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Jones v. Commonwealth of Australia & Ors [2023] HCAASP 24 (15 June 2023)

Last Updated: 5 July 2023

JONES v COMMONWEALTH OF AUSTRALIA & ORS (B47/2022)

Date writ of summons filed: 10 October 2022

Date special case referred to Full Court: 3 April 2023

The Plaintiff, Mr Phyllip Jones, acquired British citizenship upon his birth in the United Kingdom in 1950. He migrated to Australia with his family in 1966, and in 1988 he obtained Australian citizenship. In 2003, Mr Jones was convicted of multiple counts of indecent dealing and indecent assault committed between 1980 and 2001. He was sentenced for each offence to imprisonment for two and a half years, all to be served concurrently and with a non-parole period of nine months.

In 2018, Mr Jones’s Australian citizenship was revoked by the Minister for
Home Affairs, Immigration and Border Protection, under s 34(2) of the
Australian Citizenship Act 2007 (Cth) (“the Citizenship Act”). This was upon a conclusion that there was an unacceptable risk in view of the grave harm that a member of the Australian community would suffer if Mr Jones were to reoffend. The Minister also stated that he had considered the need for general deterrence. As a result of the revocation, Mr Jones automatically acquired an ex-citizen visa under s 35(3) of the Migration Act 1958 (Cth) (“the Migration Act”).

At the time of revocation, Mr Jones had lived in Australia continuously for 52 years (having been absent only for two overseas holidays). Most of his family members are either Australian citizens or permanent residents of Australia. Mr Jones owns no property in the United Kingdom, he has never paid tax there, and he has never voted in a British election or held a British passport.

In December 2021, Mr Jones was notified that the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs had cancelled his
ex-citizen visa under s 501(2) of the Migration Act the previous month.
Since January 2022, Mr Jones has remained in immigration detention.

In October 2022, Mr Jones commenced proceedings in this Court against the Commonwealth of Australia, the Minister for Home Affairs and the Minister for Immigration, Citizenship and Multicultural Affairs, challenging the constitutional validity of s 34(2)(b)(ii) of the Citizenship Act and seeking a declaration that he is an Australian citizen.

Justice Steward referred to the Full Court a special case filed by the parties that states the following questions of law:

  1. Is s 34(2)(b)(ii) of the Citizenship Act 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?

  2. What, if any, relief should be granted to the Plaintiff?
  3. Who should pay the costs of the special case?

A notice of a constitutional matter was filed by Mr Jones. No Attorney-General is intervening in the proceeding.


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