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PASSPORTS, THE RIGHT TO TRAVEL, AND NATIONAL SECURITY IN THE COMMONWEALTH

Published online by Cambridge University Press:  16 April 2020

Paul F. Scott Open the ORCID record for Paul F. Scott [Opens in a new window]
Paul F. Scott*
Affiliation:
Lecturer in Public Law, University of Glasgow, [email protected].
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Abstract

This article, on the basis of a consideration of the development of the law relating to the use of passports as a tool of national security in the United Kingdom, Canada, Australia and New Zealand, challenges the common law conception of passports, arguing that passports effectively confer rights and so, consequentially, that the refusal or withdrawal of a passport represents a denial of rights. From this conclusion a number of points flow. Though these consequences are most acute for the United Kingdom and Canada, in which passports remain regulated by, and are issued under, prerogative powers, there are also a number of points of significance for Australia and New Zealand, where passports have a statutory basis.

Keywords

comparative lawpublic international lawpassportsCommonwealthnational securitytravelcitizenshipprotection
Type
Articles
Information
International & Comparative Law Quarterly , Volume 69 , Issue 2 , April 2020 , pp. 365 - 395
Copyright
Copyright © The Author(s) 2020. Published by Cambridge University Press for the British Institute of International and Comparative Law

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Footnotes

A version of this article was presented at the Public Law Conference in Melbourne in 2018—I am grateful to the organisers and to those who heard and commented on the article. Thank you to Dean Knight for comments on an earlier draft and to the ICLQ's reviewers for their excellent comments.

References

1 For an overview of the phenomenon in the context of the European Union in particular, see B Boutin et al., The Foreign Fighters Phenomenon in the European Union Profiles, Threats & Policies, International Centre for Counter-Terrorism Research Paper (April 2016).

2 On which see Pillai, S and Williams, G, ‘Twenty-First Century Banishment: Citizenship Stripping in Common Law Nations’ (2017) 66 ICLQ 521CrossRefGoogle Scholar.

3 An alternative, more optimistic, explanation is that the States in question recognise it as ‘a more human, large-scale, and temporary measure’: Esbrook, L, ‘Citizenship Unmoored: Expatriation as a Counter-Terrorism Tool’ (2016) 37 University of Pennsylvania Journal of International Law 1273Google Scholar, 1313. Though this seems unlikely, it is true that the temporary nature of passport revocation is a key point of distinction, while the consequences—no matter how serious—are certainly less severe than those of the deprivation of citizenship, which severs all legal connection between the State and the individual so deprived.

4 See Benton, L and Clulow, A, ‘Introduction: The Long, Strange History of Protection’ in Benton, L, Clulow, A and Attwood, B (eds), Protection and Empire: A Global History (Cambridge University Press, 2017)CrossRefGoogle Scholar.

5 See Turack, D, ‘Early English Restrictions to Travel’ in Alexandrowicz, CH (ed), Grotian Society Papers 1968: Studies in the History of the Law of Nations (Martinus Nijhoff 1970)Google Scholar and ‘Freedom of Movement: The Right of a United Kingdom Citizen to Leave His Country’ (1970) 31 OhioStLJ 247, as well as Williams, DW, ‘British Passports and the Right to Travel’ (1974) ICLQ 642CrossRefGoogle Scholar, 646.

6 Chitty, J, A Treatise on the Law of the Prerogatives of the Crown: And the Relative Duties and Rights of the Subject (J Butterworth & Son 1820) 48Google Scholar.

7 ibid 48.

8 Blackstone, Commentaries, I, 251

9 Chitty (n 6) 48–9.

10 W Beawes, Lex Mercatoria Rediviva Or, The Merchant's Directory (Peter Wilson 1754) 209.

11 Calvin's Case (1608) Co Rep 1a, 5a.

12 See R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 [53].

13 See, eg, Amin v Brown [2005] EWHC 1670 (Ch).

14 See R v Vine Street Police Station Superintendent, ex parte Liebmann [1916] 1 KB 268 and, later, R v Bottrill, ex parte Kuechenmeister [1947] KB 41. The status of enemy aliens is discussed most fully in A McNair, The Legal Effects of War (3rd edn, Cambridge University Press 1948).

15 Blackstone, Commentaries, I, 370. A resident friendly alien is ‘a subject by local allegiance with a subject's rights and obligations’. Johnstone v Pedlar [1921] 2 AC 262, 276. ‘Allegiance is owed to their sovereign Lord the King by his natural born subjects; so it is by those who, being aliens, become his subjects by denization or naturalization … so it is by those who, being aliens, reside within the King's realm.’ Joyce v DPP [1946] AC 347, 366. Salmond said that subject was a wider category than citizen, distinguishing natural from alien subjects: ‘In English law, subjects, whether natural or alien, are those who owe allegiance to the Crown.’ JW Salmond, Citizenship and Allegiance (1902) 18 LQR 49, 50. The former owed ‘permanent and personal’ allegiance to the Crown, the latter ‘temporary and local’.

16 Immigration Act 1971, section 33(5).

17 See C Vincenzi, ‘Extra-statutory Ministerial Discretion in Immigration Law’ [1992] PL 300 and I MacDonald, ‘Rights of Settlement and the Prerogative in the UK – a Historical Perspective’ (2013) JIANL 10.

18 See, most importantly, Johnstone v Pedlar [1921] 2 AC, though the point has never been authoritatively determined. Standard authority for the proposition that Crown act of State is not available as against British subjects is Entick v Carrington (1765) 19 State Trials 1029: see the discussion in PF Scott, The National Security Constitution (Hart Publishing 2018) 270–3.

19 See Amin v Brown [2005] EWHC 1670 (Ch), holding that the objective existence of hostilities is unrelated to the question of whether a state of war exists under the prerogative, as well as the discussion in Miller v Secretary of State for Exiting the European Union [2017] UKSC 5 [53].

20 M Anderson, ‘Tourism and the Development of the Modern British Passport, 1814–1858’ (2010) 49 The Journal of British Studies 258, 262.

21 HM Government, Correspondence Respecting Passports, 2356 (1857–58) 1–2.

22 Largely in response to Jewish immigration from the Russian Empire at the end of the previous century: B Gainer, The Alien Invasion: The Origins of the Aliens Act of 1905 (Heinemann 1972). Restrictions had been introduced in the later eighteenth century but later repealed: V Bevan, The Development of British Immigration Law (Croom Helm 1986) 58–64.

23 R v Brailsford [1905] 2 KB 730, 745.

24 That is, some non-citizen subjects and non-citizen nationals continue to enjoy the right to a British passport: examples include British Overseas Territories Citizens and British Overseas Citizens.

25 Joyce v DPP [1946] AC 347.

26 [1946] AC 347, 369

27 [1946] AC 347, 369–70.

28 [1946] AC 347, 370–1.

29 G Williams, ‘The Correlation of Allegiance and Protection’ (1948) 10 CLJ 5.

30 See CRG Murray, ‘In the Shadow of Lord Haw Haw: Guantánamo Bay, Diplomatic Protection and Allegiance’ [2011] PL 115, discussing the modern case law on protection.

31 See, for example, R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1598, in which it is clear that citizenship is the operative factor.

32 Pham v The Secretary of State for the Home Department [2018] EWCA Civ 2064.

33 [2018] EWCA Civ 2064 [52].

34 The practical dimension may be different: Lord Goldsmith QC, Citizenship: Our Common Bond (2008) [36].

35 HWR Wade, Constitutional Fundamentals (rev edn, Stevens & Sons, 1989) 63–4.

36 Immigration Act 1971, sched 4, para 4(2).

37 See the example of the journalist Iain Colvin who—in 1968, and so under a prior but analogous legal regime—sought to board a plane at London Airport without a passport but was refused leave to do so by the Chief Immigration Officer on the basis that none of the alternative documentation he offered was sufficient to establish his right his possession of the relevant rights: see the account in JUSTICE, Going Abroad – A Report on Passports (Barry Rose Publisher 1974) [6]–[7]. Asked about the matter, the Home Secretary explained that ‘Mr. Colvin is … well known as a journalist, but none of the documents of identity he produced technically satisfied the Immigration Officer that he is a British subject or a person to whom leave to embark … should be granted, and in the spirit of a test case leave was refused’: HC Deb 23 May 1968, vol 765 c119W.

38 The relationship between a passport and the right to enter the country were strengthened by an amendment made by the Immigration, Asylum and Nationality Act 2006, providing a person ‘seeking to enter the United Kingdom and claiming to have the right of abode there shall prove it by means of’ either ‘a United Kingdom passport describing him as a British citizen’ or ‘a United Kingdom passport describing him as a British subject with the right of abode in the United Kingdom’: Immigration Act 1971, section 3(9).

39 The Canadian Citizenship Act of 1946 was followed by the Commonwealth Conference on Nationality and Citizenship of February 1947 and the enactment of the British Nationality Act of 1948: see J Mann, ‘The Evolution of Commonwealth Citizenship, 1945–1948 in Canada, Britain and Australia’ (2012) 50 Commonwealth & Comparative Politics 293.

40 See, at the relevant time, British Nationality Act 1948, section 1. The relevant legal category was that of ‘citizens of the United Kingdom and the Colonies’. British subjects, whether CUKCs or Commonwealth citizens, enjoyed until the early 1960s what we would now call a right of abode in the United Kingdom: DPP v Bhagwan [1972] AC 60. That position was brought to an end by the Commonwealth Immigrants Act 1962.

41 Under the Australian Passport Act 1920. The category of British subject was not removed from Australian law until the enactment of the Australian Citizenship Amendment Act 1984.

42 JUSTICE (n 37) [48].

43 JUSTICE (n 37) [51].

44 JUSTICE (n 37) [55].

45 See Scott (n 18) 173–4.

46 T May, ‘The Issuing, Withdrawal or Refusal of Passports’, HC Deb 25 April 2013, vol 561 col 68WS.

47 Wade (n 35).

48 Blackstone, Commentaries, I, 243–4.

49 HL Deb 16 June 1958, vol 209 col 862.

50 B Schwartz and HWR Wade, Legal Control of Government: Administrative Law in Britain and the United States (Oxford University Press 1972) 63.

51 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374.

52 R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Everett [1989] QB 811.

53 On which in Canada see C Forcese, ‘The Executive, The Royal Prerogative, and the Constitution’ in P Oliver, P Macklem and N Des Rosiers, The Oxford Handbook of the Canadian Constitution (Oxford University Press 2017).

54 Previously, passports were regulated by the Canadian Passport Regulations, CRC, c 641. The regulations were made under the Department of External Affairs Act 1970, though Arkelian notes that ‘[w]hether that statute, which nowhere provides in express terms either for regulations in general or for passport administration in particular, was adequate authority for the old Regulations was always dubious’. AJ Arkelian, ‘The Right to a Passport in Canadian Law’ (1983) 21 Canadian Yearbook of International Law 284, 284 fn 2.

55 Canadian Passports Order (SI/81-86) para 4(1) (emphasis added).

56 SI/81-86, para 4(2).

57 SI/81-86, para 4 (3).

58 See J Doulman and D Lee, Every Assistance & Protection: A History of the Australian Passport (The Federation Press, 2008) Ch 2. Essentially equivalent considerations have been identified as motivating the restrictions on travel which appear to have existed in mediaeval England: see the texts cited at (n 5) above.

59 See Doulman and Lee (n 58) Ch 3.

60 Enacted largely in response to the judgment of the High Court of Australia in R v Paterson, ex parte Purves (1937) 10 ALJR 468; [1937] ALR 144, discussed below: see Doulman and Lee (n 58) Ch 4.

61 RS Lancy, ‘The Evolution of Australian Passport Law’ (1982) 13 MULR 428, 439.

62 Doulman and Lee (n 58) 119.

63 On which see G Heilbronn, ‘New (and more restrictive) passports legislation’ (1980) 5 Legal Service Bulletin 225.

64 Lancy (n 61) 443.

65 Australian Passports Act 2005 (Cth), sections 7(2) and 8.

66 ibid section 7(2) and Division 2.

67 War Regulations Continuance Act 1920, section 4 and sched 2.

68 Additional War Regulations made by Order in Council (21 August 1916), regs 3 and 4. The parent act was the War Regulations Act 1914.

69 Passports Act 1946, section 3(1). New Zealand citizenship as a legal category was first created by the British Nationality and New Zealand Citizenship Act 1948, later replaced by the Citizenship Act 1977.

70 Passports Act 1992, section 3.

71 ibid section 4(1).

72 All of the circumstances in which a passport might be refused create a discretion: Passports Act 1992, section 4(3). The only exception is where a court has made an order that a person must be issued to a person for a specified period. Where such an order is in force, the minister must not issue a passport to its subject: Passports Act 1992, section 4(4).

73 Though Helen Irving has argued that the one true and absolute distinction between citizens and aliens is that the former, and not the latter, enjoy a right of abode which is ‘conceptually inseparable from citizenship’ and ‘embedded in the constitutional concept of citizenship’. Citizens owe allegiance to the Commonwealth and, in return, Irving claims, they enjoy a right of abode: H Irving, ‘Still Call Australia Home: The Constitution and the Citizen's Right of Abode’ (2008) 30 SydLR 133, 141 and 150.

74 Migration Act 1958, section 166.

75 Australian Security Intelligence Organisation, ASIO Report to Parliament (2014–15), 21. See also F Di Lizia, ‘More Than Just a Humble Abode: The Implications of Constitutional Citizenship Rights for Passport Law’ [2018] UWALR 30 116, 122–4.

76 S Pillai, ‘The Rights and Responsibilities of Australian Citizenship: A Legislative Analysis’ (2014) 37 MULR 736, 760–1.

77 ‘If a person's passport is cancelled while they are overseas, the cancellation would, in a practical sense, deprive them of the capacity to re-enter Australia. This suggests that while regulation of the entry rights of non-citizens might be more common as a matter of everyday practice, citizens are not immunised through legislation against exclusion from Australian territory.’ Pillai (n 76) 761.

78 Migration Act 1958, section 175(1)(a)(i).

79 Immigration and Refugee Protection Act 2002, section 18(1).

80 ibid section 19(1).

81 Constitution Act 1982, section 1.

82 Constitution Act 1982, section 33(1).

83 Immigration Act 2009, section 13(1).

84 ibid section 13(2).

85 ibid section 99(1).

86 New Zealand Bill of Rights Act 1990, sections 18(2) and (3).

87 ibid section 5.

88 HL Deb (16 June 1958) vol 209 col 860.

89 HL Deb (16 June 1958) vol 209 col 863.

90 See Lord Diplock, Report of the Committee of Privy Counsellors appointed to inquire into the recruitment of mercenaries, Cmnd 6569 (1976) and the discussion in Scott (n 18) 175–7. Lord Diplock had earlier produced an important consideration of the international law elements of passports: K Diplock, ‘Passports and Protection in International Law’ (1946) 32 Transactions of the Grotius Society 42.

91 HC Deb (24 June 1974) vol 875 col 357W. Wade described this as ‘a polysyllabic way of describing any one whose activities are disapproved of by the government’. HWR Wade (n 35) 63.

92 May (n 46).

93 May (n 46). As elsewhere, the decision to refuse or withdraw must be necessary and proportionate

94 HM Government, Transparency Report 2018: Disruptive and Investigatory Powers, Cm 9609 (2018) [5.5]. The power was used against six individuals in 2013, 24 in 2014, 23 in 2015, 17 in 2016 and 14 in 2017.

95 R (MR) v Secretary of State for the Home Department [2016] EWHC 1622 (Admin), [15]–[16].

96 Passports Act 1938, section 8(1A).

97 Passports Act 1938, section 7E(1)(a).

98 Passports Act 1938, section 7E(1)(b).

99 Commonwealth of Australia, Parliamentary Debates: House of Representatives (14 February 2005) 24 (Alexander Downer).

100 In relation to the latter, see the discussion by Jake Blight of the Office of the Inspector-General of Intelligence and Security: ‘In the Passports Act you can cancel a passport on two grounds: either it is something that might prejudice the security of Australia, in which case the recommendation needs to come from a person—a specific individual such as the Director-General: or currently, if the minister was inclined to suspend a passport on the ground that it could prejudice security of a foreign country, if you scroll through the various options there is an option for a non-corporate Commonwealth entity to make that recommendation. So it is a little obscure but there is a way—if it was about a foreign country, not about Australia's security—someone could ask ASIO the entity for a recommendation.’ Commonwealth of Australia, Official Committee Hansard: Parliamentary Joint Committee on Intelligence and Security, Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 (2 October 2014) 5–6.

101 Australian Passports Act 2005, section 14(1). On the interpretation of that phrase, see BLBS v Director-General of Security [2013] AATA 820, [77]–[85].

102 BLBS v Director-General of Security [2013] AATA 820, [86].

103 Since 2014 there has existed a separate power to suspend a passport for up to 14 days at the request of the Director-General of Security, where it is suspected that the person may leave Australia ‘to engage in conduct which might prejudice the security of Australia or a foreign country’ and the person's travel documents should be suspended to prevent the conduct in question; Australian Passports Act 2005, section 22A(2)(a). The creation of the power was recommended by the Independent National Security Legislation Monitor: B Walker SC, Annual Report (28 March 2014) 46–8.

104 Australian Passports Determination 2015 section 14(2)(a).

105 Australian Security Intelligence Organisation Act 1979, section 37(1).

106 ASIO, Report to Parliament 2014–15 (2015) 22 (Table 1).

107 ASIO, Report to Parliament 2015–16 (2016) 50–51. Subsequent report to not provide equivalent figures.

108 Commonwealth of Australia, Parliamentary Debates: House of Representatives (1 March 2017) 1954. One cancellation in particular has been the source of controversy in Australia. In 2006, Australia and Timor-Leste signed a treaty reflecting the need to update international agreements in light of Timor-Leste's independence, achieved in 2002. In 2012 it was revealed by a whistleblower within the Australian Secret Intelligence Service (known as ‘Witness K’) that ASIS had installed listening devices in the premises of Timor-Leste's government in order to acquire an advantage in negotiations. Timor-Leste initially sought to have the Treaty nullified by the Permanent Court of Arbitration, though the case was later dropped. At the domestic level, however, there were two key responses. One was the raid, by ASIO, of the Australian lawyer acting for East Timor. The other was the cancellation of Witness K's passport, alleged by some to be an attempt to prevent him giving evidence in the case against Australia. In 2016 the Foreign Minister refused to issue Witness K a new passport on the grounds that a competent authority suspected that ‘if an Australian passport were issued to you, you would be likely to engage in conduct that might prejudice the security of Australia’, though it was unclear which was the authority in question: See B Collaery, ‘National Security, Legal Professional Privilege, and the Bar Rules’, Address at the Australian National University (11 June 2015). ASIS is not permitted to collect information on persons in Australian territory and ASIO, its domestic counterpart, had suggested to Witness K that it had no objection to his possessing a passport: Commonwealth of Australia, Official Committee Hansard: Senate, Foreign Affairs, Defence and Trade Legislation Committee (1 June 2017) 31–2.

109 Commonwealth of Australia, Parliamentary Debates: House of Representatives (27 February 2018), 2067.

110 Counter-Terrorism (Temporary Exclusion Orders) Act 2019, section 10(6). The Parliamentary Joint Committee on Intelligence and Security recommended that

111 Passports Act 1980, section 4(2).

112 Passports Act 1992, sections 4(3) and 8.

113 Passports Act 1992, section 12.

114 Passports Act 1992, section 4A, as inserted by the Passports Amendment Act 2005. In each case the specific grounds were the same: the Minister believed on reasonable grounds that the person was a danger to the security of New Zealand because he intended to engage in or facilitate one of three types of activity, the danger to New Zealand could not be averted effectively by other means, and the refusal or cancellation would ‘prevent or effectively impede’ the person's ability to carry out the relevant activity. The three activities in question were: ‘a terrorist act within the meaning of section 5 of the Terrorism Suppression Act 2002’; ‘the proliferation of weapons of mass destruction’; and ‘any unlawful activity designed or likely to cause devastating or serious economic damage to New Zealand, carried out for purposes of commercial or economic gain’: Passports Act 1992, section 4A(1)(a). A further relevant provision was inserted into the 1992 Act by the Passports Amendment Act 2015, providing that—in relation to a number of cancellation powers, amongst them that relating to security—the Minister may cancel a New Zealand passport or other travel document ‘by electronically recording the cancellation … on a New Zealand travel document database’: Passports Act 1992, section 27I(1), as inserted by the Passports Amendment Act 2015. The 2015 Act was spun out of the Countering Terrorist Fighters Legislation Bill of 2014. In its report on the 2014 Bill, the Foreign Affairs, Defence and Trade Committee noted confusion which had arisen as regards passports: ‘We would like to address two concerns raised by a number of submitters regarding the effect of denial of a passport. The first is that where the passport of a person outside New Zealand is denied or cancelled the person concerned might be stranded with no way home. This is not the case; in this situation the Minister must upon application issue a journey-specific emergency travel document to the person so they could re-enter New Zealand. The second concern is that the denial of a passport would render a person ‘‘Stateless’’. This is also not the case; denial of a passport affects only a person's freedom to travel, it does not affect their nationality or citizenship.’ Foreign Affairs, Defence and Trade Committee, Countering Terrorist Fighters Legislation Bill – Government Bill (1-2) (2 December 2014) 3.

115 Some provisions of the 2017 Act make permanent earlier, temporary, rules originally inserted in the 1992 Act by the Passports Amendment Act 2014.

116 Passports Act 1992, section 27GA(1).

117 Passports Act 1992, section 27GA(2).

118 Though the ‘terrorist act’ and weapons of mass destruction grounds are included, that of ‘other unlawful activity designed or likely to cause serious economic damage’ and which is ‘carried out for the purpose of commercial or economic gain’ is excluded.

119 New Zealand Security Intelligence Service, Annual Report for the year ended 30 June 2014, G. 35 (2014) 4–5. At 10, the report noted that ‘[b]y preventing these individuals travelling to engage in violent extremism, the NZSIS assesses that there is a real likelihood that the lives of these individuals may have been saved. In addition, had they managed to get to Syria and fight, the NZSIS has prevented the risk of battle-hardened individuals returning and compromising New Zealand's security.’

120 Department of Internal Affairs, Annual Report 2014–15, G.7 (2015) 166.

121 Department of Internal Affairs, Annual Report 2015–16, G.7 (2016) 166.

122 Department of Internal Affairs, Annual Report 2016–17, G.7 (2017) 183.

123 Department of Internal Affairs, Annual Report 2017–18, G.7 (2018) 185 and Annual Report 2018–19 (2019) 188.

124 See A v Minister of Internal Affairs [2017] NZHC 746, and A Geddis, ‘The Bizarre Case of the NZ Court Case Hidden from Public and Media Scrutiny’ The Spinoff (2 March 2018).

125 Khadr v Canada (Attorney General) 2006 FC 727

126 ibid [91].

127 ibid [128].

128 Inserted by Order Amending the Canadian Passport Order SI/2004-113.

129 Canadian Passport Order SI/81-86, section 10.1 (as amended). Passport facilities may be denied on the same grounds for a maximum of 10 years, while an equivalent power permits the Minister to cancel, rather than revoke, a passport: SI/81-86, section 11.1(1). In the latter case, the passport holder may request reconsideration of the decision within 30 days: SI/81-86, section 11.3(1).

130 Though no figures appear to be available, and the government has at times declined to provide them: see Citizenship and Immigration Minister David Alexander, quoted in S Bell, ‘Canadian Government Begins Invalidating Passports of Citizens Who Have Left to Join Extremist Groups’ National Post (20 September 2014): ‘“Yes, I think it's safe to say that there are cases of revocation of passports involving people who've gone to Syria and Iraq already,” Mr. Alexander said. “I just don't want to get into the numbers, but multiple cases.’’’

131 C Forcese and A Mamikon, ‘Neutrality Law, Anti-Terrorism and Foreign Fighters: Legal Solutions to the Recruitment of Canadians to Foreign Insurgencies’ (2015) 48 UBC Law Review 305.

132 Arkelian, AJ, ‘Freedom of Movement of Persons Between States and Entitlement to Passports’ (1984–85) 49 Saskatchewan Law Review 15Google Scholar, 31.

133 See Scott (n 18) 181.

134 For the relationship between statute and prerogative in Canada, see Forcese (n 53) 154–8.

135 The use of the passport power is reviewable in Canadian law: the Federal Courts Act empowers the Federal Courts to undertake judicial review of ‘a decision or an order of a federal board, commission or other tribunal’ which it defines to include ‘any body, person or persons having, exercising or purporting to exercise jurisdiction or powers conferred … by or under an order made pursuant to a prerogative of the Crown.’.

136 Black v Chrétien (2001) 54 OR (3d) 215, 199 DLR (4th) 228 (C.A.).

137 (2001) 54 OR (3d) 215, [11].

138 (2001) 54 OR (3d) 215, [53].

139 (2001) 54 OR (3d) 215, [54]. As these dicta suggest, it had earlier been decided that exercises of the prerogative are reviewable for their compatibility with the Canadian Charter of Rights and Freedoms: the Charter applies ‘to the Parliament and government of Canada in respect of all matters within the authority of Parliament’ and the prerogative is within the authority of Parliament: Operation Dismantle v R [1985] 1 SCR 441, [50]. For a critique of the approach of the Canadian courts, see JA Klinck, ‘Modernizing Judicial Review of the Exercise of Prerogative Powers in Canada’ (2017) 54 AltaLRev 997.

140 Kamel v Canada (Attorney General) 2008 FC 338, [2009] 1 FCR 59.

141 ibid [91].

142 2008 FC 338, [91].

143 2008 FC 338, [112].

144 ibid [113].

145 Constitution Act 1982, section 1.

146 ibid [120].

147 Kamel v Canada (Attorney General) 2009 FCA 21, [28]–[31].

148 Suresh v Canada (Minister of Citizenship and Immigration) 2002 SCC 1, [2002] 1 SCR 3, 208 DLR (4th) 1, 37 Admin LR (3d) 152.

149 Kamel v Canada (Attorney General) 2009 FCA 21, [2009] 4 FCR 449, [30].

150 2009 FCA 21, [52]–[68].

151 2009 FC 580, [2010] 1 FCR 267.

152 2009 FC 580.

153 Kamel v Canada 2011 FC 1061, [2011] 4 F.C.R. D-10, [113].

154 2011 FC 1061, [125].

155 Passports Act 1980, section 9.

156 Passports Act 1980, section 9(4).

157 Passports Act 1980, section 9(5).

158 Passports Act 1992, section 28.

159 By the Intelligence and Security Act 2017.

160 Passports Act 1992, section 29AA(2).

161 See F v The Minister of Internal Affairs [2013] NZHC 2117, a costs judgment where the applicant had brought a judicial review of the decision to cancel a passport, but the Minister had revoked the cancellation and the substantive issues were not determined.

162 Hon A Adams, Legal Advice: Consistency with the New Zealand Bill of Rights Act 1990: Countering Terrorist Fighters Legislation Bill (12 November 2014); Hon C Finlayson QC, Consistency with the New Zealand Bill of Rights Act 1990: Passports Amendment Bill (15 June 2015).

163 Hansen v R [2007] NZSC 7.

164 Adams (n 162) and Finlayson (n 162).

165 Hon C Finlayson QC, Consistency with the New Zealand Bill of Rights Act 1990: New Zealand Intelligence and Security Bill (12 August 2016).

166 Finlayson (n 165) [32], citing Abdelrazik v Canada 2009 FC 580.

167 Australian Passports Act 2005, section 50.

168 ibid section 48 (identifying reviewable decisions).

169 Australian Security Intelligence Organisation Act 1979, section 54.

170 In TCXG v Director-General of Security [2013] AAT 284, it was conceded by the applicant (and accepted by the AAT) that if the Tribunal was not persuaded to set aside the adverse security assessment underlying a cancellation, then there could be no basis for setting aside the decision under the Australian Passports Act which reflected that assessment. In BLBS v Director-General of Security [2013] AATA 820, the Tribunal decided, after hearing argument on that point, that the concession had represented a misunderstanding of the law ([37]).

171 Australian Passports Act 2005, section 50(2).

172 ibid section 50(3).

173 BLBS v Director-General of Security [2013] AATA 820.

174 [2013] AATA 820, [45]–[46].

175 [2013] AATA 820, [34]–[35].

176 [2013] AATA 820, [31].

177 AAT Act 1974, section 43AAA(3).

178 Di Lizia (n 75) 133–43.