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A case before the High Court will determine whether a minister can unilaterally strip a person’s citizenship. The principle in question affects as many as one in three Australians. By Kieran Pender.

Minister’s citizenship powers go to High Court

Minister for Home Affairs Karen Andrews.
Minister for Home Affairs Karen Andrews.
Credit: Rohan Thomson / Getty Images

To the best of his lawyer’s knowledge, Delil Alexander is currently detained in Far’ Falastin jail in Damascus, Syria. The prison, says Osman Samin, principal lawyer at Australian Criminal and Family Lawyers, “is notorious for human rights abuses, torture, and deaths in custody”.

Inmates there are prohibited from contact with the outside world. It is for this reason that Alexander, 35, is entirely unaware that his prospects of freedom largely hinge on a case before Australia’s High Court, to be heard next week. Beyond the inmate’s own liberty, the decision that will bear his name – Alexander v Minister for Home Affairs – could impose consequential limits on the federal government’s legislative authority.

Or, the High Court could rule that Alexander can never return to his homeland, condemning him to decades in Syrian detention and establishing a troubling new precedent. Without knowing it, Alexander has put the validity of one of the most draconian dimensions of Australia’s counterterrorism regime squarely in issue before the nation’s top judges.

Alleged Islamic State terrorists do not typically garner much sympathy. But prominent legal scholars are raising concerns about Alexander’s treatment and the Tony Abbott-era law that enables it. When the hearing begins on Wednesday, his barristers will be hoping they can persuade the High Court to share those concerns.

The central issue in Alexander is whether the government has the power, under the constitution, to unilaterally strip a dual citizen of their Australian citizenship. This is a fraught question with significant implications; it is estimated that as many as one in three Australians holds dual citizenship, whether they know it or not.

Alexander was born in Sydney, in 1986, becoming an Australian citizen at birth. Because Alexander’s parents were Turkish, he automatically inherited Turkish citizenship. According to the case filed in the High Court – in which his sister, Berivan, is acting as his litigation guardian – Alexander left Australia in 2013, travelling to Turkey and then Syria. ASIO says Alexander subsequently joined the terrorist group Islamic State. Alexander is believed to deny this, saying instead that he went to Syria to marry his wife.

In 2017, Alexander was arrested by Kurdish militia and convicted before a Syrian terrorism court on unspecified charges, on the basis of admissions that his lawyers claim were obtained through torture. He was sentenced to 15 years’ imprisonment, later downgraded to five years. Last June, Alexander was pardoned.

On a chilly Canberra morning in June 2015, after Alexander had travelled to Syria but before he was detained, then immigration minister Peter Dutton rose in the house of representatives. In his second reading speech to the Australian Citizenship Amendment (Allegiance to Australia) Bill, Dutton described Australian citizenship as “something to be treasured”. The proposed amendments to the Australian Citizenship Act, he said, would “address the challenges posed by dual citizens who betray Australia by participating in serious terrorism-related activities”. The bill, which subsequently became law, provided that dual citizens automatically lost their Australian citizenship if they engaged in certain terrorism-related conduct.

At the time, the law was subject to considerable criticism – including from normally staid bodies such as the Law Council of Australia. In 2019, the Independent National Security Legislation Monitor, Dr James Renwick, SC, recommended that aspects of the law be “urgently repealed”, given their “uncontrolled and uncertain operation”. Most but not all of these changes were made, with amendments passing parliament in September 2020. Today, section 36b of the Citizenship Act gives the Home Affairs minister, Karen Andrews, the power to strip the Australian citizenship from a dual citizen who engages in terrorism-related conduct, where that conduct “demonstrates that the person has repudiated their allegiance to Australia”.

In July last year, Alexander’s sister received a letter stating that her brother had lost his Australian citizenship by operation of that provision. As a result, he can no longer return to Australia, the country in which he was born and raised. Nor is he eligible to go to Turkey, where his citizenship is believed to be under a different name, blocking Syrian efforts to deport him. Alexander remains in limbo, stuck in a Damascus jail, with no country to call home. “If he is still an Australian citizen,” Alexander’s lawyers write in their submissions, “it may assist him in obtaining release from custody.”

 

In the High Court, Alexander’s barristers will mount a frontal assault on the constitutional validity of these citizenship-stripping powers. The case will have significant implications for this and other areas of law, whatever the outcome. “The Alexander case sits squarely within one of the greyest areas of Australian constitutional law,” says Dr Sangeetha Pillai, a senior research associate with UNSW Sydney’s Kaldor Centre for International Refugee Law. “The Alexander case asks unique, complex questions that the High Court hasn’t had to address before.”

Alexander’s case involves several arguments for invalidity. First, his lawyers claim that the constitutional head of power relied upon by the government – the ability of parliament to legislate in relation to “aliens” (non-citizens) – is not engaged by the citizenship-stripping law. This argument is compelling, at least superficially: How can an Australian citizen be an alien?

In their response, the minister’s lawyers deny that dual citizens “could not possibly answer the description of ‘aliens’ in the ordinary understanding of the word”. They argue that the alien’s power is “wide” and “empowers the parliament to define the criteria for membership of the Australian body politic”.

This suggests some form of Schrödinger’s citizenship – the idea that an Australian dual citizen both is and isn’t an alien, in the constitutional sense, depending on their conduct. If accepted, the consequence would be that all Australian dual citizens become, effectively, second-class citizens, liable to lose that citizenship in a way that sole citizens cannot.

This aspect of the case has interesting parallels with the High Court’s hugely controversial 2020 decision in Love, in which a slender four-to-three majority found that the government could not deport non-citizen Indigenous Australians because they were not “aliens”. Given the Morrison government’s anger at the outcome in Love, which it is trying to overturn in another case, it is unsurprising that Solicitor-General Dr Stephen Donaghue, QC, and three highly regarded barristers have been engaged to defend the law in Alexander.

Alexander’s lawyers also argue that the constitution contains implied limitations on the ability of the government to deprive Australians of their citizenship, including because it disenfranchises them from voting. Finally, they argue that “involuntary denationalisation is intrinsically penal or punitive in character” and so the power to strip citizenship could only be granted to courts due to the separation of powers.

“I think all these arguments are viable,” Pillai says. “They’re all separate roads to the same end … different ways of trying to establish that there are limits to the Commonwealth’s capacity to declare someone to be an alien, and that Australia’s citizenship-stripping laws overstep these limits.”

Tied up with these constitutional concerns is a wider question: are these draconian laws even necessary? Since 9/11, the Australian parliament has passed almost 100 anti-terror laws. In their submissions, Alexander’s lawyers argue that the law is disproportionate because the government “already possesses ample power to control the circumstances in which [Alexander] would be permitted to return to Australia, let alone to be at large in the community”.

The citizenship-stripping power, adds University of Sydney’s Professor Ben Saul, “fits the pattern of Australian counterterrorism legislation being excessive and lacking in safeguards … It demonstrates a real lack of perspective or maturity by Australian parliaments, an uncritical securitisation culture, and a distraction from where concrete, effective counterterrorism measures should really lie.”

Citizenship-stripping might also be counterproductive. Pillai points to “the possibility that dangerous individuals will end up being the responsibility of countries that face a higher risk of terrorism than Australia and have fewer resources to deal with such threats”. She says that without Australian citizenship they will be “left at large overseas, with nowhere to go except to remain with a terrorist group”.

Saul suggests it might be contrary to Australia’s diplomatic obligations. International counterterrorism law, he says, requires “states to prosecute or extradite terrorist suspects, not to cut them loose to continue to threaten other countries, to plot overseas against Australia, or Australian interests abroad, or to radicalise and recruit Australians online”.

The Alexander case underscores Australia’s sprawling national security law apparatus and the real questions of constitutionality, proportionality and necessity that linger within. In the case of citizen-stripping, counterterrorism efforts have exceeded the bounds of criminal law.

“They are using citizenship law as a frame for what should only be a matter for the criminal context,” says Professor Kim Rubenstein, an eminent citizenship law expert and independent senate candidate. “I’m not saying that we shouldn’t punish and deal with terrorists. But once you start using your citizenship law framework there, you have the danger of a slippery slope.”

Rubenstein asks, hypothetically, why stop at terrorism? “What would stop the government from saying any dual citizen who has been convicted of paedophilia will then have their citizenship removed? We have a criminal law system to deal with criminal conduct – we don’t banish people.”

The High Court might try to pre-empt the slippery slope argument. It could find that the federal government has the power to strip a natural-born citizen of their citizenship, but only in very narrow circumstances. Nonetheless, Rubenstein’s concerns remain. The criminal justice system exists for a reason. It would seem the ultimate punishment that Australians – born and bred in Australia – can lose their citizenship not by operation of the courts after a criminal trial but through the largely unaccountable decision of a government minister.

This article was first published in the print edition of The Saturday Paper on February 12, 2022 as "Schrödinger’s citizen ".

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Kieran Pender is a writer and lawyer.

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