Citizenship decisions raise the prospect of Australian judicial activity


On June 8, the High Court of Australia made a controversial decision to revoke the government’s authority to deprive citizens of their involvement in the activities of suspected terrorists. The court ruled in favor of Delil Alexander, a Turkish citizen whose Australian citizenship was revoked in 2021, due to the National Security Agency’s assessment that he joined the Islamic State and engaged in foreign invasion and recruitment. Was given. In most cases, the court-ordered Alexander citizenship must be restored with the Australian Government to pay the costs.

In June 2021, ASIO, Australia’s national security agency responsible for protecting the country from spies and terrorism, arranged a trip to Syria by then-Minister of Interior Karen Andrews and Alexander by a terrorist facilitator. He said he was part of a group of religious extremists. Hamdia Lukudis. In April 2013, he traveled to Turkey and Syria and joined the Islamic State by August, four months later.

Alexander’s capture in Deir ez-Zor in November 2017 coincided with Syria’s major military operations, backed by Russian troops and pro-government militia, to conquer the state from Islamic State rule. He was arrested and convicted in a Syrian court in January 2019.

As a result, in July 2021, Andrews stripped Alexander’s second (Australian) citizenship, the discretionary power granted by citizenship law, for “denying loyalty to Australia.”

However, Alexander’s lawyer appealed to the High Court, partly because he needed to regain his citizenship because he was aware of the “risk of serious human rights abuses.” Undoubtedly, this decision was challenged for reasons including having a “punishing personality” with serious consequences for the individual.

In contrast, government lawyers claimed that the relevant ministers adhered to all three conditions required for the decision. This act indicates that the person has denied loyalty to Australia, and it is against the public interest for this person to remain an Australian citizen.

On June 8, the High Court ruled that the minister could not deprive an individual of citizenship for suspected acts of terrorism. In a joint decision, Judge Susan Kiefel and Judge Patrick Keane and Jacqueline Gleeson said that Australian citizenship is “qualifying a person to be free in this country and return there as a safe haven.” Insisted that it was a “guarantee”.

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Susan Keefel was appointed Supreme Court Justice of the High Court on January 30, 2017 in Canberra, Australia. (AAP Image / Mick Tsikas)

Judge Michelle Gordon and Judge James Edelman reached the same conclusion. In a summary of their ruling, the Great Court said:pdf):

“Some members of the majority argued that … the substantive effect of the minister’s decision … was to deprive plaintiffs of the right to and from Australia freely. This purpose and effect of the law is disciplinary in nature. Was … The two judges came to the same conclusion [the provision] It was punitive in character. It empowered the minister to suspend citizenship as a sanction for past conduct. This is similar to a historical form of punishment and has serious consequences for the individual. “

Judge Simon Steward was the only member of the court to challenge the majority. He argues that the law allows the revocation of citizenship in order to “acts that are incompatible with the shared values ​​of the Australian community constitute a break in bonds between citizens and a refusal of loyalty.” Reminded me. “The ability to impose certain penalties is not necessarily the power exclusively entrusted to the judiciary of the government,” he said.

This is not the first time a High Court decision has been involved in controversy.Recently, in the case of 2020 Love v commonwealthTwo individuals who have committed crimes in Australia and were born abroad are allowed to stay in Australia after the court found a third category of persons who were neither Australian citizens nor non-citizens under Australian Citizenship Law. I did.

The plaintiffs in the Love case were born in Papua New Guinea and New Zealand. Both were sentenced to imprisonment for serious acts of domestic violence and for serious assaults that caused physical harm. The government tried to deport both, claiming they were not citizens. Therefore, it was within its discretion to deport them in accordance with Article 51 (xix) of the Australian Constitution.

However, foreigners who the High Court admits to be “Aboriginal”, who may have committed a serious crime by a majority of four or three, are from Australia, even if such a person was born abroad. We have ruled that we cannot be banished. I don’t have Australian citizenship.

Epoch Times Photo
People can be seen at the Citizenship Ceremony at the Government House on January 26, 2022 at the Australian Day Celebration in Melbourne, Australia (AAP Image / James Ross)

In other words, I’m writing a legal journalist Chris Merritt: “Foreign criminals with Aboriginal ancestry, even if they were born abroad and retain citizenship in another country, can no longer be treated as foreigners for immigration law purposes.” It also means that if an Aboriginal elder or community leader decides to have an Aboriginal ancestor, he can thwart the move to deport foreign criminals.

The case of love can be fairly described as one of the most radical cases of judicial activity in Australian history.

Judicial activism explains the tendency of some judges to consider favorable outcomes, attitude preferences, and political values ​​when interpreting applicable law.

Professor Brian Garrigan describes this as “judicial rule or influence over political or administrative institutions.”

According to Human Rights Commissioner Lorraine Finley, “Our democracy undermines when unelected and irresponsible judges go beyond the role of justice into the realm of politics … Judges from the judiciary. The rules of law inevitably weakened as we began to turn towards politics. “

Unfortunately, for the past two years, the High Court of Australia has certainly been more adventurous in their activities. Such activism was certainly prominent in the Love case, as it could have happened in the Alexander case, which is directly related to the creation of new “rights” by unelected and irresponsible judges.

Of course, the decision of discretion under the law within the Constitution of Australia is the decision of the relevant government sector. For now, non-elected, irresponsible judicial ventures are restricted to interference unless provided in their own discretion to suddenly replace the opinions of elected governments with their own. Enter a field where it is almost impossible to establish.

The views expressed in this article are those of the author and do not necessarily reflect the views of The Epoch Times.

August Zimmermann


August Zimmermann is a professor and director of legal affairs at the Sheridan Institute for Higher Education in Perth. He is also Chairman of the Western Australia (WA) Law Theory Association, Editor-in-Chief of Western Australian Law Scholars, and a member of the WA Law Reform Commission from 2012 to 2017. Notre Dame Australia has authored numerous books such as “Direito Constitucional Brasileiro”, “Western Legal Theory” and “Christian Foundations of the Common Law”.