Citizenship-stripping and the Constitution

TONY ABBOTT CITIZENSHIP PRESSERThe 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 Irving[3], 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 Affairs[5], 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.

[1] Kim Rubenstein, ‘Citizenship and the Constitutional Convention Debates: A Mere Legal Inference’ (1997) 25 Federal Law Review 295, 307.

[3] Helen Irving, ‘Still Call Australia Home: The Constitution and the Citizen’s Right of Abode’ (2008) 30 Sydney Law Review 131.

[4] I am not aware of any case where a person has lost their Australian citizenship by operation of section 36.

[5] (1992) 176 CLR 1.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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25 Responses to Citizenship-stripping and the Constitution

  1. Moz of Yarramulla says:

    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.

    The ASIO powers of arbitrary detention would appear to be unconstitutional, or at least trivially usable in unconstitutional ways, then. That law is deliberately written to allow indefinite detention without trial, and because it’s an imprisonable offence to discuss the use of that power I can confidently say that that’s how it’s used, because anyone knowing the contrary cannot say so. IIRC that’s true even for the authorising minister! Our legislators are so clever!

    • Ken Parish says:

      I’m not familiar with any ASIO power of detention. Where is it?

      • Moz of Yarramulla says:

        I did the obvious search and here’s a reference to it:

        Turns out there’s actually two, a power to grab anyone and ask questions, and a separate power to just grab someone.

        A questioning warrant compels someone to appear for up to 24 hours of questioning where this may ”substantially assist the collection of intelligence that is important in relation to a terrorism offence”.

        This can be issued against any person, not just terrorist suspects. For example, ASIO can question someone about the activities of a family member, a journalist about a source or a priest about what they have heard in the confession box. The person has no right to silence and failing to answer is punishable by five years in jail.

        ASIO can also apply for a detention warrant. This allows someone to be held in secret and questioned for up to a week. This could be applied to a journalist who might destroy their notes to protect a source, or a person who might not turn up for questioning so as to avoid talking about a relative.

        In detention, a person cannot contact their family, friends or employer. They simply disappear for up to a week. They have the right to a lawyer but their choice can be vetoed on national security grounds and questioning can start before their lawyer arrives.

        The person is kept in the dark as to why they are being held. They are not told why the warrant has been issued against them and their lawyer cannot ask questions or intervene in questioning, except to request clarification of an ambiguous question. All contact between the person and their lawyer must also occur in a way that can be monitored.

        This whole process is cloaked in secrecy. While a warrant is on foot, and for two years afterwards, it is an offence to disclose ”operational information” about a person’s questioning or detention. The penalty is five years’ imprisonment.

        The ”operational information” that cannot be revealed is extremely broad and also vague. Cryptically, it includes any ”information that the organisation has or had”. A journalist might be imprisoned for reporting on a person’s questioning or detention even when the story shows that ASIO has misused its powers.

        That’s George Williams is the Anthony Mason Professor of Law at the University of NSW. On Friday, he launched the NSW Council for Civil Liberties’ ASIO campaign.

      • Moz of Yarramulla says:

        You’ll note that ASIO is not required to release people in any particular way, and there’s no requirement that they not immediately re-detain them. So they could make like the Victorian Police and “release” an unconscious person into the Maribyrnong River, or they could simply “release” someone inside a cell then re-detain them one second later.

        It seems likely that “releasing operational information” includes telling people that someone has been detained. Of course, that’s probably only an offence if you’re correct in telling someone that. We don’t know, and it seems unlikely that we’d find out in a lawful manner. Probably need wikileaks or similar.

      • Tim Macknay says:

        I’m not familiar with any ASIO power of detention. Where is it?

        Ken, it’s in Part III, Division 3 of the ASIO Act 1979.

  2. Moz of Yarramulla says:

    One issue often not addressed is how people know whether they’re being lawfully detained. If a group of burly men jump out of a van and grab me, then drag me into the van and drive off… is that a crime or the normal operation of our government?

    You’ll note that in the first case I can quite reasonably defend myself, quite possibly with lethal force. In the second… any failure to co-operate is probably a crime. But the only way to find out is to… wait until I’m released then ask? Assuming I am released. Neither group has to tell me who they are until it’s far too late for me to do anything about it.

    This is mostly a problem with plain-clothes “snatch squads”, as used around many of the larger protests. The gangs are normally policemen, but they don’t identify themselves except to the victim, and only once the van is in motion. Unfortunately resisting the “snatch” or helping someone being snatched is the crime of assault police. So if you did want to kidnap someone, the ideal time and place would be close to an anti-WTO or anti-war protest.

    • John Berrenger says:

      They will do what they do in the UK. In the UK you do have a right of appeal to a court. But they strip your citizenship when you out of the country. So how exactly do you get back in to appeal? Even then the legal process is very much loaded against you. Big surprise there. No wonder Abbott loves the Poms.

  3. I am and will always be Not Trampis says:

    Really interesting article Ken, congratulations.

    I tend to view the prospective legislation is purely political and has little to do with actual policy. Particularly since a lot of ‘experts’ think that this will boost ISIL recruits.

    • Chris Lloyd says:

      Yes, I think it is purely political, which shows just how evil some of our politicians are. Current laws are more than sufficient.

      How many ISIS fighters are going to want to come back to Australia knowing that they will probably be jailed. The moment they get out ASIO could arrest them again, without even telling anybody. How many Australians who have actually been doing illegal stuff in the middle east without actually joining ISIS, stuff that ASIO might know about, would think that they can come back and not be caught? Are they really up on the latest laws? Do they read Troppo? I am just struggling to think of anyone extra the new laws would catch in practice, as opposed to theory.

      The point of this law change is to keep the issue on the front page.

      • I am and will always be Not Trampis says:

        agree Chris,
        They only come back because they are sick of it or disillusioned. Otherwise they are loving it in attempting to create a caliphate. This is why people who come back are useful in stopping other people going these places.

  4. If you can’t convince a court even on a “balance of probabilities” standard that someone was fighting with IS overseas, or assisting them, then why would you want to leave it to a Minister’s discretion to revoke citizenship anyway?

    It would be action based on a hunch, essentially.

    The only issue, though, might be the over-rigorous application of rules of evidence in court cases of this type. Perhaps the legislation should allow a relaxation of certain rules for these cases. Some lawyers might complain that this is making the Court’s call just a “hunch” too, but to my mind, it would still be a vast improvement on a single Minister making a call on evidence which is not even disclosed to the ex-citizen.*

    • Martin says:

      That’s precisely the point. It only works at Dumbos discretion because they can never prove it. That’s why they want to ride rough shod over the courts and the constitution. This also implies btw that every word out of Abbotts mouth on terrorism is BS. They don’t know anything. It’s all hype to drum up votes.

      • Oh, I entirely agree that Abbott is despicable on multiple grounds. He was absolutely disgusting in his use of this issue politically against Labor today, but he has Bolt, and I presume other populist right-wing dimwits, clapping from the sidelines. How Turnbull can hold his head high in this government amazes me at times….

    • Chris Lloyd says:

      The government argument has been that ASIO evidence could not be given in court because it jeopardises sources. Not that I accept this argument. If they were really worried, they could require a panel of judges to decide on both guilt and penalty in closed court.

  5. John Berrenger says:

    I simply cannot even comprehend how the LNP can be considering this. It’s lunacy. In terms of “terrorism” it will achieve absolutely nothing. In term of it’s affect on the social fabric of Australia the affect will be chilling. At the moment I’m a committed Aussie / UK dual national. I won’t give up my dual nationality because I know Abbott. It will be single nationals next. That’s exactly what they did in the UK. If these laws are passed I, and millions of other citizens will become second class citizens. Resentful second class citizens. For what!! So Abbott can drum a few votes and he still hasn’t got a hope of winning the next election. This will polarise the community. The cherry on top though is no court of law. Dutton will decide! OMG. Is it just me? This is one more step towards goose stepping and the Fascist state. Next it will be atheists or Jews. Watch out Australia . Your rights are being stripped away. Don’t think for one minute you are safe. The real enemy is not in the middle east. They much closer than that.

  6. Martin says:

    Achtung. Seems to me that if these 4th Reich type laws are passed you run the very great risk of actually creating terrorism and a very large 5th column of 2nd grade highly annoyed pseudo citizens. Either way terrorism wins.

  7. Sinclair Davidson says:

    Ken – by depriving an individual of their citizenship the minister would be depriving individuals of their right to vote. My (lay person) understanding has been that the High Court looks very closely at voting related issues. Wouldn’t that be a mechanism to challenge the Minister?

    • Ken Parish says:

      Yes that’s a very good point. Removing citizenship would certainly have the peripheral consequence of removing the right to vote. Consequently the HCA might ask itself whether the proposed law can be regarded as “appropriate and adapted to a purpose consistent with the system of representative and responsible government that the Constitution mandates. I don’t think there’s much doubt that removing terrorists’ citizenship rights to restrain terrorist activities is a legitimate purpose, but whether giving the power by way of Ministerial discretion with limited judicial review is an apprpriate and adapted way of achieving it is another question.

      • Wesley Parish says:

        I would’ve thought that merely depriving said individuals of their rights to travel on an Australian passport and passing around their ID particulars would’ve been sufficient, but obviously I am not “up with the play”.

        It sounds rather like using a jackhammer to crack open peanuts.

  8. I am and will always be Not Trampis says:

    I see now Abbott is verballing Brett Walker.

    I know which of them I would trust.

  9. I am and will always be Not Trampis says:

    I am staggered at how many in Government do not want the rule of law.

    They are supposed to be conservative aren’t they?

  10. Mike Pepperday says:

    Disturbing, Ken. I wonder how solid those observations of Brennan, Deane and Dawson JJ are:

    “…the adjudgment and punishment of criminal guilt under a law of the Commonwealth. … … Ch.III of the Constitution precludes the enactment … … 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 …”

    I don’t know how they worked that out. When I read through Ch III I don’t see where it exclusively entrusts the adjudgment of criminal guilt. It doesn’t actually mention crime or guilt.

    But there are lots of mentions of how Parliament may make laws and how Parliament may prescribe. That is to say, to my eyes it looks like a free hand for an executive which commands parliamentary majorities.

    • Ken Parish says:

      Hi Mike

      This is a completely uncontroversial statement of principle in relation to the doctrine of separation of powers, which is undeniably a central aspect of Australia’s constitutional system. The Parliament makes the laws, the Executive administers them and the Courts adjudicate disputes about the law, its meaning and application.

      Under a constitutionally entrenched system of separation of powers (like ours and that of the US), only a court can exercise judicial power. Whatever subjects of law-making power may be vested in the Parliament, a law cannot confer judicial power on the executive government. It can only be conferred on a court.

      Thus, the question is: what is judicial power? It isn’t defined in the Constitution and can only be ascertained by reference to decisions of the High Court of Australia. Unfortunately there is no single definitive prescription as to what is judicial power, as the primary article mentions. However, the proposition that determination of guilt or innocence of a criminal offence and the punishment of that offence ARE exercises of judicial power is completely beyond question.

      Similarly, the statement in the plurality judgement in Chu Kheng Lim that the Court will look to the substance of the power rather than its form is also uncontroversial. In that case, the Court concluded that a law providing for mandatory universal detention of asylum seekers pending determination of their claims for a protection visa was NOT a law imposing punishment without a finding of guilt by a Chapter III court, even though arriving in Australia without a valid visa IS a criminal offence and imprisoning everyone who arrives without one looks an awful lot like punishment. Nevertheless, the High Court was able to find that imprisonment was not conditioned on any finding of guilt of the offence (either in substance or in form). Instead, people were merely being detained until their immigration status was determined, to ensure that they would be available for deportation if it was found that they were not entitled to a protection visa.

      It would be much more difficult to mount such an argument in relation to the conferral of a Ministerial power to determine whether someone had engaged in terrorist activities with ISIS, and to cancel their citizenship and deport them as a result of that finding. However it is dressed up as a matter of form, the Minister IS making a substantive decision on whether a person has engaged in activities which ARE a serious criminal offence (terrorism), and is then punishing them by revoking their citizenship and banishing them from the realm Australia. There is a pretty strong argument that that is an exercise in judicial power, and therefore one which can only be conferred on a Chapter III court and not on a Minister.

      That is why quite a few constitutional experts have concluded that the law Mr Abbott apparently intends to enact is very likely to be constitutionally invalid. It is possible that the invalidity might be overcome by providing for a full right of appeal from the Minister’s decision to a Chapter III court on both fact and law. In other words, the court would need to have the power to examine the evidence and make up its own mind whether the person in question had in fact undertaken terrorist activities. From Abbott’s viewpoint, providing for such an appeal might well be seen to have advantages because the court would determine the matter on the civil onus of balance of probabilities, whereas if the power to cancel citizenship was conditioned on a finding of guilt of the criminal offence of terrorism by a court, that court would be determining the question on the criminal onus of beyond reasonable doubt.

      I think it is quite likely that Abbott’s law would avoid constitutional invalidity if it vested the citizenship cancellation power in the Minister in the first instance, but provided for a full right of appeal to a Chapter III court on both fact and law. That would mean that the Minister’s decision was not “final, binding and authoritative” and therefore not an exercise of judicial power. It wouldn’t be quite as constitutionally safe as conditioning the power on a finding of criminal guilt by a court, but as I say it would have its advantages from the government’s viewpoint. The court’s exercise of this appeal jurisdiction could also be protected by “secret evidence” restrictions whereby the court was forbidden to disclose intelligence information either to the appellant or his lawyer. The High Court has previously held such a restriction to be consistent with judicial power (Pompano). Similarly, it would be constitutionally possible for the law to partially abolish the normal rules of evidence, for example by allowing the admission of hearsay or opinion evidence. The Family Law Act 1975 already does that in relation to court proceedings on parenting matters. I expect to see provisions of that sort in the redrafted legislation that the Abbott government will apparently be unveiling this week or next.

      • Mike Pepperday says:

        Thanks Ken. I now get it. Chapter III does clearly say judicial power is vested in the court which settles the matter depending on the definition.

        If (to satisfy the constitution) the minister’s decision to cancel citizenship could be appealed, wouldn’t that mean the person would have to be admitted into Australia in order to lodge the appeal? That might not be exactly rolling out the red carpet but it would defeat Abbott’s intent.

    • Peter WARWICK says:

      Mike, is that not exactly what parliamentary majorities are meant to do ? I always thought it was an election is held, the party winning a majority of seats forms government. And they are expected to govern – make laws that generally satisfy those who elected them. And generally they have a free hand. Does not the majority of seats empower that ?

      If a law is deemed wrong in some way, then the High Court sorts it. But until the High Court sorts it, the law stands as passed by the Parliament.

      Is there another way of governing I am not aware of ?

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