KIEFEL CJ, GAGELER, GORDON, EDELMAN, STEWARD, GLEESON AND JAGOT JJ
PHYLLIP JOHN JONES PLAINTIFF
AND
COMMONWEALTH OF AUSTRALIA & ORS DEFENDANTS
Jones v Commonwealth of Australia
[2023] HCA 34
Date of Hearing: 15 June 2023
Date of Judgment: 1 November 2023
B47/2022
ORDER
The questions stated for the opinion of the Full Court in the special case filed on 4 April 2023 be answered as follows:
Question 1: Is s 34(2)(b)(ii) of the Australian Citizenship Act 2007 (Cth) invalid in its operation in respect of the plaintiff because:
(a)it is not supported by s 51(xix) of the Constitution; or
(b)it reposes in the Minister the exclusively judicial function of punishing criminal guilt?
Answer: No.
Question 2:What, if any, relief should be granted to the plaintiff?
Answer:None.
Question 3:Who should pay the costs of the special case?
Answer:The plaintiff.
Representation
S H Hartford Davis with D J Reynolds, S J Hoare and K E W Bones for the plaintiff (instructed by Fisher Dore Lawyers)
S P Donaghue KC, Solicitor-General of the Commonwealth, and F I Gordon SC with L G Moretti and A N Regan for the defendants (instructed by Australian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Jones v Commonwealth of Australia
Constitutional law (Cth) – Powers of Commonwealth Parliament – Power to make laws with respect to naturalisation and aliens – Cessation of Australian citizenship – Where s 34(2)(b)(ii) of Australian Citizenship Act 2007 (Cth) ("Act"), in context, provided Minister may revoke person's Australian citizenship acquired by conferral if, among other matters, person "convicted of a serious offence" within meaning of s 34(5) after making application to become Australian citizen – Where s 34(5) provided person "convicted of a serious offence" for purposes of s 34 if person convicted of offence against Australian law or foreign law for which person sentenced to death or to "serious prison sentence" and person committed offence before becoming Australian citizen – Where s 3 defined "serious prison sentence" as sentence of imprisonment for period of at least 12 months – Where plaintiff British and Australian citizen – Where plaintiff Australian citizen by virtue of certificate of Australian citizenship – Where plaintiff convicted of criminal offences relating to conduct before becoming Australian citizen and sentenced to more than 12 months' imprisonment – Where Minister revoked plaintiff's Australian citizenship under s 34(2) of Act – Whether s 34(2)(b)(ii) of Act supported by s 51(xix) of Constitution – Whether s 34(2)(b)(ii) law with respect to naturalisation.
Constitutional law (Cth) – Judicial power of Commonwealth – Cessation of Australian citizenship – Where precondition to Minister's power to revoke person's Australian citizenship under s 34(2)(b)(ii) of Act was, among other things, that person convicted of and sentenced to imprisonment for period of at least 12 months for offence committed before becoming Australian citizen – Whether s 34(2)(b)(ii) contrary to…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Jones v Commonwealth of Australia [2023] HCA 34
Case
[2023] HCA 34
Decision Date
CaseChat Overview and Summary
The case of *Jones v Commonwealth* concerned the validity of a provision within the *Australian Citizenship Act 2007* (Cth) that allowed the Minister to revoke a person's Australian citizenship acquired by conferral. The plaintiff, who was a British and Australian citizen, had been convicted of serious offences committed before becoming an Australian citizen and sentenced to imprisonment for a period of at least 12 months. The Minister had revoked his citizenship under section 34(2)(b)(ii) of the Act. The plaintiff challenged this revocation, arguing that the provision was invalid.
The High Court was required to determine two primary legal issues. First, whether section 34(2)(b)(ii) of the Act was supported by the Commonwealth Parliament's constitutional power under section 51(xix) to make laws with respect to "naturalisation and aliens." Second, the Court had to consider whether this provision improperly conferred upon the Minister an exclusively judicial function by effectively punishing criminal guilt, thereby contravening Chapter III of the Constitution.
The Court reasoned that the power to revoke citizenship under section 34(2)(b)(ii) was a valid exercise of the Parliament's power to legislate with respect to naturalisation. It was held that the provision was not punitive in nature but rather served the legitimate non-punitive purpose of protecting the integrity of the naturalisation process. The Court emphasised that the preconditions for revocation, including a serious criminal conviction and a substantial prison sentence, were not for the purpose of punishing the individual but were statutory requirements that indicated a person might not be a fit and proper citizen. The Court also noted that the provision was limited to what was reasonably capable of being seen as necessary for the purpose of protecting the integrity of the naturalisation process.
The High Court answered the questions stated for its opinion. It held that section 34(2)(b)(ii) of the *Australian Citizenship Act 2007* (Cth) was not invalid in its operation in respect of the plaintiff, as it was supported by section 51(xix) of the Constitution and did not reposes in the Minister the exclusively judicial function of punishing criminal guilt. Consequently, no relief was granted to the plaintiff, and the plaintiff was ordered to pay the costs of the special case.
Orders
Orders of the court
The questions stated for the opinion of the Full Court in the special case filed on 4 April 2023 be answered as follows:
Question 1: Is s 34(2)(b)(ii) of the Australian Citizenship Act 2007 (Cth) invalid in its operation in respect of the plaintiff because:
(a) it is not supported by s 51(xix) of the Constitution; or
(b) it reposes in the Minister the exclusively judicial function of punishing criminal guilt?
Answer: No.
Question 2:What, if any, relief should be granted to the plaintiff?
Answer: None.
Question 3:Who should pay the costs of the special case?
Answer: The plaintiff.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
KIEFEL CJ, GAGELER, GLEESON AND JAGOT JJ
GORDON J
STEWARD J
It is, therefore, no objection that Parliament excluded from the Minister's power to revoke citizenship those instances of naturalisation by descent or adoption or those circumstances where revocation would cause Australia to be in breach of its international obligations. Nor, in light of the interpretation of s 34(2)(c) explained above, can it be any objection that a further condition for revocation is the Minister's satisfaction that it would be contrary to the public interest for the person to remain an Australian citizen. Rather, as explained above, the application of s 34(2)(c) will necessarily be confined to the purpose of protecting the integrity of the naturalisation process.Conclusion The questions in the special case should be answered as follows:(1)Is s 34(2)(b)(ii) of the Australian Citizenship Act invalid in its operation in respect of the plaintiff because:(a)it is not supported by s 51(xix) of the Constitution; or(b)it reposes in the Minister the exclusively judicial function of punishing criminal guilt?Answer:No.(2)What, if any, relief should be granted to the plaintiff?Answer:None. (3) Who should pay the costs of the special case?Answer:The plaintiff. The plaintiff was born in the United Kingdom of Great Britain and Northern Ireland in 1950. He migrated to Australia in 1966. On 21 December 1988, he acquired Australian citizenship pursuant to the Australian Citizenship Act 1948 (Cth) ("the Old Citizenship Act"). In 2003, the plaintiff was convicted of five counts of indecent dealing and indecent assault, some of which occurred before he became a citizen of Australia. Two events have since taken place as a result of the plaintiff's offending. First, in 2018 the Minister for Home Affairs, Immigration and Border Protection revoked the plaintiff's citizenship pursuant to s 34(2) of the Australian Citizenship Act 2007 (Cth) ("the Present Citizenship Act"). Thereafter, the plaintiff held an ex‑citizen visa which permitted him to remain in Australia. Secondly, in 2021 the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs cancelled the plaintiff's ex-citizen visa. Thereafter, the plaintiff assumed the status of an unlawful non-citizen who is to be deported. This special case concerns only the first decision. In particular, the plaintiff challenges the validity of s 34(2)(b)(ii) of the Present Citizenship Act. It should initially be observed that the immediate effect of revoking the plaintiff's citizenship was not to expose him to immigration detention pending deportation to the United Kingdom. His ex‑citizen visa was a permanent visa which permitted him to remain lawfully in Australia (but not to re-enter this country). Rather, the denationalisation of the plaintiff had the consequence of disentitling the plaintiff from the statutory benefits which attach to a person by reason of being an Australian citizen. When the plaintiff's ex‑citizen visa was cancelled in 2021, he lost the right to remain here and became subject to detention pending deportation. This Court has previously decided that a law which authorises the cancellation of a visa, thereby making one liable to this form of detention, does not involve the imposition of any punishment and is therefore valid[210].[210]Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 at 351 [63] per Kiefel CJ, Bell, Keane and Edelman JJ, 352 [69] per Gageler and Gordon JJ, 358 [93] per Nettle J.
Ratio Decidendi
Legal Principle Established
Established by:
KIEFEL CJ, GAGELER, GLEESON AND JAGOT JJ,
GORDON J,
STEWARD J