Alexander v Minister for Home Affairs [2022] HCA 19

Alexander v Minister for Home Affairs [2022] HCA 19

Section 36B of the Australian Citizenship Act 2007 (Cth) is invalid to the extent it empowers the Minister for Home Affairs to determine that a person ceases to be an Australian citizen on the basis of past conduct amounting to seriously reprehensible criminal behaviour, as the conferral on the Minister of this function is an exercise of the exclusively judicial power of adjudging and punishing criminal guilt under Chapter III of the Constitution; such a sanction can only be imposed by a court, not by the executive.

Parties
Plaintiff: Delil Alexander (by his litigation guardian Berivan Alexander); First Defendant: Minister for Home Affairs; Second Defendant: Anor
Jurisdiction
Australia
Judgment Date
08 June 2022
Procedural Posture
Constitutional Law Challenge (special Case Stated) / Judgment Following Hearing of Special Case in the Original Jurisdiction of the High Court
Outcome
Section 36B of the Australian Citizenship Act 2007 (Cth) is invalid; the plaintiff is an Australian citizen.
Legal Topics
Separation of Powers, Alienage and Citizenship, Naturalisation and Denaturalisation, Judicial Power of the Commonwealth, Retrospective Legislation, Terrorism and National Security, Ministerial Powers
Constitutional Law Separation of Powers Alienage and Citizenship Naturalisation and Denaturalisation Judicial Power of the Commonwealth Retrospective Legislation Terrorism and National Security Ministerial Powers

Case Brief

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Parties

Delil Alexander (by his litigation guardian Berivan Alexander)

Plaintiff

Minister for Home Affairs

First Defendant

Anor

Second Defendant

Procedural Posture

Constitutional Law Challenge (special Case Stated) / Judgment Following Hearing of Special Case in the Original Jurisdiction of the High Court

Legal Issues

  1. 1 Whether s 36B of the Australian Citizenship Act 2007 (Cth) is supported by the Commonwealth's 'naturalisation and aliens' power under s 51(xix) of the Constitution
  2. 2 Whether s 36B is invalid on the basis it reposes in the Minister for Home Affairs the exclusively judicial function of punishing criminal guilt (contrary to Chapter III of the Constitution)
  3. 3 Whether s 36B is inconsistent with implied constitutional limitations on deprivation of citizenship or disenfranchisement and if so, the consequences

Ratio Decidendi

Section 36B of the Australian Citizenship Act 2007 (Cth) is invalid to the extent it empowers the Minister for Home Affairs to determine that a person ceases to be an Australian citizen on the basis of past conduct amounting to seriously reprehensible criminal behaviour, as the conferral on the Minister of this function is an exercise of the exclusively judicial power of adjudging and punishing criminal guilt under Chapter III of the Constitution; such a sanction can only be imposed by a court, not by the executive.

Court Disposition

Section 36B of the Australian Citizenship Act 2007 (Cth) is invalid; the plaintiff is an Australian citizen.

Orders

  • It is declared that s 36B of the Australian Citizenship Act 2007 (Cth) is invalid.
  • It is declared that the plaintiff is an Australian citizen.