Alexander v Minister for Home Affairs

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Alexander v Minister for Home Affairs

[2022] HCA 19

Case

Alexander v Minister for Home Affairs

[2022] HCA 19

•

HIGH COURT OF AUSTRALIA
KIEFEL CJ,
GAGELER, KEANE, GORDON, EDELMAN, STEWARD AND GLEESON JJ
DELIL ALEXANDER (BY HIS LITIGATION GUARDIAN
BERIVAN ALEXANDER) PLAINTIFF
AND
MINISTER FOR HOME AFFAIRS & ANOR DEFENDANTS
Alexander v Minister for Home Affairs
[2022] HCA 19
Date of Hearing: 16 & 17 February 2022
Date of Judgment: 8 June 2022
S103/2021
ORDER
The questions of law stated for the opinion of the Full Court in the amended special case filed on 22 October 2021 be answered as follows:
1.Is s 36B of the Australian Citizenship Act 2007 (Cth) invalid in its operation in respect of the plaintiff because:
(a)it is not supported by a head of Commonwealth legislative power;
Answer, "No".
(b)it is inconsistent with an implied limitation on Commonwealth legislative power preventing the involuntary deprivation of Australian citizenship;
Answer, "Unnecessary to answer".
(c)it effects a permanent legislative disenfranchisement which is not justified by a substantial reason;

Answer, "Unnecessary to answer".
(d)it effects a permanent disqualification from being chosen or from sitting as a senator or a member of the House of Representatives, otherwise than in the circumstances contemplated by ss 34 and 44 of the Constitution;
Answer, "Unnecessary to answer".
(e)it reposes in the Minister for Home Affairs the exclusively judicial function of punishing criminal guilt?
Answer, "Yes".

2.What, if any, relief should be granted to the plaintiff?
Answer, "It should be declared that:
(a) s 36B of the Australian Citizenship Act 2007 (Cth) is invalid; and
(b) the plaintiff is an Australian citizen".

3.Who should pay the costs of the special case?
Answer, "The defendants".

Representation
D J Hooke SC and S H Hartford Davis with S G Lawrence and D J Reynolds for the plaintiff (instructed by Australian Criminal and Family Lawyers)
S P Donaghue QC, Solicitor-General of the Commonwealth, and P D Herzfeld SC with J D Watson and L G Moretti for the defendants (instructed by Australian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS
Alexander v Minister for Home Affairs
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".
Constitution, s 51(xix), Ch III.
Australian Citizenship Act 2007 (Cth), ss 36A, 36B, 36D.

KIEFEL CJ, KEANE AND GLEESON JJ. The plaintiff ("Mr Alexander") was born in Australia on 5 August 1986. As a result, by operation of s 10(1) of the Australian Citizenship Act 1948 (Cth) ("the 1948 Citizenship Act"), he became an Australian citizen. He also acquired Turkish citizenship by descent at birth under the law of the Republic of Turkey, as his parents were Turkish citizens. Mr Alexander remains a Turkish citizen.
In July 2021, the Minister for Home Affairs ("the Minister") made a determination pursuant to s 36B of the Australian Citizenship Act 2007 (Cth) ("the Citizenship Act"), as amended by the Australian Citizenship Amendment (Citizenship Cessation) Act 2020 (Cth) ("the 2020 Amending Act"), that Mr Alexander ceased to be an Australian citizen. At that time, Mr Alexander was in prison in Syria, where he remains.
In these proceedings, brought in the original jurisdiction of this Court, Mr Alexander seeks, among other relief, declarations that s 36B of the Citizenship Act is invalid and that he is an Australian citizen. Several grounds are advanced in support of Mr Alexander's challenge; but his challenge may be decided, and his rights determined, by addressing his contentions that s 36B is invalid: first, because it is not within the power of the Parliament to make laws with respect to "naturalization and aliens" under s 51(xix) of the Constitution; and, secondly, because the exercise of the power reposed in the Minister to deprive him of his citizenship is an exclusively judicial function under Ch III of the Constitution. While the first of these contentions should be rejected, the second must be accepted. Section 36B of the Citizenship Act is invalid to that extent, and Mr Alexander remains an Australian citizen.
Mr Alexander's plight
On 16 April 2013, Mr Alexander departed Australia for Turkey, indicating on his outgoing passenger card that he would be overseas for three months. He had informed his family that he intended to arrange a marriage and that he would return to Australia. Having entered Turkey, at some point Mr Alexander travelled to Syria, where he married his wife.
The Australian Security Intelligence Organisation ("ASIO") reported in June 2013 that Mr Alexander's travel to Syria was facilitated through a Sydney‑based network developed by Mr Alqudsi, who had previously been charged with terrorism‑related offences[1]. Mr Alexander was reported to be part of a group that was taken to Syria by a senior Syria‑based Australian member of the Islamic State (also known as "ISIL" or "ISIS"). At this time, the Islamic State had been designated in the Criminal Code (Cth) (under various names) as a terrorist organisation. ASIO later reported that it was "likely" that Mr Alexander had joined ISIL by August 2013, and that he had "likely engaged" in foreign incursions and recruitment by entering or remaining in al‑Raqqa Province in Syria on or after 5 December 2014.
[1]See R v Alqudsi (2015) 328 ALR 517 at 519 [4]; Alqudsi v The Commonwealth (2015) 91 NSWLR 92 at 95 [1].
In November 2017, Mr Alexander was apprehended by Kurdish militia in the village of Ziban in Deir El‑Zour Province in Syria (which was not a declared area). In March 2018, he was transferred to the custody of Syrian authorities and was subsequently charged by Syrian prosecutors with offences against the Syrian Penal Code.
On 31 January 2019, Mr Alexander was convicted and sentenced by a Syrian court to a term of imprisonment for 15 years – subsequently reduced to five – on the strength of admissions he had made during an interrogation. However, Mr Alexander's sister, who appears as his litigation guardian in these proceedings, stated that Mr Alexander told her that he was tortured and forced to sign a paper while in the custody of the Kurdish militia and Syrian authorities without reading its contents.
By reason of a pardon from the Syrian government, Mr Alexander's term of imprisonment has expired. However, he remains in detention for a number of reasons, including that he cannot be released into the Syrian community, nor can he be repatriated to Turkey or Australia.
On 13 July 2020, Mr Alexander was moved to the prison known as Far' Falastin, or Branch 235, which is located in Damascus and operated by Syrian intelligence authorities. For the duration of the conflict in Syria, there have been reports of government forces arbitrarily detaining persons simply for being perceived to be opponents of the State, including in Kurdish territory where persons are suspected of affiliation with the Islamic State. The detention of prisoners in government‑controlled prisons in Syria has been associated with serious human rights violations, including torture.
Since 15 July 2021, neither Mr Alexander's family nor his lawyers have been able to contact him. Mr Alexander claims that, according to his Syrian lawyer, the fact that he is no longer an Australian citizen is a reason for his continuing detention.
The Australian government's decisions about Mr Alexander
Following Mr Alexander's arrival in Syria, the Australian government made several decisions in relation to him leading up to the determination of his citizenship. On 5 September 2013, the then Acting Minister for Foreign Affairs decided to cancel Mr Alexander's passport under s 22(2)(d) of the Australian Passports Act 2005 (Cth). That was on the basis that ASIO suspected on reasonable grounds that "if an Australian passport were issued to [Mr Alexander], [Mr Alexander] would be likely to engage in conduct that might prejudice the security of Australia or a foreign country"[2]. This decision did not affect his status as an Australian citizen, or any entitlement that he may have had to Australian citizenship or consular assistance.
[2]See Australian Passports Act 2005 (Cth), s 14(1)(a)(i).
On 19 June 2020, the Minister made a Temporary Exclusion Order ("TEO") in respect of Mr Alexander, pursuant to the Counter‑Terrorism (Temporary Exclusion Orders) Act 2019 (Cth). The effect of the TEO was to prevent Mr Alexander from entering Australia while it remained in force, which was until 30 January 2022.
On 16 June 2021, the Director‑General of Security at ASIO provided a Qualified Security Assessment ("QSA") of Mr Alexander to the Minister. The purpose of the QSA was to advise whether it would be consistent with the requirements of security for prescribed administrative action to be taken under the Citizenship Act in respect of Mr Alexander. Although ASIO, in the QSA, did not make any recommendation in relation to Mr Alexander's citizenship, it stated that, if the Minister were satisfied that Mr Alexander had engaged in specified conduct and that conduct demonstrated that he had repudiated his allegiance to Australia, the Minister might make a determination in writing that he ceased to be an Australian citizen.
The QSA stated that, based on "substantial classified reporting and some unclassified corroborating information", ASIO assessed that Mr Alexander "likely engaged in foreign incursions and recruitment by entering or remaining in al‑Raqqa Province in Syria, a declared area, on or after 5 December 2014" and "likely travelled to Syria in early‑to‑mid‑2013, and had joined the Islamic State of Iraq and the Levant ... by August 2013".
On 2 July 2021, the Minister determined, pursuant to s 36B(1) of the Citizenship Act, that Mr Alexander ceased to be an Australian citizen. The determination stated that the Minister was satisfied that: Mr Alexander had engaged in foreign incursions while outside Australia[3], which demonstrated a repudiation of his allegiance to Australia[4]; that it would be contrary to the public interest for Mr Alexander to remain an Australian citizen[5]; and that Mr Alexander would not become stateless by reason of the determination[6]. In making that determination, the Minister relied, in part, on the QSA. The Minister was not required to, and did not, give a statement of reasons for the determination.
[3]s 36B(5)(h) of the Citizenship Act.
[4]s 36B(1)(b) of the Citizenship Act.
[5]s 36E(2) of the Citizenship Act.
[6]s 36B(2) of the Citizenship Act.
The proceedings in this Court
The proceedings in this Court were commenced on 13 July 2021. On 26 October 2021, Steward J made orders, including that Ms Alexander be appointed as Mr Alexander's litigation guardian pursuant to r 21.08.6 of the High Court Rules 2004 (Cth).
The parties filed an amended special case pursuant to r 27.08 of the High Court Rules, in which they agreed to state a number of questions for the opinion of the Full Court of this Court. As already noted, it is not necessary to decide all those questions "in order to do justice in [this] case and to determine the rights of the parties"[7]. It is sufficient for the determination of Mr Alexander's challenge to the validity of s 36B to deal with the questions whether s 36B is invalid in its operation in respect of Mr Alexander because it is not supported by a head of Commonwealth legislative power, and, alternatively, whether it is invalid because it reposes in the Minister the exclusively judicial function of adjudging and punishing criminal conduct.
[7]Lambert v Weichelt (1954) 28 ALJ 282 at 283; Mineralogy Pty Ltd v Western Australia (2021) 95 ALJR 832 at 846 [56]; 393 ALR 551 at 565.
While it will be necessary later in these reasons to notice other provisions inserted into the Citizenship Act by the 2020 Amending Act, it is sufficient, for the first of these questions, to summarise the terms of s 36B and its ancillary provisions.
Section 36B
Section 36B is part of a suite of provisions in Subdiv C of Div 3 of Pt 2 of the Citizenship Act which effect the "cessation of citizenship" on terrorism‑related grounds. It, and its companion provisions, were introduced into the Citizenship Act by the 2020 Amending Act to replace the scheme previously enacted by the Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth) ("the Allegiance to Australia Act")[8]. It maintains the focus of the previous legislation on the notion of a repudiation of allegiance to Australia[9].
[8]Independent National Security Legislation Monitor, Report to the Attorney‑General: Review of the operation, effectiveness and implications of terrorism‑related citizenship loss provisions contained in the Australian Citizenship Act 2007, Report No 7 (2019) at 58 [6.90].
[9]s 36A of the Citizenship Act.
Section 36B provides relevantly as follows:
"Cessation of citizenship on determination by Minister
(1)The Minister may determine in writing that a person aged 14 or older ceases to be an Australian citizen if the Minister is satisfied that:
(a)the person:
(i)engaged in conduct specified in subsection (5) while outside Australia; or
(ii)engaged in conduct specified in any of paragraphs (5)(a) to (h) while in Australia, has since left Australia and has not been tried for an offence in relation to the conduct; and
(b)the conduct demonstrates that the person has repudiated their allegiance to Australia; and
(c)it would be contrary to the public interest for the person to remain an Australian citizen (see section 36E).
Note:A person may seek review of a determination made under this subsection in the High Court of Australia under section 75 of the Constitution, or in the Federal Court of Australia under section 39B of the Judiciary Act 1903. See also section 36H of this Act (revocation of citizenship cessation determination on application to Minister).
(2)However, the Minister must not make a determination if the Minister is satisfied that the person would, if the Minister were to make the determination, become a person who is not a national or citizen of any country.
(3)The person ceases to be an Australian citizen at the time the determination is made.
(4)Subsection (1) applies to a person who is an Australian citizen regardless of how the person became an Australian citizen (including a person who became an Australian citizen upon the person's birth).
(5)For the purposes of paragraph (1)(a), the conduct is any of the following:
...
(h)engaging in foreign incursions and recruitment".
As to s 36B(5)(h), the expression "foreign incursions and recruitment" has the same meaning as in s 119.2 of the Criminal Code (Cth) (which relevantly makes it an offence for an Australian citizen to enter, or remain in, a declared area in a foreign country), but it does not include the fault elements that apply in relation to that offence[10]. It should also be noted that a determination may be made in relation to conduct specified in s 36B(5) that was engaged in prior to its commencement[11].
[10]s 36B(6) of the Citizenship Act.
[11]See 2020 Amending Act, Sch 1, item 18.
The powers of the Minister under s 36B may only be exercised by the Minister personally[12]. The rules of natural justice do not apply in relation to making a decision or exercising a power under that section[13]. A determination made under s 36B(1) is not a legislative instrument[14].
[12]s 36B(9) of the Citizenship Act.
[13]s 36B(11) of the Citizenship Act.
[14]s 36B(12) of the Citizenship Act.
A determination made under s 36B(1) may be revoked on application to the Minister by the person the subject of the determination[15], on the Minister's own initiative[16], or automatically by operation of law[17]. Unless a determination is revoked by one of those means, the person can never become an Australian citizen again[18].
[15]s 36H of the Citizenship Act.
[16]s 36J of the Citizenship Act.
[17]s 36K of the Citizenship Act.
[18]s 36L of the Citizenship Act.
In relation to the assessment of the public interest for the purposes of a determination under s 36B(1), or whether to revoke such a determination under s 36J, s 36E(2) relevantly provides:
"The Minister must have regard to the following matters:
(a)in deciding whether to make a determination under subsection 36B(1) or revoke such a determination – the severity of the conduct to which the determination relates;
...
(c)the degree of threat posed by the person to the Australian community;
(d)the age of the person;
(e)if the person is aged under 18 – the best interests of the child as a primary consideration;
(f)in deciding whether to make a determination under subsection 36B(1) or revoke such a determination – whether the person is being or is likely to be prosecuted in relation to conduct to which the determination relates;
(g)the person's connection to the other country of which the person is a national or citizen and the availability of the rights of citizenship of that country to the person;
(h)Australia's international relations;
(i)any other matters of public interest."
When a determination has been made under s 36B(1), the Minister is required to give written notice of the determination to the person in accordance with the requirements in s 36F. Again, the rules of natural justice do not apply in relation to making a decision or exercising a power under that section[19]. The exception to the requirement to give notice is where the Minister is satisfied that giving the notice could prejudice the security, defence or international relations of Australia, or Australian law enforcement operations[20].
[19]s 36F(7) of the Citizenship Act.
[20]s 36G of the Citizenship Act.

The practical effect of the exercise by the Minister of the power conferred by s 36B(1) is that the person affected has no right to return to Australia and be at liberty in this country, because the Migration Act 1958 (Cth) would require that (save in the unlikely event that the person were granted a visa) the person be taken into detention for the purposes of deportation[21].
[21]Migration Act 1958 (Cth), s 189.
Section 51(xix) of the Constitution
Section 51(xix) of the Constitution empowers the Commonwealth Parliament to make laws with respect to "naturalization and aliens". The defendants confined their arguments in support of s 36B as a valid exercise of the legislative power of the Commonwealth to reliance upon s 51(xix).
Mr Alexander submitted that s 36B is not supported by s 51(xix) in its application to him because, as a person who became an Australian citizen at birth by virtue of s 10 of the 1948 Citizenship Act, he could not thereafter be regarded as an "alien". Mr Alexander's contention is that once a person attains the status of an Australian citizen, the operation of s 51(xix) is "spent" so that Parliament cannot make a law that would transform a non‑alien into an alien.
Mr Alexander also argued that s 36B(5)(h) is invalid, because the conduct element of the offence against s 119.2 of the Criminal Code (Cth) is, of itself, incapable of being regarded as the repudiation of the allegiance owed by a citizen to Australia. It was said that without a mental element of intention to engage in that conduct, the mere act of entering a "declared area" was not so extreme and repugnant as to be objectively incompatible with, and capable of rupturing, the citizen‑State relationship. It was also said that s 51(xix) could not support the retroactive operation of s 36B, as it had been applied to Mr Alexander.
Mr Alexander's submissions on this first issue should not be accepted. Those submissions may now be addressed in turn.
Citizens and aliens
Citizenship, as formal membership of the national community, is a statutory concept[22]. It is the grant of Australian citizenship that creates the status which attracts constitutional protections and engages federal and State legislation that confers or denies rights, privileges, immunities or duties[23]. Relevantly for Mr Alexander, the status of Australian citizenship includes the right to enter and remain in Australia[24], the entitlement to an Australian passport[25], and the right and duty to vote in federal elections[26].
[22]Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 at 183; Roach v Electoral Commissioner (2007) 233 CLR 162 at 174 [7]; Love v The Commonwealth (2020) 270 CLR 152 at 263 [300], 264 [305]; Chetcuti v The Commonwealth (2021) 95 ALJR 704 at 711‑715 [14]-[34], [38]; 392 ALR 371 at 375‑380, 381.
[23]Hwang v The Commonwealth (2005) 80 ALJR 125 at 129 [13]; 222 ALR 83 at 87.
[24]Potter v Minahan (1908) 7 CLR 277 at 305; Love v The Commonwealth (2020) 270 CLR 152 at 198 [95]; Migration Act 1958 (Cth), ss 4, 42.
[25]Australian Passports Act 2005 (Cth), s 7 (subject to Pt 2, Div 2).
[26]Commonwealth Electoral Act 1918 (Cth), s 93(1)(b)(i).
Citizenship is not a concept used in the Constitution (save for s 44(i), which is concerned with foreign citizenship). The Constitution, in contrast to the first clause of the Fourteenth Amendment to the Constitution of the United States, does not contemplate that individuals born here are citizens of Australia, much less that they are indelibly so. This Court's decisions in Singh v The Commonwealth[27] and Koroitamana v The Commonwealth[28] would be plainly misconceived if, as a matter of constitutional law, a person born in Australia has for that reason, and quite apart from any law of the Parliament, a right to live here. Mr Alexander's counsel made no attempt to challenge the correctness of Singh and Koroitamana.
[27](2004) 222 CLR 322.
[28](2006) 227 CLR 31.
While alienage, describing a lack of formal legal relationship with the community or body politic, is a constitutional concept[29], the Constitution leaves it to Parliament to decide who shall be granted the status of citizenship and what that status may mean in terms of the rights, privileges, immunities and duties of citizens. In this regard, s 51(xix) of the Constitution empowers the Parliament to "create and define the concept of Australian citizenship"[30], to select or adopt the criteria for citizenship or alienage[31] and to attribute to any person who lacks the qualifications prescribed for citizenship "the status of alien"[32]. In Chetcuti v The Commonwealth[33], Kiefel CJ, Gageler, Keane and Gleeson JJ said that "the aliens power encompasses both power to determine who is and who is not to have the legal status of an alien and power to attach consequences to that status".
[29]Chetcuti v The Commonwealth (2021) 95 ALJR 704 at 718 [53], 720 [59]; 392 ALR 371 at 384, 386.
[30]Koroitamana v The Commonwealth (2006) 227 CLR 31 at 46 [48], citing Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002) 212 CLR 162 at 173 [31], 180 [58], 188‑189 [90], 192 [108]‑[109], 215‑216 [193]‑[194], 219‑220 [210]‑[211], 229 [229].
[31]Singh v The Commonwealth (2004) 222 CLR 322 at 397‑398 [197]; Koroitamana v The Commonwealth (2006) 227 CLR 31 at 37 [9], 46 [50], 49 [62].
[32]Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 at 35 [2].
[33](2021) 95 ALJR 704 at 710 [12]; 392 ALR 371 at 374.
It has been said in this Court that the terms "citizen" and "alien" are antonyms[34]. Recently, the majority of this Court in Love v The Commonwealth[35] held that Aboriginal Australians who satisfy the tripartite test in Mabo v Queensland [No 2][36] constitute a separate category of non‑citizen, non‑alien, and that "non‑citizen" is not inevitably and always synonymous with "alien". But in Chetcuti, Kiefel CJ, Gageler, Keane and Gleeson JJ observed that this Court's decision in Shaw v Minister for Immigration and Multicultural Affairs[37] (from which the holding of the majority in Love does not depart, except in respect of an Aboriginal Australian according to the tripartite test in Mabo [No 2]) establishes that the aliens power supports a law of the Commonwealth which determines who shall have the status of Australian citizenship, and which provides that persons who do not share that status are aliens[38].
[34]See Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178; Re Patterson; Ex parte Taylor (2001) 207 CLR 391; Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 at 35 [2].
[35](2020) 270 CLR 152 at 192 [81], 244 [252], 247 [260], 253‑254 [271]‑[272], 261‑262 [295], 263 [300], 264‑266 [304]-[311], 305‑308 [432]-[437]. See Pochi v Macphee (1982) 151 CLR 101 at 109; Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 54; Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 435‑436 [132], 491 [300]; Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002) 212 CLR 162 at 179 [53]; Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 at 61 [94]; Singhv The Commonwealth (2004) 222 CLR 322 at 382 [149]-[150].
[36](1992) 175 CLR 1.
[37](2003) 218 CLR 28.
[38]Chetcuti v The Commonwealth (2021) 95 ALJR 704 at 711 [14]‑[17]; 392 ALR 371 at 375‑376.
In Pochi v Macphee[39], Gibbs CJ said that "Parliament cannot, simply by giving its own definition of 'alien', expand the power under s 51(xix) to include persons who could not possibly answer the description of 'aliens' in the ordinary understanding of the word". It does not stretch the ordinary understanding of the expression "alien" to include within that category an individual who has engaged in conduct exhibiting such extreme enmity to Australia as to warrant being excluded from membership of the Australian community. The Parliament has the power under s 51(xix) to attribute the constitutional status of alien to a person who has lost the statutory status of citizenship. By the same power, Parliament can define the circumstances in which that occurs.
[39](1982) 151 CLR 101 at 109, cited with approval in Singh v The Commonwealth (2004) 222 CLR 322 at 329 [4].
There is ample support in authority for the view that the scope of s 51(xix) extends to permit Parliament to "determine the legal basis by reference to which Australia deals with matters of nationality ... to create and define the concept of Australian citizenship [and] to prescribe the conditions on which such citizenship may be acquired and lost"[40]. Mr Alexander's contention that a person who becomes an Australian citizen is thereby beyond the scope of the power that permits Parliament to make laws that deprive that person of citizenship is distinctly inconsistent with the following passage in Nolan v Minister for Immigration and Ethnic Affairs[41], where Mason CJ, Wilson, Brennan, Deane, Dawson and Toohey JJ said:
"As a matter of etymology, 'alien', from the Latin alienus through old French, means belonging to another person or place. Used as a descriptive word to describe a person's lack of relationship with a country, the word means, as a matter of ordinary language, 'nothing more than a citizen or subject of a foreign state': Milne v Huber[42]. Thus, an 'alien' has been said to be, for the purposes of United States law, 'one born out of the United States, who has not since been naturalized under the constitution and laws'[43]. That definition should be expanded to include a person who has ceased to be a citizen by an act or process of denaturalization and restricted to exclude a person who, while born abroad, is a citizen by reason of parentage. Otherwise, it constitutes an acceptable general definition of the word 'alien' when that word is used with respect to an independent country with its own distinct citizenship."
[40]Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002) 212 CLR 162 at 173 [31] (emphasis added), cited with approval in Koroitamana v The Commonwealth (2006) 227 CLR 31 at 46 [48].
[41](1988) 165 CLR 178 at 183.
[42](1843) 17 Fed Cas 403 at 406.
[43](1843) 17 Fed Cas 403 at 406.
This passage supports the proposition that the status of alien may be attributed by the Parliament to a person who was previously an Australian citizen by a law providing for "an act or process of denaturalization". That proposition cannot stand with Mr Alexander's "once a citizen always a citizen" contention. To the extent that doubt was cast upon the decision in Nolan by the decision in Re Patterson; Ex parte Taylor[44], the latter decision was itself disapproved, and the authority of Nolan affirmed, in Shaw[45].
[44](2001) 207 CLR 391.
[45]Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 at 45 [39], 87 [190]. See also Ruddock v Taylor (2005) 222 CLR 612 at 619‑620 [15]‑[17], 625 [36].
One may conclude this section of the discussion by noting a fundamental difficulty in Mr Alexander's argument on this issue, which was revealed starkly in his counsel's inability, during the course of argument, to provide a satisfactory answer to the question as to the source of Parliament's power to enact s 10 of the 1948 Citizenship Act, that being the law by which Mr Alexander became an Australian citizen. As a general principle, where the Parliament may confer rights by the exercise of legislative power, it may also take them away[46]. Once it is accepted, as it must be, that the statute conferring citizenship is the source of Mr Alexander's rights as a citizen, it must also be accepted that (the present version of) that statute may limit those rights, including by providing for the circumstances in which they may be lost. A person who has forfeited the rights of citizenship is no less accurately described as an alien than a person who has never enjoyed those rights.
[46]Kartinyeri v The Commonwealth (1998) 195 CLR 337 at 355‑356 [12]‑[14], 372 [57].
"Naturalization and aliens" at Federation
Events in the life of an individual and the nation may affect the relationship between the individual and the Australian body politic so as to engage the power conferred on the Parliament to make laws with respect to "naturalization and aliens".
It was only upon the enactment of the Naturalization Act 1870 (UK) with its provision for "the severing of the connection of a British subject established by birth within the Crown's dominions" and the British Crown that English law acknowledged the possibility of bringing to an end the relationship between subject and sovereign[47]. Until then, under the common law, the connection between a British subject and the Crown was "indelible"[48]. The common law principle was abandoned by the Naturalization Act, which provided by s 4 that any person, who was a natural‑born subject of the Crown and at birth became a foreign subject under the laws of another state, may make a "declaration of alienage" and thereby cease to be a British subject. Under s 6 of the Naturalization Act, a British subject who voluntarily became naturalised in a foreign state was deemed to have ceased to be a British subject and was to be regarded as an alien, as was, by virtue of s 10, a woman who, upon marriage, became a subject of the foreign state of which her husband was a subject[49].
[47]Singh v The Commonwealth (2004) 222 CLR 322 at 389 [173].
[48]Singh v The Commonwealth (2004) 222 CLR 322 at 389‑390 [173].
[49]See Romein v Advocate General for Scotland [2018] AC 585 at 590 [4].
There can be no doubt that the provisions of the Naturalization Act were before the framers of the Constitution when they drafted s 51(xix). As Gummow, Hayne and Heydon JJ said in Singh[50]:
"Given the state of British law at the time of Federation, and in particular the provisions of the Naturalisation Act 1870 permitting renunciation of allegiance[51], it would be surprising if the power with respect to naturalisation and aliens did not extend this far."
[50]Singh v The Commonwealth (2004) 222 CLR 322 at 397 [197].
[51]Naturalization Act 1870 (UK), ss 3, 4, 6.
It would be no less surprising if the power conferred by s 51(xix) did not extend to support the making of a law identifying the circumstances in which a person who is currently a citizen may become an alien by reason of the Commonwealth's response to that person's repudiation of the ties of allegiance.
The people
Section 7 of the Constitution provides that the Senate "shall be composed of senators for each State, directly chosen by the people of the State". Section 24 of the Constitution provides that the House of Representatives "shall be composed of members directly chosen by the people of the Commonwealth". These provisions have been said to establish for the people of the Commonwealth "[e]quality of opportunity to participate in the exercise of political sovereignty [which] is an aspect of the representative democracy guaranteed by our Constitution"[52].
[52]McCloy v New South Wales (2015) 257 CLR 178 at 207 [45].
While ss 7 and 24 of the Constitution establish that it is the choice by the people of the Commonwealth that is the source of the democratic legitimacy of the Commonwealth Parliament, the Constitution does not state the qualifications for the exercise of the franchise by the "people of the Commonwealth". This responsibility was left to the Parliament. Section 51(xix) empowers the Parliament to give practical content to the expression "the people". As Gageler J said in Love, the aliens power permits Parliament to[53]:
"bring a measure of precision to the identification of those to whom the Constitution refers as 'the people', by laying down criteria for determining with specificity which persons were and which persons were not to have the legal status of members of the body politic of the Commonwealth of Australia."
[53]Love v The Commonwealth (2020) 270 CLR 152 at 197‑198 [94] (footnote omitted).
Mr Alexander submitted that a limitation on the power in s 51(xix) is to be found by regarding a power to denaturalise a citizen as exercisable only for "substantial reasons". Mr Alexander submitted that the intention of the framers of the Constitution, and the existence of the "people of the State" and the "people of the Commonwealth" referred to in ss 7 and 24 of the Constitution respectively, require that there be limits on the ability of Parliament to "fracture the membership of the political community of the body politic such as by exclusion of those people who were, and remain, necessary members of the body politic"[54].
[54]Hocking v Director‑General, National Archives of Australia (2020) 94 ALJR 569 at 614 [212]; 379 ALR 395 at 451‑452. See also Love v The Commonwealth (2020) 270 CLR 152 at 311 [444].
The references in ss 7 and 24 of the Constitution to "the people" do not support a limitation on s 51(xix) in addition to that identified by Gibbs CJ in Pochi[55]. As with citizenship, so the identification of those members of the people of the Commonwealth who are to be qualified as electors is the responsibility of the Parliament[56]. Parliament's power in this regard is broad, but there are limits. Just as Parliament may not expand its law‑making power under s 51(xix) of the Constitution by pursuing an eccentric understanding of alienage, so the Parliament cannot expand or restrict the electorate by pursuing an eccentric understanding of "the people"[57]. The Parliament could not, for example, limit the electorate by purporting to exclude from the people of the Commonwealth all Australian citizens of English descent. But while it may be accepted that the Parliament cannot expand the scope of s 51(xix) by adopting an understanding of the people that would also be an affront to ss 7 and 24 of the Constitution, there is nothing fanciful in classifying as an alien – separate from "the people" – an individual who, though previously a citizen, has acted so inimically to Australia's interests as to repudiate the obligations of citizenship on which membership of the people of the Commonwealth depends.
[55]Pochi v Macphee (1982) 151 CLR 101 at 109.
[56]McCloy v New South Wales (2015) 257 CLR 178 at 206 [42]; Murphy v Electoral Commissioner (2016) 261 CLR 28 at 82 [157]‑[158].
[57]McGinty v Western Australia (1996) 186 CLR 140 at 170; Roach v Electoral Commissioner (2007) 233 CLR 162 at 174 [7], 182 [23], 198‑199 [83], 199‑200 [85]‑[86].
Repudiation of allegiance
Mr Alexander argued that it was not open to the Parliament to treat the conduct described in s 36B(5)(h) as a repudiation of his allegiance constituting sufficient reason for depriving him of his citizenship.
In response, the Solicitor‑General of the Commonwealth, appearing for the defendants, cited examples[58] of laws, the validity of which has never been challenged, that provide for the loss of citizenship as a result of acts indicating either loyalty to a foreign state or disloyalty to Australia. It was submitted that s 36B is "of the same genus" as some of those laws[59], save to the extent that s 36B encompasses disloyalty indicated by a willingness to engage in terrorist activity in a foreign state. Specifically, the conduct captured by s 36B(5)(h) was characterised as "inherently suggestive of the absence of a continuing commitment to the Australian body politic". There is force in the Solicitor‑General's submissions.
[58]Naturalization Act 1917 (Cth), s 7; Nationality Act 1920 (Cth), ss 12(1), (2)(a), 18, 21; Nationality and Citizenship Act 1948 (Cth), ss 17, 19, 21(1).
[59]Naturalization Act 1917 (Cth), s 7; Nationality Act 1920 (Cth), s 12(2)(a); Nationality and Citizenship Act 1948 (Cth), ss 19, 21(1).

The absence of the continuing commitment that is citizenship is sensibly described as an absence of "allegiance". The utility of "allegiance" as a determinative test for non‑alienage has been questioned[60]; and the plurality in Chetcuti held that the reach of the aliens power could be determined in that case "without need to explore common law notions of allegiance and alienage"[61]. But allegiance is a useful gauge of the existence of the bonds of citizenship. Section 44(i) of the Constitution itself expressly acknowledges that allegiance may be an integral aspect of citizenship.
[60]Love v The Commonwealth (2020) 270 CLR 152 at 303‑305 [428]‑[431].
[61]Chetcuti v The Commonwealth (2021) 95 ALJR 704 at 714 [34]; 392 ALR 371 at 380.
Given that citizenship is a status of reciprocal rights and obligations, it is to understand the status of citizenship in an incoherently one‑sided way to say that s 51(xix) supports a law that specifies the criteria by which a citizen may voluntarily renounce Australian citizenship – as Mr Alexander accepted – but does not support a law that treats voluntary conduct demonstrating a repudiation of allegiance to Australia as an implied renunciation of citizenship.
Mr Alexander argued that voluntary conduct of the kind described in s 36B(5)(h) cannot rationally be treated as a repudiation of allegiance unless it is intended to be so. The facts stated in the special case suggest that it was reasonably open to the Parliament to regard voluntary conduct, as described in s 36B(5)(h), as so reprehensible as to be incompatible with the common bonds of allegiance to the Australian community, even though the person who has engaged in that conduct did not act intentionally to repudiate the bonds of citizenship. It is convenient to turn now to refer to those agreed facts.
Terrorism and the threat to Australia's security
On 4 December 2014, the Minister for Foreign Affairs made a declaration pursuant to s 119.3(1) of the Criminal Code (Cth) that al‑Raqqa Province in Syria was a "declared area"[62], on the basis of information indicating that it was the de facto capital of the Islamic State's operations and was used to engage in hostile activities. That declaration was revoked on 27 November 2017 on the basis that it was no longer confirmed that the Islamic State was engaging in hostile activity there[63]. It may be noted that Deir El‑Zour Province in Syria (where Mr Alexander was apprehended by Kurdish militia forces) was not a declared area.
[62]That declaration came into effect on 5 December 2014: Criminal Code (Foreign Incursions and Recruitment –Declared Areas) Declaration 2014 – Al‑Raqqa Province, Syria (Cth).
[63]Criminal Code (Foreign Incursions and Recruitment – Declared Areas) Revocation Instrument 2017 – Al‑Raqqa Province, Syria (Cth); Australia, Criminal Code (Foreign Incursions and Recruitment – Declared Areas) Revocation Instrument 2017 – Al‑Raqqa Province, Syria, Explanatory Statement at 1.
The Islamic State has been listed as a "terrorist organisation" within the meaning of para (b) of the definition in s 102.1(1) of the Criminal Code (Cth) under various names since at least 2010, including "Al‑Qa'ida in Iraq", "Islamic State of Iraq and the Levant" and "Islamic State"[64]. In 2016, it was also listed as a "declared terrorist organisation" for the purposes of former s 35AA of the Citizenship Act[65].
[64]Criminal Code Amendment Regulations 2010 (No 7) (Cth); Criminal Code (Terrorist Organisation – Al‑Qa'ida in Iraq) Regulation 2013 (Cth); Criminal Code (Terrorist Organisation – Islamic State of Iraq and the Levant) Regulation 2013 (Cth); Criminal Code (Terrorist Organisation – Islamic State) Regulation 2014 (Cth); Criminal Code (Terrorist Organisation – Islamic State) Regulations 2017 (Cth); Criminal Code (Terrorist Organisation – Islamic State) Regulations 2020 (Cth).
[65]Australian Citizenship (Declared Terrorist Organisation – Islamic State) Declaration 2016 (Cth). See also Parliamentary Joint Committee on Intelligence and Security, Review of the declaration of Islamic State as a terrorist organisation under the Australian Citizenship Act 2007 (October 2016).
Since 2015, the terrorism threat in Australia has been assessed by ASIO as "Probable" on the National Terrorism Threat Advisory System, signifying that credible intelligence, assessed by Australia's security agencies, indicates that individuals or groups continue to possess the intent and capability to conduct a terrorist attack in Australia. The threat of religiously motivated violent extremism, including from groups such as the Islamic State, was and remains the principal concern[66].
[66]Australian National Security, Current National Terrorism Threat Level, available at <https://www.nationalsecurity.gov.au/national-threat-level/current-national-terrorism-threat-level> [https://perma.cc/C96K-JYH3].
Since 2014, there have been at least nine attacks targeting people in Australia and 21 major counter‑terrorism disruption operations in response to attacks being planned in Australia, such as the actions of Man Haron Monis in taking 18 people hostage at the Lindt Café in downtown Sydney.
In March 2019, the Islamic State was ousted by the United States‑led Global Coalition to Defeat Islamic State from the last of the territory it had controlled across Syria and Iraq. While ASIO reported that "ISIL's 'caliphate' has been crushed and it has lost its safe havens and organised military capability", it identified that any remnants remained dangerous and required ongoing attention, including the anticipated return to Australia of foreign fighters[67]. Similarly, US intelligence considered that, as at April 2021, the Islamic State remained capable of waging a prolonged insurgency in Iraq and Syria and leading its global organisation, despite compounding senior leadership losses.
[67]Australian Security Intelligence Organisation, ASIO Annual Report 2018‑19 (2019) at 4.
The risk posed by foreign fighters, defined by ASIO as "Australians who have participated in foreign conflicts or undertaken training with extremist groups overseas", is an aspect of this general threat. While relatively few returned fighters have posed a direct risk to the Australian community, those that did have been responsible for some of the most lethal terrorist attacks.
ASIO has reported that, since 2012, around 230 Australians (or former Australians) have travelled to Syria or Iraq to fight with or support groups involved in the Syria‑Iraq conflict. Of that, 50 are estimated to have returned to Australia, the majority before 2016.
In a submission to the Parliamentary Joint Committee on Intelligence and Security's 2019 review of the Australian Citizenship Amendment (Citizenship Cessation) Bill, ASIO continued to assess that the return of Australians who have spent time with Islamist extremist groups in Syria or Iraq has the potential to exacerbate the Australian threat environment "for many years to come"[68]. This is because foreign fighters can be expected to have developed characteristics such as a greater tolerance for and propensity towards violence, and to have established jihadist credentials[69]. Several serious terrorist plots in Australia between 2000 and 2010 each involved at least one returned foreign fighter.
[68]Australian Security Intelligence Organisation, ASIO Submission to the Parliamentary Joint Committee on Intelligence and Security: Review of the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 (2019) at 4.
[69]Australian Security Intelligence Organisation, ASIO Submission to the Parliamentary Joint Committee on Intelligence and Security: Review of the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 (2019) at 4.
The "retrospective" operation of s 36B(5)(h)
As to Mr Alexander's argument that he cannot be taken to have repudiated his allegiance to Australia because, at the time he travelled into Syria, s 36B(5)(h) had not been enacted, the validity of s 36B is not to be approached on the footing that it would be open to the Parliament to treat voluntary conduct of the kind described in s 36B(5)(h) as a repudiation of his allegiance to Australia only if Mr Alexander made a deliberate decision to defy Australian statute law in so conducting himself.
While the suite of provisions of which s 36B is a part might broadly hint at some analogy with the principles of contract law concerning the termination of a contract by one party for repudiatory conduct by the other party, those provisions do not purport to enact the contractual model. The question is whether it was open to the Parliament to treat a person who voluntarily engaged in the conduct described in s 36B(5)(h) as having repudiated that person's allegiance to Australia, whether or not that person actually intended to defy Australian law.
In that regard, it cannot be said that it was not open to Parliament to provide that such conduct voluntarily undertaken might be so incompatible with the values of the Australian people as to be seen to be incompatible with continued membership of the Australian body politic. It is a different question whether giving effect to that assessment may be done by depriving that person of his or her citizenship without regard for the requirements of a fair hearing that characteristically attend the exercise of judicial power.
Summary
In summary in relation to the first issue, it should be held that it is open to the Parliament under s 51(xix) to create a status of citizenship that allows for the exclusion of persons from membership of the body politic. It is not an abuse of language to say that a person whose conduct is inimical to Australia's interests may, by a law of the Commonwealth, forfeit the rights of citizenship conferred by the Parliament, and thereby become an alien. The withdrawal of citizenship from an individual who voluntarily engages in the conduct described in s 36B(5)(h) cannot be said to pursue an eccentric understanding of the meaning of "aliens" in s 51(xix) of the Constitution.
The question to which attention must now turn concerns the process by which that withdrawal of citizenship may be effected.
Chapter III of the Constitution
Mr Alexander argued that s 36B of the Citizenship Act reposes in the Minister the power to adjudge and punish criminal conduct by involuntary denaturalisation. This was said to be an exclusively judicial function, and not one which fell within any established exception bringing it within the acknowledged remit of the executive.
In support of this submission, Mr Alexander relied upon Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs[70]. Mr Alexander sought to characterise denaturalisation as punishment.
[70](1992) 176 CLR 1.
The defendants accepted that the function of "adjudging and punishing criminal guilt" is "exclusively judicial", as this Court held in Lim[71]. But the defendants submitted that Lim said nothing about laws that do not impose detention in custody[72], of which s 36B is one.
[71]Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 27. See also Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 at 340 [15].
[72]See Thomas v Mowbray (2007) 233 CLR 307 at 330 [18], 356‑357 [114]‑[121], 509 [600], 526 [651].
The defendants submitted that at its highest, s 36B confers a power to inflict "involuntary hardship or detriment" on a person, which, as Gleeson CJ explained in Re Woolley; Ex parte Applicants M276/2003[73], is "not an exclusively judicial function". Further, it was submitted that it was not necessarily the case that deprivation of Australian citizenship would inflict hardship or detriment, particularly because s 36B allowed the cessation of citizenship only in the case of a person who is also a citizen of another country.
[73](2004) 225 CLR 1 at 12 [17].
The defendants also emphasised that s 36B is a discretionary power based on three conditions: that the person has engaged in the requisite conduct (as specified by s 36B(5)); the conduct demonstrates that the person has repudiated his or her allegiance to Australia; and that it would be contrary to the public interest for the person to remain an Australian citizen. The defendants also sought to emphasise that the power was ultimately discretionary, and that a determination under s 36B, and any decision to refuse to revoke it, is subject to judicial review.
The submissions of the defendants should not be accepted. The consequences of a determination under s 36B for the citizen, the legislative policy which informs the operation of s 36B, and a comparison of the operation of s 36B with the provisions of s 36D (which authorise the same consequences for the citizen only upon conviction after a trial), all point to the conclusion that the power reposed in the Minister by s 36B(1) is a power which Ch III of the Constitution requires to be exercised by a court that is part of the federal judicature. To these considerations one may now turn.
Consequences for the citizen
In Lim, Brennan, Deane and Dawson JJ, with whom Gaudron J relevantly agreed[74], said that "the adjudgment and punishment of criminal guilt under a law of the Commonwealth" was the most important of the "functions which, by reason of their nature or because of historical considerations, have become established as essentially and exclusively judicial in character"[75].
[74]Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 53.
[75]Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 27.
The plurality in Lim went on to explain that the exclusive character of this judicial function is a matter of "substance and not mere form"[76]. In addition, their Honours explained that "putting to one side the exceptional cases" of detention, such as in "cases of mental illness or infectious disease", which can "legitimately be seen as non‑punitive in character and as not necessarily involving the exercise of judicial power", detention of a person by the State is "penal or punitive in character"[77]. Today, detention by way of deprivation of liberty in retribution for reprehensible conduct by an individual is a familiar example of punishment by the State. Historically, of course, English law sanctioned criminal conduct by punishments other than detention: corporal and capital punishment come readily to mind. But in addition, and importantly, exile has long been regarded as punishment. In the early seventeenth century, in Hussey v Moor[78], the Court of King's Bench said:
"[P]enal laws are those which do inflict penalty, ... and what law can be more penal than [a] statute ... which includes [penalties being] pecuniary, corporal and exile."
[76]Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 27.
[77]Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 27‑28.
[78](1616) 3 Bulst 275 at 280 [81 ER 232 at 236].
Today, the fundamental value accorded to the liberty of the individual provides the rationale for the strict insistence in the authorities that the liberty of the individual may be forfeited for misconduct by that person only in accordance with the safeguards against injustice that accompany the exercise of the judicial power of the Commonwealth[79]. The case for the strict insistence on these safeguards is, if anything, stronger where the penalty for misconduct involves not only a loss of liberty within the community, but the loss of all entitlement to be both within the community and at liberty.
[79]Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161 at 179 [56]; Fardon v Attorney‑General (Qld) (2004) 223 CLR 575 at 612 [79], 632‑633 [150]‑[151].
For an Australian citizen, his or her citizenship is an assurance that, subject only to the operation of the criminal law administered by the courts, he or she is entitled to be at liberty in this country and to return to it as a safe haven in need[80]. These entitlements are not matters of private concern; they are matters of public rights of "fundamental importance"[81] to the relationship between the individual and the Commonwealth. In South Australia v Totani[82], Crennan and Bell JJ said:
"In harmony with the Constitution, conclusions about whether legislation conflicts with constitutional requirements, which turn on the nature of judicial power, or its usurpation, or which are directed to the effect of legislation on the institutional integrity of a court, commonly subsume consideration of the effect of the legislation on personal liberty."
[80]Potter v Minahan (1908) 7 CLR 277 at 305; Air Caledonie International v The Commonwealth (1988) 165 CLR 462 at 469.
[81]Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 53.
[82](2010) 242 CLR 1 at 156 [424] (footnotes omitted).
The suite of provisions which includes s 36B may be said to pursue a purpose of protecting the Australian community from the risks to peace and security posed by returning foreign fighters. But that protective purpose is not the principal purpose of the provision so as to qualify the power conferred by s 36B as an exception to the Lim principle[83]. As will be seen in the next section, the principal purpose of s 36B is retribution for conduct deemed to be so reprehensible as to be "incompatible with the shared values of the Australian community"[84]. That characterisation of the principal purpose of s 36B as punitive accords with the long‑held understanding of exile as a form of punishment.
[83]cf Minister for Home Affairs v Benbrika (2021) 95 ALJR 166 at 181 [36]; 388 ALR 1 at 14.
[84]s 36A of the Citizenship Act.
As noted above, the Solicitor‑General drew attention to the observation of Gleeson CJ in Re Woolley that "[p]unishment, in the sense of the inflicting of involuntary hardship or detriment by the State, is not an exclusively judicial function"[85]. So in Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs[86], Gleeson CJ observed that the effect of the reasons of the plurality in Lim was that "executive powers to receive, investigate and determine an application for an entry permit and, after determination, to admit or deport, is not punitive in nature, and not part of the judicial power of the Commonwealth"; but, importantly, Gleeson CJ went on to say:
"In the case of a citizen, what is punitive in nature about involuntary detention (subject to a number of exceptions) is the deprivation of liberty involved ...
For a citizen, that alone would ordinarily constitute punishment."
[85]Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1 at 12 [17].
[86](2004) 219 CLR 486 at 499 [20]‑[21].
Visnic v Australian Securities and Investments Commission[87] and Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd[88] were cited by the defendants' counsel in support of the argument that a determination under s 36B is neither an adjudgment of guilt nor an imposition of punishment. Crucially, these cases dealt with the revocation of licences or other statutory privileges, rather than citizenship. These cases are examples of the point that the hardship or detriment involved in the revocation of a statutory licence or other privilege, where the holder of the licence or privilege is shown to be not a fit and proper person to enjoy the privilege or the licence, is not "punishment", which is an exclusively judicial function. But the punishment of an individual involving the deprivation of citizenship by reason of that person's misconduct is punishment of a different order from the loss of a statutory privilege or a licence under a regulatory regime. The consequence for a person who voluntarily does the acts described in s 36B(5)(h) is no different in substance from the punishment meted out pursuant to s 36D. Such a consequence cannot be equated with the cancellation of a licence or other privilege conferred by a statute which regulates business or other activities.
[87](2007) 231 CLR 381.
[88](2015) 255 CLR 352.

In Kennedy v Mendoza‑Martinez[89], Goldberg J, writing for the majority of the Supreme Court of the United States, held that a law depriving a citizen of the United States of his nationality for evading conscription for military service was constitutionally invalid on the basis that it imposed "the sanction of deprivation of nationality as a punishment ... without affording the procedural safeguards ... [of] trial by duly constituted courts". The majority opinion in Kennedy recognised that the deprivation of the rights of citizenship serves to "promote the traditional aims of punishment – retribution and deterrence"[90]. As Brennan J said in his concurring opinion[91], so it may be said of s 36B(1) that the sanction of "expatriation" is "available for no higher purpose than to curb undesirable conduct, to exact retribution for it, and to stigmatize it".
[89](1963) 372 US 144 at 165‑166.
[90]Kennedy v Mendoza‑Martinez (1963) 372 US 144 at 168.
[91]Kennedy v Mendoza‑Martinez (1963) 372 US 144 at 187‑188.
As was said in Lim, whether a law provides for the adjudication and punishment of criminal conduct is a matter of substance, not form[92]. The substantive effect of the deprivation of rights of liberty conferred by Australian citizenship is not disguised by the use of the emollient language of "citizenship cessation" to describe the effect of a determination under s 36B upon an individual. In this regard, it may be noted that s 40(2) of the British Nationality Act 1981 (UK) provides, with commendable frankness, for the "deprivation of citizenship" of an individual if the Secretary of State is satisfied that deprivation is conducive to the public good. The candid language in which this provision is expressed acknowledges the substance of the effect of the ministerial determination upon the citizen in question. This candour may owe something to the circumstance that the validity of the conferral of such a power on the executive government of the United Kingdom is not dependent on conformity with constitutional requirements such as those found in Ch III of our Constitution; but however that may be, the British Nationality Act more accurately expresses the effect upon the citizen of a determination under s 36B than "citizenship cessation".
[92]Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 27.
Sections 36A and 36D
That s 36B facilitates punishment in the sense of retribution for the conduct described in s 36B(5)(h) is confirmed by a consideration of the terms of s 36A and a comparison of the operation of s 36B with that of s 36D, the validity of which is not in issue in this case.
Section 36A is found at the beginning of Subdiv C of Div 3 of Pt 2 of the Citizenship Act. It provides:
"This Subdivision is enacted because the 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."
The operative provisions which give effect to the policy stated by s 36A are a response to conduct that is conceived of as being so reprehensible that it is radically incompatible with the values of the community. The response of the Parliament to that reprehensible conduct is retribution in the form of the deprivation of the entitlement to be at liberty in Australia. Retribution is characteristic of punishment under the criminal law – it is "punishing an offender 'because he [or she] deserves it'"[93] by reason of the offender's misconduct. Associated with this purpose are notions of denunciation and deterrence of conduct that is regarded as reprehensible by the community.
[93]Veen v The Queen [No 2] (1988) 164 CLR 465 at 473.
The statement in s 36A informs both ss 36B and 36D. Section 36D provides relevantly as follows:
"Cessation of citizenship on determination by Minister
(1)The Minister may determine in writing that a person ceases to be an Australian citizen if:
(a)the person has been convicted of an offence, or offences, against one or more of the provisions specified in subsection (5); and
(b)the person has, in respect of the conviction or convictions, been sentenced to a period of imprisonment of at least 3 years, or to periods of imprisonment that total at least 3 years; and
(c)the Minister is satisfied that the conduct of the person to which the conviction or convictions relate demonstrates that the person has repudiated their allegiance to Australia; and
(d)the Minister is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen (see section 36E).
Note:A person may seek review of a determination made under this subsection in the High Court of Australia under section 75 of the Constitution, or in the Federal Court of Australia under section 39B of the Judiciary Act 1903. See also section 36H of this Act (revocation of citizenship cessation determination on application to Minister).
(2)However, the Minister must not make a determination if the Minister is satisfied that the person would, if the Minister were to make the determination, become a person who is not a national or citizen of any country.
(3)The person ceases to be an Australian citizen at the time the determination is made.
(4)Subsection (1) applies to a person who is an Australian citizen regardless of how the person became an Australian citizen (including a person who became an Australian citizen upon the person's birth).
(5)For the purposes of paragraph (1)(a), the provisions are the following:
...
(g)a provision of Part 5.5 of the Criminal Code (foreign incursions and recruitment)".
Section 36D, like s 36B, gives practical effect to the policy stated in s 36A. Each provision serves "to shore up the convictions of the law‑abiding by demonstrating that the wicked will not go unscathed"[94] for the reprehensible conduct described in ss 36B(5)(h) and 36D(5)(g).
[94]Kennedy v Mendoza‑Martinez (1963) 372 US 144 at 190.
The sanction of deprivation of citizenship may be imposed upon an individual by the exercise of the discretion conferred on the Minister by s 36B rather than as a consequence of a conviction after a trial under s 36D. True it is that the Minister under s 36B need not be satisfied of the same mental elements necessary to establish the commission of an offence under s 36D[95], but to say this is to draw attention to the lower factual threshold required by s 36B for the exercise of the power reposed in the Minister to effect a deprivation of citizenship. It also highlights the absence of the procedural safeguards attending a criminal prosecution of an offence under s 36D.
[95]s 36B(6) of the Citizenship Act.
Both ss 36B and 36D deal with the topic of "[c]essation of citizenship on determination by [the] Minister". But in the case of s 36D, the power of the Minister arises only in relation to a person who has been convicted and sentenced of an offence or offences by a court[96]. In contrast, the Minister's discretion under s 36B arises upon the Minister him or herself being satisfied that the conduct elements of the offence have occurred. And the Minister may be satisfied of those matters in circumstances in which the "offender" has not had a fair hearing (or indeed any hearing at all), much less the benefit of the other safeguards of a criminal trial, including the incidence of the burden of proof.
[96]s 36D(1)(a), (b) of the Citizenship Act.
Statute law may validly regulate the incidence of the burden of proving facts without offending Ch III of the Constitution[97], but s 36B contemplates a process of ministerial fact finding in relation to the grounds for the deprivation of citizenship in which the State is not required to carry the burden of proof, by contrast to the position under s 36D. Indeed, under s 36B, the Minister is not required even to proceed in accordance with the rules of procedural fairness[98]. And yet the process under s 36B may result in the same outcome by way of deprivation of citizenship as under s 36D, where the protections afforded by a criminal trial have been afforded to the citizen. This incongruity is not dispelled by the possibility that an application for revocation may subsequently be made under s 36H or that s 36J or s 36K may be engaged.
[97]Nicholas v The Queen (1998) 193 CLR 173 at 188‑190 [23]‑[24], 225 [123], 234‑236 [152]‑[154]; Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1 at 22‑23 [30]‑[33].
[98]s 36B(11) of the Citizenship Act.
Some reference to the evolution of s 36B is also illuminating. Provisions for the termination of citizenship on terrorism‑related grounds were first introduced into the Citizenship Act by the Allegiance to Australia Act and commenced on 12 December 2015. These provisions were introduced as part of the government's response to the Review of Australia's Counter‑Terrorism Machinery for a Safer Australia, and with a view to broadening powers relating to the cessation of Australian citizenship for persons engaging in terrorism and who were a serious threat to Australia and Australia's interests[99].
[99]Australia, Senate, Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 (Cth), Revised Explanatory Memorandum at 1.
The predecessor to s 36B was s 33AA of the Citizenship Act. It was in largely the same terms, except that it provided for a mental element[100]:
[100]Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth), Sch 1, item 3.
"(3)[Section 33AA(1)] applies to conduct specified in any of paragraphs [33AA](2)(a) to (h) only if the conduct is engaged in:
(a)with the intention of advancing a political, religious or ideological cause; and
(b)with the intention of:
(i)coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or
(ii)intimidating the public or a section of the public.
(4)A person is taken to have engaged in conduct with an intention referred to in subsection (3) if, when the person engaged in the conduct, the person was:
(a)a member of a declared terrorist organisation (see section 35AA); or
(b)acting on instruction of, or in cooperation with, a declared terrorist organisation.
(5)To avoid doubt, subsection (4) does not prevent the proof or establishment, by other means, that a person engaged in conduct with an intention referred to in subsection (3)."
In 2019, a report by the Independent National Security Legislation Monitor ("the INSLM Report") reviewed the operation, effectiveness and implications of the citizenship cessation provisions, including s 33AA. The INSLM Report stated that the "main focus" of these laws was involvement with the Islamic State, although they were not so limited[101]. The INSLM Report considered that Australia's counter‑terrorism framework required a range of mechanisms, and that "[i]n some, possibly rare cases, citizenship cessation reduces the risk of a terrorist act being undertaken by that person in Australia"[102].
[101]Independent National Security Legislation Monitor, Report to the Attorney‑General: Review of the operation, effectiveness and implications of terrorism‑related citizenship loss provisions contained in the Australian Citizenship Act 2007, Report No 7 (2019) at 44 [6.13].
[102]Independent National Security Legislation Monitor, Report to the Attorney‑General: Review of the operation, effectiveness and implications of terrorism‑related citizenship loss provisions contained in the Australian Citizenship Act 2007, Report No 7 (2019) at 44 [6.10].
However, the INSLM Report concluded that the citizenship cessation provisions, including s 33AA, lacked necessity, proportionality and proper protections for individual rights. The INSLM Report further identified, in addition to the risk of de facto or temporary statelessness, a denial of due process[103]. While s 36D affords a citizen the due process of a criminal trial before the Minister's discretion arises, a significant feature of s 36B is that it operates without due process at all.
[103]Independent National Security Legislation Monitor, Report to the Attorney‑General: Review of the operation, effectiveness and implications of terrorism‑related citizenship loss provisions contained in the Australian Citizenship Act 2007, Report No 7 (2019) at 57 [6.87].
The ministerial discretion
The defendants argued that a determination under s 36B(1) requires consideration of the public interest in addition to satisfaction that the conduct described in s 36B(5)(h) occurred, and that this exercise does not require a finding that an offence has been committed. It was also said that the Minister's determination will not decide a controversy as to the existence of present rights and obligations.
These points highlight that, in contrast to s 36D, which contemplates an orthodox exercise of judicial power as a necessary precondition of imposing relevantly the same punishment, s 36B does not contemplate an exercise of judicial power at all. But to say that is entirely beside the point. The vice of s 36B is precisely that it does not provide for the exercise of judicial power. To emphasise that this is so is simply to make Mr Alexander's case for him.
Dual citizens
For the defendants it was argued that the deprivation of Australian citizenship pursuant to s 36B would not necessarily mean that the former citizen would be exposed to the dangers of statelessness because, by reason of s 36B(2), the Minister's power may be exercised only in relation to an individual who is also a citizen of another country. It was said that the extent of the actual detriment to such an individual would depend upon the circumstances of that individual.
On any view of the situation of such an individual, the involuntary deprivation of rights involved in Australian citizenship by way of retribution for his or her conduct is a serious punishment. The individual is stripped of the right to be at liberty in Australia, and that is so whatever rights may be conferred by citizenship of another country.
Summary
In summary in relation to the Ch III issue, the effect of the Minister's determination under s 36B(1) is to deprive Mr Alexander of his entitlement to enter and live at liberty in Australia. That sanction by the Parliament may be imposed only upon satisfaction of the Minister that Mr Alexander engaged in conduct that is so reprehensible as to be deserving of the dire consequence of deprivation of citizenship and the rights, privileges, immunities and duties associated with it. The power to determine the facts which enliven the power to impose such a punishment is one which, in accordance with Ch III of the Constitution, is exercisable exclusively by a court that is a part of the federal judicature.
Answers and orders
The questions posed by the special case should be answered as follows:
1.Is s 36B of the Australian Citizenship Act 2007 (Cth) invalid in its operation in respect of the plaintiff because:
(a)it is not supported by a head of Commonwealth legislative power;
Answer, "No".
(b)it is inconsistent with an implied limitation on Commonwealth legislative power preventing the involuntary deprivation of Australian citizenship;
Answer, "Unnecessary to answer".
(c)it effects a permanent legislative disenfranchisement which is not justified by a substantial reason;
Answer, "Unnecessary to answer".
(d)it effects a permanent disqualification from being chosen or from sitting as a senator or a member of the House of Representatives, otherwise than in the circumstances contemplated by ss 34 and 44 of the Constitution;
Answer, "Unnecessary to answer".
(e) it reposes in the Minister for Home Affairs the exclusively judicial function of punishing criminal guilt?
Answer, "Yes".
2.What, if any, relief should be granted to the plaintiff?
Answer, "It should be declared that:
(a)s 36B of the Australian Citizenship Act 2007 (Cth) is invalid; and
(b) the plaintiff is an Australian citizen".
3.Who should pay the costs of the special case?
Answer, "The defendants".
GAGELER J. The conclusion reached by Kiefel CJ, Keane and Gleeson JJ is that s 36B of the Australian Citizenship Act 2007 (Cth) is a law with respect to "aliens" within the meaning of s 51(xix) of the Constitution but infringes the doctrine of separation of judicial power enshrined in Ch III of the Constitution. I agree with that conclusion and with the substance of their Honours' reasons for reaching it.
My purpose in writing additionally is to respond to a particular submission put by the defendants at the forefront of their argument that s 36B does not infringe the doctrine of separation of judicial power. The submission was that someone who ceases to be an Australian citizen by operation of a ministerial determination made under s 36B is not "punished", in the sense in which that term is used to describe an exercise of judicial power consequent upon a finding of criminal guilt[104], because the "purpose" of the section is to "protect the Australian community" from persons found to have engaged in terrorist conduct.
[104]See Duncan v New South Wales (2015) 255 CLR 388 at 409 [46]; Minogue v Victoria (2019) 268 CLR 1 at 20-21 [31].
My response to the submission is in two parts. The first part involves explaining why it does not help, in the context of determining whether a law infringes the doctrine of separation of judicial power enshrined in Ch III, to describe a legislative purpose at that level of generality. The second part explains how legislative purpose should be identified and, in doing so, points out what was wrong with the defendants' attempt to identify the legislative purpose through reliance on certain extrinsic material.
Part I: describing a legislative purpose
Constitutional analysis in a variety of contexts can be assisted by identifying the "purpose" (or "object" or "end") of a law as distinct from the "manner" (or "means" or "mechanism") by which the law is designed to achieve that purpose. Without being exhaustive, those contexts include determining whether a law is "with respect to" a designated topic of legislative power[105], determining whether a law infringes the express guarantee of freedom of interstate trade[106] or intercourse[107], and determining whether a law infringes the implied guarantee of freedom of political communication[108].
[105]See Stenhouse v Coleman (1944) 69 CLR 457 at 471-472; Murphyores Inc Pty Ltd v The Commonwealth (1976) 136 CLR 1 at 11, 19-23; Cunliffe v The Commonwealth (1994) 182 CLR 272 at 294.
[106]See Cole v Whitfield (1988) 165 CLR 360 at 408-409; Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 at 473-474; Betfair Pty Ltd v Western Australia ("Betfair No 1") (2008) 234 CLR 418 at 451 [10], 464 [47]-[48].
[107]See Palmer v Western Australia (2021) 95 ALJR 229 at 241-242 [47]-[48], [50], 249 [92], 265 [181], 267-268 [187]-[189], [191]-[192], 279 [241], 281 [249]; 388 ALR 180 at 192-193, 201, 222-223, 225-226, 240, 243.
[108]See Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 561-562; McCloy v New South Wales (2015) 257 CLR 178 at 193-195 [2], 230-231 [126], [129], 258 [220], 280-281 [306].
In each context, the "purpose" is the "public interest sought to be protected and enhanced" by the law[109]. Expressed in more arcane terms, the "purpose" is the positive counterpart of "the mischief to redress of which [the] law is directed"[110].
[109]Cunliffe v The Commonwealth (1994) 182 CLR 272 at 300.
[110]APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322 at 394 [178]. See McCloy v New South Wales (2015) 257 CLR 178 at 232 [132]; Brown v Tasmania (2017) 261 CLR 328 at 391-392 [208]-[210].

The plaintiff advanced a number of additional grounds attacking the validity of s 36B of the 2007 Citizenship Act. The first of these was that the Court should imply from the text of the Constitution either an absolute or qualified prohibition on the removal of a person's status as a member of the "people of the Commonwealth", consistently with the use of that phrase in the Constitution[466]. The essence of the argument was that once it is acknowledged that the Constitution recognised the existence of the people of Australia as a distinct community, it followed that the character of that body of people was unalterable by Parliament. Parliament did not have an unfettered ability to define, for example, who were the "people" from whom senators and members of the House of Representatives were to be directly chosen for the purposes of ss 7 and 24 of the Constitution. Alternatively, it was submitted, it should be implied that any exclusion from membership of the "people of the Commonwealth" should only take place through an exercise of judicial power under Ch III of the Constitution. Neither proposition was directly supported by any authority.
[466]Constitution, s 24.
It is well established that implications which limit the legislative powers of the Commonwealth can only be drawn when it is necessary to do so to give effect to the text or structure of the Constitution[467]. Here, the suggested implication is unnecessary and conflicts with the scope of legislative authority conferred by the "naturalization and aliens" head of power in s 51(xix) of the Constitution. That head of power, for the reasons already given, authorises laws that provide for the denationalisation of an Australian citizen where that person has acted in a way, or taken a step or steps, that constitutes a permanent repudiation of her or his allegiance to Australia or of her or his membership of this nation. The existence of this legislative power is a complete answer to the implication sought to be propounded by the plaintiff. The relevance of Ch III to laws authorising the expatriation of Australian citizens is otherwise addressed below.
[467]Gerner v Victoria (2020) 270 CLR 412 at 422 [14] per Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ.
A law cannot disenfranchise a citizen
The plaintiff submitted that, as a citizen and a member of the "people" for the purposes of ss 7 and 24 of the Constitution, he had a right to vote in federal elections. He relied upon the well‑established proposition that ss 7 and 24 of the Constitution mandate universal adult suffrage, exclusion from which requires a "substantial reason"[468]. Because the cancellation of citizenship results in automatic disenfranchisement, it was submitted that such a law required the support of a "substantial reason", and that none existed here[469].
[468]Roach v Electoral Commissioner (2007) 233 CLR 162 at 174 [7] per Gleeson CJ; Rowe v Electoral Commissioner (2010) 243 CLR 1 at 48-49 [123] per Gummow and Bell JJ.
[469]Commonwealth Electoral Act 1918 (Cth), s 93(1)(b), (7)(b).
There is an immediate difficulty with the plaintiff's contention. As the defendants pointed out, the plaintiff's reasoning is circular. Laws exist in this country which confer rights and duties on a person who is a citizen. One of those duties is the obligation to vote at federal elections. The existence of such rights and duties, which depend on a person's legal status as a citizen, cannot limit Parliament's power to make valid laws of denationalisation in accordance with s 51(xix) of the Constitution. If the plaintiff's citizenship has been validly cancelled, then he has forfeited his eligibility to vote, as a consequence of his new legal status as an alien. But a general implication derived from ss 7 and 24 of the Constitution concerning universal suffrage says nothing at all about who should, and who should not, be citizens of this country. That is because it is an implication that takes the body politic to be that which is defined by the Parliament subject to the Constitution[470].
[470]Reasons of Kiefel CJ, Keane and Gleeson JJ at [44].
If, contrary to the foregoing, s 36B of the 2007 Citizenship Act must be justified by a "substantial reason", the defendants submitted that responding to a repudiation of membership of the Australian community and protection of that community from terror were both sufficient justifications. That submission should be accepted. In that respect, in Roach v Electoral Commissioner, Gleeson CJ observed[471]:
"The rational connection between such exclusion and the identification of community membership for the purpose of the franchise might be found in conduct which manifests such a rejection of civic responsibility as to warrant temporary withdrawal of a civic right."
[471](2007) 233 CLR 162 at 175 [8].
Conduct of the kind identified in s 36B(5)(h) and which demonstrates a repudiation of allegiance to Australia may well constitute a "rejection of civic responsibility".
The plaintiff put his case that s 36B is not supported by a "substantial reason" in several different ways. For the reasons that follow, what might constitute a valid "substantial reason" need not be articulated. That is because the plaintiff's contentions are, in any event and with respect, misconceived.
The plaintiff first contended that s 36B is over-inclusive in the range of conduct it specifies and thus has no "rational connection" to any of the ends it might pursue. That submission should be rejected for the reasons already given. Secondly, the plaintiff then complained that s 36B is not a proportionate law because it deprives him of his citizenship permanently. He relied upon the decision of this Court in Roach, which decided that serious criminal offending could only ever justify a temporary withdrawal of the right to vote[472]. That submission is misconceived for two reasons. First, as the defendants pointed out, it overlooks s 36H, which provides that a person whose citizenship has been cancelled may apply to have that decision revoked. That provision allows the Minister to, amongst other things, revoke the decision if it be in the public interest to do so[473]. It also overlooks the power conferred on the Minister by s 36J(1) to revoke the cancellation of citizenship on the Minister's "own initiative" if that would be in the public interest. Secondly, because the reach of s 36B is unlikely to include wholly innocent conduct and is instead directed at conduct that would justify a conclusion by the Minister that a person has repudiated her or his allegiance to Australia, permanent cancellation, subject to ss 36H and 36J, is a proportionate response to an enduring renunciation of membership of the Australian community.
[472](2007) 233 CLR 162 at 177 [12] per Gleeson CJ.
[473]Australian Citizenship Act 2007 (Cth), s 36H(3)(b).
Finally, the plaintiff submitted that s 36B is a disproportionate law because of other laws that already exist and that achieve similar ends. For example, the Federal Parliament has passed laws addressing the risks of terror-related activities that provide for the cancellation of passports, for the making of preventative detention orders, and for the making of continuing detention orders and control orders[474]. The existence of these means of protecting the Australian community did not justify, it was said, what the plaintiff described as a "broad executive discretion permanently to extinguish the civic rights of any member of the Australian community, exercisable on the Minister's satisfaction that any of a wide range of 'conduct' has occurred, without assessment of any fault element". That characterisation of s 36B is a misdescription of the law. Once again, it ignores the fact that engaging in prescribed conduct is only one of three preconditions to the operation of s 36B. It also disregards the nature of the species of "conduct" listed in s 36B(5). For the reasons already given, each species of conduct is potentially repugnant to, and to that extent thereby inconsistent with, fundamental values that inhere in the community comprising the "people of the Commonwealth".
[474]Australian Passports Act 2005 (Cth), s 22 (cancellation of passports); Criminal Code (Cth), Divs 104 (control orders), 105 (preventative detention orders), 105A (continuing detention orders).
Cancellation is not an exercise of judicial power
The plaintiff submitted that involuntary denationalisation is a form of punishment that could only be imposed by a Ch III court following the adjudication of criminal guilt. He relied upon this Court's decision in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs[475], which established the principle that, subject to certain exceptions, the executive branch of government cannot involuntarily detain a person; detaining a person as punishment can only take place following adjudgment of guilt by a court. That is because this "function" has over time become "essentially and exclusively judicial in character"[476]. The plaintiff submitted that this principle is not confined to detention as a form of punishment; as a matter of logic, it extends to any form of punishment for breach of the law[477]. So much should be accepted. Here, the plaintiff urged the Court to characterise his denationalisation as a type of punishment; he contended that it is a form of banishment. Amongst other things, he relied upon the following observation of the Supreme Court of the United States in Trop v Dulles[478]:
"We believe, as did Chief Judge Clark in the court below, that use of denationalization as a punishment is barred by the Eighth Amendment. There may be involved no physical mistreatment, no primitive torture. There is instead the total destruction of the individual's status in organized society. It is a form of punishment more primitive than torture, for it destroys for the individual the political existence that was centuries in the development. The punishment strips the citizen of his status in the national and international political community. His very existence is at the sufferance of the country in which he happens to find himself. While any one country may accord him some rights, and presumably as long as he remained in this country he would enjoy the limited rights of an alien, no country need do so because he is stateless. Furthermore, his enjoyment of even the limited rights of an alien might be subject to termination at any time by reason of deportation. In short, the expatriate has lost the right to have rights." (footnotes omitted)
[475](1992) 176 CLR 1.
[476]Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 27 per Brennan, Deane and Dawson JJ.
[477]Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 at 340 [15] per Kiefel CJ, Bell, Keane and Edelman JJ.
[478](1958) 356 US 86 at 101-102 per Warren CJ (Black, Douglas and Whittaker JJ agreeing).
There is no equivalent to the Eighth Amendment to the Constitution of the United States in Australia's Constitution. Nonetheless, the Supreme Court's observation that denationalisation could be penal in nature should be accepted. In Trop, for example, denationalisation took place because the person in question had been guilty of desertion from the United States Army[479]. A majority of the Supreme Court reasoned[480]:
"The purpose of taking away citizenship from a convicted deserter is simply to punish him. There is no other legitimate purpose that the statute could serve."
[479]Nationality Act of 1940, Pub L No 76-853, §401(g), 54 Stat 1137 at 1169.
[480]Trop v Dulles (1958) 356 US 86 at 97 per Warren CJ (Black, Douglas and Whittaker JJ agreeing); see also at 109-110 per Brennan J.
The characterisation of a power as being either judicial or administrative in nature is often difficult. As Kitto J famously observed in R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd[481]:
"[I]t has not been found possible to frame an exhaustive definition of judicial power. But this is not to say that the expression is meaningless. The uncertainties that are met with arise, generally if not always, from the fact that there is a 'borderland in which judicial and administrative functions overlap', so that for reasons depending upon general reasoning, analogy or history, some powers which may appropriately be treated as administrative when conferred on an administrative functionary may just as appropriately be seen in a judicial aspect and be validly conferred upon a federal court." (citation omitted)
[481](1970) 123 CLR 361 at 373.
Three observations, however, should be made. First, the capacity to impose a penalty of some kind is not necessarily a power exclusively reposed in the judicial branch of government. What is so reposed is the jurisdiction to impose those types of punishment that are essentially and exclusively judicial in nature, such as punishment for breach of a law in the sense described in Lim. As Gleeson CJ observed in Re Woolley; Ex parte Applicants M276/2003[482]:
"The proposition that, ordinarily, the involuntary detention of a citizen by the State is penal or punitive in character was not based upon the idea that all hardship or distress inflicted upon a citizen by the State constitutes a form of punishment, although colloquially that is how it may sometimes be described. Taxes are sometimes said, in political rhetoric, to be punitive. That is a loose use of the term. Punishment, in the sense of the inflicting of involuntary hardship or detriment by the State, is not an exclusively judicial function."
[482](2004) 225 CLR 1 at 12 [17].
Secondly, it is well established that the federal executive can, in some circumstances, impose detriments and penalties based upon the fact that some specific crime has been committed. Thus, in Falzon v Minister for Immigration and Border Protection[483], it was held that the power reposed in the relevant Minister by s 501(3A) of the Migration Act to cancel a person's visa following conviction of a crime did not impermissibly confer upon that Minister any judicial power. It is also well established that the executive may exercise a power to impose a penalty or a detriment based upon an opinion that a crime has been committed, as distinct from any conviction for that crime. Thus, in Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd[484], this Court decided that the Australian Communications and Media Authority ("the Authority") had power to determine whether a broadcaster had breached one of its licence conditions, namely not to use a broadcasting service in the commission of an offence. Making a finding that such an offence had taken place and then taking enforcement action was not an exercise of judicial power. The Authority did not need to defer the exercise of its power until conviction by a court of the offence[485]. The plurality observed[486]:
"More generally, and contrary to the 'normal expectation' stated by the Full Court, it is not offensive to principle that an administrative body is empowered to determine whether a person has engaged in conduct that constitutes a criminal offence as a step in the decision to take disciplinary or other action."
[483](2018) 262 CLR 333.
[484](2015) 255 CLR 352.
[485]See also Visnic v Australian Securities and Investments Commission (2007) 231 CLR 381 at 386 [16] per Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ.
[486]Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352 at 371 [33] per French CJ, Hayne, Kiefel, Bell and Keane JJ.
Here, of course, the power of denationalisation does not turn upon an opinion that any of the conduct described in s 36B(5)(a)-(h) of the 2007 Citizenship Act constitutes the commission of an offence under the Criminal Code. But the plaintiff urged that the inquiry undertaken by the Minister is closely tied to the subject matter of the conduct listed. For the reasons which follow, that contention does not justify a conclusion that the Minister exercises judicial power in making a determination pursuant to s 36B.
Thirdly, in determining whether the power to punish is one which is exclusively vested in the judiciary, considerations of history may assume great importance, especially when the intrinsic nature of the power exhibits features which are consistent with an exercise of executive as well as judicial power. In Lim, McHugh J, after considering Griffith CJ's descriptions of judicial power in Huddart, Parker & Co Pty Ltd v Moorehead[487] and those of Kitto J in Tasmanian Breweries Pty Ltd[488], made the following decisive observation[489]:
"The formulations of Griffith CJ and Kitto J illustrate the imprecision attaching to the lines between judicial power, executive power and legislative power. The line between judicial power and executive power in particular is very blurred. Prescriptively separating the three powers has proved impossible. The classification of the exercise of a power as legislative, executive or judicial frequently depends upon a value judgment as to whether the particular power, having regard to the circumstances which call for its exercise, falls into one category rather than another. The application of analytical tests and descriptions does not always determine the correct classification. Historical practice plays an important, sometimes decisive, part in determining whether the exercise of a particular power is legislative, executive or judicial in character." (footnote omitted)
[487](1909) 8 CLR 330 at 357.
[488](1970) 123 CLR 361 at 374-375.
[489](1992) 176 CLR 1 at 67.
Here, for three reasons the power exercised by the Minister in cancelling the plaintiff's citizenship was not judicial power. First, it has never been an essentially judicial function to make orders which denationalise a person. At common law, denationalisation and expatriation were not possible. And whilst common law courts ordered transportation of convicts to British colonies throughout the 18th and 19th centuries, those convicts remained British subjects[490].
[490]This can be inferred from the absence of any reference to the loss of British subjecthood in the Piracy Act 1717 (4 Geo 1 c 11) and the Transportation Act 1785 (25 Geo 3 c 46) upon a sentence of transportation to a place within "his Majesty's colonies and plantations in America" (s 1) or "within his Majesty's dominions" (s 1), respectively. See generally Neal, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales (1991) at 33, 43, where no apparent distinction is drawn between convicts, emancipists and natural-born subjects comprising the Australian population.
As explained above, the Naturalization Act 1870 changed the common law. It provided for a British subject to lose her or his status as a subject in defined circumstances. None of those circumstances involved an exercise of judicial power. Nor did they involve any form of punishment. Rather, they recognised the acquisition of alien status upon, for example, a subject becoming naturalised in a foreign state.
Following Federation, early enactments in Australia provided the executive, not the judiciary, with the power of denationalisation or deportation in defined circumstances. Section 11 of the Naturalization Act 1903-1917 conferred such a power on the Governor-General. Section 8AA of the Immigration Act 1901-1925 conferred a power of deportation on the Minister. Section 12 of the Nationality Act 1920 conferred a power on the Governor‑General[491] to revoke a certificate of naturalisation where this had been obtained, for example, by false representation or fraud, or where the person had shown herself or himself to be disaffected or disloyal to the Crown. Section 21 of the Nationality and Citizenship Act 1948, as enacted, conferred on the Minister a power of denationalisation which was similar to that conferred by s 36B. It empowered the Minister to deprive a registered or naturalised citizen of her or his citizenship where, for example, the Minister was satisfied that: the person had shown herself or himself "by act or speech to be disloyal or disaffected towards" the Crown[492]; the person had, during any war in which Australia had been engaged, "unlawfully traded or communicated with the enemy or been engaged on or associated with any business which was to his knowledge carried on in such a manner as to assist an enemy in that war"[493]; or the person was not, at the date on which she or he was registered or naturalised, "of good character"[494]. The Minister could not make such an order in respect of a person unless the Minister was satisfied that it was "not conducive to the public good that that person should continue to be an Australian citizen"[495].
[491]From 1936 this power was conferred on the Minister: see Nationality Act 1936 (Cth), Schedule.
[492]Nationality and Citizenship Act 1948 (Cth), s 21(1)(a).
[493]Nationality and Citizenship Act 1948 (Cth), s 21(1)(b).
[494]Nationality and Citizenship Act 1948 (Cth), s 21(1)(d).
[495]Nationality and Citizenship Act 1948 (Cth), s 21(2).

Contrary to what might otherwise be thought, the 152 years of legal history since 1870 cannot be overlooked or dismissed as merely recent. Nor does it matter that many of the historical provisions were concerned with naturalised rather than natural-born citizens or subjects. As already mentioned, if denationalisation is a power that may validly be exercised in the case of a naturalised Australian by the executive in accordance with a law authorised by s 51(xix), no different outcome is justified in the case of those born in this country. Both are citizens who assume the same quality of allegiance, whether expressly in the case of naturalised citizens, or implicitly in the case of those born in Australia.
Secondly, as already mentioned, the task of the Minister here is not to determine whether the conduct identified in s 36B(5)(a)-(h) constitutes the commission of any crime. The Minister is not determining guilt or innocence. The conduct to be examined excludes in each case the fault element provided for in the Criminal Code. Instead, the Minister is required to undertake a distinctly different task. The Minister must first determine whether "the conduct demonstrates that the person has repudiated their allegiance to Australia". That is not an inquiry mandated by any provision of the Criminal Code and it does not form part of the criteria for conviction for any of the crimes referenced in s 36B(5)-(6). The Minister must also examine, having regard to the factors listed in s 36E, whether it would be "contrary to the public interest for the person to remain an Australian citizen". What is in the public interest is a matter more usually, but not invariably, reserved to the executive branch of government[496]. In that respect, some of the mandatory factors to be considered pursuant to s 36E require the formation of subjective judgments[497] (for example, a person's connection to the other country of which they are a national or citizen (s 36E(2)(g))), and at least one raises directly a matter more naturally reserved to the executive branch of government ("Australia's international relations" (s 36E(2)(h))). Again, consideration of the public interest in the way mandated by s 36E does not form any part of the criteria for conviction of the crimes referenced in s 36B(5)-(6). It is a consideration that is foreign to the Criminal Code.
[496]R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 399-400 per Windeyer J; Attorney-General (Cth) v Alinta Ltd (2008) 233 CLR 542 at 597 [168] per Crennan and Kiefel JJ.
[497]See R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 377 per Kitto J.
Thirdly, and in contrast to American decisions such as Trop or Kennedy v Mendoza-Martinez[498], the purpose of s 36B is not to punish. If it had been, then it may not have been a valid law. Rather, s 36B serves a legitimate, non‑punitive purpose[499]. Its object, as a matter of substance[500], is not retribution; rather, it is to recognise a person's repudiation of her or his allegiance to Australia and to prescribe a consequence for this repudiation, namely denationalisation. The Cessation EM clearly states that the "purpose" of Subdiv C of Div 3 of Pt 2 of the 2007 Citizenship Act is set out in s 36A[501]. Section 36A makes no reference, either directly or indirectly, or indeed inferentially, to punishment or retribution. Rather, it declares what Parliament considers to be the essential aspect of citizenship: it is a "common bond" which involves reciprocal rights and obligations. It then declares that a person may, by her or his conduct, act in a manner that is incompatible with the community's "shared values". It then further declares that when a person so acts, that may justify a conclusion that the person has "severed" her or his bond with the Australian community and has repudiated her or his allegiance to this country. Cancellation of that person's citizenship, in the circumstances mandated by Subdiv C, is simply the de jure acknowledgement of something which de facto has already occurred, namely that person's rejection of the Australian body politic.
[498](1963) 372 US 144. In any event, the American authorities do not stand for the proposition that any law of involuntary denationalisation or expatriation is inherently punitive in nature and therefore an exclusively judicial function: Rogers v Bellei (1971) 401 US 815 at 831-836 per Blackmun J (Burger CJ, Harlan, Stewart and White JJ agreeing).
[499]Minister for Home Affairs vBenbrika (2021) 95 ALJR 166 at 182-183 [40] per Kiefel CJ, Bell, Keane and Steward JJ; 388 ALR 1 at 16.
[500]Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 27 per Brennan, Deane and Dawson JJ.
[501]Australia, Senate, Australian Citizenship Amendment (Citizenship Cessation) Bill 2020, Revised Explanatory Memorandum at 7 [33].
The foregoing gives full recognition to the words of s 36A and to the contents of the Cessation EM. It does not promote form over substance and practical effect. Rather, it reflects the reality of the statute. It is, with very great respect, wrong to conclude that the concern of s 36B is with "retribution for conduct" which is "reprehensible"[502]. Not only does such a conclusion manifestly clash with the expression of purpose set out in s 36A and in the Cessation EM, it also fails to grapple with an essential aspect of s 36B, namely repudiation of allegiance to Australia. A terrorist who has left Australia and has committed a terrorist act or acts which demonstrate the required repudiation of allegiance is most unlikely to care much for Australian citizenship (save for the possibility that it might be used to further some terrorist cause). For her or him, loss of citizenship is no punishment; it might be no more than an inconvenience or an insult. That is because she or he has already abandoned Australia. In that respect, it should be steadily borne in mind that the legislative scheme comprised by s 36B is in substance targeted at those who fundamentally loathe this country and all that it stands for. Those persons are not victims who require the protection of their former country; rather, they are, in substance and as a matter of practical effect, repudiators of Australia.
[502]Reasons of Kiefel CJ, Keane and Gleeson JJ at [75].
I otherwise agree with Kiefel CJ, Keane and Gleeson JJ[503] that, in a given case, a possible consequence of an application of s 36B might be the protection of the Australian people. That might be the case where the citizenship of a "foreign fighter" is cancelled. But again, that protective, non-punitive purpose does not result in a conferral by s 36B of judicial power on the executive[504].
[503]See [75].
[504]See Minister for Home Affairs vBenbrika (2021) 95 ALJR 166 at 183 [41] per Kiefel CJ, Bell, Keane and Steward JJ; 388 ALR 1 at 16.
In argument it was said that s 36B operated retrospectively and that this revealed its true retributive purpose. That submission is misconceived. First, cancellation takes place with only prospective effect[505]. Secondly, the "conduct" which triggers its application has been unlawful since (at the latest) 1 December 2014[506]. Thirdly, for the reasons already given, if the plaintiff entered into and remained in a "declared" area, his conduct might well have shown a repudiation of the Australian community. For the reasons given by Frankfurter J in Perez, which I prefer, it is of no moment whether the plaintiff subjectively knew at that time that his repudiation of the body politic would lead to the cancellation of his citizenship.
[505]Australian Citizenship Act 2007 (Cth), s 36B(3).
[506]On which date Div 119 of the Criminal Code (Cth) (foreign incursions and recruitment; see Australian Citizenship Act 2007 (Cth), s 36B(5)(h)) commenced: Counter‑Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (Cth).
Finally, in support of the conclusion that the power of denationalisation conferred by s 36B does not involve the exercise by the executive of judicial power, Subdiv C expressly preserves the responsibility of the courts to ensure that the power is exercised lawfully. A "note" which appears under s 36B(1) expressly refers to a person's ability to seek review of a determination to cancel citizenship in the High Court under s 75 of the Constitution or in the Federal Court under s 39B of the Judiciary Act 1903 (Cth). The same note appears under s 36H(4) in relation to a decision to refuse an application to revoke a determination made under s 36B(1). In "proceedings under section 75 of the Constitution, or under [the 2007 Citizenship Act] or another Commonwealth Act", a determination made under s 36B(1) is taken to be revoked if a "court finds that the person did not engage in the conduct to which the determination relates" or the court finds that the person "was not a national or citizen of a country other than Australia"[507]. These provisions permit the issues of "conduct" and "dual citizenship" to be considered by a court on their merits. If a court were to find that the Minister had been mistaken in her or his satisfaction that conduct of the kind identified in s 36B(5) had taken place, or that the person in question was not a dual citizen, that person's citizenship is taken never to have ceased[508].
[507]Australian Citizenship Act 2007 (Cth), s 36K(1)(a), (c).
[508]Australian Citizenship Act 2007 (Cth), s 36K(2).
The foregoing finds some support in at least one early decision of this Court. In Ex parte Walsh, Isaacs J referred to a man who was thought "by the whole of the rest of Australia" to be of "so great a danger ... that nothing short of expulsion ... would be an adequate protection to the community"[509]. Isaacs J observed that Parliament could validly pass a law for that person's deportation, and that the exercise of such a power was a matter reserved to the executive branch of government, unless the deportation took place as punishment for a crime. His Honour said[510]:
"There is nothing in the written Constitution to require the power of deportation always to be exercised through the medium of the judiciary. If it is enacted as a punishment for crime, it necessarily falls to the judicial department. The Court then determines the matter, as it does every other, upon the proved circumstances of the case.
If it is enacted not as a punishment for crime, but as a political precaution, it must be exercised by the political department – the Executive – and possibly on considerations not susceptible of definite proof but demanding prevention or otherwise dependent on national policy. These principles, which are self-evident, have been abundantly recognized in America in cases of which Mahler v Eby is the latest." (footnote omitted)
[509](1925) 37 CLR 36 at 95.
[510]Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 36 at 95-96; see also Starke J at 132, who also accepted that both the executive and judicial powers of the Commonwealth could be used to exclude an alien as "preventive or protective measures for the peace, order and good government of the Commonwealth". However, this would not apply to "citizens of the Commonwealth" (at 138).
The same analysis, with respect, applies with equal force to a power to denationalise a citizen.
Section 36B was thus enacted, not as a punishment for a crime, but as a "political precaution". Because it does not, when correctly and lawfully applied, impose any punishment on a person whose citizenship is cancelled because of a repudiation of allegiance, there is no need for the "safeguard" of a "criminal trial, including the incidence of the burden of proof"[511]. Rather, and with great respect, curial oversight of the exercise of the power, as described above, is a sufficient safeguard.
[511]Reasons of Kiefel CJ, Keane and Gleeson JJ at [86].
I would answer the questions of law raised by the amended special case as follows:
1. Is s 36B of the Australian Citizenship Act 2007 (Cth) invalid in its operation in respect of the plaintiff because:
(a) it is not supported by a head of Commonwealth legislative power;
Answer, "No".
(b) it is inconsistent with an implied limitation on Commonwealth legislative power preventing the involuntary deprivation of Australian citizenship;
Answer, "No".
(c) it effects a permanent legislative disenfranchisement which is not justified by a substantial reason;
Answer, "No".
(d) it effects a permanent disqualification from being chosen or from sitting as a senator or a member of the House of Representatives, otherwise than in the circumstances contemplated by ss 34 and 44 of the Constitution;
Answer, "Unnecessary to answer as this ground was not pressed".
(e)it reposes in the Minister for Home Affairs the exclusively judicial function of punishing criminal guilt?
Answer, "No".
2. What, if any, relief should be granted to the plaintiff?
Answer, "None".
3. Who should pay the costs of the special case?
Answer, "The plaintiff".

Case

Alexander v Minister for Home Affairs

[2022] HCA 19

•

HIGH COURT OF AUSTRALIA
KIEFEL CJ,
GAGELER, KEANE, GORDON, EDELMAN, STEWARD AND GLEESON JJ
DELIL ALEXANDER (BY HIS LITIGATION GUARDIAN
BERIVAN ALEXANDER) PLAINTIFF
AND
MINISTER FOR HOME AFFAIRS & ANOR DEFENDANTS
Alexander v Minister for Home Affairs
[2022] HCA 19
Date of Hearing: 16 & 17 February 2022
Date of Judgment: 8 June 2022
S103/2021
ORDER
The questions of law stated for the opinion of the Full Court in the amended special case filed on 22 October 2021 be answered as follows:
1.Is s 36B of the Australian Citizenship Act 2007 (Cth) invalid in its operation in respect of the plaintiff because:
(a)it is not supported by a head of Commonwealth legislative power;
Answer, "No".
(b)it is inconsistent with an implied limitation on Commonwealth legislative power preventing the involuntary deprivation of Australian citizenship;
Answer, "Unnecessary to answer".
(c)it effects a permanent legislative disenfranchisement which is not justified by a substantial reason;

Answer, "Unnecessary to answer".
(d)it effects a permanent disqualification from being chosen or from sitting as a senator or a member of the House of Representatives, otherwise than in the circumstances contemplated by ss 34 and 44 of the Constitution;
Answer, "Unnecessary to answer".
(e)it reposes in the Minister for Home Affairs the exclusively judicial function of punishing criminal guilt?
Answer, "Yes".

2.What, if any, relief should be granted to the plaintiff?
Answer, "It should be declared that:
(a) s 36B of the Australian Citizenship Act 2007 (Cth) is invalid; and
(b) the plaintiff is an Australian citizen".

3.Who should pay the costs of the special case?
Answer, "The defendants".

Representation
D J Hooke SC and S H Hartford Davis with S G Lawrence and D J Reynolds for the plaintiff (instructed by Australian Criminal and Family Lawyers)
S P Donaghue QC, Solicitor-General of the Commonwealth, and P D Herzfeld SC with J D Watson and L G Moretti for the defendants (instructed by Australian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS
Alexander v Minister for Home Affairs
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".
Constitution, s 51(xix), Ch III.
Australian Citizenship Act 2007 (Cth), ss 36A, 36B, 36D.

KIEFEL CJ, KEANE AND GLEESON JJ. The plaintiff ("Mr Alexander") was born in Australia on 5 August 1986. As a result, by operation of s 10(1) of the Australian Citizenship Act 1948 (Cth) ("the 1948 Citizenship Act"), he became an Australian citizen. He also acquired Turkish citizenship by descent at birth under the law of the Republic of Turkey, as his parents were Turkish citizens. Mr Alexander remains a Turkish citizen.
In July 2021, the Minister for Home Affairs ("the Minister") made a determination pursuant to s 36B of the Australian Citizenship Act 2007 (Cth) ("the Citizenship Act"), as amended by the Australian Citizenship Amendment (Citizenship Cessation) Act 2020 (Cth) ("the 2020 Amending Act"), that Mr Alexander ceased to be an Australian citizen. At that time, Mr Alexander was in prison in Syria, where he remains.
In these proceedings, brought in the original jurisdiction of this Court, Mr Alexander seeks, among other relief, declarations that s 36B of the Citizenship Act is invalid and that he is an Australian citizen. Several grounds are advanced in support of Mr Alexander's challenge; but his challenge may be decided, and his rights determined, by addressing his contentions that s 36B is invalid: first, because it is not within the power of the Parliament to make laws with respect to "naturalization and aliens" under s 51(xix) of the Constitution; and, secondly, because the exercise of the power reposed in the Minister to deprive him of his citizenship is an exclusively judicial function under Ch III of the Constitution. While the first of these contentions should be rejected, the second must be accepted. Section 36B of the Citizenship Act is invalid to that extent, and Mr Alexander remains an Australian citizen.
Mr Alexander's plight
On 16 April 2013, Mr Alexander departed Australia for Turkey, indicating on his outgoing passenger card that he would be overseas for three months. He had informed his family that he intended to arrange a marriage and that he would return to Australia. Having entered Turkey, at some point Mr Alexander travelled to Syria, where he married his wife.
The Australian Security Intelligence Organisation ("ASIO") reported in June 2013 that Mr Alexander's travel to Syria was facilitated through a Sydney‑based network developed by Mr Alqudsi, who had previously been charged with terrorism‑related offences[1]. Mr Alexander was reported to be part of a group that was taken to Syria by a senior Syria‑based Australian member of the Islamic State (also known as "ISIL" or "ISIS"). At this time, the Islamic State had been designated in the Criminal Code (Cth) (under various names) as a terrorist organisation. ASIO later reported that it was "likely" that Mr Alexander had joined ISIL by August 2013, and that he had "likely engaged" in foreign incursions and recruitment by entering or remaining in al‑Raqqa Province in Syria on or after 5 December 2014.
[1]See R v Alqudsi (2015) 328 ALR 517 at 519 [4]; Alqudsi v The Commonwealth (2015) 91 NSWLR 92 at 95 [1].
In November 2017, Mr Alexander was apprehended by Kurdish militia in the village of Ziban in Deir El‑Zour Province in Syria (which was not a declared area). In March 2018, he was transferred to the custody of Syrian authorities and was subsequently charged by Syrian prosecutors with offences against the Syrian Penal Code.
On 31 January 2019, Mr Alexander was convicted and sentenced by a Syrian court to a term of imprisonment for 15 years – subsequently reduced to five – on the strength of admissions he had made during an interrogation. However, Mr Alexander's sister, who appears as his litigation guardian in these proceedings, stated that Mr Alexander told her that he was tortured and forced to sign a paper while in the custody of the Kurdish militia and Syrian authorities without reading its contents.
By reason of a pardon from the Syrian government, Mr Alexander's term of imprisonment has expired. However, he remains in detention for a number of reasons, including that he cannot be released into the Syrian community, nor can he be repatriated to Turkey or Australia.
On 13 July 2020, Mr Alexander was moved to the prison known as Far' Falastin, or Branch 235, which is located in Damascus and operated by Syrian intelligence authorities. For the duration of the conflict in Syria, there have been reports of government forces arbitrarily detaining persons simply for being perceived to be opponents of the State, including in Kurdish territory where persons are suspected of affiliation with the Islamic State. The detention of prisoners in government‑controlled prisons in Syria has been associated with serious human rights violations, including torture.
Since 15 July 2021, neither Mr Alexander's family nor his lawyers have been able to contact him. Mr Alexander claims that, according to his Syrian lawyer, the fact that he is no longer an Australian citizen is a reason for his continuing detention.
The Australian government's decisions about Mr Alexander
Following Mr Alexander's arrival in Syria, the Australian government made several decisions in relation to him leading up to the determination of his citizenship. On 5 September 2013, the then Acting Minister for Foreign Affairs decided to cancel Mr Alexander's passport under s 22(2)(d) of the Australian Passports Act 2005 (Cth). That was on the basis that ASIO suspected on reasonable grounds that "if an Australian passport were issued to [Mr Alexander], [Mr Alexander] would be likely to engage in conduct that might prejudice the security of Australia or a foreign country"[2]. This decision did not affect his status as an Australian citizen, or any entitlement that he may have had to Australian citizenship or consular assistance.
[2]See Australian Passports Act 2005 (Cth), s 14(1)(a)(i).
On 19 June 2020, the Minister made a Temporary Exclusion Order ("TEO") in respect of Mr Alexander, pursuant to the Counter‑Terrorism (Temporary Exclusion Orders) Act 2019 (Cth). The effect of the TEO was to prevent Mr Alexander from entering Australia while it remained in force, which was until 30 January 2022.
On 16 June 2021, the Director‑General of Security at ASIO provided a Qualified Security Assessment ("QSA") of Mr Alexander to the Minister. The purpose of the QSA was to advise whether it would be consistent with the requirements of security for prescribed administrative action to be taken under the Citizenship Act in respect of Mr Alexander. Although ASIO, in the QSA, did not make any recommendation in relation to Mr Alexander's citizenship, it stated that, if the Minister were satisfied that Mr Alexander had engaged in specified conduct and that conduct demonstrated that he had repudiated his allegiance to Australia, the Minister might make a determination in writing that he ceased to be an Australian citizen.
The QSA stated that, based on "substantial classified reporting and some unclassified corroborating information", ASIO assessed that Mr Alexander "likely engaged in foreign incursions and recruitment by entering or remaining in al‑Raqqa Province in Syria, a declared area, on or after 5 December 2014" and "likely travelled to Syria in early‑to‑mid‑2013, and had joined the Islamic State of Iraq and the Levant ... by August 2013".
On 2 July 2021, the Minister determined, pursuant to s 36B(1) of the Citizenship Act, that Mr Alexander ceased to be an Australian citizen. The determination stated that the Minister was satisfied that: Mr Alexander had engaged in foreign incursions while outside Australia[3], which demonstrated a repudiation of his allegiance to Australia[4]; that it would be contrary to the public interest for Mr Alexander to remain an Australian citizen[5]; and that Mr Alexander would not become stateless by reason of the determination[6]. In making that determination, the Minister relied, in part, on the QSA. The Minister was not required to, and did not, give a statement of reasons for the determination.
[3]s 36B(5)(h) of the Citizenship Act.
[4]s 36B(1)(b) of the Citizenship Act.
[5]s 36E(2) of the Citizenship Act.
[6]s 36B(2) of the Citizenship Act.
The proceedings in this Court
The proceedings in this Court were commenced on 13 July 2021. On 26 October 2021, Steward J made orders, including that Ms Alexander be appointed as Mr Alexander's litigation guardian pursuant to r 21.08.6 of the High Court Rules 2004 (Cth).
The parties filed an amended special case pursuant to r 27.08 of the High Court Rules, in which they agreed to state a number of questions for the opinion of the Full Court of this Court. As already noted, it is not necessary to decide all those questions "in order to do justice in [this] case and to determine the rights of the parties"[7]. It is sufficient for the determination of Mr Alexander's challenge to the validity of s 36B to deal with the questions whether s 36B is invalid in its operation in respect of Mr Alexander because it is not supported by a head of Commonwealth legislative power, and, alternatively, whether it is invalid because it reposes in the Minister the exclusively judicial function of adjudging and punishing criminal conduct.
[7]Lambert v Weichelt (1954) 28 ALJ 282 at 283; Mineralogy Pty Ltd v Western Australia (2021) 95 ALJR 832 at 846 [56]; 393 ALR 551 at 565.
While it will be necessary later in these reasons to notice other provisions inserted into the Citizenship Act by the 2020 Amending Act, it is sufficient, for the first of these questions, to summarise the terms of s 36B and its ancillary provisions.
Section 36B
Section 36B is part of a suite of provisions in Subdiv C of Div 3 of Pt 2 of the Citizenship Act which effect the "cessation of citizenship" on terrorism‑related grounds. It, and its companion provisions, were introduced into the Citizenship Act by the 2020 Amending Act to replace the scheme previously enacted by the Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth) ("the Allegiance to Australia Act")[8]. It maintains the focus of the previous legislation on the notion of a repudiation of allegiance to Australia[9].
[8]Independent National Security Legislation Monitor, Report to the Attorney‑General: Review of the operation, effectiveness and implications of terrorism‑related citizenship loss provisions contained in the Australian Citizenship Act 2007, Report No 7 (2019) at 58 [6.90].
[9]s 36A of the Citizenship Act.
Section 36B provides relevantly as follows:
"Cessation of citizenship on determination by Minister
(1)The Minister may determine in writing that a person aged 14 or older ceases to be an Australian citizen if the Minister is satisfied that:
(a)the person:
(i)engaged in conduct specified in subsection (5) while outside Australia; or
(ii)engaged in conduct specified in any of paragraphs (5)(a) to (h) while in Australia, has since left Australia and has not been tried for an offence in relation to the conduct; and
(b)the conduct demonstrates that the person has repudiated their allegiance to Australia; and
(c)it would be contrary to the public interest for the person to remain an Australian citizen (see section 36E).
Note:A person may seek review of a determination made under this subsection in the High Court of Australia under section 75 of the Constitution, or in the Federal Court of Australia under section 39B of the Judiciary Act 1903. See also section 36H of this Act (revocation of citizenship cessation determination on application to Minister).
(2)However, the Minister must not make a determination if the Minister is satisfied that the person would, if the Minister were to make the determination, become a person who is not a national or citizen of any country.
(3)The person ceases to be an Australian citizen at the time the determination is made.
(4)Subsection (1) applies to a person who is an Australian citizen regardless of how the person became an Australian citizen (including a person who became an Australian citizen upon the person's birth).
(5)For the purposes of paragraph (1)(a), the conduct is any of the following:
...
(h)engaging in foreign incursions and recruitment".
As to s 36B(5)(h), the expression "foreign incursions and recruitment" has the same meaning as in s 119.2 of the Criminal Code (Cth) (which relevantly makes it an offence for an Australian citizen to enter, or remain in, a declared area in a foreign country), but it does not include the fault elements that apply in relation to that offence[10]. It should also be noted that a determination may be made in relation to conduct specified in s 36B(5) that was engaged in prior to its commencement[11].
[10]s 36B(6) of the Citizenship Act.
[11]See 2020 Amending Act, Sch 1, item 18.
The powers of the Minister under s 36B may only be exercised by the Minister personally[12]. The rules of natural justice do not apply in relation to making a decision or exercising a power under that section[13]. A determination made under s 36B(1) is not a legislative instrument[14].
[12]s 36B(9) of the Citizenship Act.
[13]s 36B(11) of the Citizenship Act.
[14]s 36B(12) of the Citizenship Act.
A determination made under s 36B(1) may be revoked on application to the Minister by the person the subject of the determination[15], on the Minister's own initiative[16], or automatically by operation of law[17]. Unless a determination is revoked by one of those means, the person can never become an Australian citizen again[18].
[15]s 36H of the Citizenship Act.
[16]s 36J of the Citizenship Act.
[17]s 36K of the Citizenship Act.
[18]s 36L of the Citizenship Act.
In relation to the assessment of the public interest for the purposes of a determination under s 36B(1), or whether to revoke such a determination under s 36J, s 36E(2) relevantly provides:
"The Minister must have regard to the following matters:
(a)in deciding whether to make a determination under subsection 36B(1) or revoke such a determination – the severity of the conduct to which the determination relates;
...
(c)the degree of threat posed by the person to the Australian community;
(d)the age of the person;
(e)if the person is aged under 18 – the best interests of the child as a primary consideration;
(f)in deciding whether to make a determination under subsection 36B(1) or revoke such a determination – whether the person is being or is likely to be prosecuted in relation to conduct to which the determination relates;
(g)the person's connection to the other country of which the person is a national or citizen and the availability of the rights of citizenship of that country to the person;
(h)Australia's international relations;
(i)any other matters of public interest."
When a determination has been made under s 36B(1), the Minister is required to give written notice of the determination to the person in accordance with the requirements in s 36F. Again, the rules of natural justice do not apply in relation to making a decision or exercising a power under that section[19]. The exception to the requirement to give notice is where the Minister is satisfied that giving the notice could prejudice the security, defence or international relations of Australia, or Australian law enforcement operations[20].
[19]s 36F(7) of the Citizenship Act.
[20]s 36G of the Citizenship Act.

The practical effect of the exercise by the Minister of the power conferred by s 36B(1) is that the person affected has no right to return to Australia and be at liberty in this country, because the Migration Act 1958 (Cth) would require that (save in the unlikely event that the person were granted a visa) the person be taken into detention for the purposes of deportation[21].
[21]Migration Act 1958 (Cth), s 189.
Section 51(xix) of the Constitution
Section 51(xix) of the Constitution empowers the Commonwealth Parliament to make laws with respect to "naturalization and aliens". The defendants confined their arguments in support of s 36B as a valid exercise of the legislative power of the Commonwealth to reliance upon s 51(xix).
Mr Alexander submitted that s 36B is not supported by s 51(xix) in its application to him because, as a person who became an Australian citizen at birth by virtue of s 10 of the 1948 Citizenship Act, he could not thereafter be regarded as an "alien". Mr Alexander's contention is that once a person attains the status of an Australian citizen, the operation of s 51(xix) is "spent" so that Parliament cannot make a law that would transform a non‑alien into an alien.
Mr Alexander also argued that s 36B(5)(h) is invalid, because the conduct element of the offence against s 119.2 of the Criminal Code (Cth) is, of itself, incapable of being regarded as the repudiation of the allegiance owed by a citizen to Australia. It was said that without a mental element of intention to engage in that conduct, the mere act of entering a "declared area" was not so extreme and repugnant as to be objectively incompatible with, and capable of rupturing, the citizen‑State relationship. It was also said that s 51(xix) could not support the retroactive operation of s 36B, as it had been applied to Mr Alexander.
Mr Alexander's submissions on this first issue should not be accepted. Those submissions may now be addressed in turn.
Citizens and aliens
Citizenship, as formal membership of the national community, is a statutory concept[22]. It is the grant of Australian citizenship that creates the status which attracts constitutional protections and engages federal and State legislation that confers or denies rights, privileges, immunities or duties[23]. Relevantly for Mr Alexander, the status of Australian citizenship includes the right to enter and remain in Australia[24], the entitlement to an Australian passport[25], and the right and duty to vote in federal elections[26].
[22]Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 at 183; Roach v Electoral Commissioner (2007) 233 CLR 162 at 174 [7]; Love v The Commonwealth (2020) 270 CLR 152 at 263 [300], 264 [305]; Chetcuti v The Commonwealth (2021) 95 ALJR 704 at 711‑715 [14]-[34], [38]; 392 ALR 371 at 375‑380, 381.
[23]Hwang v The Commonwealth (2005) 80 ALJR 125 at 129 [13]; 222 ALR 83 at 87.
[24]Potter v Minahan (1908) 7 CLR 277 at 305; Love v The Commonwealth (2020) 270 CLR 152 at 198 [95]; Migration Act 1958 (Cth), ss 4, 42.
[25]Australian Passports Act 2005 (Cth), s 7 (subject to Pt 2, Div 2).
[26]Commonwealth Electoral Act 1918 (Cth), s 93(1)(b)(i).
Citizenship is not a concept used in the Constitution (save for s 44(i), which is concerned with foreign citizenship). The Constitution, in contrast to the first clause of the Fourteenth Amendment to the Constitution of the United States, does not contemplate that individuals born here are citizens of Australia, much less that they are indelibly so. This Court's decisions in Singh v The Commonwealth[27] and Koroitamana v The Commonwealth[28] would be plainly misconceived if, as a matter of constitutional law, a person born in Australia has for that reason, and quite apart from any law of the Parliament, a right to live here. Mr Alexander's counsel made no attempt to challenge the correctness of Singh and Koroitamana.
[27](2004) 222 CLR 322.
[28](2006) 227 CLR 31.
While alienage, describing a lack of formal legal relationship with the community or body politic, is a constitutional concept[29], the Constitution leaves it to Parliament to decide who shall be granted the status of citizenship and what that status may mean in terms of the rights, privileges, immunities and duties of citizens. In this regard, s 51(xix) of the Constitution empowers the Parliament to "create and define the concept of Australian citizenship"[30], to select or adopt the criteria for citizenship or alienage[31] and to attribute to any person who lacks the qualifications prescribed for citizenship "the status of alien"[32]. In Chetcuti v The Commonwealth[33], Kiefel CJ, Gageler, Keane and Gleeson JJ said that "the aliens power encompasses both power to determine who is and who is not to have the legal status of an alien and power to attach consequences to that status".
[29]Chetcuti v The Commonwealth (2021) 95 ALJR 704 at 718 [53], 720 [59]; 392 ALR 371 at 384, 386.
[30]Koroitamana v The Commonwealth (2006) 227 CLR 31 at 46 [48], citing Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002) 212 CLR 162 at 173 [31], 180 [58], 188‑189 [90], 192 [108]‑[109], 215‑216 [193]‑[194], 219‑220 [210]‑[211], 229 [229].
[31]Singh v The Commonwealth (2004) 222 CLR 322 at 397‑398 [197]; Koroitamana v The Commonwealth (2006) 227 CLR 31 at 37 [9], 46 [50], 49 [62].
[32]Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 at 35 [2].
[33](2021) 95 ALJR 704 at 710 [12]; 392 ALR 371 at 374.
It has been said in this Court that the terms "citizen" and "alien" are antonyms[34]. Recently, the majority of this Court in Love v The Commonwealth[35] held that Aboriginal Australians who satisfy the tripartite test in Mabo v Queensland [No 2][36] constitute a separate category of non‑citizen, non‑alien, and that "non‑citizen" is not inevitably and always synonymous with "alien". But in Chetcuti, Kiefel CJ, Gageler, Keane and Gleeson JJ observed that this Court's decision in Shaw v Minister for Immigration and Multicultural Affairs[37] (from which the holding of the majority in Love does not depart, except in respect of an Aboriginal Australian according to the tripartite test in Mabo [No 2]) establishes that the aliens power supports a law of the Commonwealth which determines who shall have the status of Australian citizenship, and which provides that persons who do not share that status are aliens[38].
[34]See Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178; Re Patterson; Ex parte Taylor (2001) 207 CLR 391; Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 at 35 [2].
[35](2020) 270 CLR 152 at 192 [81], 244 [252], 247 [260], 253‑254 [271]‑[272], 261‑262 [295], 263 [300], 264‑266 [304]-[311], 305‑308 [432]-[437]. See Pochi v Macphee (1982) 151 CLR 101 at 109; Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 54; Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 435‑436 [132], 491 [300]; Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002) 212 CLR 162 at 179 [53]; Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 at 61 [94]; Singhv The Commonwealth (2004) 222 CLR 322 at 382 [149]-[150].
[36](1992) 175 CLR 1.
[37](2003) 218 CLR 28.
[38]Chetcuti v The Commonwealth (2021) 95 ALJR 704 at 711 [14]‑[17]; 392 ALR 371 at 375‑376.
In Pochi v Macphee[39], Gibbs CJ said that "Parliament cannot, simply by giving its own definition of 'alien', expand the power under s 51(xix) to include persons who could not possibly answer the description of 'aliens' in the ordinary understanding of the word". It does not stretch the ordinary understanding of the expression "alien" to include within that category an individual who has engaged in conduct exhibiting such extreme enmity to Australia as to warrant being excluded from membership of the Australian community. The Parliament has the power under s 51(xix) to attribute the constitutional status of alien to a person who has lost the statutory status of citizenship. By the same power, Parliament can define the circumstances in which that occurs.
[39](1982) 151 CLR 101 at 109, cited with approval in Singh v The Commonwealth (2004) 222 CLR 322 at 329 [4].
There is ample support in authority for the view that the scope of s 51(xix) extends to permit Parliament to "determine the legal basis by reference to which Australia deals with matters of nationality ... to create and define the concept of Australian citizenship [and] to prescribe the conditions on which such citizenship may be acquired and lost"[40]. Mr Alexander's contention that a person who becomes an Australian citizen is thereby beyond the scope of the power that permits Parliament to make laws that deprive that person of citizenship is distinctly inconsistent with the following passage in Nolan v Minister for Immigration and Ethnic Affairs[41], where Mason CJ, Wilson, Brennan, Deane, Dawson and Toohey JJ said:
"As a matter of etymology, 'alien', from the Latin alienus through old French, means belonging to another person or place. Used as a descriptive word to describe a person's lack of relationship with a country, the word means, as a matter of ordinary language, 'nothing more than a citizen or subject of a foreign state': Milne v Huber[42]. Thus, an 'alien' has been said to be, for the purposes of United States law, 'one born out of the United States, who has not since been naturalized under the constitution and laws'[43]. That definition should be expanded to include a person who has ceased to be a citizen by an act or process of denaturalization and restricted to exclude a person who, while born abroad, is a citizen by reason of parentage. Otherwise, it constitutes an acceptable general definition of the word 'alien' when that word is used with respect to an independent country with its own distinct citizenship."
[40]Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002) 212 CLR 162 at 173 [31] (emphasis added), cited with approval in Koroitamana v The Commonwealth (2006) 227 CLR 31 at 46 [48].
[41](1988) 165 CLR 178 at 183.
[42](1843) 17 Fed Cas 403 at 406.
[43](1843) 17 Fed Cas 403 at 406.
This passage supports the proposition that the status of alien may be attributed by the Parliament to a person who was previously an Australian citizen by a law providing for "an act or process of denaturalization". That proposition cannot stand with Mr Alexander's "once a citizen always a citizen" contention. To the extent that doubt was cast upon the decision in Nolan by the decision in Re Patterson; Ex parte Taylor[44], the latter decision was itself disapproved, and the authority of Nolan affirmed, in Shaw[45].
[44](2001) 207 CLR 391.
[45]Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 at 45 [39], 87 [190]. See also Ruddock v Taylor (2005) 222 CLR 612 at 619‑620 [15]‑[17], 625 [36].
One may conclude this section of the discussion by noting a fundamental difficulty in Mr Alexander's argument on this issue, which was revealed starkly in his counsel's inability, during the course of argument, to provide a satisfactory answer to the question as to the source of Parliament's power to enact s 10 of the 1948 Citizenship Act, that being the law by which Mr Alexander became an Australian citizen. As a general principle, where the Parliament may confer rights by the exercise of legislative power, it may also take them away[46]. Once it is accepted, as it must be, that the statute conferring citizenship is the source of Mr Alexander's rights as a citizen, it must also be accepted that (the present version of) that statute may limit those rights, including by providing for the circumstances in which they may be lost. A person who has forfeited the rights of citizenship is no less accurately described as an alien than a person who has never enjoyed those rights.
[46]Kartinyeri v The Commonwealth (1998) 195 CLR 337 at 355‑356 [12]‑[14], 372 [57].
"Naturalization and aliens" at Federation
Events in the life of an individual and the nation may affect the relationship between the individual and the Australian body politic so as to engage the power conferred on the Parliament to make laws with respect to "naturalization and aliens".
It was only upon the enactment of the Naturalization Act 1870 (UK) with its provision for "the severing of the connection of a British subject established by birth within the Crown's dominions" and the British Crown that English law acknowledged the possibility of bringing to an end the relationship between subject and sovereign[47]. Until then, under the common law, the connection between a British subject and the Crown was "indelible"[48]. The common law principle was abandoned by the Naturalization Act, which provided by s 4 that any person, who was a natural‑born subject of the Crown and at birth became a foreign subject under the laws of another state, may make a "declaration of alienage" and thereby cease to be a British subject. Under s 6 of the Naturalization Act, a British subject who voluntarily became naturalised in a foreign state was deemed to have ceased to be a British subject and was to be regarded as an alien, as was, by virtue of s 10, a woman who, upon marriage, became a subject of the foreign state of which her husband was a subject[49].
[47]Singh v The Commonwealth (2004) 222 CLR 322 at 389 [173].
[48]Singh v The Commonwealth (2004) 222 CLR 322 at 389‑390 [173].
[49]See Romein v Advocate General for Scotland [2018] AC 585 at 590 [4].
There can be no doubt that the provisions of the Naturalization Act were before the framers of the Constitution when they drafted s 51(xix). As Gummow, Hayne and Heydon JJ said in Singh[50]:
"Given the state of British law at the time of Federation, and in particular the provisions of the Naturalisation Act 1870 permitting renunciation of allegiance[51], it would be surprising if the power with respect to naturalisation and aliens did not extend this far."
[50]Singh v The Commonwealth (2004) 222 CLR 322 at 397 [197].
[51]Naturalization Act 1870 (UK), ss 3, 4, 6.
It would be no less surprising if the power conferred by s 51(xix) did not extend to support the making of a law identifying the circumstances in which a person who is currently a citizen may become an alien by reason of the Commonwealth's response to that person's repudiation of the ties of allegiance.
The people
Section 7 of the Constitution provides that the Senate "shall be composed of senators for each State, directly chosen by the people of the State". Section 24 of the Constitution provides that the House of Representatives "shall be composed of members directly chosen by the people of the Commonwealth". These provisions have been said to establish for the people of the Commonwealth "[e]quality of opportunity to participate in the exercise of political sovereignty [which] is an aspect of the representative democracy guaranteed by our Constitution"[52].
[52]McCloy v New South Wales (2015) 257 CLR 178 at 207 [45].
While ss 7 and 24 of the Constitution establish that it is the choice by the people of the Commonwealth that is the source of the democratic legitimacy of the Commonwealth Parliament, the Constitution does not state the qualifications for the exercise of the franchise by the "people of the Commonwealth". This responsibility was left to the Parliament. Section 51(xix) empowers the Parliament to give practical content to the expression "the people". As Gageler J said in Love, the aliens power permits Parliament to[53]:
"bring a measure of precision to the identification of those to whom the Constitution refers as 'the people', by laying down criteria for determining with specificity which persons were and which persons were not to have the legal status of members of the body politic of the Commonwealth of Australia."
[53]Love v The Commonwealth (2020) 270 CLR 152 at 197‑198 [94] (footnote omitted).
Mr Alexander submitted that a limitation on the power in s 51(xix) is to be found by regarding a power to denaturalise a citizen as exercisable only for "substantial reasons". Mr Alexander submitted that the intention of the framers of the Constitution, and the existence of the "people of the State" and the "people of the Commonwealth" referred to in ss 7 and 24 of the Constitution respectively, require that there be limits on the ability of Parliament to "fracture the membership of the political community of the body politic such as by exclusion of those people who were, and remain, necessary members of the body politic"[54].
[54]Hocking v Director‑General, National Archives of Australia (2020) 94 ALJR 569 at 614 [212]; 379 ALR 395 at 451‑452. See also Love v The Commonwealth (2020) 270 CLR 152 at 311 [444].
The references in ss 7 and 24 of the Constitution to "the people" do not support a limitation on s 51(xix) in addition to that identified by Gibbs CJ in Pochi[55]. As with citizenship, so the identification of those members of the people of the Commonwealth who are to be qualified as electors is the responsibility of the Parliament[56]. Parliament's power in this regard is broad, but there are limits. Just as Parliament may not expand its law‑making power under s 51(xix) of the Constitution by pursuing an eccentric understanding of alienage, so the Parliament cannot expand or restrict the electorate by pursuing an eccentric understanding of "the people"[57]. The Parliament could not, for example, limit the electorate by purporting to exclude from the people of the Commonwealth all Australian citizens of English descent. But while it may be accepted that the Parliament cannot expand the scope of s 51(xix) by adopting an understanding of the people that would also be an affront to ss 7 and 24 of the Constitution, there is nothing fanciful in classifying as an alien – separate from "the people" – an individual who, though previously a citizen, has acted so inimically to Australia's interests as to repudiate the obligations of citizenship on which membership of the people of the Commonwealth depends.
[55]Pochi v Macphee (1982) 151 CLR 101 at 109.
[56]McCloy v New South Wales (2015) 257 CLR 178 at 206 [42]; Murphy v Electoral Commissioner (2016) 261 CLR 28 at 82 [157]‑[158].
[57]McGinty v Western Australia (1996) 186 CLR 140 at 170; Roach v Electoral Commissioner (2007) 233 CLR 162 at 174 [7], 182 [23], 198‑199 [83], 199‑200 [85]‑[86].
Repudiation of allegiance
Mr Alexander argued that it was not open to the Parliament to treat the conduct described in s 36B(5)(h) as a repudiation of his allegiance constituting sufficient reason for depriving him of his citizenship.
In response, the Solicitor‑General of the Commonwealth, appearing for the defendants, cited examples[58] of laws, the validity of which has never been challenged, that provide for the loss of citizenship as a result of acts indicating either loyalty to a foreign state or disloyalty to Australia. It was submitted that s 36B is "of the same genus" as some of those laws[59], save to the extent that s 36B encompasses disloyalty indicated by a willingness to engage in terrorist activity in a foreign state. Specifically, the conduct captured by s 36B(5)(h) was characterised as "inherently suggestive of the absence of a continuing commitment to the Australian body politic". There is force in the Solicitor‑General's submissions.
[58]Naturalization Act 1917 (Cth), s 7; Nationality Act 1920 (Cth), ss 12(1), (2)(a), 18, 21; Nationality and Citizenship Act 1948 (Cth), ss 17, 19, 21(1).
[59]Naturalization Act 1917 (Cth), s 7; Nationality Act 1920 (Cth), s 12(2)(a); Nationality and Citizenship Act 1948 (Cth), ss 19, 21(1).

The absence of the continuing commitment that is citizenship is sensibly described as an absence of "allegiance". The utility of "allegiance" as a determinative test for non‑alienage has been questioned[60]; and the plurality in Chetcuti held that the reach of the aliens power could be determined in that case "without need to explore common law notions of allegiance and alienage"[61]. But allegiance is a useful gauge of the existence of the bonds of citizenship. Section 44(i) of the Constitution itself expressly acknowledges that allegiance may be an integral aspect of citizenship.
[60]Love v The Commonwealth (2020) 270 CLR 152 at 303‑305 [428]‑[431].
[61]Chetcuti v The Commonwealth (2021) 95 ALJR 704 at 714 [34]; 392 ALR 371 at 380.
Given that citizenship is a status of reciprocal rights and obligations, it is to understand the status of citizenship in an incoherently one‑sided way to say that s 51(xix) supports a law that specifies the criteria by which a citizen may voluntarily renounce Australian citizenship – as Mr Alexander accepted – but does not support a law that treats voluntary conduct demonstrating a repudiation of allegiance to Australia as an implied renunciation of citizenship.
Mr Alexander argued that voluntary conduct of the kind described in s 36B(5)(h) cannot rationally be treated as a repudiation of allegiance unless it is intended to be so. The facts stated in the special case suggest that it was reasonably open to the Parliament to regard voluntary conduct, as described in s 36B(5)(h), as so reprehensible as to be incompatible with the common bonds of allegiance to the Australian community, even though the person who has engaged in that conduct did not act intentionally to repudiate the bonds of citizenship. It is convenient to turn now to refer to those agreed facts.
Terrorism and the threat to Australia's security
On 4 December 2014, the Minister for Foreign Affairs made a declaration pursuant to s 119.3(1) of the Criminal Code (Cth) that al‑Raqqa Province in Syria was a "declared area"[62], on the basis of information indicating that it was the de facto capital of the Islamic State's operations and was used to engage in hostile activities. That declaration was revoked on 27 November 2017 on the basis that it was no longer confirmed that the Islamic State was engaging in hostile activity there[63]. It may be noted that Deir El‑Zour Province in Syria (where Mr Alexander was apprehended by Kurdish militia forces) was not a declared area.
[62]That declaration came into effect on 5 December 2014: Criminal Code (Foreign Incursions and Recruitment –Declared Areas) Declaration 2014 – Al‑Raqqa Province, Syria (Cth).
[63]Criminal Code (Foreign Incursions and Recruitment – Declared Areas) Revocation Instrument 2017 – Al‑Raqqa Province, Syria (Cth); Australia, Criminal Code (Foreign Incursions and Recruitment – Declared Areas) Revocation Instrument 2017 – Al‑Raqqa Province, Syria, Explanatory Statement at 1.
The Islamic State has been listed as a "terrorist organisation" within the meaning of para (b) of the definition in s 102.1(1) of the Criminal Code (Cth) under various names since at least 2010, including "Al‑Qa'ida in Iraq", "Islamic State of Iraq and the Levant" and "Islamic State"[64]. In 2016, it was also listed as a "declared terrorist organisation" for the purposes of former s 35AA of the Citizenship Act[65].
[64]Criminal Code Amendment Regulations 2010 (No 7) (Cth); Criminal Code (Terrorist Organisation – Al‑Qa'ida in Iraq) Regulation 2013 (Cth); Criminal Code (Terrorist Organisation – Islamic State of Iraq and the Levant) Regulation 2013 (Cth); Criminal Code (Terrorist Organisation – Islamic State) Regulation 2014 (Cth); Criminal Code (Terrorist Organisation – Islamic State) Regulations 2017 (Cth); Criminal Code (Terrorist Organisation – Islamic State) Regulations 2020 (Cth).
[65]Australian Citizenship (Declared Terrorist Organisation – Islamic State) Declaration 2016 (Cth). See also Parliamentary Joint Committee on Intelligence and Security, Review of the declaration of Islamic State as a terrorist organisation under the Australian Citizenship Act 2007 (October 2016).
Since 2015, the terrorism threat in Australia has been assessed by ASIO as "Probable" on the National Terrorism Threat Advisory System, signifying that credible intelligence, assessed by Australia's security agencies, indicates that individuals or groups continue to possess the intent and capability to conduct a terrorist attack in Australia. The threat of religiously motivated violent extremism, including from groups such as the Islamic State, was and remains the principal concern[66].
[66]Australian National Security, Current National Terrorism Threat Level, available at <https://www.nationalsecurity.gov.au/national-threat-level/current-national-terrorism-threat-level> [https://perma.cc/C96K-JYH3].
Since 2014, there have been at least nine attacks targeting people in Australia and 21 major counter‑terrorism disruption operations in response to attacks being planned in Australia, such as the actions of Man Haron Monis in taking 18 people hostage at the Lindt Café in downtown Sydney.
In March 2019, the Islamic State was ousted by the United States‑led Global Coalition to Defeat Islamic State from the last of the territory it had controlled across Syria and Iraq. While ASIO reported that "ISIL's 'caliphate' has been crushed and it has lost its safe havens and organised military capability", it identified that any remnants remained dangerous and required ongoing attention, including the anticipated return to Australia of foreign fighters[67]. Similarly, US intelligence considered that, as at April 2021, the Islamic State remained capable of waging a prolonged insurgency in Iraq and Syria and leading its global organisation, despite compounding senior leadership losses.
[67]Australian Security Intelligence Organisation, ASIO Annual Report 2018‑19 (2019) at 4.
The risk posed by foreign fighters, defined by ASIO as "Australians who have participated in foreign conflicts or undertaken training with extremist groups overseas", is an aspect of this general threat. While relatively few returned fighters have posed a direct risk to the Australian community, those that did have been responsible for some of the most lethal terrorist attacks.
ASIO has reported that, since 2012, around 230 Australians (or former Australians) have travelled to Syria or Iraq to fight with or support groups involved in the Syria‑Iraq conflict. Of that, 50 are estimated to have returned to Australia, the majority before 2016.
In a submission to the Parliamentary Joint Committee on Intelligence and Security's 2019 review of the Australian Citizenship Amendment (Citizenship Cessation) Bill, ASIO continued to assess that the return of Australians who have spent time with Islamist extremist groups in Syria or Iraq has the potential to exacerbate the Australian threat environment "for many years to come"[68]. This is because foreign fighters can be expected to have developed characteristics such as a greater tolerance for and propensity towards violence, and to have established jihadist credentials[69]. Several serious terrorist plots in Australia between 2000 and 2010 each involved at least one returned foreign fighter.
[68]Australian Security Intelligence Organisation, ASIO Submission to the Parliamentary Joint Committee on Intelligence and Security: Review of the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 (2019) at 4.
[69]Australian Security Intelligence Organisation, ASIO Submission to the Parliamentary Joint Committee on Intelligence and Security: Review of the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 (2019) at 4.
The "retrospective" operation of s 36B(5)(h)
As to Mr Alexander's argument that he cannot be taken to have repudiated his allegiance to Australia because, at the time he travelled into Syria, s 36B(5)(h) had not been enacted, the validity of s 36B is not to be approached on the footing that it would be open to the Parliament to treat voluntary conduct of the kind described in s 36B(5)(h) as a repudiation of his allegiance to Australia only if Mr Alexander made a deliberate decision to defy Australian statute law in so conducting himself.
While the suite of provisions of which s 36B is a part might broadly hint at some analogy with the principles of contract law concerning the termination of a contract by one party for repudiatory conduct by the other party, those provisions do not purport to enact the contractual model. The question is whether it was open to the Parliament to treat a person who voluntarily engaged in the conduct described in s 36B(5)(h) as having repudiated that person's allegiance to Australia, whether or not that person actually intended to defy Australian law.
In that regard, it cannot be said that it was not open to Parliament to provide that such conduct voluntarily undertaken might be so incompatible with the values of the Australian people as to be seen to be incompatible with continued membership of the Australian body politic. It is a different question whether giving effect to that assessment may be done by depriving that person of his or her citizenship without regard for the requirements of a fair hearing that characteristically attend the exercise of judicial power.
Summary
In summary in relation to the first issue, it should be held that it is open to the Parliament under s 51(xix) to create a status of citizenship that allows for the exclusion of persons from membership of the body politic. It is not an abuse of language to say that a person whose conduct is inimical to Australia's interests may, by a law of the Commonwealth, forfeit the rights of citizenship conferred by the Parliament, and thereby become an alien. The withdrawal of citizenship from an individual who voluntarily engages in the conduct described in s 36B(5)(h) cannot be said to pursue an eccentric understanding of the meaning of "aliens" in s 51(xix) of the Constitution.
The question to which attention must now turn concerns the process by which that withdrawal of citizenship may be effected.
Chapter III of the Constitution
Mr Alexander argued that s 36B of the Citizenship Act reposes in the Minister the power to adjudge and punish criminal conduct by involuntary denaturalisation. This was said to be an exclusively judicial function, and not one which fell within any established exception bringing it within the acknowledged remit of the executive.
In support of this submission, Mr Alexander relied upon Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs[70]. Mr Alexander sought to characterise denaturalisation as punishment.
[70](1992) 176 CLR 1.
The defendants accepted that the function of "adjudging and punishing criminal guilt" is "exclusively judicial", as this Court held in Lim[71]. But the defendants submitted that Lim said nothing about laws that do not impose detention in custody[72], of which s 36B is one.
[71]Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 27. See also Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 at 340 [15].
[72]See Thomas v Mowbray (2007) 233 CLR 307 at 330 [18], 356‑357 [114]‑[121], 509 [600], 526 [651].
The defendants submitted that at its highest, s 36B confers a power to inflict "involuntary hardship or detriment" on a person, which, as Gleeson CJ explained in Re Woolley; Ex parte Applicants M276/2003[73], is "not an exclusively judicial function". Further, it was submitted that it was not necessarily the case that deprivation of Australian citizenship would inflict hardship or detriment, particularly because s 36B allowed the cessation of citizenship only in the case of a person who is also a citizen of another country.
[73](2004) 225 CLR 1 at 12 [17].
The defendants also emphasised that s 36B is a discretionary power based on three conditions: that the person has engaged in the requisite conduct (as specified by s 36B(5)); the conduct demonstrates that the person has repudiated his or her allegiance to Australia; and that it would be contrary to the public interest for the person to remain an Australian citizen. The defendants also sought to emphasise that the power was ultimately discretionary, and that a determination under s 36B, and any decision to refuse to revoke it, is subject to judicial review.
The submissions of the defendants should not be accepted. The consequences of a determination under s 36B for the citizen, the legislative policy which informs the operation of s 36B, and a comparison of the operation of s 36B with the provisions of s 36D (which authorise the same consequences for the citizen only upon conviction after a trial), all point to the conclusion that the power reposed in the Minister by s 36B(1) is a power which Ch III of the Constitution requires to be exercised by a court that is part of the federal judicature. To these considerations one may now turn.
Consequences for the citizen
In Lim, Brennan, Deane and Dawson JJ, with whom Gaudron J relevantly agreed[74], said that "the adjudgment and punishment of criminal guilt under a law of the Commonwealth" was the most important of the "functions which, by reason of their nature or because of historical considerations, have become established as essentially and exclusively judicial in character"[75].
[74]Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 53.
[75]Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 27.
The plurality in Lim went on to explain that the exclusive character of this judicial function is a matter of "substance and not mere form"[76]. In addition, their Honours explained that "putting to one side the exceptional cases" of detention, such as in "cases of mental illness or infectious disease", which can "legitimately be seen as non‑punitive in character and as not necessarily involving the exercise of judicial power", detention of a person by the State is "penal or punitive in character"[77]. Today, detention by way of deprivation of liberty in retribution for reprehensible conduct by an individual is a familiar example of punishment by the State. Historically, of course, English law sanctioned criminal conduct by punishments other than detention: corporal and capital punishment come readily to mind. But in addition, and importantly, exile has long been regarded as punishment. In the early seventeenth century, in Hussey v Moor[78], the Court of King's Bench said:
"[P]enal laws are those which do inflict penalty, ... and what law can be more penal than [a] statute ... which includes [penalties being] pecuniary, corporal and exile."
[76]Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 27.
[77]Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 27‑28.
[78](1616) 3 Bulst 275 at 280 [81 ER 232 at 236].
Today, the fundamental value accorded to the liberty of the individual provides the rationale for the strict insistence in the authorities that the liberty of the individual may be forfeited for misconduct by that person only in accordance with the safeguards against injustice that accompany the exercise of the judicial power of the Commonwealth[79]. The case for the strict insistence on these safeguards is, if anything, stronger where the penalty for misconduct involves not only a loss of liberty within the community, but the loss of all entitlement to be both within the community and at liberty.
[79]Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161 at 179 [56]; Fardon v Attorney‑General (Qld) (2004) 223 CLR 575 at 612 [79], 632‑633 [150]‑[151].
For an Australian citizen, his or her citizenship is an assurance that, subject only to the operation of the criminal law administered by the courts, he or she is entitled to be at liberty in this country and to return to it as a safe haven in need[80]. These entitlements are not matters of private concern; they are matters of public rights of "fundamental importance"[81] to the relationship between the individual and the Commonwealth. In South Australia v Totani[82], Crennan and Bell JJ said:
"In harmony with the Constitution, conclusions about whether legislation conflicts with constitutional requirements, which turn on the nature of judicial power, or its usurpation, or which are directed to the effect of legislation on the institutional integrity of a court, commonly subsume consideration of the effect of the legislation on personal liberty."
[80]Potter v Minahan (1908) 7 CLR 277 at 305; Air Caledonie International v The Commonwealth (1988) 165 CLR 462 at 469.
[81]Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 53.
[82](2010) 242 CLR 1 at 156 [424] (footnotes omitted).
The suite of provisions which includes s 36B may be said to pursue a purpose of protecting the Australian community from the risks to peace and security posed by returning foreign fighters. But that protective purpose is not the principal purpose of the provision so as to qualify the power conferred by s 36B as an exception to the Lim principle[83]. As will be seen in the next section, the principal purpose of s 36B is retribution for conduct deemed to be so reprehensible as to be "incompatible with the shared values of the Australian community"[84]. That characterisation of the principal purpose of s 36B as punitive accords with the long‑held understanding of exile as a form of punishment.
[83]cf Minister for Home Affairs v Benbrika (2021) 95 ALJR 166 at 181 [36]; 388 ALR 1 at 14.
[84]s 36A of the Citizenship Act.
As noted above, the Solicitor‑General drew attention to the observation of Gleeson CJ in Re Woolley that "[p]unishment, in the sense of the inflicting of involuntary hardship or detriment by the State, is not an exclusively judicial function"[85]. So in Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs[86], Gleeson CJ observed that the effect of the reasons of the plurality in Lim was that "executive powers to receive, investigate and determine an application for an entry permit and, after determination, to admit or deport, is not punitive in nature, and not part of the judicial power of the Commonwealth"; but, importantly, Gleeson CJ went on to say:
"In the case of a citizen, what is punitive in nature about involuntary detention (subject to a number of exceptions) is the deprivation of liberty involved ...
For a citizen, that alone would ordinarily constitute punishment."
[85]Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1 at 12 [17].
[86](2004) 219 CLR 486 at 499 [20]‑[21].
Visnic v Australian Securities and Investments Commission[87] and Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd[88] were cited by the defendants' counsel in support of the argument that a determination under s 36B is neither an adjudgment of guilt nor an imposition of punishment. Crucially, these cases dealt with the revocation of licences or other statutory privileges, rather than citizenship. These cases are examples of the point that the hardship or detriment involved in the revocation of a statutory licence or other privilege, where the holder of the licence or privilege is shown to be not a fit and proper person to enjoy the privilege or the licence, is not "punishment", which is an exclusively judicial function. But the punishment of an individual involving the deprivation of citizenship by reason of that person's misconduct is punishment of a different order from the loss of a statutory privilege or a licence under a regulatory regime. The consequence for a person who voluntarily does the acts described in s 36B(5)(h) is no different in substance from the punishment meted out pursuant to s 36D. Such a consequence cannot be equated with the cancellation of a licence or other privilege conferred by a statute which regulates business or other activities.
[87](2007) 231 CLR 381.
[88](2015) 255 CLR 352.

In Kennedy v Mendoza‑Martinez[89], Goldberg J, writing for the majority of the Supreme Court of the United States, held that a law depriving a citizen of the United States of his nationality for evading conscription for military service was constitutionally invalid on the basis that it imposed "the sanction of deprivation of nationality as a punishment ... without affording the procedural safeguards ... [of] trial by duly constituted courts". The majority opinion in Kennedy recognised that the deprivation of the rights of citizenship serves to "promote the traditional aims of punishment – retribution and deterrence"[90]. As Brennan J said in his concurring opinion[91], so it may be said of s 36B(1) that the sanction of "expatriation" is "available for no higher purpose than to curb undesirable conduct, to exact retribution for it, and to stigmatize it".
[89](1963) 372 US 144 at 165‑166.
[90]Kennedy v Mendoza‑Martinez (1963) 372 US 144 at 168.
[91]Kennedy v Mendoza‑Martinez (1963) 372 US 144 at 187‑188.
As was said in Lim, whether a law provides for the adjudication and punishment of criminal conduct is a matter of substance, not form[92]. The substantive effect of the deprivation of rights of liberty conferred by Australian citizenship is not disguised by the use of the emollient language of "citizenship cessation" to describe the effect of a determination under s 36B upon an individual. In this regard, it may be noted that s 40(2) of the British Nationality Act 1981 (UK) provides, with commendable frankness, for the "deprivation of citizenship" of an individual if the Secretary of State is satisfied that deprivation is conducive to the public good. The candid language in which this provision is expressed acknowledges the substance of the effect of the ministerial determination upon the citizen in question. This candour may owe something to the circumstance that the validity of the conferral of such a power on the executive government of the United Kingdom is not dependent on conformity with constitutional requirements such as those found in Ch III of our Constitution; but however that may be, the British Nationality Act more accurately expresses the effect upon the citizen of a determination under s 36B than "citizenship cessation".
[92]Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 27.
Sections 36A and 36D
That s 36B facilitates punishment in the sense of retribution for the conduct described in s 36B(5)(h) is confirmed by a consideration of the terms of s 36A and a comparison of the operation of s 36B with that of s 36D, the validity of which is not in issue in this case.
Section 36A is found at the beginning of Subdiv C of Div 3 of Pt 2 of the Citizenship Act. It provides:
"This Subdivision is enacted because the 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."
The operative provisions which give effect to the policy stated by s 36A are a response to conduct that is conceived of as being so reprehensible that it is radically incompatible with the values of the community. The response of the Parliament to that reprehensible conduct is retribution in the form of the deprivation of the entitlement to be at liberty in Australia. Retribution is characteristic of punishment under the criminal law – it is "punishing an offender 'because he [or she] deserves it'"[93] by reason of the offender's misconduct. Associated with this purpose are notions of denunciation and deterrence of conduct that is regarded as reprehensible by the community.
[93]Veen v The Queen [No 2] (1988) 164 CLR 465 at 473.
The statement in s 36A informs both ss 36B and 36D. Section 36D provides relevantly as follows:
"Cessation of citizenship on determination by Minister
(1)The Minister may determine in writing that a person ceases to be an Australian citizen if:
(a)the person has been convicted of an offence, or offences, against one or more of the provisions specified in subsection (5); and
(b)the person has, in respect of the conviction or convictions, been sentenced to a period of imprisonment of at least 3 years, or to periods of imprisonment that total at least 3 years; and
(c)the Minister is satisfied that the conduct of the person to which the conviction or convictions relate demonstrates that the person has repudiated their allegiance to Australia; and
(d)the Minister is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen (see section 36E).
Note:A person may seek review of a determination made under this subsection in the High Court of Australia under section 75 of the Constitution, or in the Federal Court of Australia under section 39B of the Judiciary Act 1903. See also section 36H of this Act (revocation of citizenship cessation determination on application to Minister).
(2)However, the Minister must not make a determination if the Minister is satisfied that the person would, if the Minister were to make the determination, become a person who is not a national or citizen of any country.
(3)The person ceases to be an Australian citizen at the time the determination is made.
(4)Subsection (1) applies to a person who is an Australian citizen regardless of how the person became an Australian citizen (including a person who became an Australian citizen upon the person's birth).
(5)For the purposes of paragraph (1)(a), the provisions are the following:
...
(g)a provision of Part 5.5 of the Criminal Code (foreign incursions and recruitment)".
Section 36D, like s 36B, gives practical effect to the policy stated in s 36A. Each provision serves "to shore up the convictions of the law‑abiding by demonstrating that the wicked will not go unscathed"[94] for the reprehensible conduct described in ss 36B(5)(h) and 36D(5)(g).
[94]Kennedy v Mendoza‑Martinez (1963) 372 US 144 at 190.
The sanction of deprivation of citizenship may be imposed upon an individual by the exercise of the discretion conferred on the Minister by s 36B rather than as a consequence of a conviction after a trial under s 36D. True it is that the Minister under s 36B need not be satisfied of the same mental elements necessary to establish the commission of an offence under s 36D[95], but to say this is to draw attention to the lower factual threshold required by s 36B for the exercise of the power reposed in the Minister to effect a deprivation of citizenship. It also highlights the absence of the procedural safeguards attending a criminal prosecution of an offence under s 36D.
[95]s 36B(6) of the Citizenship Act.
Both ss 36B and 36D deal with the topic of "[c]essation of citizenship on determination by [the] Minister". But in the case of s 36D, the power of the Minister arises only in relation to a person who has been convicted and sentenced of an offence or offences by a court[96]. In contrast, the Minister's discretion under s 36B arises upon the Minister him or herself being satisfied that the conduct elements of the offence have occurred. And the Minister may be satisfied of those matters in circumstances in which the "offender" has not had a fair hearing (or indeed any hearing at all), much less the benefit of the other safeguards of a criminal trial, including the incidence of the burden of proof.
[96]s 36D(1)(a), (b) of the Citizenship Act.
Statute law may validly regulate the incidence of the burden of proving facts without offending Ch III of the Constitution[97], but s 36B contemplates a process of ministerial fact finding in relation to the grounds for the deprivation of citizenship in which the State is not required to carry the burden of proof, by contrast to the position under s 36D. Indeed, under s 36B, the Minister is not required even to proceed in accordance with the rules of procedural fairness[98]. And yet the process under s 36B may result in the same outcome by way of deprivation of citizenship as under s 36D, where the protections afforded by a criminal trial have been afforded to the citizen. This incongruity is not dispelled by the possibility that an application for revocation may subsequently be made under s 36H or that s 36J or s 36K may be engaged.
[97]Nicholas v The Queen (1998) 193 CLR 173 at 188‑190 [23]‑[24], 225 [123], 234‑236 [152]‑[154]; Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1 at 22‑23 [30]‑[33].
[98]s 36B(11) of the Citizenship Act.
Some reference to the evolution of s 36B is also illuminating. Provisions for the termination of citizenship on terrorism‑related grounds were first introduced into the Citizenship Act by the Allegiance to Australia Act and commenced on 12 December 2015. These provisions were introduced as part of the government's response to the Review of Australia's Counter‑Terrorism Machinery for a Safer Australia, and with a view to broadening powers relating to the cessation of Australian citizenship for persons engaging in terrorism and who were a serious threat to Australia and Australia's interests[99].
[99]Australia, Senate, Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 (Cth), Revised Explanatory Memorandum at 1.
The predecessor to s 36B was s 33AA of the Citizenship Act. It was in largely the same terms, except that it provided for a mental element[100]:
[100]Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth), Sch 1, item 3.
"(3)[Section 33AA(1)] applies to conduct specified in any of paragraphs [33AA](2)(a) to (h) only if the conduct is engaged in:
(a)with the intention of advancing a political, religious or ideological cause; and
(b)with the intention of:
(i)coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or
(ii)intimidating the public or a section of the public.
(4)A person is taken to have engaged in conduct with an intention referred to in subsection (3) if, when the person engaged in the conduct, the person was:
(a)a member of a declared terrorist organisation (see section 35AA); or
(b)acting on instruction of, or in cooperation with, a declared terrorist organisation.
(5)To avoid doubt, subsection (4) does not prevent the proof or establishment, by other means, that a person engaged in conduct with an intention referred to in subsection (3)."
In 2019, a report by the Independent National Security Legislation Monitor ("the INSLM Report") reviewed the operation, effectiveness and implications of the citizenship cessation provisions, including s 33AA. The INSLM Report stated that the "main focus" of these laws was involvement with the Islamic State, although they were not so limited[101]. The INSLM Report considered that Australia's counter‑terrorism framework required a range of mechanisms, and that "[i]n some, possibly rare cases, citizenship cessation reduces the risk of a terrorist act being undertaken by that person in Australia"[102].
[101]Independent National Security Legislation Monitor, Report to the Attorney‑General: Review of the operation, effectiveness and implications of terrorism‑related citizenship loss provisions contained in the Australian Citizenship Act 2007, Report No 7 (2019) at 44 [6.13].
[102]Independent National Security Legislation Monitor, Report to the Attorney‑General: Review of the operation, effectiveness and implications of terrorism‑related citizenship loss provisions contained in the Australian Citizenship Act 2007, Report No 7 (2019) at 44 [6.10].
However, the INSLM Report concluded that the citizenship cessation provisions, including s 33AA, lacked necessity, proportionality and proper protections for individual rights. The INSLM Report further identified, in addition to the risk of de facto or temporary statelessness, a denial of due process[103]. While s 36D affords a citizen the due process of a criminal trial before the Minister's discretion arises, a significant feature of s 36B is that it operates without due process at all.
[103]Independent National Security Legislation Monitor, Report to the Attorney‑General: Review of the operation, effectiveness and implications of terrorism‑related citizenship loss provisions contained in the Australian Citizenship Act 2007, Report No 7 (2019) at 57 [6.87].
The ministerial discretion
The defendants argued that a determination under s 36B(1) requires consideration of the public interest in addition to satisfaction that the conduct described in s 36B(5)(h) occurred, and that this exercise does not require a finding that an offence has been committed. It was also said that the Minister's determination will not decide a controversy as to the existence of present rights and obligations.
These points highlight that, in contrast to s 36D, which contemplates an orthodox exercise of judicial power as a necessary precondition of imposing relevantly the same punishment, s 36B does not contemplate an exercise of judicial power at all. But to say that is entirely beside the point. The vice of s 36B is precisely that it does not provide for the exercise of judicial power. To emphasise that this is so is simply to make Mr Alexander's case for him.
Dual citizens
For the defendants it was argued that the deprivation of Australian citizenship pursuant to s 36B would not necessarily mean that the former citizen would be exposed to the dangers of statelessness because, by reason of s 36B(2), the Minister's power may be exercised only in relation to an individual who is also a citizen of another country. It was said that the extent of the actual detriment to such an individual would depend upon the circumstances of that individual.
On any view of the situation of such an individual, the involuntary deprivation of rights involved in Australian citizenship by way of retribution for his or her conduct is a serious punishment. The individual is stripped of the right to be at liberty in Australia, and that is so whatever rights may be conferred by citizenship of another country.
Summary
In summary in relation to the Ch III issue, the effect of the Minister's determination under s 36B(1) is to deprive Mr Alexander of his entitlement to enter and live at liberty in Australia. That sanction by the Parliament may be imposed only upon satisfaction of the Minister that Mr Alexander engaged in conduct that is so reprehensible as to be deserving of the dire consequence of deprivation of citizenship and the rights, privileges, immunities and duties associated with it. The power to determine the facts which enliven the power to impose such a punishment is one which, in accordance with Ch III of the Constitution, is exercisable exclusively by a court that is a part of the federal judicature.
Answers and orders
The questions posed by the special case should be answered as follows:
1.Is s 36B of the Australian Citizenship Act 2007 (Cth) invalid in its operation in respect of the plaintiff because:
(a)it is not supported by a head of Commonwealth legislative power;
Answer, "No".
(b)it is inconsistent with an implied limitation on Commonwealth legislative power preventing the involuntary deprivation of Australian citizenship;
Answer, "Unnecessary to answer".
(c)it effects a permanent legislative disenfranchisement which is not justified by a substantial reason;
Answer, "Unnecessary to answer".
(d)it effects a permanent disqualification from being chosen or from sitting as a senator or a member of the House of Representatives, otherwise than in the circumstances contemplated by ss 34 and 44 of the Constitution;
Answer, "Unnecessary to answer".
(e) it reposes in the Minister for Home Affairs the exclusively judicial function of punishing criminal guilt?
Answer, "Yes".
2.What, if any, relief should be granted to the plaintiff?
Answer, "It should be declared that:
(a)s 36B of the Australian Citizenship Act 2007 (Cth) is invalid; and
(b) the plaintiff is an Australian citizen".
3.Who should pay the costs of the special case?
Answer, "The defendants".
GAGELER J. The conclusion reached by Kiefel CJ, Keane and Gleeson JJ is that s 36B of the Australian Citizenship Act 2007 (Cth) is a law with respect to "aliens" within the meaning of s 51(xix) of the Constitution but infringes the doctrine of separation of judicial power enshrined in Ch III of the Constitution. I agree with that conclusion and with the substance of their Honours' reasons for reaching it.
My purpose in writing additionally is to respond to a particular submission put by the defendants at the forefront of their argument that s 36B does not infringe the doctrine of separation of judicial power. The submission was that someone who ceases to be an Australian citizen by operation of a ministerial determination made under s 36B is not "punished", in the sense in which that term is used to describe an exercise of judicial power consequent upon a finding of criminal guilt[104], because the "purpose" of the section is to "protect the Australian community" from persons found to have engaged in terrorist conduct.
[104]See Duncan v New South Wales (2015) 255 CLR 388 at 409 [46]; Minogue v Victoria (2019) 268 CLR 1 at 20-21 [31].
My response to the submission is in two parts. The first part involves explaining why it does not help, in the context of determining whether a law infringes the doctrine of separation of judicial power enshrined in Ch III, to describe a legislative purpose at that level of generality. The second part explains how legislative purpose should be identified and, in doing so, points out what was wrong with the defendants' attempt to identify the legislative purpose through reliance on certain extrinsic material.
Part I: describing a legislative purpose
Constitutional analysis in a variety of contexts can be assisted by identifying the "purpose" (or "object" or "end") of a law as distinct from the "manner" (or "means" or "mechanism") by which the law is designed to achieve that purpose. Without being exhaustive, those contexts include determining whether a law is "with respect to" a designated topic of legislative power[105], determining whether a law infringes the express guarantee of freedom of interstate trade[106] or intercourse[107], and determining whether a law infringes the implied guarantee of freedom of political communication[108].
[105]See Stenhouse v Coleman (1944) 69 CLR 457 at 471-472; Murphyores Inc Pty Ltd v The Commonwealth (1976) 136 CLR 1 at 11, 19-23; Cunliffe v The Commonwealth (1994) 182 CLR 272 at 294.
[106]See Cole v Whitfield (1988) 165 CLR 360 at 408-409; Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 at 473-474; Betfair Pty Ltd v Western Australia ("Betfair No 1") (2008) 234 CLR 418 at 451 [10], 464 [47]-[48].
[107]See Palmer v Western Australia (2021) 95 ALJR 229 at 241-242 [47]-[48], [50], 249 [92], 265 [181], 267-268 [187]-[189], [191]-[192], 279 [241], 281 [249]; 388 ALR 180 at 192-193, 201, 222-223, 225-226, 240, 243.
[108]See Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 561-562; McCloy v New South Wales (2015) 257 CLR 178 at 193-195 [2], 230-231 [126], [129], 258 [220], 280-281 [306].
In each context, the "purpose" is the "public interest sought to be protected and enhanced" by the law[109]. Expressed in more arcane terms, the "purpose" is the positive counterpart of "the mischief to redress of which [the] law is directed"[110].
[109]Cunliffe v The Commonwealth (1994) 182 CLR 272 at 300.
[110]APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322 at 394 [178]. See McCloy v New South Wales (2015) 257 CLR 178 at 232 [132]; Brown v Tasmania (2017) 261 CLR 328 at 391-392 [208]-[210].

The plaintiff advanced a number of additional grounds attacking the validity of s 36B of the 2007 Citizenship Act. The first of these was that the Court should imply from the text of the Constitution either an absolute or qualified prohibition on the removal of a person's status as a member of the "people of the Commonwealth", consistently with the use of that phrase in the Constitution[466]. The essence of the argument was that once it is acknowledged that the Constitution recognised the existence of the people of Australia as a distinct community, it followed that the character of that body of people was unalterable by Parliament. Parliament did not have an unfettered ability to define, for example, who were the "people" from whom senators and members of the House of Representatives were to be directly chosen for the purposes of ss 7 and 24 of the Constitution. Alternatively, it was submitted, it should be implied that any exclusion from membership of the "people of the Commonwealth" should only take place through an exercise of judicial power under Ch III of the Constitution. Neither proposition was directly supported by any authority.
[466]Constitution, s 24.
It is well established that implications which limit the legislative powers of the Commonwealth can only be drawn when it is necessary to do so to give effect to the text or structure of the Constitution[467]. Here, the suggested implication is unnecessary and conflicts with the scope of legislative authority conferred by the "naturalization and aliens" head of power in s 51(xix) of the Constitution. That head of power, for the reasons already given, authorises laws that provide for the denationalisation of an Australian citizen where that person has acted in a way, or taken a step or steps, that constitutes a permanent repudiation of her or his allegiance to Australia or of her or his membership of this nation. The existence of this legislative power is a complete answer to the implication sought to be propounded by the plaintiff. The relevance of Ch III to laws authorising the expatriation of Australian citizens is otherwise addressed below.
[467]Gerner v Victoria (2020) 270 CLR 412 at 422 [14] per Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ.
A law cannot disenfranchise a citizen
The plaintiff submitted that, as a citizen and a member of the "people" for the purposes of ss 7 and 24 of the Constitution, he had a right to vote in federal elections. He relied upon the well‑established proposition that ss 7 and 24 of the Constitution mandate universal adult suffrage, exclusion from which requires a "substantial reason"[468]. Because the cancellation of citizenship results in automatic disenfranchisement, it was submitted that such a law required the support of a "substantial reason", and that none existed here[469].
[468]Roach v Electoral Commissioner (2007) 233 CLR 162 at 174 [7] per Gleeson CJ; Rowe v Electoral Commissioner (2010) 243 CLR 1 at 48-49 [123] per Gummow and Bell JJ.
[469]Commonwealth Electoral Act 1918 (Cth), s 93(1)(b), (7)(b).
There is an immediate difficulty with the plaintiff's contention. As the defendants pointed out, the plaintiff's reasoning is circular. Laws exist in this country which confer rights and duties on a person who is a citizen. One of those duties is the obligation to vote at federal elections. The existence of such rights and duties, which depend on a person's legal status as a citizen, cannot limit Parliament's power to make valid laws of denationalisation in accordance with s 51(xix) of the Constitution. If the plaintiff's citizenship has been validly cancelled, then he has forfeited his eligibility to vote, as a consequence of his new legal status as an alien. But a general implication derived from ss 7 and 24 of the Constitution concerning universal suffrage says nothing at all about who should, and who should not, be citizens of this country. That is because it is an implication that takes the body politic to be that which is defined by the Parliament subject to the Constitution[470].
[470]Reasons of Kiefel CJ, Keane and Gleeson JJ at [44].
If, contrary to the foregoing, s 36B of the 2007 Citizenship Act must be justified by a "substantial reason", the defendants submitted that responding to a repudiation of membership of the Australian community and protection of that community from terror were both sufficient justifications. That submission should be accepted. In that respect, in Roach v Electoral Commissioner, Gleeson CJ observed[471]:
"The rational connection between such exclusion and the identification of community membership for the purpose of the franchise might be found in conduct which manifests such a rejection of civic responsibility as to warrant temporary withdrawal of a civic right."
[471](2007) 233 CLR 162 at 175 [8].
Conduct of the kind identified in s 36B(5)(h) and which demonstrates a repudiation of allegiance to Australia may well constitute a "rejection of civic responsibility".
The plaintiff put his case that s 36B is not supported by a "substantial reason" in several different ways. For the reasons that follow, what might constitute a valid "substantial reason" need not be articulated. That is because the plaintiff's contentions are, in any event and with respect, misconceived.
The plaintiff first contended that s 36B is over-inclusive in the range of conduct it specifies and thus has no "rational connection" to any of the ends it might pursue. That submission should be rejected for the reasons already given. Secondly, the plaintiff then complained that s 36B is not a proportionate law because it deprives him of his citizenship permanently. He relied upon the decision of this Court in Roach, which decided that serious criminal offending could only ever justify a temporary withdrawal of the right to vote[472]. That submission is misconceived for two reasons. First, as the defendants pointed out, it overlooks s 36H, which provides that a person whose citizenship has been cancelled may apply to have that decision revoked. That provision allows the Minister to, amongst other things, revoke the decision if it be in the public interest to do so[473]. It also overlooks the power conferred on the Minister by s 36J(1) to revoke the cancellation of citizenship on the Minister's "own initiative" if that would be in the public interest. Secondly, because the reach of s 36B is unlikely to include wholly innocent conduct and is instead directed at conduct that would justify a conclusion by the Minister that a person has repudiated her or his allegiance to Australia, permanent cancellation, subject to ss 36H and 36J, is a proportionate response to an enduring renunciation of membership of the Australian community.
[472](2007) 233 CLR 162 at 177 [12] per Gleeson CJ.
[473]Australian Citizenship Act 2007 (Cth), s 36H(3)(b).
Finally, the plaintiff submitted that s 36B is a disproportionate law because of other laws that already exist and that achieve similar ends. For example, the Federal Parliament has passed laws addressing the risks of terror-related activities that provide for the cancellation of passports, for the making of preventative detention orders, and for the making of continuing detention orders and control orders[474]. The existence of these means of protecting the Australian community did not justify, it was said, what the plaintiff described as a "broad executive discretion permanently to extinguish the civic rights of any member of the Australian community, exercisable on the Minister's satisfaction that any of a wide range of 'conduct' has occurred, without assessment of any fault element". That characterisation of s 36B is a misdescription of the law. Once again, it ignores the fact that engaging in prescribed conduct is only one of three preconditions to the operation of s 36B. It also disregards the nature of the species of "conduct" listed in s 36B(5). For the reasons already given, each species of conduct is potentially repugnant to, and to that extent thereby inconsistent with, fundamental values that inhere in the community comprising the "people of the Commonwealth".
[474]Australian Passports Act 2005 (Cth), s 22 (cancellation of passports); Criminal Code (Cth), Divs 104 (control orders), 105 (preventative detention orders), 105A (continuing detention orders).
Cancellation is not an exercise of judicial power
The plaintiff submitted that involuntary denationalisation is a form of punishment that could only be imposed by a Ch III court following the adjudication of criminal guilt. He relied upon this Court's decision in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs[475], which established the principle that, subject to certain exceptions, the executive branch of government cannot involuntarily detain a person; detaining a person as punishment can only take place following adjudgment of guilt by a court. That is because this "function" has over time become "essentially and exclusively judicial in character"[476]. The plaintiff submitted that this principle is not confined to detention as a form of punishment; as a matter of logic, it extends to any form of punishment for breach of the law[477]. So much should be accepted. Here, the plaintiff urged the Court to characterise his denationalisation as a type of punishment; he contended that it is a form of banishment. Amongst other things, he relied upon the following observation of the Supreme Court of the United States in Trop v Dulles[478]:
"We believe, as did Chief Judge Clark in the court below, that use of denationalization as a punishment is barred by the Eighth Amendment. There may be involved no physical mistreatment, no primitive torture. There is instead the total destruction of the individual's status in organized society. It is a form of punishment more primitive than torture, for it destroys for the individual the political existence that was centuries in the development. The punishment strips the citizen of his status in the national and international political community. His very existence is at the sufferance of the country in which he happens to find himself. While any one country may accord him some rights, and presumably as long as he remained in this country he would enjoy the limited rights of an alien, no country need do so because he is stateless. Furthermore, his enjoyment of even the limited rights of an alien might be subject to termination at any time by reason of deportation. In short, the expatriate has lost the right to have rights." (footnotes omitted)
[475](1992) 176 CLR 1.
[476]Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 27 per Brennan, Deane and Dawson JJ.
[477]Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 at 340 [15] per Kiefel CJ, Bell, Keane and Edelman JJ.
[478](1958) 356 US 86 at 101-102 per Warren CJ (Black, Douglas and Whittaker JJ agreeing).
There is no equivalent to the Eighth Amendment to the Constitution of the United States in Australia's Constitution. Nonetheless, the Supreme Court's observation that denationalisation could be penal in nature should be accepted. In Trop, for example, denationalisation took place because the person in question had been guilty of desertion from the United States Army[479]. A majority of the Supreme Court reasoned[480]:
"The purpose of taking away citizenship from a convicted deserter is simply to punish him. There is no other legitimate purpose that the statute could serve."
[479]Nationality Act of 1940, Pub L No 76-853, §401(g), 54 Stat 1137 at 1169.
[480]Trop v Dulles (1958) 356 US 86 at 97 per Warren CJ (Black, Douglas and Whittaker JJ agreeing); see also at 109-110 per Brennan J.
The characterisation of a power as being either judicial or administrative in nature is often difficult. As Kitto J famously observed in R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd[481]:
"[I]t has not been found possible to frame an exhaustive definition of judicial power. But this is not to say that the expression is meaningless. The uncertainties that are met with arise, generally if not always, from the fact that there is a 'borderland in which judicial and administrative functions overlap', so that for reasons depending upon general reasoning, analogy or history, some powers which may appropriately be treated as administrative when conferred on an administrative functionary may just as appropriately be seen in a judicial aspect and be validly conferred upon a federal court." (citation omitted)
[481](1970) 123 CLR 361 at 373.
Three observations, however, should be made. First, the capacity to impose a penalty of some kind is not necessarily a power exclusively reposed in the judicial branch of government. What is so reposed is the jurisdiction to impose those types of punishment that are essentially and exclusively judicial in nature, such as punishment for breach of a law in the sense described in Lim. As Gleeson CJ observed in Re Woolley; Ex parte Applicants M276/2003[482]:
"The proposition that, ordinarily, the involuntary detention of a citizen by the State is penal or punitive in character was not based upon the idea that all hardship or distress inflicted upon a citizen by the State constitutes a form of punishment, although colloquially that is how it may sometimes be described. Taxes are sometimes said, in political rhetoric, to be punitive. That is a loose use of the term. Punishment, in the sense of the inflicting of involuntary hardship or detriment by the State, is not an exclusively judicial function."
[482](2004) 225 CLR 1 at 12 [17].
Secondly, it is well established that the federal executive can, in some circumstances, impose detriments and penalties based upon the fact that some specific crime has been committed. Thus, in Falzon v Minister for Immigration and Border Protection[483], it was held that the power reposed in the relevant Minister by s 501(3A) of the Migration Act to cancel a person's visa following conviction of a crime did not impermissibly confer upon that Minister any judicial power. It is also well established that the executive may exercise a power to impose a penalty or a detriment based upon an opinion that a crime has been committed, as distinct from any conviction for that crime. Thus, in Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd[484], this Court decided that the Australian Communications and Media Authority ("the Authority") had power to determine whether a broadcaster had breached one of its licence conditions, namely not to use a broadcasting service in the commission of an offence. Making a finding that such an offence had taken place and then taking enforcement action was not an exercise of judicial power. The Authority did not need to defer the exercise of its power until conviction by a court of the offence[485]. The plurality observed[486]:
"More generally, and contrary to the 'normal expectation' stated by the Full Court, it is not offensive to principle that an administrative body is empowered to determine whether a person has engaged in conduct that constitutes a criminal offence as a step in the decision to take disciplinary or other action."
[483](2018) 262 CLR 333.
[484](2015) 255 CLR 352.
[485]See also Visnic v Australian Securities and Investments Commission (2007) 231 CLR 381 at 386 [16] per Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ.
[486]Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352 at 371 [33] per French CJ, Hayne, Kiefel, Bell and Keane JJ.
Here, of course, the power of denationalisation does not turn upon an opinion that any of the conduct described in s 36B(5)(a)-(h) of the 2007 Citizenship Act constitutes the commission of an offence under the Criminal Code. But the plaintiff urged that the inquiry undertaken by the Minister is closely tied to the subject matter of the conduct listed. For the reasons which follow, that contention does not justify a conclusion that the Minister exercises judicial power in making a determination pursuant to s 36B.
Thirdly, in determining whether the power to punish is one which is exclusively vested in the judiciary, considerations of history may assume great importance, especially when the intrinsic nature of the power exhibits features which are consistent with an exercise of executive as well as judicial power. In Lim, McHugh J, after considering Griffith CJ's descriptions of judicial power in Huddart, Parker & Co Pty Ltd v Moorehead[487] and those of Kitto J in Tasmanian Breweries Pty Ltd[488], made the following decisive observation[489]:
"The formulations of Griffith CJ and Kitto J illustrate the imprecision attaching to the lines between judicial power, executive power and legislative power. The line between judicial power and executive power in particular is very blurred. Prescriptively separating the three powers has proved impossible. The classification of the exercise of a power as legislative, executive or judicial frequently depends upon a value judgment as to whether the particular power, having regard to the circumstances which call for its exercise, falls into one category rather than another. The application of analytical tests and descriptions does not always determine the correct classification. Historical practice plays an important, sometimes decisive, part in determining whether the exercise of a particular power is legislative, executive or judicial in character." (footnote omitted)
[487](1909) 8 CLR 330 at 357.
[488](1970) 123 CLR 361 at 374-375.
[489](1992) 176 CLR 1 at 67.
Here, for three reasons the power exercised by the Minister in cancelling the plaintiff's citizenship was not judicial power. First, it has never been an essentially judicial function to make orders which denationalise a person. At common law, denationalisation and expatriation were not possible. And whilst common law courts ordered transportation of convicts to British colonies throughout the 18th and 19th centuries, those convicts remained British subjects[490].
[490]This can be inferred from the absence of any reference to the loss of British subjecthood in the Piracy Act 1717 (4 Geo 1 c 11) and the Transportation Act 1785 (25 Geo 3 c 46) upon a sentence of transportation to a place within "his Majesty's colonies and plantations in America" (s 1) or "within his Majesty's dominions" (s 1), respectively. See generally Neal, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales (1991) at 33, 43, where no apparent distinction is drawn between convicts, emancipists and natural-born subjects comprising the Australian population.
As explained above, the Naturalization Act 1870 changed the common law. It provided for a British subject to lose her or his status as a subject in defined circumstances. None of those circumstances involved an exercise of judicial power. Nor did they involve any form of punishment. Rather, they recognised the acquisition of alien status upon, for example, a subject becoming naturalised in a foreign state.
Following Federation, early enactments in Australia provided the executive, not the judiciary, with the power of denationalisation or deportation in defined circumstances. Section 11 of the Naturalization Act 1903-1917 conferred such a power on the Governor-General. Section 8AA of the Immigration Act 1901-1925 conferred a power of deportation on the Minister. Section 12 of the Nationality Act 1920 conferred a power on the Governor‑General[491] to revoke a certificate of naturalisation where this had been obtained, for example, by false representation or fraud, or where the person had shown herself or himself to be disaffected or disloyal to the Crown. Section 21 of the Nationality and Citizenship Act 1948, as enacted, conferred on the Minister a power of denationalisation which was similar to that conferred by s 36B. It empowered the Minister to deprive a registered or naturalised citizen of her or his citizenship where, for example, the Minister was satisfied that: the person had shown herself or himself "by act or speech to be disloyal or disaffected towards" the Crown[492]; the person had, during any war in which Australia had been engaged, "unlawfully traded or communicated with the enemy or been engaged on or associated with any business which was to his knowledge carried on in such a manner as to assist an enemy in that war"[493]; or the person was not, at the date on which she or he was registered or naturalised, "of good character"[494]. The Minister could not make such an order in respect of a person unless the Minister was satisfied that it was "not conducive to the public good that that person should continue to be an Australian citizen"[495].
[491]From 1936 this power was conferred on the Minister: see Nationality Act 1936 (Cth), Schedule.
[492]Nationality and Citizenship Act 1948 (Cth), s 21(1)(a).
[493]Nationality and Citizenship Act 1948 (Cth), s 21(1)(b).
[494]Nationality and Citizenship Act 1948 (Cth), s 21(1)(d).
[495]Nationality and Citizenship Act 1948 (Cth), s 21(2).

Contrary to what might otherwise be thought, the 152 years of legal history since 1870 cannot be overlooked or dismissed as merely recent. Nor does it matter that many of the historical provisions were concerned with naturalised rather than natural-born citizens or subjects. As already mentioned, if denationalisation is a power that may validly be exercised in the case of a naturalised Australian by the executive in accordance with a law authorised by s 51(xix), no different outcome is justified in the case of those born in this country. Both are citizens who assume the same quality of allegiance, whether expressly in the case of naturalised citizens, or implicitly in the case of those born in Australia.
Secondly, as already mentioned, the task of the Minister here is not to determine whether the conduct identified in s 36B(5)(a)-(h) constitutes the commission of any crime. The Minister is not determining guilt or innocence. The conduct to be examined excludes in each case the fault element provided for in the Criminal Code. Instead, the Minister is required to undertake a distinctly different task. The Minister must first determine whether "the conduct demonstrates that the person has repudiated their allegiance to Australia". That is not an inquiry mandated by any provision of the Criminal Code and it does not form part of the criteria for conviction for any of the crimes referenced in s 36B(5)-(6). The Minister must also examine, having regard to the factors listed in s 36E, whether it would be "contrary to the public interest for the person to remain an Australian citizen". What is in the public interest is a matter more usually, but not invariably, reserved to the executive branch of government[496]. In that respect, some of the mandatory factors to be considered pursuant to s 36E require the formation of subjective judgments[497] (for example, a person's connection to the other country of which they are a national or citizen (s 36E(2)(g))), and at least one raises directly a matter more naturally reserved to the executive branch of government ("Australia's international relations" (s 36E(2)(h))). Again, consideration of the public interest in the way mandated by s 36E does not form any part of the criteria for conviction of the crimes referenced in s 36B(5)-(6). It is a consideration that is foreign to the Criminal Code.
[496]R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 399-400 per Windeyer J; Attorney-General (Cth) v Alinta Ltd (2008) 233 CLR 542 at 597 [168] per Crennan and Kiefel JJ.
[497]See R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 377 per Kitto J.
Thirdly, and in contrast to American decisions such as Trop or Kennedy v Mendoza-Martinez[498], the purpose of s 36B is not to punish. If it had been, then it may not have been a valid law. Rather, s 36B serves a legitimate, non‑punitive purpose[499]. Its object, as a matter of substance[500], is not retribution; rather, it is to recognise a person's repudiation of her or his allegiance to Australia and to prescribe a consequence for this repudiation, namely denationalisation. The Cessation EM clearly states that the "purpose" of Subdiv C of Div 3 of Pt 2 of the 2007 Citizenship Act is set out in s 36A[501]. Section 36A makes no reference, either directly or indirectly, or indeed inferentially, to punishment or retribution. Rather, it declares what Parliament considers to be the essential aspect of citizenship: it is a "common bond" which involves reciprocal rights and obligations. It then declares that a person may, by her or his conduct, act in a manner that is incompatible with the community's "shared values". It then further declares that when a person so acts, that may justify a conclusion that the person has "severed" her or his bond with the Australian community and has repudiated her or his allegiance to this country. Cancellation of that person's citizenship, in the circumstances mandated by Subdiv C, is simply the de jure acknowledgement of something which de facto has already occurred, namely that person's rejection of the Australian body politic.
[498](1963) 372 US 144. In any event, the American authorities do not stand for the proposition that any law of involuntary denationalisation or expatriation is inherently punitive in nature and therefore an exclusively judicial function: Rogers v Bellei (1971) 401 US 815 at 831-836 per Blackmun J (Burger CJ, Harlan, Stewart and White JJ agreeing).
[499]Minister for Home Affairs vBenbrika (2021) 95 ALJR 166 at 182-183 [40] per Kiefel CJ, Bell, Keane and Steward JJ; 388 ALR 1 at 16.
[500]Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 27 per Brennan, Deane and Dawson JJ.
[501]Australia, Senate, Australian Citizenship Amendment (Citizenship Cessation) Bill 2020, Revised Explanatory Memorandum at 7 [33].
The foregoing gives full recognition to the words of s 36A and to the contents of the Cessation EM. It does not promote form over substance and practical effect. Rather, it reflects the reality of the statute. It is, with very great respect, wrong to conclude that the concern of s 36B is with "retribution for conduct" which is "reprehensible"[502]. Not only does such a conclusion manifestly clash with the expression of purpose set out in s 36A and in the Cessation EM, it also fails to grapple with an essential aspect of s 36B, namely repudiation of allegiance to Australia. A terrorist who has left Australia and has committed a terrorist act or acts which demonstrate the required repudiation of allegiance is most unlikely to care much for Australian citizenship (save for the possibility that it might be used to further some terrorist cause). For her or him, loss of citizenship is no punishment; it might be no more than an inconvenience or an insult. That is because she or he has already abandoned Australia. In that respect, it should be steadily borne in mind that the legislative scheme comprised by s 36B is in substance targeted at those who fundamentally loathe this country and all that it stands for. Those persons are not victims who require the protection of their former country; rather, they are, in substance and as a matter of practical effect, repudiators of Australia.
[502]Reasons of Kiefel CJ, Keane and Gleeson JJ at [75].
I otherwise agree with Kiefel CJ, Keane and Gleeson JJ[503] that, in a given case, a possible consequence of an application of s 36B might be the protection of the Australian people. That might be the case where the citizenship of a "foreign fighter" is cancelled. But again, that protective, non-punitive purpose does not result in a conferral by s 36B of judicial power on the executive[504].
[503]See [75].
[504]See Minister for Home Affairs vBenbrika (2021) 95 ALJR 166 at 183 [41] per Kiefel CJ, Bell, Keane and Steward JJ; 388 ALR 1 at 16.
In argument it was said that s 36B operated retrospectively and that this revealed its true retributive purpose. That submission is misconceived. First, cancellation takes place with only prospective effect[505]. Secondly, the "conduct" which triggers its application has been unlawful since (at the latest) 1 December 2014[506]. Thirdly, for the reasons already given, if the plaintiff entered into and remained in a "declared" area, his conduct might well have shown a repudiation of the Australian community. For the reasons given by Frankfurter J in Perez, which I prefer, it is of no moment whether the plaintiff subjectively knew at that time that his repudiation of the body politic would lead to the cancellation of his citizenship.
[505]Australian Citizenship Act 2007 (Cth), s 36B(3).
[506]On which date Div 119 of the Criminal Code (Cth) (foreign incursions and recruitment; see Australian Citizenship Act 2007 (Cth), s 36B(5)(h)) commenced: Counter‑Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (Cth).
Finally, in support of the conclusion that the power of denationalisation conferred by s 36B does not involve the exercise by the executive of judicial power, Subdiv C expressly preserves the responsibility of the courts to ensure that the power is exercised lawfully. A "note" which appears under s 36B(1) expressly refers to a person's ability to seek review of a determination to cancel citizenship in the High Court under s 75 of the Constitution or in the Federal Court under s 39B of the Judiciary Act 1903 (Cth). The same note appears under s 36H(4) in relation to a decision to refuse an application to revoke a determination made under s 36B(1). In "proceedings under section 75 of the Constitution, or under [the 2007 Citizenship Act] or another Commonwealth Act", a determination made under s 36B(1) is taken to be revoked if a "court finds that the person did not engage in the conduct to which the determination relates" or the court finds that the person "was not a national or citizen of a country other than Australia"[507]. These provisions permit the issues of "conduct" and "dual citizenship" to be considered by a court on their merits. If a court were to find that the Minister had been mistaken in her or his satisfaction that conduct of the kind identified in s 36B(5) had taken place, or that the person in question was not a dual citizen, that person's citizenship is taken never to have ceased[508].
[507]Australian Citizenship Act 2007 (Cth), s 36K(1)(a), (c).
[508]Australian Citizenship Act 2007 (Cth), s 36K(2).
The foregoing finds some support in at least one early decision of this Court. In Ex parte Walsh, Isaacs J referred to a man who was thought "by the whole of the rest of Australia" to be of "so great a danger ... that nothing short of expulsion ... would be an adequate protection to the community"[509]. Isaacs J observed that Parliament could validly pass a law for that person's deportation, and that the exercise of such a power was a matter reserved to the executive branch of government, unless the deportation took place as punishment for a crime. His Honour said[510]:
"There is nothing in the written Constitution to require the power of deportation always to be exercised through the medium of the judiciary. If it is enacted as a punishment for crime, it necessarily falls to the judicial department. The Court then determines the matter, as it does every other, upon the proved circumstances of the case.
If it is enacted not as a punishment for crime, but as a political precaution, it must be exercised by the political department – the Executive – and possibly on considerations not susceptible of definite proof but demanding prevention or otherwise dependent on national policy. These principles, which are self-evident, have been abundantly recognized in America in cases of which Mahler v Eby is the latest." (footnote omitted)
[509](1925) 37 CLR 36 at 95.
[510]Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 36 at 95-96; see also Starke J at 132, who also accepted that both the executive and judicial powers of the Commonwealth could be used to exclude an alien as "preventive or protective measures for the peace, order and good government of the Commonwealth". However, this would not apply to "citizens of the Commonwealth" (at 138).
The same analysis, with respect, applies with equal force to a power to denationalise a citizen.
Section 36B was thus enacted, not as a punishment for a crime, but as a "political precaution". Because it does not, when correctly and lawfully applied, impose any punishment on a person whose citizenship is cancelled because of a repudiation of allegiance, there is no need for the "safeguard" of a "criminal trial, including the incidence of the burden of proof"[511]. Rather, and with great respect, curial oversight of the exercise of the power, as described above, is a sufficient safeguard.
[511]Reasons of Kiefel CJ, Keane and Gleeson JJ at [86].
I would answer the questions of law raised by the amended special case as follows:
1. Is s 36B of the Australian Citizenship Act 2007 (Cth) invalid in its operation in respect of the plaintiff because:
(a) it is not supported by a head of Commonwealth legislative power;
Answer, "No".
(b) it is inconsistent with an implied limitation on Commonwealth legislative power preventing the involuntary deprivation of Australian citizenship;
Answer, "No".
(c) it effects a permanent legislative disenfranchisement which is not justified by a substantial reason;
Answer, "No".
(d) it effects a permanent disqualification from being chosen or from sitting as a senator or a member of the House of Representatives, otherwise than in the circumstances contemplated by ss 34 and 44 of the Constitution;
Answer, "Unnecessary to answer as this ground was not pressed".
(e)it reposes in the Minister for Home Affairs the exclusively judicial function of punishing criminal guilt?
Answer, "No".
2. What, if any, relief should be granted to the plaintiff?
Answer, "None".
3. Who should pay the costs of the special case?
Answer, "The plaintiff".

Alexander v Minister for Home Affairs

Alexander v Minister for Home Affairs

[2022] HCA 19

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Alexander v Minister for Home Affairs

[2022] HCA 19

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Case

Alexander v Minister for Home Affairs

[2022] HCA 19