Citizenship-stripping and the Constitution

The chorus of public concern over the constitutionality of the Abbott government’s citizenship-stripping proposal is growing.  Malcolm Turnbull has again been emboldened to break ranks with his Prime Minister while denying he is doing any such thing.

It will be ironically appropriate if the citizenship-stripping issue ends up derailing Abbott’s plans to revive his ailing leadership in the wake of the failed spill motion against him earlier this year. Abbott’s strategy ever since he achieved Liberal Party leadership in late 2009 has been squarely based on racist dog whistling and inflaming national security paranoia.

The fact that citizenship isn’t even mentioned in Australia’s Constitution flows in part from similar racist sentiments among our Founding Fathers. They couldn’t work out a plausible way to define Australian citizenship without conferring it on Chinese, Japanese and Pacific Island migrants not to mention Aborigines. As South Australian delegate James Howe put it: “the cry throughout Australia will be that our first duty is to ourselves, and that we should… make Australia a home for Australians and the British race alone.”1 No sly Abbott/Howard-style dog whistling in those days; our forefathers were openly and proudly racist.

The solution our Founding Fathers came up with was to avoid mentioning citizenship in the Constitution, but give the new Commonwealth Parliament wide-ranging powers to make laws with respect to immigration and “aliens”.  The new Parliament proceeded to enact the White Australia policy.

This deliberate constitutional silence is one reason why it isn’t certain whether the Abbott government could now validly legislate to confer the power to strip citizenship on a Minister rather than a court.

It is clear that the power to cancel an alien’s visa, even a permanent resident visa, on “character” grounds need not be exercised by a court and can be conferred on a Minister in the form of a “subjective opinion” clause of the sort that I discussed in an article here at Troppo a few days ago. Section 501 of the Migration Act 1958 provides that the Minister can cancel a person’s visa if “the Minister reasonably suspects that the person does not pass the character test” and “the person does not satisfy the Minister that the person passes the character test”.  Matters about which the Minister might have reasonable suspicions which justify visa cancellation include involvement in people smuggling, genocide, terrorism and the like “whether or not the person, or another person, has been convicted of an offence constituted by the conduct”.

Visa cancellation decisions are subject to a tightly limited form of merits review by the Administrative Appeals Tribunal (section 500) and judicial review is subject to stringent “secret evidence” provisions requiring any intelligence information to be withheld from the applicant and his/her lawyers (sections 503B and 503C). Section 501 and these associated provisions have been considered by the High Court on numerous occasions and not struck down as unconstitutional. Perhaps that’s why Abbott and some of his supporters think they can lawfully do something similar with cancellation of citizenship.

However, the power to admit or expel “aliens” from a nation’s territory has always been viewed as a core aspect of the executive power of a sovereign nation.  A visa (even a permanent resident visa) granted to an alien is not a right but a mere revocable privilege granted by the executive government. As such it isn’t really surprising that the High Court has never had a problem with the power to cancel an alien’s visa also being exercised by a Minister, as long as the decision is subject to judicial review (even very restricted judicial review) to ensure lawfulness.

The High Court has never given an exhaustive definition of judicial power (which must at federal level be exercised by a court), but a widely accepted starting point is that a “final, binding and authoritative” decision affecting “life, liberty or property” is an exercise of judicial power.  An executive body e.g. a Minister can make a decision on those subjects as long as it isn’t final, binding and authoritative.  Effectively that means that at the very least the decision must be judicially reviewable for “jurisdictional” errors of law if not subject to a full right of appeal for all errors of law (or perhaps even a de novo appeal to a court on both questions of fact and law, as in Luton v Lessels, a case about whether the Child Support Agency was exercising judicial power).  For decisions about things like visa entitlements of aliens it appears that even the quite restricted judicial review regime provided by section 501 of the Migration Act 1958 will be enough to avoid infringing the constitutional separation of powers.  See Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

However it may be otherwise with citizenship.  Citizenship is regarded by many as a vested right not a mere privilege, and indeed a fundamental right. The concept of citizenship, and the Commonwealth’s power to pass laws about citizenship, flows from the aliens power in the Constitution.2 A citizen is someone who isn’t an alien. However even these propositions aren’t completely clear.  Academic commentators including Helen Irving3, have observed that characterising citizenship as a legal right (or bundle of rights) is “problematic”.  Nevertheless, she concludes in these terms:

To summarise, some rights and obligations have been historically available to, or binding on, some, but not all, citizens. Some rights and obligations have been available to, or binding on, aliens as well as citizens. What distinguishes citizens, legally, as a class of persons distinct from aliens is something else. It is, I argue, the right of abode in Australia, free from the risk of refoulement, expulsion, or deportation. This is not merely a contingent or ancillary right, but goes to the core of what it means to be a citizen. The right of abode, I suggest, is conceptually inseparable from citizenship. Furthermore, it is embedded in the constitutional concept of citizenship in Australia.

The thing is, there is no definitive court decision that actually says this.  Nevertheless, if Irving is correct, then citizenship confers a right of abode in Australia that is embedded in the Constitution, even though it isn’t expressly mentioned.  That makes it at least plausible that removal of citizenship and therefore of the right of abode flowing from it could only validly be legislated on the basis of a finding of just cause (e.g. fighting for ISIS) by a court exercising judicial power.  The existing legislative powers to remove citizenship in the Australian Citizenship Act 2007 appear to have been drafted on that implicit assumption. Section 34 provides for loss of citizenship for fraud and related conduct.  It is a discretionary power exercisable by a Minister, but only if a court has first made a finding of guilt of defined serious fraud-related offences.  Section 35 is in a somewhat different form.  It operates automatically if the defined facts are found to exist:

(1)  A person ceases to be an Australian citizen if the person:

          (a)  is a national or citizen of a foreign country; and

          (b)  serves in the armed forces of a country at war with Australia.

No doubt it would be the Minister, at least in the first place, who decides whether or not these facts exist, but once that factual determination is made citizenship ceases by operation of law not by exercise of Ministerial discretion. Of course, ISIS isn’t recognised as a “foreign country” by Australia or any other nation.  But a simple amendment to section 35 could provide for automatic citizenship cancellation on being found to have fought for ISIS while Australian forces are engaged in military activity against it..

However, presumably Abbott and Dutton’s concern (apart from a desire to wedge the Labor Party) is that it may be extremely difficult to produce evidence to prove the relevant facts in a court, even on a civil onus, given the notorious dangers involved in entering ISIS-controlled areas of Syria and Iraq.  Hence their evident enthusiasm to confer the power on the Minister based on his “satisfaction” and “reasonable suspicion” of the relevant facts rather than on a finding of the positive existence of those facts.

A set of facts that must exist as a precondition to exercise of a power is referred to as a “jurisdictional fact”. Accordingly, on the current wording of section 35, a finding by the Minister that a person was a citizen of both Australia and a foreign country, and had served in the armed forces of the latter country while it was at war with Australia, would be a finding of jurisdictional fact whose consequence would be loss of citizenship.  If that finding/decision was challenged in a federal court, the court could and would examine the evidence to ascertain whether those facts actually existed. If the court was unable to find that they existed then the person would presumably be declared by the court not to have ceased to be an Australia citizen.4

No doubt it is that outcome that Abbott and Dutton are anxious to avoid.  However it may be that they will have no choice if they want their legislation to survive the inevitable constitutional challenge.

The other possible basis on which a legislative attempt to confer citizenship-stripping power on a Minister might be held unconstitutional is that it amounts in practice to giving the Minister a power to find the person guilty of a crime and then to punish them.  In Chu Kheng Lim v Minister for Immigration Local Government & Ethnic Affairs5, Brennan, Deane and Dawson JJ explained a basic proposition about separation of powers:

There are some functions which, by reason of their nature or because of historical considerations, have become established as essentially and exclusively judicial in character. The most important of them is the adjudgment and punishment of criminal guilt under a law of the Commonwealth. … That being so, Ch.III of the Constitution precludes the enactment, in purported pursuance of any of the sub-sections of s.51 of the Constitution, of any law purporting to vest any part of that function in the Commonwealth Executive.

In exclusively entrusting to the courts designated by Ch.III the function of the adjudgment and punishment of criminal guilt under a law of the Commonwealth, the Constitution’s concern is with substance and not mere form. It would, for example, be beyond the legislative power of the Parliament to invest the Executive with an arbitrary power to detain citizens in custody notwithstanding that the power was conferred in terms which sought to divorce such detention in custody from both punishment and criminal guilt.

However, despite those seemingly strong statements of principle, in Chu Kheng Lim the Court ended up finding that universal mandatory detention of asylum seekers who arrived by boat was not punitive in nature.  Instead its intent was to ensure that putatively unlawful arrivals would be available for deportation if they were found not to be entitled to a protection visa as refugees.  Consequently it was a power that was not constitutionally required to be exercised by a court but could validly be conferred on a Minister.  By similar reasoning, I could imagine the High Court finding that cancellation of the citizenship of a person who had fought with ISIL was not punitive in substance, but rather a decision based on an assessment of future risk to Australia and hence a decision that could be vested in a Minister rather than a court.

The bottom line is that it isn’t possible to say with any certainty whether Abbott’s citizen-stripping proposal would be struck down by the High Court.  However there is undeniably a real risk of it.

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