to Iraq and Syria to join ISIL and engage in hostile activity.

Then about halfway down – no, I will not skip over that, so under the next heading:

ISIL has sought to replace the Iraqi and Syrian governments through the conquest of territory and the declaration of a caliphate . . . It governs territory by applying its rule over the population by force.

It has captured the:

air base in al‑Raqqa Province, Syria, after several days of fighting in which over 500 militants and Syrian soldiers were reportedly killed.

. . . 

In areas under its control, ISIL seeks to supplant government control over all official functions.  This includes setting up courts and applying punishment for infractions –

et cetera.  Then in the two bullet points near the bottom of that page, engages in public executions of Syrian soldiers; on 29 August:

a video posted online shows ISIL forces executing hundreds of Syrian soldiers in al‑Raqqa province following their capture –

of the air base.  At the bottom paragraph:

ISIL uses terrorist attacks extensively against civilians . . . This includes frequent mass casualty attacks in public places including marketplaces . . . mass executions, including beheadings, and publicises these activities –

Over the page, second paragraph:

numerous videos of beheadings featuring threatening statements . . . including American or British citizens . . . intended to threaten or intimidate Western audiences.

Then there is an example of the numerous atrocities, including the killing of hundreds of people, including women and children, all controlled from al‑Raqqa, the de facto capital, which leads to the conclusion at 172 that, on that basis:

ASIO assesses that ISIL is engaged in hostile activities in al‑Raqqa Province, Syria.

That declaration including the reasons was reviewed pursuant to that special parliamentary committee procedure to inform possible disallowance – including through classified hearings where the intelligence agencies gave evidence to the Parliament.  You can see that review starting at page 181 of the book, attachment 17 – you have a copy of the Parliamentary Report.  It recommended that the legislative instrument declaring al-Raqqa not be disallowed, having examined evidence including classified evidence as to the reasons for that declaration.

I note the time, your Honours.  Might I have just one or two minutes to finish my point on this?  Is that convenient?

KIEFEL CJ:   Yes, Mr Solicitor.

MR DONAGHUE:   I will not take your Honours right through this report but, if your Honours could note particularly 1.6.  The committee saw its function as reviewing the evidence to examine why particular areas were declared.  At 1.12, on page 193, it conducted classified hearings so it could interrogate the evidence in more detail.  At 1.25, it records the evidence upon which our friends have placed some reliance, that there was:

no means of entering or exiting Al Raqqa without needing to transit some form of ISIL control.  So it was a fairly clear‑cut example where ISIL is controlling the entire province and is active and is using it as base -

Now, this is an area totally controlled by ISIL to engage in public and horrific terrorist activities including against the civilian population.  What was the plaintiff doing there?  Well, on ASIO’s assessment, he travelled to Syria on a trip arranged by a Sydney-based terrorist network – that is paragraph 16 of the special case.  He joined ISIL by August 2013 – that is he was a member of ISIL at the time that he was in the area where these things were happening – and he entered ISIL, an area totally controlled where entry and exit was controlled by ISIL, as a member of ISIL after the declared area provisions were made.

So your Honours should, in our submission, view with an extreme level of scepticism the submissions from our friends that suggest that he is somehow an innocent caught up inadvertently, like a hiker straying into al‑Raqqa Province.  These provisions are targeted at people exactly like the applicant, who go to fight for foreign terrorist organisations, and that the facts in the special case show that, far from being over broad, they accurately target the very kind of thing that the plaintiff here did.  Thank you for that extra time, your Honours.  Is that a convenient moment?

KIEFEL CJ:   Yes, thank you, Mr Solicitor.

The Court will adjourn to 9.30 am tomorrow for the pronouncement of orders and otherwise until 10.00 am.

AT 4.18 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 17 FEBRUARY 2022