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The Constitutional Value of Citizenship: the Latest Decision from Australia’s High Court

Elisa Arcioni, Associate Professor, The University of Sydney Law School

On 8 June 2022, in the decision of Alexander v Minister for Home Affairs [2022] HCA 19,  the High Court of Australia struck down a citizenship-stripping provision as unconstitutional. The ultimate decision rested on the process through which the citizenship could be lost. In the course of reasoning, the Court emphasized the fundamental value of citizenship, that its loss can constitute punishment, and that there are valid reasons for stripping a person of their citizenship.

Delil Alexander was born in Australia, a dual national of both Australia and Turkey. In 2013 he travelled to Syria where he married. The Australian Security and Intelligence Organisation reported it was ‘likely’ Alexander had joined ISIL by 2013. Between 2017 and 2021 Alexander was apprehended by Kurdish authorities, interrogated in Syria, charged, convicted and imprisoned in Syria and then pardoned. He remains in Syrian detention. As noted in the Australian judgment at [9]: ‘The detention of prisoners in government-controlled prisons in Syria has been associated with serious human rights violations, including torture.’

On 2 July 2021, the Australian Minister for Home Affairs determined Alexander had ceased to be an Australian citizen under s 36B of the Australian Citizenship Act 2007 (Cth). That provision was inserted into the Act in 2020, as part of a suite of provisions which provide for the ‘cessation’ of citizenship on ostensibly terrorist-related grounds, fitting within the general pattern of provisions in others countries which instrumentalise citizenship in the fight against terrorism’.

Alexander’s citizenship was removed because the Minister was satisfied that the components of s 36B had been fulfilled, namely, in the words of the Court at [15] (footnotes omitted):

‘that: Mr Alexander had engaged in foreign incursions while outside Australia, which demonstrated a repudiation of his allegiance to Australia; that it would be contrary to the public interest for Mr Alexander to remain an Australian citizen; and that Mr Alexander would not become stateless by reason of the determination’.

A majority of 6 of the 7 judges of the High Court held s 36B to be unconstitutional and declared that Alexander is an Australian citizen. However, whether he will obtain any benefit from this outcome is uncertain. The proceedings were brought by Alexander’s sister, and since 15 July 2021 neither Alexander’s family nor his lawyers have been able to contact him. It is yet to be seen whether any consular communications by the Australian government lead to any beneficial outcome.

The Court concluded the provision unconstitutional because the process of a Minister imposing punishment in the form of citizenship deprivation as a consequence for reprehensible conduct was contrary to the requirements of Chapter 3 of the Constitution. According to Australian constitutional doctrine, there are some powers which are exclusively judicial and which cannot be exercised by the executive or the Parliament. One of them is the imposition of punishment. Punishment in this context has often been treated formalistically such that the Court has disregarded the substantive experience of an individual as being relevant to whether it constitutes punishment, even going so far as to say that conditions of immigration detention which may give rise to claims in damages are nevertheless not ‘punitive’ in the relevant constitutional sense if the purpose of the detention is non-punitive.

In order to reach the conclusion that s 36B was punitive, the Court highlighted the history of banishment and exile, and how historically that was considered to be punishment. The judges also looked to the statutory language which indicated the purpose of citizenship deprivation was to denounce and exclude individuals on the basis of their conduct, being a punitive rather than protective purpose. Of most significance for those interested in citizenship, however, is the way in which the judges emphasized the fundamental value of citizenship and the impact of its loss on an individual.

In order to understand citizenship deprivation as punishment, a majority of the Court recognized the deep existential character of citizenship as membership of community. The affective links between an individual and a society are such that liberty to be and remain in a country are ‘public rights’ of ‘fundamental importance’. Citizenship is about connection to a community and status within a community.

This understanding of the value of citizenship is distinctive in the Australian context as, until now, there has been little attention by the Court to the importance of the status for individuals and the community. The Court has generally left it to Parliament to determine the contours of citizenship and its constitutional implications, by allowing the Parliament to make use of the ‘aliens’ power in s 51(xix) of the Constitution to determine the legal rules regarding membership and exclusion. This has been a source of tension in recent cases, with at least two judges railing against deference to the political arms of government. In this case of Alexander, the trajectory of doctrinal developments has been described at [183] as ‘an imperial march’ allowing for ‘more and more members of the permanent population of the Commonwealth of Australia’ to be excluded.

The focus on the substantive significance of formal membership status opens the way for the Court to further develop a constitutional concept of membership which limits the Parliament’s power in this field. In this case, it was used to understand citizenship deprivation as punishment and therefore something which could only be effected by the Courts as the sole recipients of judicial power. However, by conferring a substantive understanding on citizenship, it also provides a hook to legitimize citizenship deprivation if a person repudiates the community.

In Alexander’s case, the Court is unanimous on the point that there are occasions in which it would be valid to banish a person from the community. That part of the reasoning was strictly obiter, in that it was not necessary to the outcome of the case. However, given the consistency of each judgment on this point, it is a significant indication from the Court regarding how the issue would play out.

The judges agree that denationalisation would be valid in response to extreme circumstances, such as when a person repudiated their ‘allegiance’ to Australia. This could be seen in [35] ‘conduct exhibiting such extreme enmity to Australia as to warrant being excluded from membership of the Australian community’ or conduct [185] ‘so wrongful and extreme that it can be judged to be inconsistent with continuing membership of the political community.’

The reference to allegiance is perplexing. As the judges themselves note, earlier cases recognize the lack of utility of such a concept. The Court relied on the statutory language which refers to allegiance and reframed it as a metaphor for membership of, or connection to, the community. Despite the fuzziness in the way in which allegiance is relied upon, the core of the reasoning of the Court is to say that if a person repudiates their community through acts which indicate they reject community values, then they leave themselves open to having their citizenship stripped from them. What is left unsaid is how one can identify the contours of community, what values are held by the community and are of such significance to warrant exclusion if rejected and whether it is the executive, Parliament or the courts who will be the ultimate arbiter of those issues.

This decision marks a significant moment in Australian constitutional history, representing a change in the way citizenship is conceptualized. It also presents a challenge for the incoming federal government and opens the way for other restrictive provisions to be struck down. There remain some contested legislative provisions put in place in the last decade which are open to challenge. These include the other statutory bases for citizenship-stripping and the temporary exclusion orders which are currently under review. The newly elected Labor government has a series of legislative and constitutional reforms on their agenda. We wait to see whether citizenship is one of them and how they will react to the latest words from Australia’s highest court.

Suggested citation: Elisa Arcioni, The constitutional value of citizenship: the latest decision from Australia’s High Court, Int’l J. Const. L. Blog, July 6, 2022, at: http://www.iconnectblog.com/2022/07/the-constitutional-value-of-citizenship-the-latest-decision-from-australias-high-court/

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Published on July 6, 2022
Author:          Filed under: Analysis
 

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