Citizenship stripping and the conception of punishment as an exclusively judicial function
Emily Hammond and Rayner Thwaites
8.12.2023
Within the space of 18 months the High Court of Australia has delivered three judgments on the constitutional validity of ministerial powers to revoke citizenship. Benbrika v Minister for Home Affairs [2023] HCA 33 (‘Benbrika 2’), and Jones v Commonwealth of Australia [2023] HCA 34 (‘Jones’), handed down on 1 November 2023, join last year’s decision in Alexander v Minister for Home Affairs [2022] HCA 19 (‘Alexander’). Central to all three cases is the question: what constraints does Ch III of the Constitution impose on laws for citizenship deprivation?
In this post we explain how the authorities cohere to establish a clear structure for evaluating whether ministerial citizenship stripping powers comply with Ch III. Moreover, these cases further cement the proposition that by operation of Ch III, the Commonwealth cannot impose punishment on any basis other than breach of the law by past acts. This limitation on Commonwealth power to punish is emerging as the key organising principle for evaluating whether citizenship stripping powers — including judicial powers exercised by courts — are compatible with Ch III.
Citizenship deprivation in the High Court
While citizenship is a statutory status it has significant constitutional implications. It attracts constitutional protections and entitlements including to enter and remain in Australia (Alexander [31], [73]-[74]). Involuntary revocation of a person’s citizenship imposes ‘profound detriment’ on a person involving loss of those constitutional entitlements. Nonetheless, successive iterations of Australian citizenship law have included provisions for involuntary revocation of Australian citizenship.
One long standing provision is exercisable where a citizen’s conviction calls into question the evidentiary basis on which a grant of citizenship was made. The current iteration of this ministerial power, in s 34 of the Australian Citizenship Act 2007 (Cth) (‘the Act’), was upheld in Jones as a law supported by the naturalisation limb of s 51(xix) and consistent with Ch III.
More recently, in late 2015 Australia added citizen deprivation as a component of broader counter-terrorism initiatives. From September 2020, this took the form of two similar ministerial powers of citizenship revocation: a condition of the first being the Minister’s satisfaction that the person had engaged in the conduct elements of one or more specified terrorism offences (s 36B of the Act), and a condition of the second being that the person had been sentenced to a specified period of imprisonment upon conviction for the specified terrorism offences (s 36D of the Act). The s 36B conduct-based power and the s 36D conviction-based power were both exercisable where the Minister was satisfied that the citizen’s conduct (as found by the Minister in s 36B, or to which the conviction relates in s 36D) demonstrated repudiation of allegiance to Australia, and it would be contrary to the public interest for the person to remain an Australian citizen. Sections 36B and 36D were held invalid in Alexander and Benbrika 2 respectively, on the ground that they reposed an exclusively judicial function in the Minister, contrary to Ch III.
Benbrika 2 and Jones were each decided by a 6:1 majority. In both cases, Kiefel CJ, Gageler, Gleeson and Jagot JJ wrote joint reasons, and Edelman J wrote separate concurring reasons. In Benbrika 2, Gordon J wrote separate concurring reasons (invalidating s 36D) and Steward J dissented (upholding s 36D). In Jones, Steward J wrote a separate concurring judgment (upholding s 34) and Gordon J dissented (invalidating s 34).
Section 51(xix) and citizenship deprivation
The citizenship deprivation powers considered in Alexander, Benbrika 2 and Jones were found to be supported by s 51(xix). Section 34 was supported by the naturalisation power on the basis that it was reasonably capable of being seen as necessary for protecting the integrity of the naturalisation process (Jones [38]). Section 36B (and s 36D by parity of reasoning) was supported by s 51(xix) on the basis that the aliens power in s 51(xix) encompassed the question of who does and does not have the legal status of alien (Alexander [33]) and that it was open to Parliament to classify as an alien a person who ‘has acted so inimically to Australia’s interests as to repudiate the obligations of citizenship on which membership of the people of the Commonwealth depends’ (Alexander [46] and see also [63]), elsewhere described as engaging in ‘conduct exhibiting such extreme enmity to Australia as to warrant being excluded from membership of the Australian community’ (Alexander [35]). While the boundaries of the conduct so described remains a live issue, in Alexander the majority considered that the Act’s attachment to a person entering or remaining in a declared area of a foreign country did not pursue an ‘eccentric’ understanding of the aliens power (Alexander [63]).
Ch III and ministerial citizenship deprivation
Alexander, Benbrika 2 and Jones cement a clear framework for evaluating Ch III compliance of a ministerial citizenship revocation power. The determinative question is one of characterisation: is the ministerial power properly characterised as punitive? (Benbrika 2 [35]; Jones [43]. See also the High Court’s recent decision on indefinite detention NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA (‘NZYQ’) [44]). This is determinative because, if a citizenship revocation power is properly characterised as punitive, its purported conferral on a Minister is invalid for inconsistency with the Constitution’s vesting of Commonwealth judicial power exclusively in the courts referenced in s 71 (that is, the primary separation rule, see Waterside Workers’ Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434).
Importantly, a citizenship revocation power will be properly characterised as punitive if:
(a) the purpose of the power identified in the statute is one of denunciation of and retribution for criminal conduct — as was held in Alexander and Benbrika 2 (see Benbrika 2 [23] and [26]-[27]); or
(b) the power is not reasonably capable of being seen as necessary for a legitimate non-punitive purpose — the dispositive issue in Jones (see Jones [41], [63], [149], [188]).
The second-mentioned possibility would seem to indicate that citizenship revocation, like detention, has a default punitive characterisation which prevails unless the power is reasonably capable of being seen as necessary for a legitimate non-punitive purpose (see Jones [76]-[77] (Gordon J). Compare [39] (Kiefel CJ, Gageler, Gleeson and Jagot JJ), [149] (Edelman J), [188] (Steward J)).
Whether a citizenship revocation power for non-punitive statutory purposes is properly characterised as non-punitive requires an assessment of the relationship between means and ends but does not import notions of structured proportionality (Jones [43]-[44], [78]). We note that Gordon J wrote a compelling dissent in Jones identifying that the connection of the s 34 power to its legitimate non-punitive purpose grew more tenuous with the elapse of time from conviction.
The exclusivity of judicial power to punish withstands pressure testing
The Court’s application of this framework in Alexander and Benbrika 2 is a significant vindication of the traditional understanding of the exclusivity of judicial power to punish criminal guilt. As is well-known, judicial application of Ch III is informed by certain anterior constitutional understandings that are recognised as foundational to the Ch III scheme and accordingly hard-wired into its operation. Chief among these is the understanding that certain functions ‘by reason of their nature or because of historical considerations, have become established as essentially and exclusively judicial in character’: Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 27. As the questions stated for the Full Court in Alexander, Benbrika 2 and Jones reflect, ‘punishment of criminal guilt’ is one such function which requires an exercise of judicial power and as such can only be performed under Commonwealth authority by a Ch III court.
The cases represent something of a pressure-test for the traditional conception of punishment as an exclusively judicial power and its place in Ch III jurisprudence. Over the three cases, and particularly in Benbrika 2, the Court addressed and defused multiple Commonwealth arguments apt to weaken or undermine the exclusivity of judicial power to punish criminal guilt. In Alexander, the Court rejected an argument that the exclusivity of judicial power to punish is confined to punishment in the form of detention in custody of the state (see Benbrika 2 [20]). In Benbrika 2, in its efforts to minimise the exclusivity of judicial power, the Commonwealth embraced a more radical line of argument. It conceded that s 36D reposed a power to punish criminal guilt in the Minister but argued it was nonetheless consistent with Ch III because: (i) punishment consequent upon adjudgment of criminal guilt by a court is not an exclusively judicial function; and/or (ii) punishment by means of citizenship stripping is not a form of punishment which Ch III commits exclusively to judicial power.
Both versions of the Commonwealth’s argument were resoundingly rejected by the Court. Acceptance of either version would have fundamentally undermined the exclusivity of judicial power to punish (compare Benbrika 2 [97], [101] (Edelman J)) for no more principled reason than expediency (compare Benbrika 2 [75] (Gordon J)). Minimising the exclusively judicial function in the ways proposed by the Commonwealth would jeopardise the substantive values that exclusivity seeks to protect. It is notable that five justices emphasised that the Commonwealth’s arguments failed to sufficiently recognise that a core purpose of the Ch III scheme is to entrench and promote structural protection against arbitrary state punishment (see Benbrika 2 [35], [45] (Kiefel CJ, Gageler, Gleeson, Jagot JJ; [67], [75] (Gordon J)).
Ch III and the impossibility of Commonwealth non-criminal punishment
Benbrika 2 and Jones consolidate recognition that Ch III operates to preclude Commonwealth punishment on a basis other than breach of the law by past acts (for brevity, ‘non-criminal punishment’). This would seem to be emerging as a key organising principle for evaluating the compliance with Ch III of Commonwealth powers to impose involuntary hardships historically regarded as punishment, such as citizenship stripping (compare Benbrika 2 [22]).
As one of us discusses elsewhere, the Court’s recent judgments on court-ordered preventive detention regimes show a broad consensus emerging that the conception of punishment relevant to the operation of Ch III is one which rejects state power to impose non-criminal punishment. Doctrine identifying punishment for criminal guilt as an exclusively judicial function holds space for articulating deeply-rooted constitutional values which then guide the operation of Ch III. More specifically, the exclusivity of judicial power to punish criminal guilt seeks to protect a traditional understanding that subjects may be punished for breach of the law, but nothing else (see Minister for Home Affairs v Benbrika [2021] HCA 4 [19], [71]. See also Garlett v Western Australia [2022] HCA 30 [127]-[130]).
Benbrika 2 lends further support to this commitment (Benbrika 2 [35]-[36]. See also NZYQ [28]). The joint reasons endorse the account provided by Gageler J in a succession of cases: the Ch III conception of punishment as an exclusively judicial function is a specific conception with a specific legal history in which the exclusivity of judicial power to punish criminal guilt goes hand-in-hand with a categorical rejection of punishment without criminal guilt. The exclusivity of judicial power to punish criminal guilt is an aspect of a larger understanding of state power to punish, and cannot be viewed in isolation from the essential commitments articulated in that larger understanding. Moreover, the Ch III scheme that makes the exercise of Commonwealth judicial power exclusive to courts seeks to promote and protect those deeply-rooted commitments, embedded in the conception of punishment as an exclusively judicial function.
The impossibility of Commonwealth non-criminal punishment is key to evaluating the Ch III compliance of a power that comes within the constitutional conception of ‘punishment’ because it pursues non-punitive statutory purposes in an arbitrary way. As mentioned earlier, Alexander, Benbrika 2 and Jones establish that ministerial citizenship revocation power will be properly characterised as punitive in two circumstances:
(a) where the purpose of the power is to punish criminal conduct; or
(b) where the power does not escape its default characterisation as a punishment because it is not reasonably capable of being seen as necessary for a legitimate non-punitive purpose.
In the first circumstance (illustrated by Alexander and Benbrika 2), the inconsistency with Ch III is self-evident on the assumption that punishing criminal guilt is an exclusively judicial function. Where power is conferred on a Minister for a punitive purpose (as was the case in s 36B and s 36D), this usurps the exclusively judicial function of punishing criminal guilt. But how precisely would inconsistency with Ch III arise if a power were characterised as ‘punishment’ simply because of the manner in which it pursues non-punitive statutory purposes? In such cases, it is open to say that the statutory non-punitive purpose is not the ‘true’ purpose (compare Gordon J, Jones [73], [78]). But it does not follow that the power’s true purpose is to punish criminal guilt.
Why, then, is a measure that is a ‘punishment’ because of the way it pursues non-punitive purposes inconsistent with Ch III? The answer is that the conception of punishment as an exclusively judicial function relevant to the operation of Ch III is one which brings with it a commitment that the state can only punish for breach of the law by past acts. If a citizenship revocation power pursues a legitimate non-punitive purpose in an arbitrary way, the inconsistency with Ch III arises because the power is a form of punishment (because it does not escape its default characterisation) that is not based on breach of the law by past acts. It falls outside the bounds of Commonwealth power to punish for breach of the law but nothing else (Benbrika 2 [35], [36]).
Ch III-compliant punitive citizenship revocation by court order?
In the wake of Benbrika 2, the Government moved quickly to introduce a Ch III-compliant mechanism of citizenship revocation for disallegient conduct. The Australian Citizenship Amendment (Citizenship Repudiation) Bill 2023 provides for punitive citizenship revocation to be imposed by a Ch III court as part of sentencing upon conviction for an offence (compare Benbrika 2 [48]).
It is relevant to bear in mind that, on the ascendant view described earlier, it is not enough that Commonwealth punishment is imposed by a court exercising judicial power. Consistency with Ch III requires that Commonwealth punishment be imposed by a court exercising judicial power on the basis of criminal guilt (i.e. breach of the law by past acts). Compliance with this requirement should be evaluated as a matter of substance. The basic model adopted in the Australian Citizenship Amendment (Citizenship Repudiation) Bill 2023 would seem to meet this requirement by making the power part of the sentencing process (compare Benbrika 2 [48]).
Looking to the future, the requirement will discipline alternatives. For example, the mere circumstance that a punitive citizenship stripping order is made by a court after conviction would not be sufficient for Ch III compliance. Given the emerging understanding of Commonwealth power to punish, punitive citizenship stripping must in substance be based on the person’s breach of the law by past acts. Court ordered citizenship stripping will only be compliant with Ch III if conferred as a judicial power and:
(a) the statutory purpose is a legitimate non-punitive one and the power is reasonably capable of being seen as necessary for that purpose; or
(b) the statutory purpose is punitive and the power is, in substance, based on conviction for breach of the law by past acts.
Emily Hammond and Rayner Thwaites are Senior Lecturers at Sydney Law School.
Suggested citation: Emily Hammond and Rayner Thwaites, ‘Citizenship stripping and the conception of punishment as an exclusively judicial function’ (8 December 2023) <https://www.auspublaw.org/blog/2023/12/citizenship-strpping-and-the-conception-of-punishment-as-an-exclusively-judicial-function>