Sangeetha Pillai

Since 2015, Australia has had controversial citizenship-stripping laws as a part of its national security toolkit. These laws apply to dual citizens deemed to have repudiated their allegiance to Australia by virtue of their activities, and were first introduced in response to an increase in citizens travelling overseas to serve as ‘foreign fighters’ for organisations like Islamic State. In the recent decision of Alexander v Minister for Home Affairs [2022], the High Court found a provision of these laws, s 36B of the Australian Citizenship Act 2007, to be invalid in its entirety by a 6:1 majority (Steward J dissenting). For many, this was not an unexpected outcome: since the earliest days of Australia’s citizenship-stripping laws, multiple experts have warned that there was a likelihood that legislating for conduct-based denationalisation without conviction carried a serious risk of constitutional invalidity. This post unpacks key aspects of this decision. It focuses on the lines of agreement and disagreement amongst members of the Court with respect to the two issues that attracted the most consideration: whether s 36B infringed the separation of judicial power, and whether it fell within the scope of the naturalization and aliens power in s 51(xix) of the Constitution.

Brandon Smith

The High Court has once again entered the fray on the concept of materiality in Nathanson v Minister for Home Affairs [2022] HCA 26 (Nathanson). This time, the Court clarified the evidentiary burden imposed on a judicial review applicant to show the realistic possibility of a different outcome where there is a denial of a fair opportunity to be heard. While the appeal was allowed 6:0 from the majority judgment of the Full Court of the Federal Court (Steward and Jackson JJ), the High Court has again divided on the question of onus for materiality. While this decision arises in the context of decision-making under the Migration Act 1958 (Cth), it may have broader ramifications for judicial review applications involving issues of procedural fairness.

Anthony Gray

The highly emotive subject of animal cruelty, and the legality of attempts to bring its possible existence to the attention of the public, was considered in a recent High Court decision. Anti-cruelty activists challenged the validity of a surveillance law that could be applied to their activities. The High Court dismissed the activists’ challenge, but in so doing, significant differences on key issues were apparent. The case also demonstrates that for a constitutional challenge to legislation based on the implied freedom of political communication, the requirements of proportionality, as applied by the current High Court, can present very high, if not virtually insurmountable, hurdles to overcome.

Welcome to the September edition of the AUSPUBLAW Australian Public Law Events Roundup.