Benbrika case highlights struggle between courts, government

Who has discretionary power over who gets to be an Australian citizen or not? The High Court is wrestling control from the government, which seems unwilling to cede it.

(Image: AAP/Mick Tsikas)

Way back in 2015, Tony Abbott’s government introduced a bill inserting a couple of new sections in the Citizenship Act, which provided for having your Australian citizenship cancelled by the minister if you’d done bad things that he or she considered inconsistent with your “allegiance to Australia”.

I wrote at the time that I was “about 60% convinced it’s constitutionally invalid”. Took eight years, but turns out I was right.

The High Court has killed off — hopefully finally — the notion that the executive arm of government can purloin for itself the power to impose the ancient punishment of banishment from the realm, which is what citizenship revocation really is. That, like all criminal punishment, is a function the constitution reserves exclusively for the courts.

Read more about who holds the power over Australian citizenship…

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