Jones v Commonwealth of Australia [2023] HCA 34

HIGH COURT OF AUSTRALIA

KIEFEL CJ,

GAGELER, GORDON, EDELMAN, STEWARD, GLEESON AND JAGOT JJ

PHYLLIP JOHN JONES PLAINTIFF

AND

COMMONWEALTH OF AUSTRALIA & ORS DEFENDANTS

Jones v Commonwealth of Australia

[2023] HCA 34

Date of Hearing: 15 June 2023

Date of Judgment: 1 November 2023

B47/2022

ORDER

The questions stated for the opinion of the Full Court in the special case filed on 4 April 2023 be answered as follows:

Question 1: Is s 34(2)(b)(ii) of the Australian Citizenship Act 2007 (Cth) invalid in its operation in respect of the plaintiff because:

(a) it is not supported by s 51(xix) of the Constitution; or

(b) it reposes in the Minister the exclusively judicial function of punishing criminal guilt?

Answer: No.

Question 2: What, if any, relief should be granted to the plaintiff?

Answer: None.

Question 3: Who should pay the costs of the special case?

Answer: The plaintiff.

Representation

S H Hartford Davis with D J Reynolds, S J Hoare and K E W Bones for the plaintiff (instructed by Fisher Dore Lawyers)

S P Donaghue KC, Solicitor-General of the Commonwealth, and F I Gordon SC with L G Moretti and A N Regan for the defendants (instructed by Australian Government Solicitor)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Jones v Commonwealth of Australia

Constitutional law (Cth) – Powers of Commonwealth Parliament – Power to make laws with respect to naturalisation and aliens – Cessation of Australian citizenship – Where s 34(2)(b)(ii) of Australian Citizenship Act 2007 (Cth) ("Act"), in context, provided Minister may revoke person's Australian citizenship acquired by conferral if, among other matters, person "convicted of a serious offence" within meaning of s 34(5) after making application to become Australian citizen – Where s 34(5) provided person "convicted of a serious offence" for purposes of s 34 if person convicted of offence against Australian law or foreign law for which person sentenced to death or to "serious prison sentence" and person committed offence before becoming Australian citizen – Where s 3 defined "serious prison sentence" as sentence of imprisonment for period of at least 12 months – Where plaintiff British and Australian citizen – Where plaintiff Australian citizen by virtue of certificate of Australian citizenship – Where plaintiff convicted of criminal offences relating to conduct before becoming Australian citizen and sentenced to more than 12 months' imprisonment – Where Minister revoked plaintiff's Australian citizenship under s 34(2) of Act – Whether s 34(2)(b)(ii) of Act supported by s 51(xix) of Constitution – Whether s 34(2)(b)(ii) law with respect to naturalisation.