The Australian parliament’s power of banishment

Australia’s High Court needs to clearly define the limits of parliament’s power to strip Australians of their citizenship, Henry Palmerlee writes.

Euripides wrote 2,500 years ago that it is ‘life’s worst torment to lose your true home and native land’. Given the gravity of this torment, a government’s power to banish people from their home by stripping them of citizenship must surely have constitutional limits.

In its June 2022 decision in Alexander v Minister for Home Affairs, the High Court of Australia, while implying that these limits exist, failed to define them. The case should sound alarm bells for all those who value their right to call Australia home. The country’s highest court must take a more proactive approach to clarifying the limits of parliament’s power to visit grave sanctions upon its citizens.

The case saw Delil Alexander – a dual Turkish-Australian citizen imprisoned in Syria for terrorism offences, charges he denied – challenge the constitutional validity of section 36B of the Australian Citizenship Act 2007 (Cth). This section allowed a person to be stripped of Australian citizenship for engaging in certain conduct or travelling to designated areas, like the part of Syria where Alexander was arrested. Its stated aim was to remove the citizenship of Australians who had repudiated their allegiance to the country.

Although ultimately striking down the section on different grounds, the court indicated that stripping citizenship for disallegiance is within parliament’s power under section 51(xix) of the Australian Constitution, also known as the ‘aliens power’.

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This reasoning was based on a nebulous concept known as the ‘Pochi limit’. The Pochi limit is a rule derived from a 1982 case which saw an Italian migrant, Luigi Pochi – who never gained Australian citizenship despite marrying an Australian women and residing in the country for decades – arrested and deported.

The High Court, faced with Mr Pochi’s case, created the so-called ‘Pochi limit’: that parliament cannot classify as an alien anyone that would not be described as such by a reasonable person. Mr Pochi, who was not an Australian citizen, was not such a person, meaning his challenge against deportation failed. In other words, within the Pochi limit, parliament may determine who is a non-citizen through legislation. So far, so good.

However, the High Court has repeatedly failed to define the full scope of the Pochi limit and the ‘aliens power’. In the Alexander ruling, it became startlingly evident that this failure – even refusal – to do so is incompatible with the High Court’s role as a constitutional ‘bulwark of freedom’ against government overreach.

Every judge agreed that rendering an Australian an alien for ‘repudiating their allegiance’ to Australia falls within the Pochi limit. However, the limit still prevents parliament from giving any definition it likes to the word ‘allegiance’. A disallegiant act must still be something that fit within the ‘ordinary understanding’ of what an alien is.

Indeed, both Justices Gordon and Edelman suggested that some conduct prohibited by the Act fell short of the ‘extreme, wrongful acts’ necessary for an individual to be called disallegiant. In other words, there is a definition of allegiance separate from whatever parliament wishes allegiance to mean.

And yet, no judge gave such a definition. Various abstract descriptions of disallegiance were provided, such as conduct ‘so reprehensible that it is radically incompatible with the values of the community’.

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However, these poetic definitions of disallegiance all fail to explain what allegiance actually means. As such, the limits on parliament’s power of banishment are tautological – to owe allegiance to Australia means not behaving disallegiantly. Kafka rolls in his grave.

Why should the High Court have defined allegiance more explicitly? Most importantly, because the power of banishment is not a trivial matter to be tested on an ad hoc basis, as Euripides alluded to two and a half millennia ago.

It is bizarre for the High Court to recognise this seriousness and agree that a definition of allegiance is required to put a limit on banishment, yet leave that definition to another day.

As the guardian of the constitution, the High Court must approach constitutional cases proactively, with the aim of clearly stating the limits of parliament’s power to impose grave sanctions on citizens.

Clarity is also desirable from a jurisprudential perspective. The Alexander case presented a golden opportunity to define one element of the Pochi limit, an opportunity which the court declined.

Of course, it is not reasonable to ask the court to describe every person who may not have their citizenship stripped. However, ‘allegiance’ is only one small component of the Pochi limit. If the court wishes to allow the scope of this limit to emerge organically over time, then it must proactively define necessary concepts like allegiance when given the chance.

This is crucial becuase the meaning of the term ‘allegiance’ has long been elastic, shifting throughout Australia’s constitutional history. Although parliament may define allegiance within the Pochi limit, it is incumbent upon the High Court to state where that limit lies.

The Alexander ruling was a lost opportunity – the High Court’s failure to define the limits of banishment leaves the security of all Australian citizens uncertain. The court must seize subsequent chances to clarify this limit with both hands.

Images: Keisuke Higashio on Unsplash & Ian Fieggen on Wikimedia Commons