Alexander v Minister for Home Affairs

Parties (including notable third parties)

Plaintiff: Delil Alexander (by his litigation guardian Berivan Alexander); Defendants: Minister for Home Affairs & Another

---

Summary of Facts

The plaintiff, Mr Alexander, was born in Australia on 5 August 1986.  He acquired Australian citizenship by birth and Turkish citizenship by descent through his parents.

In April 2013, Mr Alexander left Australia for Turkey and subsequently travelled to Syria.  In November 2017, he was apprehended by Kurdish militia in Syria and was later transferred to Syrian authorities, where he was convicted and imprisoned on charges under Syrian law.  On 31 January 2019, Mr Alexander was convicted and sentenced by a Syrian court to a term of imprisonment for 15 years but was subsequently given a pardon from the Syrian government. Despite the pardon, he remained detained in Syria as he cannot be released into the Syrian community nor be repatriated to Turkey or Australia.

Following Mr Alexander’s departure from Australia and subsequent activities in Syria, the Australian Government took several actions against Mr Alexander, including the cancellation of his passport and making of a Temporary Exclusion Order.  On 16 June 2021, the Australian Security Intelligence Organisation (‘ASIO’) provided a Qualified Security Assessment on Mr Alexander to the Minister for Home Affairs (‘the Minister’) which 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.

On 2 July 2021, the Minister determined pursuant to s36B(1) of the Australian Citizenship Act 2007 that Mr Alexander ceased to be an Australian citizen. The determination stated that the Minister was satisfied that Mr Alexander has engaged in foreign incursions while outside Australia, which demonstrated a repudiation of his allegiance to Australia, that it would be contrary to the public interest for Mr Alexander to remain an Australian citizen, and that Mr Alexander would not become stateless by reason of the determination.

---

Legal Arguments

Mr Alexander challenged the validity of s36B on the basis that: (1) s36B is not supported by a head of Commonwealth legislative power as it is not within the power of the Parliament to make laws with respect to naturalization and aliens under s51(xix) of the Constitution; and (2) s36B reposes in the Minister the exclusively judicial function of adjudging and punishing criminal conduct.

(1) Is s36B supported by a head of Commonwealth legislative power?

Section 36B permits the Minister to determine that a person ceases to be an Australian citizen if the Minister is satisfied that the person engaged in certain conduct (including engaging in foreign incursions and recruitment under subparagraph (5)(h)), that conduct demonstrates that the person has repudiated their allegiance to Australia, it would be contrary to the public interest for the person to remain an Australian citizen, and provided that by making the determination the person would not become a person who is not a national or citizen of any country.

Section 51(xix) of the Constitution empowers the Commonwealth Parliament to make laws with respect to ‘naturalization and aliens’.  The defendants argued that s36B is a valid exercise of the legislative power of the Commonwealth in reliance upon s51(xix).

Mr Alexander submitted that s36B is not supported by s51(xix) because: (a) as a person who became an Australian citizen at birth, he could not thereafter be regarded as an ‘alien’; (b) it is not open to Parliament to treat the conduct described in s36B(5)(h) as a repudiation of his allegiance constituting sufficient reason for depriving him of his citizenship; and (c) s51(xix) could not support the retroactive operation of s36B as was applied to him.

(2) Does s36B repose in the Minister an exclusively judicial function?

Mr Alexander argued that s36B of the Australian Citizenship Act 2007 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.

The defendants accepted that the function of adjudging and punishing criminal guilt is exclusively judicial, but submitted that at its highest s36B confers a power to inflict involuntary hardship or detriment which is not an exclusively judicial function.  Additionally, the defendants emphasised that s36B is a discretionary power, which is subject to judicial review.

Outcome

Is s36B supported by a head of Commonwealth legislative power?

The Court rejected Mr Alexander’s argument that s36B is not within the power of the Parliament to make laws with respect to ‘naturalization and aliens’ under s51(xix) of the Constitution.

The Court considered that the Constitution left it to Parliament to decide who shall be granted the status of citizenship and what that status may mean.  In this regard, the Court determined that s51(xix) empowers the Parliament to create and define the concept of Australian citizenship, to select or adopt the criteria for citizenship or alienage and to attribute to any person who lacks the qualifications prescribed for citizenship the status of alien.

‘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’ (paragraph 36).

The Court did note that Parliament cannot expand the definition of ‘alien’ beyond the ordinary understanding of the word, but that it did 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 Court rejected Mr Alexander’s argument that the conduct in s36B(5)(h) cannot be treated as a repudiation of allegiance unless it is intended to be so.  The court found that the facts suggest that it was reasonably open to Parliament to regard the voluntary conduct, as described in s36B(5)(h), as so reprehensible as to be incompatible with the common bonds of allegiance to the Australian community, whether or not the person acted intentionally to repudiate the bonds of citizenship.

In summary, the Court held that it is open to the Parliament under s51(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.’ (paragraph 63)

Does s36B repose in the Minister an exclusively judicial function?

The Court accepted Mr Alexander’s argument that s36B reposed in the Minister an exclusively judicial function and determined s36B invalid and Mr Alexander an Australian citizen.

The Court noted that the adjudgement and punishment of criminal guilt under a law of the Commonwealth was the most important of the functions which are essentially and exclusively judicial in character.

“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. 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” (Para 73)

The Court rejected the defendants’ argument that s36B only conferred a power to inflict involuntary hardship or detriment which is not an exclusively judicial function.  The Court referred to the cases providing examples of hardship or detriment and noted that they involved the revocation of a licence or privilege where a person has shown they are not a proper person to enjoy that privilege.  The Court differentiated the consequences of a deprivation of citizenship under s36B from executive powers to determine a loss of a statutory privilege or a licence under a regulatory regime.

The Court determined that the principal purpose of s36B is retribution for conduct deemed to be so reprehensible as to be incompatible with the shared values of the Australian community, and that retribution is characteristic of punishment under the criminal law.  The Court noted that s36D of the Citizenship Act carried the same consequences as s36B, being loss of citizenship, but as a consequence of a conviction after a trial. The Court considered it incongruous that s36B carried the same consequences as s36D but without a requirement for the Minister to carry the burden of proof or accord procedural fairness.

In summary, the Court held that the power reposed in the Minister by s36B is a power which the Constitution requires to be exercised by a Court that is part of the federal judicature.

‘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.’ (paragraph 96)

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
Domestic	Australian Constitution	s 51(xix), Ch III, ss 7, 24, 34, 44(i)
Domestic	Australian Citizenship Act 2007 (Cth)	ss 10(1), 33, 34, 36, 36A, 36B, 36D, 36E, 36F, 36G, 36H, 36J, 36K, 36L
Domestic	Migration Act 1958 (Cth)	ss 4, 42, 189, 198(2)
Domestic	Criminal Code (Cth)	s 119.2, s 119.3, s 100.1(1), s 102.1(1), Part 5.5
Domestic	Australian Passports Act 2005 (Cth)	s 7, s 14(1)(a)(i), s 22(2)(d)
Domestic	Commonwealth Electoral Act 1918 (Cth)	s 93(1)(b)(i), s 93(1)(b), s 93(7)(b)
Domestic	Judiciary Act 1903 (Cth)	s 39B
Domestic	Counter-Terrorism (Temporary Exclusion Orders) Act 2019 (Cth)	[Provision not specified]
International	Convention on the Reduction of Statelessness [1975] ATS 46	Arts 7-9
International	Convention relating to the Status of Stateless Persons [1974] ATS 20	Art 31
International	Convention on the Rights of the Child [1991] ATS 4	Arts 7, 8
Domestic	Nationality Act 1920 (Cth)	ss 5(1), 12(1), 12(2)(a), 18, 19, 21(1)
Domestic	Nationality and Citizenship Act 1948 (Cth)	ss 10(1), 17, 19, 21(1)
Domestic	Naturalization Act 1903 (Cth)	ss 9, 10, 11
Domestic	Naturalization Act 1917 (Cth)	s 7
Domestic	British Nationality Act 1981 (UK)	s 40(2)
Domestic	Naturalization Act 1870 (UK)	ss 3, 4, 6

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

Jamie Blaker, ‘The Constitutional Concept of an Alien’
(2023) 34 Public Law Review 48

• The author noted that Gleeson CJ in Re Patterson and Re Minister for Immigration and Multicultural Affairs held that the power conferred by s 51(xix) includes a power to determine legal status and to decide who will be treated as aliens.
• The article then lists the subsequent decisions in which Gleeson CJ’s understanding became ascendant and noted that Alexander v Minister for Home Affairs endorsed the strong conception of parliamentary choice.

Adam Lukacs, ‘The Constitutionality of Curial Denationalisation: Court-Ordered Punitive and Non-Punitive Citizenship Deprivation after Alexander and Benbrika’
(2025) 35 Public Law Review 344

• The article notes that the decision in Alexander v Minister for Home Affairs established that the conferral of punitive citizenship deprivation powers is a punishment when imposed in retribution for proscribed conduct and is therefore an exclusively judicial function.
• The article explores whether the amendments to the Australian Citizenship Act 2007 in December 2023 which allowed courts to order citizenship deprivation as part of a sentence for prescribed terrorism offence amounted to a conferral of non-judicial power on sentencing courts.

Anthony Gray and Pauline Collins, ‘Non-disclosure of Relevant Material and Chapter III: The Tantalising Promise of Due Process Rights Protection by the Australian Constitution in the Gageler High Court Using Separation of Powers Principles’
(2024) 31 Australian Journal of Administrative Law 93

• The author notes that six justices in Alexander invalidated s36B of the Australian Citizenship Act 2007 and found the power of stripping a person of citizenship punitive which could only be exercised by a Court.  Further, that the Court indicated dissatisfaction with an argument citizenship stripping was valid because it was exercised for protective purpose.