High Court upholds minister's power to revoke citizenship of those 'convicted of a serious offence'

It was alleged that the minister encroached upon the judiciary's role under the Constitution

High Court upholds minister's power to revoke citizenship of those 'convicted of a serious offence'

The High Court has upheld the authority of the minister administering the Citizenship Act to revoke Australian citizenship if they have been "convicted of a serious offence."

In Jones v Commonwealth of Australia [2023] HCA 34, Phyllip John Jones, a British citizen born in the UK in 1950, migrated to Australia in 1966. In 1988, he became an Australian citizen. However, in 2003, he was convicted of five counts of indecent dealing and indecent assault, with two counts related to pre-citizenship conduct.

In 2018, the then-Minister for Home Affairs, Immigration and Border Protection revoked Jones’ Australian citizenship under the Citizenship Act. By then, Jones had been an Australian citizen for 29 years and had lived in Australia continuously for 52 years. Since arriving in 1966, he had left Australia only twice, for around 27 days. On both occasions, he had travelled on vacation on an Australian passport.

As a result of the minister's decision, Jones immediately ceased to be an Australian citizen by operation of the Citizenship Act. He was immediately taken to have been granted an ex-citizen visa under the Migration Act 1958.

In 2021, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs cancelled his ex-citizen visa, and he was later taken into immigration detention, where he has remained since then.

Jones brought the matter to the High Court, challenging the validity of s. 34(2)(b)(ii) of the Australian Citizenship Act, empowering the minister to revoke a person's Australian citizenship under certain circumstances. Specifically, the minister has the power to revoke a person's Australian citizenship acquired by conferral if the person has, at any time after making their application to become an Australian citizen, been "convicted of a serious offence" and the minister is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen.

The court noted that a person has been "convicted of a serious offence" if he has been convicted of an offence against an Australian law or a foreign law for which the person has been sentenced to death or imprisonment for at least 12 months. In addition, the person committed the offence at any time before becoming an Australian citizen.

Jones challenged the constitutionality of the provision, arguing that it exceeded the powers granted by the Constitution and encroached upon the judiciary's role under the Constitution.

In a majority decision, the High Court rejected Jones's challenge. The court held that s. 34(2)(b)(ii) is valid, ensuring the integrity of the naturalisation process. The court said that it provides for an act of denaturalisation, which is supported by the "naturalisation" limb of s. 51(xix) of the Constitution. The court found that the condition imposed on the plaintiff's naturalisation is reasonably capable of being seen as necessary to protect the integrity of the naturalisation process.

Further, the court said that the power it confers on the minister to denaturalise an Australian citizen is not a power to punish criminal guilt and is not otherwise exclusively judicial. Accordingly, the court concluded that the Commonwealth Parliament's conferral of that power on the minister rather than a court is not contrary to the Constitution.

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