Recent Cases

Alexander v Minister for Home Affairs [2022] HCA 19 (08 June 2022) (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ)


Catchwords:


Constitutional law (Cth) – Powers of Commonwealth Parliament – Power to make laws with respect to naturalisation and aliens – Cessation of Australian citizenship – Where s 36B of Australian Citizenship Act 2007 (Cth) provided Minister for Home Affairs may make determination that person ceases to be Australian citizen if satisfied, among other matters, that person engaged in specified conduct demonstrating repudiation of allegiance to Australia – Where plaintiff Australian citizen by birth and Turkish citizen by descent – Where, after departing Australia, plaintiff entered and remained in al‑Raqqa Province in Syria – Where al‑Raqqa Province a “declared area” for purposes of terrorism‑related offence in Criminal Code (Cth) – Where Australian Security Intelligence Organisation (“ASIO”) reported in June 2021 that plaintiff joined Islamic State of Iraq and the Levant (“ISIL”) by August 2013 and likely engaged in foreign incursions and recruitment by entering or remaining in al‑Raqqa Province – Where ISIL a designated “terrorist organisation” for purposes of terrorism‑related offences in Criminal Code (Cth) – Where Minister determined pursuant to s 36B, relying in part on ASIO report, that plaintiff ceased to be Australian citizen – Whether s 36B valid exercise of legislative power under s 51(xix) of Constitution.

Constitutional law (Cth) – Judicial power of Commonwealth – Where plaintiff’s conduct relevant to Minister’s determination under s 36B of Australian Citizenship Act 2007 (Cth) amounted to conduct element of terrorism‑related offence under s 119.2 of Criminal Code (Cth) – Whether provision providing for cessation of citizenship on determination by Minister on terrorism‑related grounds penal or punitive in character – Whether s 36B contrary to Ch III of Constitution for conferring upon Minister exclusively judicial function of adjudging and punishing criminal guilt.

Words and phrases – “adjudging and punishing criminal guilt”, “alien”, “banishment”, “citizen”, “citizenship”, “citizenship cessation”, “denationalisation”, “deprivation of liberty”, “exercise of judicial power”, “exile”, “foreign incursions and recruitment”, “hardship or detriment”, “protective purpose”, “punitive character”, “reciprocal rights and obligations”, “repudiation of allegiance to Australia”, “retribution”, “shared values of the Australian community”, “terrorism”, “terrorism‑related grounds”.