The high court has struck down the home affairs minister’s power to strip dual nationals of Australian citizenship for engaging in suspected terrorist activities.
On Wednesday the court ruled in favour of Delil Alexander, a Turkish citizen whose Australian citizenship was cancelled in July 2021 due to an assessment he had joined Islamic State, engaged in foreign incursions and recruitment.
By majority the court found that the citizenship stripping powers involved the minister exercising an exclusively judicial function in breach of the separation of powers, that is, judging criminal guilt.
The court ordered that Alexander’s citizenship be restored, with the commonwealth to pay costs.
The decision is a major blow to Australia’s harsh anti-terrorism laws enacted in 2020 and building on laws passed under the Coalition in 2015, when then prime minister, Tony Abbott, and current Liberal leader, Peter Dutton, unsuccessfully argued even sole Australian nationals should be able to be targeted.
Labor members on the parliamentary joint committee on intelligence and security had warned in February 2019 the law was likely unconstitutional.
On Wednesday the attorney general, Mark Dreyfus, said there was “no threat to Australia as a result of today’s decision”, citing other powers to exclude citizens suspected of offences from Australia.
In April 2013 Alexander travelled to Turkey and on to Syria. He was arrested by Kurdish militia in Syria in November 2017 and found guilty of offences by a Syrian court in January 2019 due to admissions he says were obtained under torture.
In June 2021 Asio told then home affairs minister, Karen Andrews, that it assessed that Alexander had joined Islamic State, had likely engaged in foreign incursions and recruitment by entering or remaining in al-Raqqa province in Syria, a declared area, after December 2014.
In July 2021, Andrews used her discretionary power in the Citizenship Act to strip Alexander of citizenship for having “repudiated his allegiance to Australia”, a power enlivened by a finding the person engaged in proscribed conduct, for activities related to terrorism including engaging in foreign incursions and recruitment.
Alexander was pardoned by the Syrian government but remained in detention in part because he could not return to Turkey or Australia. His family lost contact with him in July, but his sister brought the case on his behalf in a bid to restore his Australian citizenship and have him released.
In a joint decision, chief justice Susan Kiefel, justices Patrick Keane and Jacqueline Gleeson said that Australian citizenship is “an assurance” that a person is “entitled to be at liberty in this country and to return to it as a safe haven in need … subject only to the operation of the criminal law administered by the courts”.
They said the citizenship stripping power “facilitates punishment in the sense of retribution” for proscribed conduct, depriving them of citizenship based on the minister’s discretion rather than a conviction.
However, the judges found that the aliens power in the constitution could support laws that remove an Australian’s citizenship in some circumstances.
The comments leave open the possibility that stripping a person of citizenship after a conviction, a separate power in the Act, could be lawful.
Justice Stephen Gageler agreed, finding that the claim the law was designed to “protect the Australian community” from persons found to have engaged in terrorist conduct did not mean it didn’t constitute punishment.
Justices Michelle Gordon and James Edelman agreed that the law was punitive in character.
Justice Simon Steward dissented, finding that the law could allow cancellation of citizenship for “conduct which is so incompatible with the shared values of the Australian community that it constitutes a severance of the bond between citizens and a repudiation of allegiance”.
Steward said “the capacity to impose a penalty of some kind is not necessarily a power exclusively reposed in the judicial branch of government”. Denationalising a person was not an “essentially judicial function”, he said.
In a statement Dreyfus and the home affairs minister, Clare O’Neil, said they had noted the decision and will examine its implications.
“The Australian government has a range of measures available to manage the risk posed to Australians by individuals offshore including the temporary exclusion order regime which can prohibit an individual returning to Australia for up to two years,” they said.
In a separate decision handed down on Wednesday the court held that Brendan Thoms was not unlawfully detained in the two years prior to its landmark decision in February 2020 that Aboriginal non-citizens are not aliens and cannot be deported.
The justices unanimously held the Migration Act can validly authorise detention of people who are “reasonably suspected of being unlawful non-citizens”.
Since Thoms was a New Zealand citizen whose visa had been cancelled, his detention from September 2018 to February 2020 was reasonable, they concluded.
Thoms’ lawyer, Claire Gibbs, said he was “very disappointed” with the outcome.
“[Thoms] spent more than 500 nights locked up in immigration detention. He deserves justice and accountability for the way he was treated and the ongoing harm it has caused.”