A high court decision striking down the home affairs minister’s power to cancel citizenship of dual nationals suspected of terrorist activities could also call into question the legality of orders to ban citizens from re-entering Australia.
When the high court struck down the power to strip dual nationals of Australian citizenship, the Albanese government said it was “no threat to Australia” because of other powers to prevent the return of citizens suspected of offences.
But academic Kim Rubenstein and Greens senator Nick McKim have called on the government to reconsider the regime to prevent suspected foreign fighters and their associates returning to Australia because the court’s decision indicates citizens may have a right to safe haven that could see temporary exclusion orders similarly struck down.
In June the high court ruled in favour of Delil Alexander, a Turkish citizen whose Australian citizenship was cancelled in July 2021 due to an Asio assessment that he had joined Islamic State, engaged in foreign incursions and recruitment.
Alexander was found guilty of unspecified offences by a Syrian court in January 2019 due to admissions he says were obtained under torture. He was later pardoned but remained in detention because he could not return to Turkey or Australia.
The high court ruled that the home affairs minister cannot revoke the Australian citizenship of dual nationals, because that is an exclusively judicial function, that is, judging criminal guilt.
In a joint judgment chief justice Susan Kiefel, justices Patrick Keane and Jacqueline Gleeson said that citizens are entitled to return to Australia as a safe haven “subject only to the operation of the criminal law administered by the courts”.
The reasoning in the case has re-enlivened concerns the temporary exclusion order regime, a mechanism by which the minister can prevent people from returning to Australia without meeting certain conditions, may also be struck down.
Constitutional law academic, Kim Rubenstein, told Guardian Australia the laws “could well be” struck down by the court, in light of its reasoning on dual nationals.
“The question then is, is there a punitive element to the temporary exclusion orders or does the specificity of the criteria in the act mean it is purely protective?” Rubenstein said.
Rubenstein said if people subject to exclusion orders are suspected of criminal offences “then the better course within a liberal democratic context, in light of the significance of citizenship entitling a citizen [to a safe haven] … is to look at ensuring the person is charged and brought back for conviction in Australia”.
McKim, the Greens home affairs spokesman, said that “on the face of it, the same argument the high court used to overturn power to strip citizenship equally applies to the temporary exclusion order regime”.
“We’ve got significant concerns that the temporary exclusion order powers are unconstitutional,” he said.
McKim called on the Albanese government to “immediately” get legal advice from the solicitor general. “I think it improbable that it could be made constitutional by amendment, it may need to be repealed.”
In April 2019, Labor members of a parliamentary inquiry noted concerns from the Law Council and professor Helen Irving that temporary exclusion orders “infringe the constitutional right of abode”. Three months later Labor waved through legislation supporting the orders.
When the Alexander decision was handed down, the attorney general, Mark Dreyfus, and home affairs minister, Clare O’Neil, said they would study the decision’s implications.
“The Australian government has a range of measures available to manage the risk posed to Australians by individuals offshore including the temporary exclusion order regime which can prohibit an individual returning to Australia for up to two years,” they said.
The parliamentary joint committee on intelligence and security is reviewing the exclusion order regime, but the inquiry was held over until after the 2022 election.
In a submission to that inquiry, the Australian Human Rights Commission said exclusion orders could be targeted at “relatives or associates of Australian foreign fighters, who may not have engaged in any criminal conduct at all”.
It recommended raising the bar so the minister could only exclude a person if they were reasonably suspected of “being involved in terrorism-related activities outside Australia”, and exclusion would “substantially assist in preventing the provision of support for, or the facilitation of, a terrorist act”.
The AHRC noted the act had a review mechanism which it labelled “constitutionally suspect”, because it allowed a non-judicial body to rule on the validity of an exclusion order, an exercise of judicial power.
It recommended that the minister should have to apply to a court before issuing exclusion orders.
When the bill was first reviewed in April 2019, the committee noted the home affairs department had received advice from the solicitor general and concluded “that the better argument in relation to separation of powers was that there is not a constitutional problem”.
But then president of the Law Council, Arthur Moses, submitted it was “not constitutional” to create a “fiat of the executive, [by which] a citizen of this country could be deprived entry”.
In July 2019 Dreyfus said that one-third of the people of concern are children under five, who could be managed with a regime of control orders rather than kept out of Australia. “I have a view that [de-radicalisation] is much better done here,” he said.
