July 2022

The Nation Reviewed

Alien nation

By Kieran Pender
Illustration by Jeff Fisher
Recent High Court decisions are testing who can be considered citizens, and who the federal government can exclude from Australia

Section 51 of the Constitution is a curious thing. Approximately halfway through Australia’s founding document, the clause sets out a laundry list of issues over which the federal government can make legislation. The outcome of tense negotiations between the Australian colonies over the powers they were prepared to cede, or share, in becoming a federation, section 51 is imbued with a mix of high symbolism and banal practicality. These are the powers that make a nation: from lighthouses and buoys to the influx of criminals, from weights and measures to taxation – and aliens.

More than a century later, this neatly itemised list remains a central feature of constitutional litigation, and was immortalised in the popular consciousness by Dennis Denuto in The Castle. “I don’t even know Roman numerals,” the suburban solicitor muttered in one iconic scene. “Section 51 … second from the bottom?”

And so it was that on a cold Canberra morning in June, the High Court delivered its latest decision canvassing the breadth of these powers, this time in relation to subsection (xix): “Naturalization and aliens” (just one below the provision Denuto was attempting to identify). The unusual case asked whether citizenship-stripping provisions enacted under the Morrison government, and used by home affairs minister Karen Andrews against Delil Alexander, who had allegedly fought for Daesh in Syria (he denied this), were constitutional. By a six to one majority, the court found that they were not.

“It was invalid,” a summary issued by the court outlined, “on the basis that it reposed in the Minister the exclusively judicial function of adjudging and punishing criminal guilt.” This was contrary to another part of the Constitution, Chapter III, which mandates a clear separation of powers. “Section 36B of the Citizenship Act is invalid to that extent,” wrote Chief Justice Susan Kiefel and justices Patrick Keane and Jacqueline Gleeson in their reasons, “and Mr Alexander remains an Australian citizen.” The outcome paves the way for Alexander to be released from a Syrian jail, where he had reportedly been tortured, and returned to Australia.

But the relative unanimity of the judgement masks a deepening rift within the High Court over the meaning of the word “aliens” in section 51(xix). The court agreed that the citizenship-stripping laws contravened the separation of powers, but split over whether the laws would, otherwise, have been supported by the aliens power in the Constitution. This divergence prompts important questions about the nature of the Australian political community: Who belongs in Australia, and who can the federal government exclude?

In a nation founded on dispossession, with a population largely made up of immigrants (some recent, some historic), what does it mean to be an alien? How much power should the High Court permit the federal government to regulate “aliens” if so many of us might meet that description?

The modern constitutional controversy began in 1982, in the case of Pochi v Macphee. Luigi Pochi was born in Italy, migrated to Australia in 1959 and married an Australian. He was, as one judge observed, “in every way an Australian” – except he never gained citizenship. When the government sought to deport him to Italy after he was imprisoned for a minor crime, Pochi went to the High Court arguing that the government had no power to deport him – he was not an alien – because he had been absorbed into the Australian community. He lost. Despite his practical integration into Australian society, Pochi’s failure to gain citizenship made him liable to deportation. He was still an alien.

In the following decades, the reach of the aliens power has expanded. Before Pochi’s case, immigration legislation generally prohibited the deportation of non-citizen residents if they had lived in Australia for more than a decade. The limitation was then scrapped. In one subsequent case, a British citizen who had resided in Australia for 30 years, and voted in domestic elections, was held to be an alien. In another, a Maltese immigrant who had arrived in Australia aged two, and resided here for 69 years, was considered an alien.

In more recent cases, the High Court has toyed with the prospect that even people born in Australia but holding dual citizenship might be aliens. That point had not yet been firmly decided when the Alexander court case arose. Born in Sydney to Turkish parents, Alexander is an Australian-Turkish dual citizen. This left him liable to having his Australian citizenship stripped, as those laws only apply to dual citizens.

In the Alexander case, the federal government sought the continued expansion of the aliens powers. The solicitor-general, Stephen Donaghue QC, argued that the law was within its power as it only applied to dual citizens and governed conduct, such as terrorism, that constituted a repudiation of Australian citizenship. A majority of the High Court accepted his submission. Kiefel, Keane and Gleeson (with justices Stephen Gageler and Simon Steward separately agreeing) held that it was open, under the aliens power, for the government to strip Australian citizenship from dual citizens in such circumstances.

But Justice James Edelman was distinctly unimpressed. The interpretation proposed by the government, he said, would have “the likely consequence that potentially half of the permanent population of Australia are aliens, being dual (or more) citizens, being born overseas, or having at least one parent who does not hold Australian citizenship”.

Starting with Pochi, he noted, the “compounding effect” of the High Court’s judgements has been that people “unconditionally absorbed into the Australian political community were still within the reach of the aliens power”. Describing this as the “imperial march of the application of the aliens power”, Edelman said that the concept of alienage had been stretched to “beyond breaking power”.

This sustained focus of the High Court, and particularly of Edelman, on the aliens power is peculiar, given the case was decided on the separation-of-powers ground (and so the aliens question could have been ignored). But the war of words anticipates future clashes over the aliens power’s breadth.

One such clash is imminent. Right now, the High Court is considering an attempt by the federal government to overturn a landmark 2020 case, Love, where a small exception to the aliens power was established. In that case, the High Court – by a slender, four-to-three majority – held that non-citizen Indigenous Australians are not aliens, and hence cannot be deported, given their unique connection to Country. Following the retirement of two judges, in the Love majority, the Morrison government sought to scrap the exception, in a case called Montgomery.

This latest dispute over the aliens power was heard in April and a decision is expected before the end of the year. (The new Albanese government has not yet taken any action, but could, in theory, discontinue the case.) Sangeetha Pillai, a constitutional lawyer and a senior research associate at the University of New South Wales, suggests Montgomery was in the back of the bench’s mind as they determined Alexander. “The High Court is inevitably going to have to look again at the scope of this power in the near future,” she says.

Pillai says that while Edelman’s narrow approach to the aliens power is unlikely to enjoy majority support anytime soon, it has “much to commend it in practical terms, offering a suggestion for how the complicated and confusing jurisprudence on the aliens and immigration powers can be reconciled, and how the relationship between Parliament and the Court can be clarified”. The upside for Edelman, and all Australians potentially within the grasp of this expansive aliens power (this author – a dual citizen – included), is that time is on the judge’s side.

Appointed in 2017, Edelman was the fourth-youngest appointment to the High Court in history. For his age alone it was an unusual appointment. Although impeccably credentialled and somewhat of a legal prodigy, the last time someone so young was appointed to Australia’s apex court was in 1930. Five years into his tenure, Edelman, 48, still has more than two decades remaining on the bench (High Court judges must retire at 70). “Given that he’s guaranteed a place on the bench for the next 22 years, there’s every chance that his position will be refined, built upon and ultimately prove influential over time,” says Pillai.

There is thus a sense in the Alexander judgement that Edelman is writing for the future, not the present. “At some point it will become necessary to confront the correctness of those [earlier] decisions rather than tiptoeing around them,” he wrote. That moment has not yet come. But the imperial march of the aliens power may, at last, be slowing.

Kieran Pender

Kieran Pender is a writer and lawyer. He is an honorary lecturer at the Australian National University College of Law.


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