Mr Alexander was born in Australia in 1986 and acquired both Australian and Turkish citizenship at the time of his birth. His case in the original High Court challenged the constitutional validity of section 36B Australian Citizenship Act. That section provides for cessation of citizenship if certain conduct is engaged in (eg engaging in foreign incursions) outside of Australia. Perhaps it is sufficient to say that the case was conducted through a litigation guardian because his family and lawyers have not been able to contact him since 15 July 2021, shortly after he told them that he was being transferred to the Branch 235 prison in Damascus, Syria, operated by Syrian intelligence.

Like many constitutional law judgments (Alexander v Minister for Home Affairs [2022] HCA 19) it is long and complex with one dissenting judgment (Stewart J upheld the validity of 36B). The most succinct reason that I can distill for the invalidity was expressed by Gordon J who found that denationalisation is a punishment and at [173]: “Section 36B is contrary to Ch III. It confers on the Minister the power to impose a sanction upon a person (involuntary cessation of citizenship) for engaging in past conduct of a kind identified as warranting the condemnation of the Australian community. It permits the Executive to do what it cannot: to “exercise judicial power and act as prosecutor and judge to punish breach of law by executive fiat or decree“.

There is a lot of quite interesting historical discussion about deprivation of citizenship in ancient Rome and outlawry from the time of the Norman conquest. In any event 36B was invalid because it contravened the separation of powers. Mr Alexander is still an Australian citizen and is (presumably) still in a Syrian prison.

Creative commons acknowledgment for the photograph.

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