Sue Milne (University of South Australia)
Constitutional challenges to the stripping of Australian citizenship have been both rare, and unsuccessful. Over the last 18 months, however, the High Court has handed down three decisions in this space. Two constitutional challenges to the revocation of citizenship were upheld in Alexander v Minister for Home Affairs (‘Alexander’) from 2022, and Benbrika v Minister for Home Affairs (‘Benbrika’) from 2023, concerning, respectively, conduct; and conviction and imprisonment for terrorism offences, that constitute a person’s ‘repudiation of allegiance’ to Australia. But in Jones v Commonwealth (‘Jones’) handed down the same day as Benbrika, the revocation of the grant of naturalisation for conviction of a serious offence (in the period of time after application but before the grant) was found valid.
What sets these rulings apart and where do we stand as to the constitutionality of the powers of citizenship stripping in Australian citizenship law? In this blogpost, I first introduce the two ‘dis-allegiance’ cases, emphasising how Benbrika added to the Alexander case, discussed in an earlier GLOBALCIT blogpost. Subsequently I explain what sets Jones apart, emphasising the key importance of the administration of the powers to revoke citizenship. I end with a broader reflection on the Australian dis-allegiant conduct loss of citizenship scheme.
From Alexander to Benbrika
Controversial amendments to the Australian Citizenship Act 2007 (Cth) in 2015 and 2020 (since amended), introduced the dis-allegiant loss of citizenship grounds, as part of a suite of counter-terrorism measures to address internal and external threats to Australia. The amendments enabled the executive, in the form of the relevant Minister, to revoke a person’s citizenship provided the loss was in the public interest and would not render them stateless. Dis-allegiance was demonstrated either by conduct based upon a person’s engagement with a terrorist organisation while overseas, including foreign fighter and foreign incursion activities. Or, following conviction and imprisonment for domestic terrorism-related offences, and also foreign fighter and foreign incursion offences, found within the Commonwealth Criminal Code. The scheme was supported by a declaration of legislative intent that reads,
“.. 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 that bond and repudiated their allegiance to Australia.”
Alexander concerned a challenge to the loss by conduct grounds. In July 2021 the Minister revoked Delil Alexander’s citizenship. Alexander, a dual Australian/Turkish citizen by respectively birth and descent, left Australia for Turkey and Syria in 2013, his travels facilitated by a Sydney-based terrorist network connected to Islamic State (ISIL). Although the conduct-based loss grounds have the flavour of a criminal offence, neither a mental element nor the higher standard of criminal proof was required to make a finding of dis-allegiant conduct. The Minister’s decision was made instead, following ASIO assessments of Alexander’s terrorist connections and conduct, it being thought “likely” that Alexander had joined ISIL by August 2013, and had “likely engaged” in foreign incursions and recruitment by entering or remaining in al-Raqqa Province in Syria on or after 5 December 2014’.
In Alexander, the High Court held the revocation of citizenship for dis-allegiant conduct (foreign incursions and recruitment) unconstitutional. But it was not the lack of decisional rigour found wanting. In finding that Alexander had engaged in dis-allegiant conduct that merited the citizenship loss, the executive was seen to be administering a judgment and punishment, a role that is exclusively for courts and not the administrative branch. This overstep of powers breached the constitutionally entrenched separation of judicial powers doctrine.
Benbrika is the sequel to Alexander and concerned a challenge to the dis-allegiant conviction-based loss of citizenship where revocation can only follow a conviction and sentence of imprisonment by a court. Abdul Nacer Benbrika was born in Algeria and became a dual national when granted Australian citizenship in 1998, nine years after his arrival in Australia. He was convicted in 2008 of three terrorism offences under the Criminal Code (Cth) including being a member of a terrorist organisation and directing activities of the organisation and sentenced to multiple terms of imprisonment. Benbrika was due for release late 2020 but in that September the Minister applied to the courts for a three year continuing detention order, the order being also subject to a failed constitutional challenge. In November 2020 the Minister revoked Benbrika’s citizenship and granted him an ex-citizen visa under the Migration Act 1958 (Cth).
Benbrika was, however, successful in his challenge to the citizenship loss. The High Court held that although unlike in Alexander, the Minister made no judgment on ‘guilt’ as that had already been done by a court, he did administer a ‘punishment’ by stripping Benbrika of his citizenship. In applying Alexander, the High Court found the stripping of citizenship a punitive act and the executive cannot impose additional punishment to that already imposed by a court.
Both Alexander and Benbrika had a 6:1 majority with Steward J the sole dissentient. Both decisions found the dis-allegiant loss of citizenship unconstitutional with the executive overstepping the limits of its constitutional authority. Alexander and Benbrika therefore remained Australian citizens.
The significance of Alexander and Benbrika
Alexander, and its sequel Benbrika, have clarified and refined the constitutional test that applies when there is a real risk that executive powers may stray into territory protected by the courts. In this instance, the imposition of punishment. Also, critically, the decisions identify the rationale for the separation of judicial powers doctrine, this being the judicial protection of liberty against incursions by the legislature or the executive.
The constitutional test refined in Alexander and Benbrika determines whether the statutory powers at play are best characterised as administrative or judicial. It is a test of statutory interpretation at heart that goes to the operation and substance of the power with a focus on the purpose and consequences of the exercise to strip citizenship. The purpose of the dis-allegiance scheme was aligned to principles underpinning the concept of punishment itself: serving as retribution (Alexander); and denunciation and exclusion from formal membership of the Australian community (Benbrika).
The consequences of citizenship loss required an investigation into the nature and severity of the deprivation. This led the High Court to clearly articulate for the first time, the significance of holding Australian citizenship by identifying what it is that is lost. It means the loss of liberty, loss of the right to be at liberty in the community, and loss of the right to return to Australia…”as a safe haven in need.” It has ‘extreme’ consequences that can mean the risk of immigration detention and removal. The protection of liberty underpinning the rationale for the test therefore gained a greater resolve in the context of citizenship stripping that constitutes a loss of liberties.
In Benbrika Gordon J summarised the significance of the loss of citizenship in the following way.
“Like detention – indeed perhaps to a greater degree – the deprivation of nationality and citizenship imposes profound detriment on the individual. Detention may only be a temporary loss of rights and liberty. Deprivation of nationality and citizenship is a permanent rupture in the relationship between the individual and the State in which the individual had enjoyed equal participation in the exercise of political sovereignty, ‘destroy[ing] for the individual the political existence that was centuries in the development’. It involves loss of fundamental rights of nationality and citizenship with immediate effect and permanently. The individual is made vulnerable to exclusion or deportation from the territory (with no right of return), and to detention in custody to the extent necessary to make the deportation effective.“
Her Honour’s reference to detention and nationality requires clarification. First, detention provides the classic example of public powers characterised as judicial because their purpose is to punish following a finding of a breach of rights and obligations under the law. This was reaffirmed in the seminal case of Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (‘Lim’), but where an exception to the rule applied. Lim held that executive powers to detain non-citizens for immigration purposes is not a punishment because the detention’s purpose is to facilitate immigration processes (eg, deportation and visa processing), and valid. In identifying this exception Lim established a new constitutional test that was refined in the recent dis-allegiance decisions.
Second, on the question of an Australian nationality as distinct from citizenship. Parliament regulates the acquisition and loss of citizenship (not the rights), but lacks express legislative authority to do so, within a Constitution that provides for limited and divided powers of government. Instead, the authority is found in matters governing ‘naturalisation and aliens’ that since Federation, has enabled the grant and revocation of naturalisation. While the meaning of ‘alien’ remains unsettled, importantly, it informs who is not a member of the Australian community and from that basis, who is an Australian citizen. Yet alongside this statutory concept of citizenship sits the constitutional concept of our nationality that has evolved from our original constitutional status as British subjects and the inherited doctrines of allegiance and indelibility of birth-right subjecthood. The 2020 decision of Love v Commonwealth has confirmed a national is a concept distinct from statutory citizenship, being someone who is ‘non-alien’ and ‘belongs’ and is owed constitutional protections that includes the right to remain in Australia.
Can then the loss of statutory citizenship also mean we are ‘aliens’ and lose our nationality and the right to remain in Australia? Despite the administrative act to strip citizenship being found unconstitutional, the High Court in Alexander and Benbrika accepted, with qualifications, that dis-allegiance for terrorist activity was a constitutionally acceptable ground to revoke citizenship. Allegiance once being a ‘central pillar’ of nationality and now also too, of citizenship.
Jones: revoking the grant of naturalisation
Jones v Commonwealth was handed down the same day as Benbrika. The Court dismissed a challenge to ministerial powers to revoke the grant of naturalisation if a person at any time after making the application, but before the grant, had been convicted of a serious offence (attracting a minimum sentence of at least 12 months) against Australian or foreign law. Phyllip Jones was born in the United Kingdom and migrated to Australia with his parents in 1966, and in 1988 applied and was granted a certificate of Australian citizenship. In 2003 he was convicted on five counts for criminal offences occurring between 1980 and 2001 with a sentence of 2.5 years imprisonment on each count. Two of the offences occurred before he became an Australian citizen.
The powers to de-naturalise were upheld. Interestingly, Steward J ‘reluctantly’ joined the majority in a 6:1 decision with Justice Gordon in dissent. The test of characterisation found the de-naturalisation was for the purpose of protecting the integrity of the naturalisation process, despite the consequence of citizenship loss being the same as loss by revocation.
A further test from Lim applied in Jones to ‘stress-test’ the ‘protective’ purpose characterisation. It found de-naturalisation to be a reasonably necessary response to protect the integrity of the grant of naturalisation. This same test was recently applied in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs to overturn Australia’s infamous indefinite immigration detention scheme. The indefinite period of the detention was unreasonable and, therefore, punitive, and an invalid exercise of executive power. A similar temporal issue in Jones arose in respect of the offences attracting citizenship loss, required to be committed in the time between the application and grant of naturalisation. A period that was, however, found to be reasonable.
Where to now?
The dis-allegiant conduct loss of citizenship scheme denies the doctrine of the indelibility of birth-right allegiance that was once a central pillar of our nationality. That doctrine has only previously been usurped for short periods of time as a form of ex lege loss, in times of war.
Although the scheme was effectively dismantled by the High Court, the Australian Parliament commenced an inquiry into the citizenship loss scheme between the handing down of the Alexander and Benbrika decisions. Post-Benbrika the Australian Citizenship Act Amendment (Citizenship Repudiation) Act 2023 (Cth) was enacted and has revived the conviction-based dis-allegiant scheme with the administration of the loss now within a court’s power. This remedy to the constitutional problem was previously signalled in Benbrika. As their Honours explain,
“considerations of peculiarly executive concern could ….be accommodated within the curial paradigm by the simple and common legislative expedient of requiring executive application or certification as a precondition to a court making an order for cessation of citizenship as a component of the punishment the court might impose as a consequence of conviction of an offence.“
The High Court has also characterised the dis-allegiant ground of loss as indicative of an extreme form of disloyalty that warrants the loss of citizenship. Benbrika elaborated further on the constitutional protections that sit alongside the statutory loss of citizenship, finding that ‘denationalisation’ may be possible but only in extreme circumstances, and only in such extreme circumstances could the person lose their right to remain in Australia.
These are significant developments, and our Parliament has now responded.