Citizenship Decisions Raise the Prospect of Judicial Activism in Australia
June 21, 2022Updated: June 21, 2022
On June 8, the Australian High Court handed down a controversial decision to strike down government powers to strip nationals of citizenship for engaging in suspected terrorist activities. The court ruled in favour of Delil Alexander, a Turkish citizen whose Australian citizenship was cancelled in 2021, due to the national security agency’s assessment that he had joined the Islamic State and engaged in foreign incursions and recruitment. By majority, the court-ordered Alexander’s citizenship must be restored with the Australian government to pay costs.
In June 2021, ASIO, Australia’s national security agency responsible for the protection of the country from espionage and terrorism, communicated to then Home Affairs Minister Karen Andrews that Alexander was part of a group of religious extremists whose trip to Syria had been arranged by terrorist facilitator Hamdi al-Qudis. In April 2013, he travelled to Turkey and on to Syria, where he joined Islamic State by August, four months later.
The capture of Alexander in Deir az-Zour province in November 2017 coincided with a major Syrian military operation, backed by Russian forces and pro-government militias, to reconquer the province from Islamic State control. He was arrested and found guilty of offences by a Syrian court in January 2019.
As a result, in July 2021, Andrews stripped Alexander’s second (Australian) citizenship, discretionary powers granted in the Citizenship Act, for having “repudiated his allegiance to Australia.”
However, Alexander’s lawyers appealed to the High Court partly because he needed to recover his citizenship due to a perceived “danger of serious human rights violations.” Arguably, the decision was challenged on grounds including that it would have a “punitive character” with significant consequences for the individual.
By contrast, government lawyers contended that the relevant minister had faithfully complied with all the three required conditions in the decision: a person has engaged in the requisite conduct; the conduct demonstrates the person has repudiated their allegiance to Australia, and it would be contrary to the public interest for this person to remain an Australian citizen.
On June 8, the High Court held that the minister could not strip individuals of citizenship for suspect acts of terrorism. In a joint decision, Chief Justice Susan Kiefel and Justices Patrick Keane and Jacqueline Gleeson argued that Australian citizenship is “an assurance” that a person is “entitled to be at liberty in this country and to return to it as a safe haven.”
Justices Michelle Gordon and James Edelman reached the same conclusion. In their judgement summary, the Full Court stated (pdf):
“Some members of the majority held that … the substantive effect of the minister’s determination … was to deprive the plaintiff of his entitlement to enter and live at liberty in Australia. This purpose and effect of the law was punitive in character … Two Justices reached the same conclusion that [the provision] was punitive in character; it conferred power on the minister to cease citizenship as a sanction for past conduct, akin to historical forms of punishment, with significant consequences for the individual.”
Justice Simon Steward was the only member of the court to dissent from the majority. He reminded his peers that the law allows citizenship cancellation for “conduct which is so incompatible with the shared values of the Australian community that it constitutes a severance of the bond between citizens and a repudiation of allegiance.” He also informed that “the capacity to impose a penalty of some kind is not necessarily a power exclusively reposed in the judicial branch of government.”
It is not the first time a decision of the High Court is surrounded by controversy. More recently, in the 2020 case of Love v Commonwealth, two individuals who had committed crimes in Australia and were born overseas were allowed to stay in the country because the court discovered the third category of persons who are neither an Australian citizen under the Australian Citizenship Act nor a non-citizen.
The plaintiffs in the Love case were born in Papua New Guinea and New Zealand. Both were serving a term of imprisonment, one for a serious act of domestic violence and the other for grievous assault occasioning bodily harm. The government sought to deport both of them, arguing that they were not citizens and, therefore, it was within its discretionary power to deport them pursuant to section 51(xix) of the Australian Constitution.
However, by a majority of four to three, the High Court ruled that no foreigner who may have committed a serious crime but identifies himself as “Aboriginal” can be expelled by the government from Australia—even if such a person is born overseas and does not have Australian citizenship.
In other words, writes legal affairs journalist Chris Merritt: “Even when born overseas and holding the citizenship of another country, foreign criminals with Aboriginal ancestry can no longer be treated as aliens for the purposes of migration law.” This ruling also means that Aboriginal elders and community leaders can stymie moves to deport foreign criminals if they determine they have Aboriginal ancestry.
The case of Love can be fairly described as one of the most radical instances of judicial activism in Australian history.
Judicial activism describes a tendency of some judges to consider preferred outcomes, attitudinal preferences and political values when interpreting the applicable law.
Professor Brian Galligan describes this as “control or influence by the judiciary over political or administrative institutions.”
According to Lorraine Finlay, the human rights commissioner: “When unelected and unaccountable judges step beyond their judicial role and enter the political realm, our democracy is weakened … When judges start to veer from the judicial towards the political, the rule of law is necessarily undermined.”
Unfortunately, over the last two years, the High Court of Australia has certainly been more adventurous in their activism. Such activism may have occurred in the Alexander case, and it was certainly noticeable in the Love case as it directly relates to the creation of a new “right” by unelected and unaccountable judges.
Of course, discretionary decisions which are based on legislation within the limits of the Australian Constitution are for the relevant government department to determine. For the moment an unelected and unaccountable judiciary ventures to abruptly substitute its own opinion for that of the elected government, it enters a field where it would be almost impossible to set limits to its interference, except as should be prescribed in its own discretion.
Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.
Augusto Zimmermann is professor and head of law at Sheridan Institute of Higher Education in Perth. He is also president of the Western Australian (WA) Legal Theory Association, editor-in-chief of The Western Australian Jurist, and served as a member of WA’s law reform commission from 2012 to 2017. Zimmermann is an adjunct professor of the University of Notre Dame Australia, and has authored numerous books, including “Direito Constitucional Brasileiro,” “Western Legal Theory,” and “Christian Foundations of the Common Law.”