(Image: AAP/Mick Tsikas)

Way back in 2015, Tony Abbott’s government introduced a bill inserting a couple of new sections in the Citizenship Act, which provided for having your Australian citizenship cancelled by the minister if you’d done bad things that he or she considered inconsistent with your “allegiance to Australia”.

I wrote at the time that I was “about 60% convinced it’s constitutionally invalid”. Took eight years, but turns out I was right.

The High Court has killed off — hopefully finally — the notion that the executive arm of government can purloin for itself the power to impose the ancient punishment of banishment from the realm, which is what citizenship revocation really is. That, like all criminal punishment, is a function the constitution reserves exclusively for the courts.

This is the second of two cases that were required to knock out the relevant parts of the Citizenship Act. Last year, the court invalidated section 36B, which allowed the minister to cancel a person’s citizenship if he or she was satisfied that the person had engaged in conduct which satisfied the physical elements of one of a large number of serious offences. That is, the minister would be effectively determining criminal guilt, in place of the criminal courts.

The second case, decided this week, takes out section 36D, which operates the same way except that it requires an actual criminal conviction to have occurred. The minister’s job then would be to determine that the conviction demonstrates that the person has repudiated their allegiance to Australia, and if so he or she can then cancel their citizenship.

The atmosphere around this is heightened by the fact that the person in this latest case is Abdul Nacer Benbrika, notoriously convicted of terrorism offences in 2008 and who would have been released from prison in 2020 but has been kept in under a different legal regime that allows for post-sentence detention (highly controversial too, but legal).

Benbrika is not a good guy and it’s understandable why the government would prefer him to be someone else’s problem — specifically Algeria, where he remains a citizen.

The concept of deportation is not deeply problematic, nor is that of stripping a dual citizen of their Australian citizenship if their relationship to the country — what the Citizenship Act since 2015 has called “allegiance” and the High Court seems to have accepted as well, but which I’d prefer to think of less feudally as mutual obligation — has been effectively severed by their own acts. For example, if you fight for a foreign country at war with Australia, you can’t seriously call yourself Australian ever again and it doesn’t offend any human rights conception to kick you out.

That’s not what troubled the High Court. The issue is the separation of powers, which the constitution imperfectly set out to preserve. In establishing the jurisdiction of the federal courts, the constitution gave them sole control of the traditionally judicial functions of determining criminal guilt and its punishment. 

Coupled with that is the question of what punishment actually means. A long series of cases has established that detention is by its nature punitive (duh), but with exceptions — for example, immigration detention for the limited purposes of determining whether a non-citizen should be given a visa or be deported, and this form of detention is treated as non-punitive.

In the case last year, the court affirmed that involuntary revocation of citizenship is also punitive, because it is akin to banishment. That being so, it’s not a power that the executive arm of government can wield, because that’s unconstitutional.

This stuff does smarter heads than mine in; on the same day, the court in a different case ruled another citizenship-loss provision of the Citizenship Act valid. That one applies where a person, who has immigrated here and obtained citizenship, has later been convicted of criminal offences that were committed before they became a citizen. In that situation, the minister can cancel their citizenship. The court said that’s okay, because it doesn’t involve punishment; rather, it’s just taking back something (citizenship) that, if we’d known the truth, we’d have never given them in the first place.

Fine distinction? I think so, which is why the High Court keeps splitting on these cases. We can expect more of them; we can also expect the government to respond to this latest decision with more legislative reform attempting to claw back some of the ministerial power the court has just taken away.

In 2015, the then-government was loudly warned by experts that it was stepping into unconstitutional territory, and ignored them. The Labor Party voted in favour of the laws that have now been thrown out, so there’s no reason to expect the current government to heed the court’s message.

It’s a really important point, notwithstanding the desire of both major parties to exercise discretionary power over who gets to be a citizen and who doesn’t. Banishment is a dire punishment, with life-changing consequences. It should not be imposed by anyone except a court of law, accompanied by all the protections that the justice system provides.

It’s easy to have no sympathy for Benbrika and to want him deported. That may be fine and just, following due process; but simply recalling the identities of some of the men who in recent years have held the ministerial power (hello, Peter Dutton) should suffice to explain why nobody should want anyone’s fate held in such capricious hands.

Would you trust politicians with the right to banish citizens? Let us know your thoughts by writing to letters@crikey.com.au. Please include your full name to be considered for publication. We reserve the right to edit for length and clarity.