Abdul Nacer Benbrika and Minister for Home Affairs, Commonwealth of Australia

[2023] HCATrans 83

[2023] HCATrans 083

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M90 of 2022

B e t w e e n -

ABDUL NACER BENBRIKA

Applicant

and

MINISTER FOR HOME AFFAIRS

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

KIEFEL CJ
GAGELER J
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 14 JUNE 2023, AT 10.04 AM

Copyright in the High Court of Australia

MR C.J. HORAN, KC:   May it please the Court, I appear with MR A. ALEKSOV, MR J.E. HARTLEY and MS E.A.M. BRUMBY for the applicant.  (instructed by Doogue + George Lawyers)

MR S.P. DONAGHUE, KC, Solicitor-General of the Commonwealth of Australia:   May it please your Honours, I appear with MS F.I. GORDON, SC, MR L.G. MORETTI, and MS A.N. REGAN for the respondents.  (instructed by Australian Government Solicitor)

KIEFEL CJ:   Yes, Mr Horan.

MR HORAN:   If the Court pleases.  This Court in Alexander did not decide the question of the validity of section 36D of the Australian Citizenship Act 2007.  In reaching the conclusion that section 36B of that Act was invalid, by conferring an exclusively judicial power on the Minister, the judgments in Alexander contained some discussion of section 36D, in some respects, points of comparison between the two sections, in other respects, points of difference.

The most significant difference for the purposes of the present case is that the power to strip a person’s citizenship conferred by section 36D is enlivened by a prior conviction and sentence for identified offences under the Criminal Code.  Our submission is that that is not a material distinction for the purposes of Chapter III of the Constitution and that the reasoning that led to the invalidity of section 36B applies with the same outcome to section 36D.

Accordingly, section 36D should be held to confer the power on the Minister to impose a punishment in retribution for engaging in criminal conduct.  That function is one that is exclusively judicial, which is reserved by Chapter III of the Constitution to a court exercising the judicial power of the Commonwealth.  It makes no difference that section 36D is enlivened by a finding of criminal guilt made by a court exercising judicial power.

First, this simply emphasises or underlines the direct connection between the consequence of citizenship deprivation and past criminal conduct.  In Alexander, that connection was found in relation to section 36B, partly by reference to an overlap between the classes of conduct identified in section 36B(5) on the one hand, and on the other hand, particular offences in Part 5.3 of the Criminal Code.  In relation to section 36D, that connection is far more direct and immediate.

It is the very fact of criminal conviction and the criminal conduct to which the conviction relates which forms the basis of the exercise of power to make a citizenship cessation determination under section 36D.  The person has already been sentenced by a court, which is also a matter referred to in the terms of section 36D.  In our submission, section 36D seeks to revisit this sentencing process and to supplement that sentence by imposing an additional punishment for the past criminal conduct found to have been engaged in by the person the subject of the power.

Secondly, we say the character of the citizenship deprivation remains punitive.  It shares the same purpose as the power under section 36B, has the same harsh consequences and effects, and attracts the same comparisons to historical forms of punishments such as exile or banishment.  Those factors led to a conclusion in Alexander that section 36B was invalid and they are all equally present in relation to section 36D.

I will go to Alexander in more detail in a moment, but one key issue raised by the written submissions is what is to be taken from the summary set out in the plurality’s judgment – it is the judgment of your Honour the Chief Justice together with Justices Keane and Gleeson, with which Justice Gageler agreed.  At paragraph [96] – the joint book of authorities reference is volume 11, tab 77, commencing at page 3963.  The relevant paragraph is paragraph [96] on page 3986 of the JBA.  Now, there your Honours concluded that a determination under section 36B imposed the sanction – namely, deprivation, of:

entitlement to enter and live at liberty in Australia . . . upon satisfaction of the Minister that Mr Alexander engaged in –

reprehensible conduct, and the relevant conclusion there expressed was that:

The power to determine the facts which enliven the power to impose such a punishment is one which, in accordance with Ch III of the Constitution, is exercisable exclusively by a court that is a part of the federal judicature.

We say, firstly, that should not be taken as limiting the ratio of the decision in Alexander.  Secondly, even if it is taken as part of the ration of the decision, it does not limit or exhaust the underlying reasoning, and it cannot be taken as having addressed the situation presented by a provision such as section 36D, nor as having assumed – let alone decided – that section 36D was constitutionally valid.  The underlying reasoning that led to that conclusion focused on the nature of the sanction and the reason for which it was imposed; namely, a punitive deprivation of citizenship and its attendant rights imposed in retribution for engaging in past criminal conduct.  It is that underlying reasoning which, we say, is equally applicable to section 36D and leads to the same outcome.

I propose to structure the balance of my submissions as follows.  First, I will address the terms of the relevant statutory provisions – in particular, section 36D and its comparison with other provisions in subdivision (c) of Division 3, including section 36B.  Secondly, I will address your Honours on the implications of implications of the Court’s decision and the reasoning in Alexander.  Thirdly, I wanted to make some observations on the Lim principle – that the judgment and punishment of criminal guilt is a function that is essentially and exclusively judicial in nature.  Fourthly, to address and distinguish the line of authority dealing with protective and other non‑punitive powers and, finally, to briefly address the Commonwealth’s submissions regarding the sovereign right or capacity to exclude persons as members of the Australian community or the Australian body politic.

Now, just turning first to the statutory provisions – they are found at joint book of authorities volume 1, commencing at page 27, which is a full copy of the Citizenship Act 2007.  The relevant provisions commence with Division 3 at page 93 of the joint book of authorities, which deals with cessation of Australian citizenship.  The Division commences with subdivision A, which is a simplified outline of Division 3, and section 32A sets out the five ways in which a person can cease to be an Australian citizen.  Relevantly, for present purposes, this case, as was Alexander, involves the fifth dot point addressing provisions for citizenship cessation determinations which are contained in subdivision C which applies – to quote the opening words of that dot point – “for certain conduct or convictions”.

Then one turns to subdivision C itself, and your Honours will be familiar with this from Alexander.  The purpose of the subdivision is set out in section 36A, and it was accepted in Alexander that this statement of the legislative policy and purpose encompasses all of the provisions in subdivision C, including both 36B and 36D.  The policy focuses on deprivation of citizenship based on – and I quote:

certain conduct incompatible with the shared values of the Australian community –

unquote, by which a citizen may demonstrate repudiation of their allegiance to Australia.  The focus there in that purpose is on the underlying conduct of the person, whether that is under section 36B or section 36D.

Section 36B, as your Honours well know, was a section addressed in Alexander and, without going through in detail that provision, the power arose there if the Minister was satisfied that the person engaged in a range of conduct specified in subsection (5).  Most of that conduct forms the conduct element of various terrorism offences under the Criminal Code and subsection (6) ensures that the conduct in question is aligned with the meaning of expressions used in the relevant offence provisions, but does not include the faults elements applicable to those offences.

The range of offences set out – the one that was involved in Alexander was, I think, paragraph (h), the “foreign incursions and recruitment”, which is dealt with in Division 119 of the Criminal Code.  But there are a range of other classes of conduct, each of which match one of the offence provisions that are detailed in subsection (6).  So, subdivision A of Division 72 matches with paragraph (5)(a):

engaging in international terrorist activities using explosive or lethal devices –

and then, section 101.1 and following match with the respective paragraphs that are successively set out in subsection (5).  Section 36D deals with citizenship deprivation for certain convictions; that is a quote of the language used in the heading to section 36D.  The structure of 36D largely replicates the structure of section 36B:  the deprivation of citizenship is affected by a written determination made by the Minister under subsection (1); the Minister has to be satisfied of various conditions.

These are analogous to the conditions for a Section 36B determination, modified to reflect the fact that the determination is based on conduct that has been the subject of a conviction and sentence.  So, accordingly, paragraphs (1)(a) and (b), in place of the equivalent paragraph in section 36B – which required the Minister to be satisfied that the person has engaged in particular conduct – are replaced with a satisfaction that the person has been convicted of an offence or offences specified in subsection (5) and has been sentenced to a term of imprisonment of three years or more.

I note in passing that this relevant condition is one of ministerial satisfaction of conviction and sentence; it is not the fact of conviction and sentence.  But it is worth noting that there is a provision under Section 36K(1)(b) for revocation of a determination in circumstances where the conviction on which the Minister relied is later “overturned or quashed” or the sentence is reduced below the threshold of three years.  That is analogous to the equivalent revocation, in respect of a section 36B determination, where there is a later judicial finding that the person did not engage in the conduct that the Minister based the determination upon.

Turning to the offences specified in subsection 5, I do not need to go through all of them in detail.  They include those offences that relate to the conduct that is specified in subsection 36B(5) and (6) – so, that is subdivision A of Division 72, and then various offences within Part 5.3 of the Code dealing with terrorism and Part 5.5 of the Code dealing with foreign incursions and recruitment.  So, in that sense, there is a significant overlap between the types of conduct that is covered by section 36B(5) and the conduct that is covered by section 36D.  Section 36D is broader in that it includes a number of additional offences that are not within the conduct proscribed for the purposes of 36B(5).  So, section 36D overlaps with but extends beyond the scope of the conduct covered by section 36B.

In applying section 36D, after being satisfied that there has been a conviction and sentence that qualifies, the Minister then has to address the questions whether or not the conduct to which that conviction or convictions relate demonstrates repudiation of allegiance, and whether the Minister is satisfied that it would be contrary to the public interests for the person to remain an Australian citizen.  Those two conditions essentially match equivalent conditions that qualified the power in section 36B.

There might be some question of construction or application of paragraph (c) in relation to what one identifies as the conduct of the person to which the conviction relates.  If it is suggested – well, the submission suggests, for example, of both parties that this might be confined to the key facts of the conviction as can be ascertained from the record of the trial.  Even so, there might still be some room for debate as to what the relevant conduct might be in any particular case, particularly in a jury trial where there are no findings of fact.  And secondly:  at what degree of specificity is the conduct to be identified?  The drafting of the paragraph suggests some potential latitude insofar as it is directed to conduct to which the conviction relates, which, perhaps, is broader than the relevant factual conduct elements or mental elements of the offence.

These questions may not require definitive resolution – certainly for the purposes of determining the constitutional issues raised in this case.  The point is that it is clear that a determination made under section 36D has a direct connection to criminal conduct which has been the subject of conviction for an offence and in respect of which the person will already have been sentenced.  So, we submit, in this regard, the operation of a ministerial determination under section 36D is even more closely connected to criminal offending than the analogous determination under section 36B that was considered in Alexander.

In relation to paragraph (d) – the public interest – as with section 36B, the considerations that must be considered in looking at the public interest are set out in section 36E and they, relevantly, include the need to take into account the severity of the conduct.  But, again, there is some slight differentiation in section 36E(2) between section 36B determinations and section 36D determinations.  In the former – which is dealt with in paragraph (a):

The Minister must have regard to . . . the severity of the conduct to which the determination relates –

that being the conduct of which the Minister was satisfied under section 36B(1)(a).  When looking at section 36D, the Minister has to take into account the severity of the conduct that was the basis of the conviction and the sentence or sentences to which the determination relates. 

So, again, it is quite explicitly telling the Minister to revisit an assessment of the severity of the underlying conduct, being the criminal conduct in respect of which the person has been convicted and sentenced.  In other words, a deprivation of citizenship – as is the case with section 36B – is responsive to the criminal conduct and an assessment by the Minister of its severity.

EDELMAN J:   It is not really revisiting it; it is relying upon it to impose a different consequence.

MR HORAN:   “Supplementing” might be better than “revisiting”.

EDELMAN J:   Yes.

MR HORAN:   I will come to that in the context of the relevance of executive powers to impose additional punishment.  Finally, as with section 36B, natural justice does not apply to the making of a determination under section 36D.  That is set out in subsection (9).  So, there is, therefore, no opportunity for the person to be heard in relation to questions such as the conduct to which the conviction or convictions relate or the conduct that was the basis of the conviction and sentence, nor is there any opportunity to be heard as to whether or not it is appropriate to impose the sanction of deprivation of citizenship in response to that relevant criminal offending.  That is all I wanted to say ‑ ‑ ‑

GORDON J:   Can I just raise four matters with you about the construction?  Am I right that there are the additional differences – and it may not matter, but just in a comparison with 36B; the first is that the term of imprisonment is three years, as distinct from the earlier period in 36B.  It is a different time period for the sentence that is to be imposed that is the subject of the factual condition.

MR HORAN:   Yes, that is correct.  Section 36B does not require any ‑ ‑ ‑

GORDON J:   It has a limited period, as distinct from at large, in terms of conduct.

MR HORAN:   That is right.  It has to be engaged in after a certain date – which I think is the date on which the relevant offences were introduced into the Act – and it has to attract a sentence above a certain amount.

GORDON J:   Thank you.  The second is the point you took us to, which is that the offences under 36D are broader than the 36B ones and include, on some argument, at least, non‑terrorism‑related offences including foreign interference and the like.

MR HORAN:   That is correct.

GORDON J:   Then the third is the public interest criterion you took us to, because it is in a different form in the way in which you might consider – which you just had this discussion with Justice Edelman about.

MR HORAN:   Yes.

GORDON J:   Then the fourth is the age criterion.  Here it applies to “any person”, which would include someone between 10 and 14, whereas 36B only applied to people over the age of 14.  Am I right about that?

MR HORAN:   I think that is correct, in part reflecting the rules relating to criminal responsibility as they apply under the Criminal Code.

GORDON J:   Thank you.

MR HORAN:   So, I think between 10 and 14 – I cannot quote the exact provision, but there is a need ‑ ‑ ‑

GORDON J:   There is.

MR HORAN:   ‑ ‑ ‑ to demonstrate an awareness of culpability.  Now, I just wanted to turn to the implications of the decision in Alexander.  The decision is at volume 11 of the joint book of authorities, tab 77, commencing at page 3963.  Now, I should say at the outset that I do not wish to labour the submissions in relation to Alexander, given your Honours’ familiarity with the issues and the reasons for judgment in that case.  Nevertheless, it will be apparent that the decision in Alexander has great significance to our submissions in the present case in relation to the application of that reasoning to section 36D.

We submit the ultimate question remains one of characterisation of the purpose of the power conferred by section 36D.  Firstly, is the power to deprive a person of his or her citizenship under section 36D conferred for the purpose of punishment for or punishment of criminal conduct?  The Court answered this question “yes” in relation to section 36B, and we submit that the same conclusion must apply in relation to the power conferred by section 36D.  Secondly ‑ ‑ ‑

GORDON J:   Can I just ask about that.  I had understood from the outline of oral submissions filed by the respondents that they accepted that they shared the same identified purpose.

MR HORAN:   Yes.  I am not sure whether that extends to the characterisation as punitive or the purpose in section 36A, or some more general expression of legislative purpose.  But we say that is an inevitable conclusion, given the considerations that were taken into account in Alexander, that the same characterisation should apply.

The second question is, if so – so, if the power is punitive – does the decision in Alexander nevertheless allow such a power to punish criminal guilt to be conferred on the Executive, consistently with Chapter III, provided only that it does not also involve the adjudgment of criminal guilt by the Executive?  So, for example, here it is said there has been an adjudgment of criminal guilt by prior conviction of a court exercising judicial power and the respondents say that that makes all the difference as to the validity of this section as compared to section 36B.

Now, while the Court did not directly address or answer this question in Alexander, we submit that it must follow that the answer is no.  Chapter III does not allow such a power to punish criminal guilt to be conferred on the Executive even where it is based upon a prior conviction and sentence.  In Alexander, the power to deprive a person of his or her citizenship under section 36B was held to be the imposition of punishment in retribution for proscribed reprehensible conduct, having regard to essentially three considerations, and I think this is common ground between ourselves and the respondents.

The first is the consequences or effect of the determination to strip a citizen of their rights associated with citizenship.  The second and related point was the historical precursors of citizenship deprivation for criminal conduct, namely, banishment and exile, which have long been understood to be a form of punishment.  The third was the purpose and policy of subdivision C in general and section 36B in particular, which were directed to punishment for or in respect of identified conduct that was regarded as reprehensible and deserving of sanction, namely, conduct that was the subject of the particular criminal offences under Parts 5.3 and 5.5 of the Criminal Code, albeit without the fault elements associated with those offences.

Now, we submit that each of those three matters can be seen to apply equally in relation to section 36D and determinations made thereunder.  First, as to the consequences of a citizenship cessation determination, the plurality judgment in Alexander addressed this at paragraphs [71] to [79], and I do not want to take your Honours through that in detail, but, relevantly, at paragraphs [73] to [75] your Honours stressed the effect of a loss of citizenship on the person’s entitlement to be both within the community and at liberty, and that relevantly included the right to return to the country “as a safe haven in need”.  Those rights were described at paragraph [74] as:

matters of public rights of “fundamental importance” to the relationship between the individual and the Commonwealth.

Then, again, one can see similar language at paragraphs [95] and [96] referring to the right:

to enter and live at liberty in Australia.

Now, because of that, the effect of a stripping of such rights was seen to be punishment of a different order to the loss of a statutory privilege or license under a regulatory regime; that is found at paragraph [77].  Now, in this context, we accept that the deprivation of citizenship does not lead directly and immediately to detention in custody or removal from Australia, and that is because, as the respondents point out, a person the subject of a section 36D determination is automatically granted what is known as an “ex-citizen visa” under section 35(3) of the Migration Act.  Now, that may also be the case in some circumstances in relation to determination under section 36B, if the person is in Australia when such a determination is made.

On the facts of Alexander, the plaintiff in that case was not granted an ex-citizen visa because he was not in Australia at the time that the determination was made, but nevertheless, he was deprived of his right to return to Australia and to be at liberty in the community, and one finds that identified at paragraph [26] in the plurality judgment.  Now, in the present case, although the applicant was granted an ex-citizen visa, that visa remains liable to cancellation, and we know from this Court’s decision in Falzon that any such cancellation would not constitute punishment for the purposes of Chapter III.

Now, in fact, as the amended special case states, the applicant’s visa has since been purportedly cancelled by the Minister under section 501 of the Migration Act.  So, that exposure to that consequence, and that distinction in status from being a citizen to becoming a lawful non-citizen who can be rendered unlawful – has, in fact, come to pass.

STEWARD J:   You accept Falzon?

MR HORAN:   Yes, we do.

STEWARD J:   So, cancellation of citizenship is “punishment”, even though you get a visa to stay here.

MR HORAN:   Yes.

STEWARD J:   The cancellation of the visa, which will lead to your deportation, is not “punishment”?

MR HORAN:   Essentially, the difference is that the latter – we do not seek to reopen Falzon – given the differences in the nature of the rights possessed by an alien and the rights of the Commonwealth to determine which non-citizen should be permitted to enter and remain in Australia, the cancellation does not bear a punitive character.  In part, that was because there was a – I think one of the planks of the ratio in Falzon is the fact that the cancellation of a visa did not, itself, was not a decision to detain or remove; that was something that flowed from other provisions.

There is also an element of a different purpose, being the purpose of – whether it is protecting the community, or, perhaps, more broadly, exercising that sovereign right to decide who may enter and remain in Australia as a non-citizen.  But the fundamental difference is, as a citizen, one is not subject to that sovereign right, and, in fact, there is that reciprocal bond that is created by citizenship which means that one has an entitlement to leave and return.

Now, the ex-citizen visa did not confer any right to leave and return to Australia in contrast to the entitlements of a citizen.  It may be that someone with an ex-citizen visa can obtain other visas.  I think there is a resident return visa, for example.  But the visa itself, at least temporarily, allows the person whose citizenship is cancelled to remain in Australia and not be detained.  But when cancelled, they then must be detained and removed, and they can never return to Australia as a citizen.  So, the effects of that deprivation are permanent.

We say that the effects or consequences of the determination, however they be characterised, are not materially different in substance from the effects or consequences of the section 36B determination on Mr Alexander.  Just dealing with the other judgments, your Honour Justice Gordon dealt with the consequences of citizenship cessation at paragraph [166], also accepting that the consequences were significant, comprising the:

loss of fundamental rights of citizenship with immediate effect and permanently.

And your Honour Justice Edelman at paragraph [248] referred to:

the extreme consequences –

involved in:

stripping a person of citizenship –

referring to a number of decisions of the United States Supreme Court including the description in Trop v Dulles 356 US 86, which I think is at tab 102 of the joint book of authorities, as:

“the total destruction of the individual’s status in organised society”.

Now, ultimately the point is that a determination under section 36D leads to precisely the same consequences and effects as a determination made under section 36B and supports the same characterisation of the power as punitive in nature.  In Alexander that was further supported by the historical comparisons with punishments of exile and banishment.  It is unnecessary to rehearse those comparisons in detail, they are identified and elaborated in the judgments in Alexander.

They are touched upon by the plurality at paragraph [72] and discussed by your Honour Justice Gordon in more detail at paragraphs [167] to [172] and your Honour Justice Edelman at paragraph [250].  But again, the point is that those comparisons are equally if not more valid in relation to a determination made under section 36D imposing denaturalisation or involuntary deprivation of citizenship as a consequence of conviction.

KIEFEL CJ:  Why more so, Mr Horan?

MR HORAN:   Just because the exile and banishment for, essentially, criminal conduct is more directly analogous to the situation dealt with by section 36D, which is a direct consequence of conviction and sentence of a serious criminal offence rather than a finding of conduct which aligns with criminal conduct.   But it is at least equally, your Honour.  I do not necessarily need to say more so.

I wanted to, just quickly and in passing, refer to Trop v Dulles – which is in volume 13 of the joint book of authorities, commencing at page 4905, tab 102. There, the United States Supreme Court distinguished between the stripping of citizenship as punishment for an offence, such as desertion, and other instances such as, for example, deportation of aliens. The key passage – which I do not need to, perhaps, go back to – which was quoted and cited in Alexander, is at pages 101 to 102 – which deals with the question whether denaturalisation – having found that it was penal in nature, the question was whether it was a cruel and unusual punishment contrary to the Eighth Amendment.  The description of the consequences of denaturalisation was picked up by some of the judgments in Alexander, including that:

The punishment strips the citizen of his status in the national and international political community.  His very existence is at the sufferance of the country in which he happens to find himself . . . Furthermore, his enjoyment of even the limited rights of an alien might be subject to termination –

All of those things – my answer to your Honour Justice Steward’s question earlier – are really pick up there by what the effect of that change of status is and how significant it is.  Earlier in the judgment of the court, delivered by Chief Justice Warren, pages 92 to 93, his Honour the Chief Justice talks about – the very last line of page 92:

And the deprivation of citizenship is not a weapon that the Government may use to express its displeasure at a citizen’s conduct, however reprehensible that conduct may be.

He then goes on, at page 97 – in relation to the particular offence there, which was section 401(g) – an offence of desertion.

GORDON J:   Sorry, what page was that, Mr Horan?

MR HORAN:   Page 97 – so it is 4916 of the joint book of authorities.  It is said that, at the first full paragraph:

The same reasoning applies to Section 401(g).  The purpose of taking away citizenship from a convicted deserter is simply to punish him.  There is no other legitimate purpose that the statute could serve.

Here, the purpose is punishment and, therefore, the statute is a penal law.  As I submitted earlier, the court then goes on to look at the Eighth Amendment issue, which is an additional issue above the penal aspect, but in one respect it is really that prior conclusion which is as material under Chapter III, for present purposes, which is that the character of a law – being based upon a conviction and taking away citizenship as punishment – really echoes the conclusion that was reached in Alexander.

GLEESON J:   Is it relevant in that context that the conviction is for desertion?

MR HORAN:   If anything, that would perhaps enliven other arguments about the nature of the offence being something that involves repudiation of allegiance, or something of that kind.  That is a matter which the Minister must separately address under each of these sections, but only by reference to the criminal conduct.  So, there might be other conduct that a person is engaged in – writing an express renunciation of allegiance, for example – which could not be taken into account under section 36D.

I think there is another section that deals with express renunciation – I think someone can voluntarily give up their citizenship, but the point is if, even in relation to offences such as desertion or foreign incursions or foreign fighting, even that can be regarded as punitive.  Then, the fact that the offences that are covered by section 36D encompass far broader range of conduct, which may or may not be redolent of repudiation, that emphasises the connection with that criminal conduct and the purpose of punishing it.

Turning to that policy and purpose, being to punish reprehensible conduct and – at least in relation to section 36D – criminal conduct, that is addressed in the plurality’s judgment at paragraphs [80] to [84].  It suffices to refer without reading to paragraph [82] in particular, where your Honour the Chief Justice, with Justices Keane and Gleeson, addressed:

The operative provisions which give effect to the policy stated by s 36A –

and described them as:

a response to conduct that is conceived of as being so reprehensible that it is radically incompatible with the values of the community.  The response of the Parliament to that reprehensible conduct is retribution in the form of the deprivation of the entitlement to be at liberty in Australia.  Retribution is characteristic of punishment under the criminal law . . . Associated with this purpose are notions of denunciation and deterrence of conduct that is regarded as reprehensible by the community.

All of those observations about the policy and purpose of the provisions encompass section 36D.  In fact, your Honours go on to say in the very next sentence that that statement of policy:

informs both ss 36B and 36D.

Now, in that regard, the conclusion that is reached in relation to the character of section 36B was in fact supported by a comparison of the operation of section 36B with that of section 36D.  One sees that referred to in terms at paragraph [80] and earlier at paragraph [70], so that it is not so much the areas of difference or contrast between the two sections that were significant, but the fact that section 36D, by analogy, informed the policy of section 36B.  We say that is because section 36D was more overtly punitive and that assisted in the characterisation of section 36B as having that same purpose.

KIEFEL CJ:   Well, under the – the plurality deal with this comparison of 36A and 36D under the heading which appears on page 580, and in the paragraphs which follow it might be thought that their Honours identify some points of commonality early on in [80], [81], [83], [84], sharing a common purpose in 36A, and then go on to distinguish the procedural safeguards.  So, there is a combination of commonality and distinction.

MR HORAN:   Yes, I accept that, your Honour, and that is very important for the arguments in this case – and I will come to those.  They are really – paragraphs [87], [91] and [93] are the main paragraphs that, in passing, distinguish that aspect of the engagement of the judicial process in section 36D.  I need to deal with what that means for the constitutional ‑ ‑ ‑

KIEFEL CJ:   So, 36D is used to point up a deficiency in 36B in relation to procedural safeguards.

MR HORAN:   Yes, that is correct.  That is certainly one factor that was an element of the reasoning in relation to the characterisation of purpose for section 36B, at least in the plurality’s judgment.  Now, your Honour Justice Gageler, who expressed agreement with the plurality at paragraph [98], also addressed purpose at paragraph [120].  There, your Honour’s conclusion, with respect, in relation to the purpose of the operative provisions of subdivision C which encompass, in my submission, section 36D, that they have in the final sentence of that paragraph:

the purpose of denunciation and exclusion from formal membership of the Australian community is solely on the basis of past criminal conduct.  That purpose can only be characterised as “punitive”.

Now, if that were the case in relation to section 36B, it must be the case in relation to section 36D, save for any significance that might be attached to the absence or presence of what is called the ordinary judicial process of a trial.  Your Honour Justice Gordon also concluded, I think, most relevantly at paragraphs [157] and [163] to [164] that section 36B conferred: 

the power to impose a sanction –

or a punishment for past conduct that warranted:

the condemnation of the Australian community.

and characterised the purpose of that provision as “retribution” for such conduct.  Your Honour Justice Edelman, in finding that the power conferred by section 36B was punitive, also relied at paragraph [251] on the purpose revealed by section 36A, focusing on the sanctioning of conduct in: 

breach of norms of conduct shared in the community –

which, relevantly, here are reflected in the criminal offence provisions under the Criminal Code.  Now, I should just observe in passing, your Honour Justice Steward, who was dissenting on the character, nevertheless accepted at paragraph [326] that:

denationalisation could be penal in nature –

in certain circumstances, and at [337] your Honour accepted that if the purpose of s 36B was to punish: 

it may not have been a valid law.

So, although the conclusion – your Honour’s minority conclusion in relation to section 36B was that that was not the purpose of section 36B, in my submission, even putting aside the precedential value of the majority decision in Alexander – may reach a different conclusion, in relation to section 36D, given its focus on criminal conduct.  But, in any event, one needs to now address that question in the light of the majority conclusion on section 36B.

Just in conclusion – well, not in complete conclusion, but to this point, we submit it is inescapable that the power conferred by section 36D to make a citizenship cessation determination following a person’s conviction and sentence for one or more offences specified in subsection (5) should be characterised as punitive in character.  Just relevantly, and in passing, I will submit that that is not altered by the considerations that are addressed by the Minister in paragraph 1(c) or 1(d); namely, whether: 

the conduct . . . demonstrates that the person has repudiated their allegiance –

and, whether: 

it would be contrary to the public interest for the person to remain an Australian citizen.

That is chiefly because those precise same considerations were applicable to the power under section 36B.  So, their presence in section 36D cannot be something that precludes the characterisation – a punitive characterisation that was given to section 36B in Alexander.  Also, for completeness, nor is that characterisation altered by the fact that there are powers to revoke a citizenship cessation determination in some circumstances.  Again, those same powers of revocation were equally applicable to a determination made under section 36B. 

Coming to the critical question – which is really the question that your Honour the Chief Justice asked me – and that is whether there is a material difference to the outcome by reason of the fact that the power under section 36D is enlivened by a conviction and sentence following a trial in a court exercising judicial power with all of the procedural safeguards that apply in such a trial.  The first point is that that question is explicitly left open by the judgments in Alexander.  It can be accepted that the plurality judgment refers on several occasions to the difference between the ministerial fact‑finding process under section 36B(1)(a) and the requirement and prior conviction and sentence under section 36D(1)(a) and (b).  I think I mentioned earlier that the key paragraphs are paragraphs [81], [91] and [93].

It was seen as relevant that unlike section 36D, section 36B contemplated a finding that the person had engaged in the specified reprehensible conduct without the due process of a criminal trial, or any orthodox exercise of judicial power.  Your Honour Justice Edelman at paragraph [252] also took that into account as one relevant factor in the characterisation of section 36B; namely, that the Minister was the person who both:

decided that the conduct was . . . reprehensible –

and had been engaged in, and also:

exercises a discretion to determine whether Australian citizenship should cease.

We submit that while that might have been an additional component or, we would say, subsidiary factor which supports the conclusion that section 36B was contrary to the separation of judicial power under Chapter III, it does not imply that section 36D is valid simply because it attaches to the factum of a criminal conviction prior to the exercise of power.

EDELMAN J:   Is this any different from your point about whether or not punishment within Chapter III is concerned with the adjudication and punishment of criminal guilt, or whether it could be also concerned with mere punishment guilt?

MR HORAN:   That is correct, your Honour.  Essentially, it is that point and it leads into that point to which I am about to turn.  We say that the vice that was found by the plurality in section 36B was that it did not provide for the exercise of judicial power at all.  Then the observation was that it was “beside the point” and did not assist the argument in support of validity of section 36B that section 36D did contemplate an exercise of judicial power as a precondition to enlivening the power to impose a punishment of citizenship deprivation.  In some respects, that might also explain the way in which the plurality’s conclusion in summary was couched at paragraph [96] that I took the Court to earlier, that the power to determine the facts which enliven the power to impose such a punishment was exclusively judicial and required to be exercised by a Chapter III court.

That is undoubtedly true, but, we say it would be taking those observations too far to suggest that once a Chapter III court has determined facts in relation to criminal conduct and the appropriate sanction to be imposed by way of sentence for that conduct – and let us call that the adjudgment of criminal guilt – then that can be used as a factum to enliven a power conferred on the Executive to impose punishment or additional punishment for that same conduct.  Essentially, that raises the question that was identified by your Honour Justice Gordon at paragraph [174] in express terms; namely, whether section 36D authorises the imposition of a new or additional punishment for a person committing an offence.

So, I now turn to that question of how does the Lim principle apply, and whether – it has been addressed in the submissions as whether it is conjunctive or disjunctive.  In one sense, that dichotomy may be too simplistic, because we do not necessarily suggest or need to go so far as to say that it is entirely disjunctive, in that a power – we do not suggest that a power only to make a finding that a person has engaged in criminal conduct, when conferred on the Executive, would be judicial in nature if it is not associated with any legal consequence at all, or if the legal consequence is something that does not lead to a punitive character.

An example of the former is, I think, the case that the Commonwealth in their additional authorities referred to:  the BLF Case.  I can get the citation – but that is the common situation of a Royal Commission or other executive commission of inquiry being authorised under letters patent to make findings as to whether persons have engaged in criminal conduct.  In that case, although it was not squarely the issue, what was observed was that that was not a judgment of criminal guilt in the sense that it was a finding that had no legal consequence at all; it was not associated with punishment.  So, it did not necessarily offend Chapter III for the Executive to be able to conduct an inquiry into that and make findings.

In the context of a non‑punitive power, one can look at the type of power that was considered in Falzon:  the power to cancel a visa enlivened by a finding that a person has engaged in criminal conduct, whether with or without conviction, but the purpose and effect of the power is not to impose punishment for that conduct.  Other examples are the ones that are considered by the Court in Alexander:  the Today FM and Visnic Cases, which were distinguished as being concerned with cases far removed from citizenship deprivation, where a finding that someone has engaged in criminal conduct for the purposes of determining whether they are a fit and proper person to hold a licence, or for some other disciplinary reason, as part of a regulatory regime which is directed to purposes other than punishment – again, that is different.

We do not seek to say that the Lim principle applies to a judgment of criminal guilt on its own.  We are not associated with any legal consequence in the nature of punishment, but we do say that it is not conjunctive to the extent that one always needs the conjunction of both a judgment and punishment in the same repository of power so that whoever is responsible for the adjudgment of criminal guilt, the application of the Lim principle equally precludes the imposition of punishment for that criminal guilt.  And that is - - -

GORDON J:   Do you say, in effect, that the Lim principle applies to deprivation of citizenship? 

MR HORAN:   Yes.  I think it is accepted and even though our learned friends say it is a conjunctive test, a judgment and punishment, I think it is accepted that at least in relation to detention and custody, the Lim principle would apply to punishment simpliciter, detention imposed as punishment based upon a prior adjudgment would offend the Lim principle.  I think that is conceded by our learned friends.  Here, of course, we are not dealing with detention.  We are dealing with deprivation of citizenship.  But the key importance of Alexander is really to emphasise that that sanction, that the Lim principle is not confined narrowly to detention.

GORDON J:   Well, there are a number of judgments that have said punishment – the categories are not closed.  One has to look to see what is the statutory framework in which you are operating and what the consequence is of the operation of the statute.

MR HORAN:   Yes.  And it depends on what is being done and why it is being done.  One can imagine citizenship deprivation as a consequence can be done for non-punitive reasons but, where one has a combination of the ‑ ‑ -

GORDON J:   Chief Justice Gleeson recognised that in Woolley’s Case.

MR HORAN:   Yes.  And so, examples would be the long – and I will come to this when dealing with the sovereign capacity point – but the legislative provisions providing for citizenship to cease upon taking up citizenship or nationality of a foreign country or particular kinds of foreign countries, those sorts of provisions would have the same effect, but they would not be dependent on the terms and the context.  They could be couched in a way that was not necessarily characterised as punitive.

These provisions, both section 36B and 36D are squarely directed to retribution for reprehensible or criminal conduct and that is the distinction, when one combines that with the extreme nature of the consequence of involuntary stripping of citizenship.  Now, looking at Lim, the case is at volume 4 of the joint book of authorities, tab 37, commencing at 1058 and the key passage is at 27 to 28.

We say neither this passage in the judgment of Justices Brennan, Deane, and Dawson, nor any subsequent consideration by this Court supports a conclusion that the principle is concerned only with the conjunction of both aspects of the adjudgment and punishment of criminal guilt in the same repository of power.  The first point to note is that their Honours – after referring to the adjudgment and punishment of criminal guilt under a law of the Commonwealth as being essentially and exclusively judicial – it immediately goes on to say that:

Ch. III of the Constitution precludes the enactment . . . of any law purporting to vest any part of that function in the Commonwealth Executive.

So, one cannot separate out the punishment from the adjudgment and bring it into consistency with Chapter III.  Their Honours go on to say:

the Constitution’s concern is with substance and not mere form.

And that led to their conclusion that the limitation would be infringed by a law conferring an executive power:

to detain citizens in custody notwithstanding that the power was conferred in terms which sought to divorce such detention in custody from both punishment and criminal guilt.

In a way, that is a different point that is being addressed there.  But that is saying that if it is divorced completely from – but it certainly is consistent with a proposition that a power that is conferred in terms which divorce the detention or the imposition of detention in custody from an adjudgment of criminal guilt would be equally offensive.  That cannot be something that is confined to detention – I am sorry?

STEWARD J:   No, no, finish your point.

MR HORAN:   That cannot be something that is confined to, or peculiar to, the particular circumstance of detention in custody.  It must be a more general point that, looking at substance and not mere form, punishment of guilt that has been determined previously – and sanctioned already by a court in accordance with an ordinary judicial process – cannot then have erected upon it an executive power to impose further punishments.

STEWARD J:   You mentioned before, Mr Horan, that there might be occasions when cancellation of citizenship would not be punitive.  I think there used to be a provision in the predecessor Act of someone who takes up arms against Australia, and that short of thing.  What would your position be if section 36D did not have (1)(a) and (b) – that is, it did not turn on conviction of anything but just simply turned upon the Minister being satisfied that a person who has repudiated their allegiance to Australia and it is in the public interest for them to have their citizenship cancelled.  Would that be something that you would consider to be valid?  I may have asked the same question the last time around.

MR HORAN:   I was not here the last time around, but I think the answer – one has to make a qualified answer – but, probably yes, insofar as it would ‑ ‑ ‑

STEWARD J:   Yes, it would be invalid, or yes – okay.

MR HORAN:   Yes, it could be ‑ ‑ ‑

STEWARD J:   Could be that.

MR HORAN:   ‑ ‑ ‑ characterised as validly non‑punitive because, insofar as it was not directed to sanctioning reprehensible conduct, it was directed to any conduct, whether reprehensible, criminal or otherwise ‑ ‑ ‑

STEWARD J:   But has the quality of a repudiation.

MR HORAN:   Yes.

STEWARD J:   Can I ask you this, for a related question?  In the United States, prior to Trop v Dulles, the Supreme Court accepted that you did not need to have a voluntary act of repudiation in order to lose your citizenship.  It could be something where you are taken, objectively, to have so acted, and then Trop v Dulles overturned that line of authority and said, only a voluntary act.  Do you say only a voluntary act would be valid here or do you accept that an objective repudiation might be sufficient?

MR HORAN:   I think there would have to be some – to found a conclusion of repudiation, it would have to be something that had some element of voluntariness.  One can look at taking citizenship ‑ ‑ ‑

STEWARD J:   If they have to go, voluntary, to war against Australia, that cannot be done against their will.

MR HORAN:   Yes.

STEWARD J:   That should be accepted.

MR HORAN:   To take a more neutral example, the old provisions about losing citizenship if one became a citizen of another country, generally – I am willing to stand corrected, but that would not arise if someone had bestowed, without any voluntary act or intention, acquired citizenship or a right to obtain citizenship – perhaps under a foreign law – but once one – so you could be a dual citizen in some circumstances if one already had citizenship or perhaps gained it involuntarily, but ‑ ‑ ‑

STEWARD J:   Well, dual citizenship may not bespeak a repudiation of allegiance.

MR HORAN:   But at one time it was regarded ‑ ‑ ‑

STEWARD J:   Yes, I know it was.

MR HORAN:   Yes.  So the point is that there is a range of circumstances in which powers might be conferred that do not have anything like the character of subdivision C determinations.  They are not imposed as a sanction.  They are simply there, either to protect the community or to ‑ ‑ ‑

EDELMAN J:   But that is no different from detention.  There is a range of exceptional circumstances where people are detained for reasons other than punishment.

MR HORAN:   That is correct, and so there can be – there is a different category of cases which do not really arise here; might be more relevant in Jones about, for example, fraud or misrepresentation in connection with a naturalisation process.  Again, stripping citizenship in a whole range of different hypothetical examples, this is not a general conclusion that any time somebody loses citizenship it has a default characterisation as punitive.  We accept that, but one needs to look here at the proper character of this power and it ‑ ‑ ‑

EDELMAN J:   So, why do you accept that?  If the effect, broadly, of Lim is to create a broad principle subject to exceptions that detention is usually regarded as punitive, why would citizenship stripping – which is a consequence that for many hundreds of years was regarded as far more extreme than detention, be regarded or treated differently?

MR HORAN:   Well, it might depend whether one starts with the default characterisation and then displaces that in the context of these provisions about foreign nationality or fraud or misrepresentation, or whether one starts with a neutral position and seeks a punitive characterisation.  In the end, we say for the present case nothing much turns on that because we already know from Alexander that section 36B has a punitive character.

The question is, how can any other characterisation arise in relation to section 36D?  And the only thing that is pointed to by the Commonwealth to distinguish the purpose and character of the provisions is the prior engagement of the judicial process.  But that is a historical matter.  That is somebody who has been convicted and found guilty and sentenced for an offence, and this is completely divorced from that, taking that as a factum, and then imposing a further sanction for that conduct.

GORDON J:   So, there are really three issues.  There is, is the Lim principle directed at conjunction or does it permit disjunction – and not only Lim, but there a number of authorities that have dealt with it on a disjunctive basis – so there is a whole stream of authorities, and it may be that the question has not been directly addressed but it still has been the subject of discussion in the authorities – so that is the first question, is it not?

MR HORAN:   Yes.

GORDON J:   Then the second question is taking what, in effect, is the consequence of the punishment – whether or not that is itself punitive, given the characterisation of the power.

MR HORAN:   Yes, and if one assumes for present purpose that it has a punitive character, the question is, can one impose that punishment – can the Executive impose that punishment, because there is no need to find criminal guilt – because it has already been done by a court in accordance with the judicial process.  So, your Honour is right, that the first question is, does Lim require – in order to infringe the Lim principle, or some associated principle, is it necessary for the same body both to adjudge and to punish?  We say it is disjunctive at least to the extent that a power to punish, even if it does not require adjudgment of criminal guilt, that the power to punish is still exclusively judicial.

GORDON J:   What is interesting in Lim is, if you start at the bottom of page 26, the proposition which is put – which is the second limb of Lim – is that:

No part of the judicial power can be conferred in virtue of any other authority or otherwise than in accordance with the provisions of Chapter III –

so that is the starting premise.  Then one goes up to the top of 27 and it says it does:

not permit the conferral upon any organ of the Executive Government of any part of the judicial power of the Commonwealth.

Then one comes down, and it says:

There are some functions which, by reason of their nature or because of historical considerations, have become established as essentially and exclusively judicial –

The two functions which are identified as being the “most important” are:

the adjudgment and punishment –

then one has, at the end of that paragraph:

That being so, Ch. III of the Constitution precludes the enactment, in purported pursuance of any of the subsections of s. 51 . . . of any law purporting to vest any part of that function –

being any part of the function of adjudication and punishment.

MR HORAN:   That is correct, your Honour, and we emphasise that and say that punishment is clearly a relevant part of the exclusively judicial function of a judgment and punishment.

GORDON J:   To which you add the substance and form aspect in the second – next paragraph.

MR HORAN:   Yes.  And it must be so because one can take the, in my submission, with respect, clear example of an executive imposition of a further period of imprisonment as punishment.

We know from Lim that the default characterisation of that detention in custody would be punitive unless it fell within one of the exceptions – but let us assume none of the exceptions apply.  I do not think anybody suggests that after a sentence has concluded that the Executive can impose a further term of imprisonment on a convicted prisoner by reference to the earlier conviction just because it has already been determined in accordance with the criminal trial that the person is guilty – that imposition of punishment is something that only be done by a court.  Now, if done by a court, it would raise other considerations such as double punishment and so on, but it certainly cannot be done by the Executive.

Now, cases like Fardon and Benbrika turn on continuing detention after sentence, the first under a State law, the second under Commonwealth law, and whether that is capable of being conferred on a court.  But there is no suggestion that even with a protective purpose, one could have a continuing detention order regime under which the Executive, the Minister, made continuing detention orders, even if they were subject to judicial review under section 75(v).

So, we say that that is a clear illustration of the example of where executive punishment of criminal guilt, even if relying on the factum of a prior conviction or sentence, is still part of the judicial power.  One then needs to apply that in the present context to the characterisation of the stripping of citizenship under section 36D as being just that case of additional punishment for criminal guilt.

KIEFEL CJ:   I see the time.

MR HORAN:   Yes, your Honour.

KIEFEL CJ:   The Court will adjourn for 15 minutes.

AT 11.16 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.32 AM:

KIEFEL CJ:   Yes, Mr Horan.

MR HORAN:   If the Court pleases.  I just wanted to start by correcting something I said earlier about the operation of section 36D(1)(a) and (b).  I think I told your Honours that they were conditions that depended on ministerial satisfaction, and my juniors have brought to my attention that in fact, while that is true in relation to the conditions in paragraph (c) and (d), the conditions in paragraph (a) and (b) turn on the fact of conviction and sentence.

In connection with that, I also wanted to just briefly return to a question your Honour Justice Steward asked about whether the Commonwealth could enact a provision, for example, without paragraphs (a) and (b) and just with paragraph (c) and (d), and I think I said a qualified yes.  I should expand upon that answer just by saying firstly that a power of that breadth if it were simply allowing the Executive – in this case, the Minister – to determine any conduct that constituted repudiation and to impose a consequence of deprivation of citizenship, it might raise the issues that your Honour Justice Edelman asked me about concerning default characterisation and whether or not that should be in accordance with Lim and by analogy with detention, treated as presumptively punitive.

Even if the breadth of that beyond reprehensible or criminal conduct meant that Alexander did not govern – or that a different result would obtain in relation to characterisation, there might still be questions about the exercise of the power, so that it may not be a power that could be permissibly exercised for punitive purposes based on findings about past criminal conduct.  In any event, it is a hypothesis which might be relevant to test the arguments advanced on either side in relation to section 36D, but this Court has to determine the character of the power conferred by section 36D in light of the conclusions in Alexander.

Further to my point about additional punishment, I wanted to take your Honours to two decisions which I think your Honour Justice Gordon might have been referring, or have in mind some of them as instances where this Court has accepted that the Lim principle can apply to a judgment or punishment of criminal guilt, although, the point was not relevantly in dispute or raised for determination by the Court.  The clearest example of that is in Falzon, which is at volume 5 of the joint book of authorities, tab 42, commencing page 1443, where the plurality judgment at paragraph 15 – in that case, of course, the conclusion was that the power there was not punitive; did not involve punishment at all, but the argument was conducted on the basis that:

it is sufficient for invalidity, by reference to Ch III, if the statutory provision punishes a person for an offence.

Even if divorced from a judgment.  So, in that case, as your Honours – Chief Justice Kiefel, former Justices Bell and Keane, and your Honour Justice Edelman noted, the plaintiff’s submission in that case, which sought to clarify the principle in Lim, by submitting that:

the exclusive power is to “adjudge guilt of, or determine punishment for, breach of the law”.

So that:

it is sufficient for invalidity . . . if the statutory provision punishes a person for an offence.

And it was just said:

This does not appear to be disputed by the defendant.

Of course, the defendant in that case being, relevantly, the same as the defendant in this case.  But, of course, it did not really arise in that case, because the entire case stood or fell on the proper characterisation of the power to cancel a visa on character grounds, including as a result of a criminal conduct.  The next case I wanted to – just before leaving Falzon, one can compare the judgment of your Honours Justices Gageler and Gordon at paragraph 89, although this is a bit more oblique.  The paragraph commences by dealing with the “broad choice”, that:

The Parliament has . . . as to the factum upon which a power to cancel a visa will operate.

And that can include:

The need . . . to have a substantial criminal record and to be serving a custodial sentence –

without meaning that:

cancellation of a visa is directed to the imposition of punishment for criminal guilt.

But the relevant reference there was cancellation of a visa for that purpose, namely:

to exclude –

a person:

from the Australian community . . . who, in the view of the Parliament, should not be permitted to remain in Australia.  Cancellation . . . for that purpose does not involve any determination or punishment of criminal guilt and does not involve the exercise of judicial power.

It may be that that formulation simply reflected the way in which the plaintiff couched the submissions and the lack of dispute as to that proposition in the case, but nonetheless, it is consistent with the disjunctive approach to the Lim principle, at least insofar as it focuses on the string of punishment, even if divorced from prior adjudgment of criminal guilt.

GAGELER J:   You can approach this question at a level of first principle by asking whether it would be possible for the Parliament, consistently with Chapter III of the Constitution, to enact a regime whereby it was up to a court to convict and it was up to the Executive there to sentence.  It almost answers itself.

MR HORAN:   Precisely, your Honour, and I think in this case, we have said that ‑ ‑ ‑

EDELMAN J:   Because of the example in your submissions of the executive sentencing Act of the Commonwealth ‑ ‑ ‑

MR HORAN:   Yes, or even splitting the sentencing function so that part of it is done by the court, in this case.  I think, returning to your Honour’s question to me before, not revisiting that sentence, all of those questions are sorts of arguments dealt with in Minogue and Crump and Knight; not revisiting it, but supplementing it by adding further punishment.  In each of those cases, the non‑parole cases turned on the fact that removing the right of parole was not in any way altering the sentence or imposing punishment, but it is accepted tacitly in each of those cases that if it were imposing further punishment, it would be problematic if the Executive were to do that.

GORDON J:   Have you looked at – there is a very interesting discussion by Justice Gageler in Magaming by reference to what Lord Diplock said in Hinds’ Case about dealing with punishment as separated out from the conviction process.

MR HORAN:   Yes, I have not looked at that, your Honour.  I might see if there is an opportunity to do so over lunch.  The case I was about to go to was Minogue – I cannot remember if it is Minogue (No 1) or Minogue (No 2), but it is the one in (2019) 268 CLR 1, volume 6 of the joint book of authorities, tab 53. We say that that case did proceed on a similar premise, in particular at paragraph 13. Again, I accept that this is not a principle that was relevantly in dispute, but we say that is because it is a matter of first principle, rather than something left to be decided in a future case. At paragraph 13, the majority judgment there, or the plurality judgment says:

In this proceeding, the plaintiff sought to build on the undisputed proposition that the imposition of punishment, or punitive treatment, or additional punishment or punitive treatment, as a consequence of criminal guilt is an exclusively judicial power or function.

And there is a reference to Lim at page 27 and to Crump, but we say that that is self‑evident, and it would be an example of the executive sentencing Act or the like.  Your Honour Justice Gageler at paragraph 32 also, again, obliquely touched on this in rejecting the plaintiff’s argument in that case, but nevertheless concluding at the end of paragraph 32 that:

the legislative removal of a meaningful prospect of release on parole does not render the life sentence more restrictive of his liberty or otherwise impose greater punishment for the offence of which he was convicted.

That same explanation denies to section 74AB the character of a law that is itself an exercise of judicial power.  Now, we say, although it is not directly said by your Honour there, that the converse would be the case if the law did impose greater punishment for the offence of which Dr Minogue was convicted.  These cases turned on the fact that the withdrawal of the entitlement – the restriction of the ability to obtain parole on application was in no way the imposition of greater punishment.  Your Honour Justice Edelman at paragraph 36, also identifying the:

Common characteristics of an exercise of judicial power in sentencing an offender –

those included, relevantly:

the exercise of authority over a particular person, (iii) by reference to a past criminal act, and (iv) for the purposes of punishment.

Although, of course, noting that:

no single characteristic is a necessary or sufficient element of judicial power.

Then, more directly at paragraph 41, your Honour Justice Edelman looks at the different issues that would arise if a law was:

enacted for the purposes of imposing additional punishment on a particular person, and thus amending their sentence, for the past offence.

Of course, these cases did not involve that, and that was why the challenge failed.  So, we say, the Court should now accept as settled the proposition that was undisputed in Minogue, in Falzon and in Alexander itself that the power to adjudge guilt of or to determine punishment for breach of the law is an exclusively judicial function.  The judgments in Alexander do not go to this in much detail, but your Honour Justice Edelman does refer to Falzon at paragraph [235], noting that the proposition “has much to commend it”, and at paragraph [246], your Honour discusses the example of the continuation of imprisonment after the end of a person’s sentence as being punitive, even if it might also serve a protective purpose.  I will come to that in a moment.

GLEESON J:   Mr Horan, there is no precedent, is there, for the proposition that punishment by deprivation of citizenship is the exercise of judicial function?

MR HORAN:   Well, Alexander, we say, is the case on point for that proposition.  The involuntary deprivation of citizenship in retribution for reprehensible or other criminal conduct is properly characterised as punitive – and the imposition of punishment for that conduct – and therefore as exclusively judicial.  But I think your Honour is right in the sense that, if one regards Alexander as depending on the ministerial fact‑finding process and turning on that point as a point of distinction, then it would not be authority on that narrow approach to the ratio for the proposition that the deprivation of citizenship alone would be exclusively judicial.

GLEESON J:   I think I am asking a more basic question, which is whether there is any history of judges exercising a power of deprivation of citizenship as a punishment.

MR HORAN:   Not that I am aware of.  We say that if it is to be done as punishment, it should be done judicially either at the time of sentence or, if it can be done so, then afterwards, but ‑ ‑ ‑

EDELMAN J:   Well, not in this jurisdiction, but there is otherwise a very long history of using deprivation of citizenship or deprivation of an entitlement to remain in the territory as punishment.

MR HORAN:   Yes, but being conferred on courts, I do not think there is a precursor or precedent in Australia for a court doing so as part of a sentence.  One might also have other situations where, let us say prospectively, Parliament enacts a provision saying if someone is convicted of these offences then their citizenship will be cancelled.  Put to one side if that applied respectively, but if that were to apply prospectively then the court, when sentencing the offender, would effectively be aware of that as a consequence and as really part of the punishment that was being imposed when sentencing.

So, that might be a different – again not the situation we are concerned with here.  But, in our submission, the type of power conferred by both sections 36B and 36D is not denied to the sovereign capacity of Australia to do, but it has to do so consistently with separation of powers by conferring that kind of power on a court.

STEWARD J:   Do you say it is any different when it comes to a decision to refuse to cancel citizenship because of conviction for an offence?  Which has always been a power reposed in the Executive.

MR HORAN:   Refuse to grant citizenship?

STEWARD J:   For . . . . . . grounds – because the person has been convicted.

MR HORAN:   I think that would stand in a completely different category because it is not dealing with the deprivation of any entitlement or the stripping of rights.  It is simply placing conditions on who may ‑ ‑ ‑

STEWARD J:   But on your view – on one view, and perhaps a logical consequence of your argument, is that it is another form of punitive action because the person has committed an offence.

MR HORAN:   I think it would not be punishment, because one is not taking away something that someone already has and is not stripping rights; it is simply prescribing the conditions upon which someone may be admitted to membership of the Australian body politic or the Australian community.

STEWARD J:   So, in your view, refusal is not punitive, but if it was cancelled a month after citizenship was acquired because you were convicted of an offence, that might be?

MR HORAN:   Yes.  The powers to grant citizenship are different from the powers to strip them, and they have, arguably, a different source.  Maybe the same placitum, but the naturalisation power as opposed to the aliens power or some other head of power – and so conditions upon which someone may be naturalised has always been something that Parliament can prescribe, and it would not be punitive ‑ ‑ ‑

STEWARD J:   And reposed in the Executive.

MR HORAN:   Yes.

STEWARD J:   Yes.

MR HORAN:   It would not be punitive to deny someone the membership of the Australian community on the basis that they had a prior conviction history.  But once someone is a citizen, to denaturalise or denationalise as a punishment or sanction for engaging in particular conduct – which is, essentially, what Alexander was concerned with and, we say, is precisely the same here – that is exclusively judicial.

As, I think, I submitted before, it is partly for this reason that statutory regimes for continued detention of offenders after the expiration of their sentence generally, if not always, involved the conferral of such powers on a court, rather than on the Executive.  At least where conferred under Commonwealth law, as was the case in Benbrika, such powers must necessarily be characterised as judicial in nature, even though there are different questions that arise as to whether the powers are of a nature and are exercised in a manner that can be conferred consistently with a Chapter III court.  But it may be assumed that that kind of power to make a continuing detention order could not be validly conferred on the Executive, even if it is had protective aspects to the purposes of the regime.

There was a reference in Benbrika, which is volume 6 of the joint book of authorities, tab 51, at paragraph 41, a passing reference that if:

detention under a scheme such as that considered in Fardon is to supplement punishment for a crime would raise a large question as to double‑punishment.

In one sense, that is a different issue, which is that even conferring that as a judicial power on a court, there might be limits as to when that can be done if the person has already been convicted, sentenced and punished for the crime.  I wanted to just make a passing reference to two ‑ ‑ ‑

STEWARD J:   Was that 51, I am sorry?

MR HORAN:   It is tab 51 ‑ ‑ ‑

STEWARD J:   Paragraph?

MR HORAN:   ‑ ‑ ‑ paragraph 41.

STEWARD J:   Thank you.

MR HORAN:   Page 100.  The Commonwealth has referred to two additional cases.  One is Attorney‑General (NT) v Emmerson (2014) 253 CLR 393. That was concerned with the statutory regime for the making of forfeiture orders in relation to the property of drug offenders. The power was conferred on a court, so the challenge – like in a lot of these cases, insofar as it arose under Chapter III – was based on Kable grounds.  But, in our submission, that case does not – if anything, it supports the applicant’s arguments in the present case because it was accepted by the Court there that those forfeiture orders were penal and were additional to the punishment that had been imposed in the prior criminal proceedings.  One can find that at page 423, paragraph 37, where the Court says:

That the stated objectives are penal, and additional to punishment imposed in criminal proceedings, was explained prior to the enactment of the statutory scheme.

Then, later, at paragraphs 52 to 54, there is an elaboration of an argument that the conferral of the power was, effectively, a conferral on the Executive of an unreviewable discretion to impose that punishment because the Court had limited discretion not to make the forfeiture order.  There is a reference there to the principals that were invoked, which include the Lim principle, but they were rejected, not on the major premise – not on the premise that the Executive could, in fact, exercise the power to impose additional punishment – but on the basis that because the Court made the order and that the criteria that the Court applied did not involve any mandatory making of the order on the exercise of the discretion by the DPP to bring the application, that, effectively, they rejected the argument that the regime, in substance, conferred power on:

the DPP, to impose a penalty constituting a “double punishment” on a declared drug trafficker without the benefit of ordinary judicial processes –

So, the case is distinguishable, but it is certainly consistent with a view that additional punishment – if it is to be imposed – should be imposed by the conferral of judicial power on a court.

Similarly, another case in the additional authorities referred to is Polyukhovich v The Commonwealth (1991) 172 CLR 501. Now, that involved the war crimes legislation, questions of retrospectivity and the like, and the only point I wanted to make in relation to that, the case is really about bills of attainder which involved a legislative adjudgment of criminal guilt, but notably Chief Justice Mason at page 536 when dealing with bills of attainder refers to the limitation derived from Chapter III on such legislation in disjunctive terms, namely the legislature adjudging the guilt.

GORDON J:   Sorry, where are you reading, Mr Horan?

MR HORAN:   I am trying to find the point on the page, your Honour, I am sorry.

GORDON J:   This doctrine applies to bills of attainder – at point 3, thank you.

MR HORAN:   It is about halfway down the page just after the reference to Tribe:

The application of the doctrine depends upon the legislature adjudging the guilt of a specific individual or specific individuals or imposing punishment upon them.

So, it is consistent with the disjunctive approach in the context of the Lim principle that punishment itself is exclusively judicial.  Now, we say – I think that I have covered this earlier – but when we say that the principle is disjunctive, it is put against us that there are many examples where the Executive can adjudge or make findings of criminal conduct without infringing Chapter III.  Now, all of those authorities are distinguishable because none of them involve punishment.  They either involved a pure finding without consequence or a finding for the purposes of a factum in an otherwise non‑punitive administrative power.

One might question whether it is even accurate to describe powers in those terms as truly involving an adjudgment of criminal guilt within the meaning of the Lim principle but, in any event, to say that the Executive might be given a power of adjudgment without a power to punish criminal guilt is not to say that the Executive can validly be given a power to punish criminal guilt simply because it does not require any adjudgment as to whether the person has committed a criminal offence.  So, for that reason ‑ ‑ ‑

GORDON J:   Are you talking about Duncan, Today FM, Re Woolley?  Is that what you are talking about in that context, when you say the Commonwealth cases?

MR HORAN:   I think they rely upon Falzon and I think some of these additional authorities are meant to support the – I do not want to pre‑empt my learned friend’s submission – but that adjudgment can take place in the Executive without infringing Chapter III.  Re Woolley is really a case about detriments other than punishment – that detriment itself is not enough to be punitive.  But here, we are beyond that point because it is accepted that it is more than just a mere detriment.

So, really, in conclusion on the Lim principle, we submit Chapter III and the Lim principle prevents the conferral of power on the Executive to impose a sanction or punishment for past criminal conduct, even in circumstances where a prior conviction and/or sentence by a court in accordance with a judicial process is used as a factum to enliven the relevant executive power.  We say that is consistent with the proposition that the Executive could not be given the power to extend a sentence of imprisonment imposed by a court, or to impose any other detriment or harsh consequence that is properly characterised as punishment for past criminal conduct.  In our submission, that is precisely the operation of section 36D.

I just wanted to make some very brief submissions about two further matters.  One is the relationship between protective powers and other non‑punitive powers and the imposition of punishment.  And the second is just to return to the point about sovereign capacity.  Dealing with the first, we say that a case such as the present can be distinguished from the line of authority in which this Court has upheld statutory provisions on the basis that the power conferred on the Executive was not properly characterised as the imposition of punishment in circumstances where the relevant criminal conduct, or perhaps conviction, was used as a factum in the exercise of an administrative power for a non‑punitive purpose.

The best example of that is Falzon, which is at tab 42, volume 5, in the joint book of authorities – the power to cancel a visa so as to change the status of a person from lawful non‑citizen to unlawful non‑citizen – and the various consequences that flow from that.  Or there are the cases such as Today FM and Visnic which were discussed in Alexander at paragraphs [77], [109] and [243].  Now, in the present case we say the purpose, as in Alexander, is of punishment.  In making that submission we note – and I think this is not necessarily in dispute – that in concluding that the character is punishment, that is not mutually exclusive with protective elements such as protection of the community.  That is a point which is made in many places in Alexander.  In the plurality’s judgment, paragraph [75] notes that:

The suite of provisions which includes section 36B –

one can insert, it also includes section 36D:

may be said to pursue a purpose of protecting the Australian community from the risks to peace and security posed by returning foreign fighters –

or, in this case, it might be other persons who engage in the relevant criminal conduct associated with terrorism:

But that protective purpose is not the principal purpose of the provision so as to qualify the power conferred by section 36B as an exception to the Lim principle.

EDELMAN J:   Which paragraph are you reading from?

MR HORAN:   Paragraph [75].

EDELMAN J:   Paragraph [75], thank you.

MR HORAN:   Then, it is said, that in fact:

the principal purpose of s 36B is retribution –

and that leads into the characterisation that is set out in the ensuing passage in the judgment.  Then at paragraph [99] your Honour Justice Gageler, who wrote separately, largely to address, among other things, this distinction between punishment and protection, and at paragraph [99] there is an identification of the submission that:

someone who ceases to be an Australian citizen by operation of a ministerial determination . . . is not “punished” –

in the relevant sense:

because the “purpose” of the section is to “protect the Australian community” from persons found to have engaged in terrorist conduct.

Your Honour then goes on to discuss, essentially, why that is a false dichotomy, partly depending upon the level of generality at which the purpose is characterised, but also because at paragraph [112] your Honour notes that “protection of society” is:

one of the “purposes of criminal punishment”.

And, similarly, your Honour Justice Edelman at paragraph [240] – I think, [235] and [246] – touches upon the relationship of protection and punishment, but I think as your Honour had earlier observed in Benbrika,

that it is what your Honour describes as a “category error” to assume that because the relevant determination has a preventative or a protective purpose, it does not also serve, at least, in part, the purpose of being a sanction for proscribed conduct.  So, it is not enough here to say, well, there is a protective purpose.  One has to say that that purpose is the principal purpose or the sole purpose, and denies to the relevant power the character of punishment for the relevant conduct.

Now, finally, in relation to the sovereign capacity, which I turned upon earlier, the respondents contend that section 36D is no more than the exercise by the Commonwealth of its sovereign capacity to exclude citizens from membership of the Australian community or body politic based on repudiation of their allegiance to Australia – and this is in the respondents’ written submissions at paragraph 45.  Now, we submit, in response, that nothing in the decision in Alexander removes the sovereign capacity in relation to denationalisation or denaturalisation, it simply requires that that capacity is to be exercised in accordance with the limitations derived from Chapter III.

So, in particular, that, insofar as there is a reference to sovereign rights or capacity, that cannot be equated to or compared with the sovereign right to decide which non-citizens shall be permitted to enter and remain in the country and which shall be excluded from the Australian community, including due to a record of criminal offending.  In contrast, we submit that any power to strip a person of his or her citizenship as a punishment for past criminal conduct is exclusively judicial and must be conferred on and exercised by a Chapter III court.  Now, as I have earlier addressed in submissions, there might be other circumstances in which the sovereign capacity to deprive or to cease citizenship can be exercised legislatively or by the Executive for reasons and purposes other than punishment, and it is really not necessary to recount examples of when that might be the case.

Section 36D, it is sufficient to say, in this case is concerned with a determination that is properly characterised as punishment in respect of the past criminal conduct that is the subject of a conviction and sentence for the offence specified in subsection 36D(5).  We submit that in accordance with this Court’s decision in Alexander, that is a power that is exclusively judicial in character and cannot be validly conferred on the Minister. 

Unless your Honours have anything further, those are the applicant’s submissions.

KIEFEL CJ:   Yes, thank you, Mr Horan.  Yes, Mr Solicitor.

MR DONAGHUE:   Your Honours, I propose to structure our oral address as follows:  first, to very briefly highlight the critical distinctions between sections 36B and 36D; second, to focus in some detail on the critical reasoning in Alexander that led to section 36B being declared invalid, being reasoning that repeatedly drew distinctions between 36B and 36D, we submit, for the purpose of highlighting the location of the relevant constitutional limit; third, to address the authorities that support the summary statement in paragraph [96] of Alexander focusing on the exclusively judicial function as being finding the facts that “enliven the power” to impose citizenship deprivation, and it is in that part of my submissions that I will grapple with the Lim issues that have been raised this morning; fourth and finally, to apply that discussion of principles to 36D.

Can I ask your Honours to go back briefly to 36D, which is volume 1, tab 3.  Mostly, there are no issues of construction as to this provision as between the parties that bear on the question of constitutional validity.  Your Honours have seen that in (1)(a) and (b), as distinct from (c) and (d), the issue is not one of ministerial satisfaction, it is:  has there actually been a conviction for an offence of a specified kind and a serious sentence of imprisonment at least 3 years?

Those offences listed in subsection (5), we accept, are slightly broader than the equivalent category of offences used to identify the conduct in 36B.  The additions, though, are matters like treason and sedition, so they are additions that still fall comfortably within the category of offences that were identified by the plurality in Alexander at paragraph [48] – and your Honours do not need to go there yet – as offences which are:

“inherently suggestive of the absence of a continuing commitment to the Australian body politic”.

So, 36D is a provision that enlivens the power to cancel citizenship only if a person has been convicted of an offence that puts them squarely in the category that this Court accepted in Alexander is a category of person who Australia is entitled to exclude from its citizenship.  The issue is just a question about how; about the process that can legitimately be used to cancel the citizenship of a group of people that, on the authority of Alexander, can have their citizenship cancelled.  That, in our submission ‑ ‑ ‑

EDELMAN J:   It is not really “how”, it is also “why”, because the “how” just directs attention to which branch of government might be enabled to do it, but the “why” says, why is this sanction or proscription being imposed?  It is the purpose.

MR DONAGHUE:   Yes, your Honour, but your Honours did not say in Alexander that it is impossible to cancel the citizenship of a person who has repudiated their allegiance to Australia by exhibiting extreme enmity.  Your Honours did say that to do that in response to conduct that exhibited extreme enmity is punishment.  So, your Honours having said, if you take someone’s citizenship away because they do this thing which entitles us to exclude you, you are punishing them.  The question is:  who can do it and in what circumstances?  But, your Honours have not today suggested that no one can do it.  Really, in my submission, the critical question in this case comes down to:  is the only way our Constitution allows citizenship cessation to occur as part of a sentence for criminal conduct, or are there other ways?

GORDON J:   There are other ways that already exist in the Migration Act.

MR DONAGHUE:   For cancelling citizenship, your Honour?

GORDON J:   Not for cancelling citizenship, but for dealing with consequences from this kind of conduct.

MR DONAGHUE:   Yes, that is true, your Honour.  But, in my submission ‑ ‑ ‑

GORDON J:   So, that is why the focus is on the cancellation of the citizenship.

MR DONAGHUE:   Yes.  Ultimately, I am here to defend a provision that empowers the cancellation of the citizenship.  My submission is that to make such an order as part of a criminal sentence is not the only way the Constitution allows it to be done, but I am not embracing any notion of an executive sentencing Act.  The category of conduct that I am talking about is much narrower, and I will develop the boundaries of that as I work through my submissions, if I might.

The first critical distinction that I seek to emphasise is that whereas under section 36B a person could have their citizenship ceased if they had committed no offence at all – and I say that because 36B expressly excluded resort to the fault element; it directed attention to the conduct element but not the fault elements.  So, there must be a category of person who did the conduct – at least in theory – that enlivened 36B but did not have the state of mind necessary to commit the offence.  For a category of person like that, 36B purported to allow their citizenship to be cancelled and 36D does not.  It is narrower.

EDELMAN J:   There is an even easier case.  It is the person who does not even commit the conduct, but just says, I renounce, and just pronounces a renunciation.  There is very little doubt that an expressed renunciation can be accepted, and that it is not punishment.

MR DONAGHUE:   No.  But, again, I am distinguishing a provision that your Honours have addressed and held involve punishment – or purported to invalidly impose punishment – and I am ‑ ‑ ‑

EDELMAN J:   Except you are doing it at two different levels.  One of the focuses on whether something is punishment is on the purpose of the provision.  If you take away the purpose, then you have taken away almost all of the rationale in Alexander.  If you say, well, if the Executive were looking at conduct for reasons other than punishing, for example, whether or not it, objectively, was evidence of a renunciation by the person, then we are not in Alexander territory; whether it is 36B, or 36D, or otherwise.

MR DONAGHUE:   Your Honour, rightly or wrongly – but, in our respectful submission, rightly – we have regarded ourselves as constrained by the holding in Alexander that the purpose of 36B and 36D are shared.  So, I am confronting the burden – which I accept is a burden – of endeavouring to persuade your Honours, that from that starting point, which I regard your Honours as having established in Alexander, that, nevertheless, 36D is valid.

EDELMAN J:   Absolutely.  Maybe I misunderstood your submission.  As I understood your submission, it was that conduct that could effectively amount to a renunciation could never otherwise be the subject of an Executive determination of, say, an abandonment of citizenship or ‑ ‑ ‑

MR DONAGHUE:   No, your Honour, I certainly did not intend to say that.  All I was endeavouring to say was that 36B, in its terms, was a provision that purported to say to the Minister, you find yourself whether or not conduct of certain specified classes have occurred – being conduct that is inconsistent with or ongoing membership with the community – and if so, you cancel citizenship.  I am saying that that class of conduct that potentially enlivened 36B did not need to be criminal.  Some of it, undoubtedly, would have been, but it did not need to be ‑ ‑ ‑

GORDON J:   Is that because of the fault element?

MR DONAGHUE:   Because of the fault element.  Whereas the class of conduct that enlivens 36D does need to be criminal; and not only does it need to be criminal in theory, the offence needs to have been proved beyond reasonable doubt in a court.

GORDON J:   Can I just go back to one point, just to clarify.  You said that all of the offences that are listed by reference to 36D are all offences which fall within the idea that they are contrary to allegiance to Australia, or however else you want to put it.

MR DONAGHUE:   Yes.

GORDON J:   Does that include and extend to the foreign interference provisions?

MR DONAGHUE:   In my submission ‑ ‑ ‑

GORDON J:   Because that is broader than what I like to describe as the terrorism offences.

MR DONAGHUE:   Yes.  In my submission, it would, your Honour, but if I was wrong about that, you would sever it or disapply it.  So, it would not lead to the invalidity of section 36D, and it is obviously not relevant to Mr Benbrika’s case.  I would also note there is no head of power challenge in this case as opposed to Jones, so our friends do not suggest otherwise to the submission that I put, and in my submission, rightly so.  But I accept, your Honour, that that particular offence is arguably in a different – slightly different category.  The other point I would perhaps note at this point is that 36B included, in (5)(i) and (j):

fighting for, or being in the service of, a declared terrorist organisation –

or:

serving in the armed forces of a country at war with Australia.

Now, I highlight those just because Mr Horan seemed to suggest this morning that that kind of offence might be in a different category; that Parliament cancelling someone’s – automatically cancelling someone’s citizenship for engaging in that behaviour might not be punitive.  Your Honours have said otherwise.

That kind of conduct is an example of engaging in reprehensible conduct that warrants the loss of citizenship, and if that be an exclusively judicial function, then Parliament cannot take it away any more than the Executive can.  So, the ramifications of the submissions that are before your Honours are quite profound, in terms of their limitation, that they involve on what have, for a very long time, been laws that have empowered the removal of Australian citizenship.  Your Honours, can I ask you to turn up Alexander ‑ ‑ ‑

EDELMAN J:   Just so I understand that submission, you are saying that it is conclusive from Alexander that Parliament could not legislate in an Act which did not contain a provision such as section 36A and was in completely different terms, to provide that taking arms against Australia was an example of renunciation of your obligations and your allegiance to Australia leading to an automatic loss of citizenship.  You are saying that that type of legislation is somehow precluded by the decision in Alexander?

MR DONAGHUE:   No, your Honour, I am saying that if I am wrong in this case, that kind of legislation is precluded, because if that is an exclusively judicial function – if the imposition of punishment in the form of depriving someone of the rights of citizenship because they have engaged in reprehensible conduct is an exclusively judicial function – and that is the case against us – then I am saying legislation of that kind would be invalid, and you could not escape that by ‑ ‑ ‑

EDELMAN J:   The “because” is doing a lot of work in that sentence, because it may be that the reason for the deprivation of citizenship in exactly that example is not because of the reprehensible conduct, but it is because the reprehensible conduct evinces objective conduct that involves the renunciation of citizenship or that is inconsistent with the continuing bonds of allegiance.

MR DONAGHUE:   And therefore that it is not punitive.

EDELMAN J:   Possibly, but that is not what was decided in Alexander, and that is not what is raised in this case where we have provisions such as section 36A which provides for the particular purpose in this case.

MR DONAGHUE:   But not, your Honour, in terms that refer to punishment.  It refers to:

conduct incompatible with the shared values –

that demonstrates the severance of the bonds or the repudiation of allegiance.  So, your Honour has said, well, this is what Parliament has said that it is doing, but it is a matter of substance.  Given the severe consequences and other matters, it is punishing. 

So, what your Honour is putting to me, in my respectful submission, is in some respects quite similar to what the Commonwealth put to your Honours in Alexander as a justification for why these provisions should not be characterised as punitive and, if we are right in accepting that your Honour’s characterisation of the effect of those provisions is punitive, in my submission, one needs to follow through the logic of the consequence that would arise if that function is exclusively judicial.

In my respectful submission – and I will build my way up to it – but the way that the plurality identified the exclusively judicial power in paragraph [96], in my submission, was, respectfully, alive to the problem that would arise for the Commonwealth statute book, present and historic, were the exclusively judicial power to be cast too widely. So 36D and the historical example that I am discussing with your Honours – for a long time found in section 19 of the Citizenship Act about fighting with foreign forces – are provisions that fall on the valid side of the line drawn in paragraph [96], whereas 36B fell on the invalid side because it did not require judicial – involve finding of the facts to enliven the power.

Can I try to develop that submission by asking your Honours to go to Alexander and focus on what I will call the plurality reasons, which are the reasons of your Honour the Chief Justice with Justices Keane and Gleeson, with whom your Honour Justice Gageler agreed.  Can I ask your Honours to start at paragraph [70].

KIEFEL CJ:   I am sorry, [70]?

MR DONAGHUE:   Paragraph [70], your Honour.  Sorry, Alexander is volume 11, tab 77.  Paragraph [70] is early in the reasons addressing the Chapter III issue.  They commence at paragraph [65] with a high‑level summary of the arguments put.  At paragraph [70], your Honours explained why the defendant’s submission should not be accepted and identified three reasons that then control the structure of what follows.  So, reason one:  “the consequences” for the citizen of the determination under 36B.  Reason two:

the legislative policy which informs . . . s 36B –

Reason three:

a comparison of the operation of s 36B with the provisions of s 36D (which authorise the same consequences for the citizen only upon conviction after a trial) –

All three of those reasons are said to point to the conclusion that the power reposed by the Minister by 36B is one that Chapter III requires to be exercised a court.  So, in my submission, in its terms, those three strands of the reasoning are all strands of reasoning deployed for the purpose of supporting the conclusion that 36B is invalid.

KIEFEL CJ:   Yes.  It depends though, critically, on what the comparison of 36B and 36D points up.

MR DONAGHUE:   Yes, it does.  And that is a matter I am proposing to develop.  But it points up something that tells us about the invalidity of 36B.  Can I take the considerations in turn.  The consequences consideration is addressed under the heading immediately below paragraph [70], over the paragraphs that follow, and Mr Horan has taken your Honours through some of that.  It is undoubtedly true that the consequences – the lost rights that arise from the loss of citizenship are the same under 36B, under 36D and under any other provision that takes someone’s citizenship away, that the rights attendant to being a member of the Australian body politic are lost.

It is not, in our submission, correct to say that the consequences for the liberty of the person concerned are the same as between 36B and 36D.  As I understand it, our friends concede that that is the case, the reason being that for a person who is outside Australia, as Mr Alexander was, it is true to say, as the plurality said at paragraph [26], that person is unlikely to be granted a visa.  The plurality said that in turn at paragraph [36], and absent a visa they could not be at liberty in Australian and they could not return to Australia.

But, far from it being unlikely that a person affected by 36D will be granted a visa, the legislative regime contemplates that they will because it automatically grants them a visa under 35(3) – the ex‑citizen visa – upon the cancellation of their citizenship, provided they are in Australia at the time.  In my submission, a 36D person – a person who has been convicted and tried in Australia and sentenced to a lengthy term of imprisonment – will ordinarily be expected to be here.

So, the consequence of the exercise of power – while still serious – I accept it involves loss of the rights attendant to citizenship, but it does not involve loss of liberty or removal from Australia absent a further exercise of statutory power under a different Act – under the Migration Act.  So, it exposes the person to that possible exercise of power.  It does have, admittedly, an important effect on rights, but it is not the same effect as the right that is identified in paragraph 71 and following.  While it is true – as your Honours know has happened recently in relation to the applicant himself – that the ex‑citizen visa might be cancelled, it is also true, as your Honours know from many cases in the Court, that that cancellation enlivens a whole set of other statutory consequences under the Migration Act.

So, you can apply to have the cancellation revoked, then you can seek merits review of the revocation decision, and then you can seek judicial review of that decision.  That is a process that contemplates the possibility that even though the person fails the character test, they might, nevertheless, be permitted to keep their visa because there are other reasons – or public interest‑type reasons – that allow them to remain.  So, one cannot – when 35(3) is taken into account – assume that there is, necessarily, detention and removal consequences.

STEWARD J:   Can I ask – I know this is out of order – we will come to this in the next case – but, in the case of Mr Jones, am I right in thinking that until his ex‑citizen visa is cancelled, he retains his right to vote after his citizenship is cancelled?

MR DONAGHUE:   I will have to check that, your Honour.

STEWARD J:   On the basis that he was ‑ ‑ ‑

MR DONAGHUE:   A British subject?

STEWARD J:   Yes, but before 1984.

MR DONAGHUE:   That may well be right.  I have not checked, your Honour, but I will look at that.

STEWARD J:   All right, thank you.

MR DONAGHUE:   Thank you, your Honour.  Can I ask your Honours at this point to just very briefly look at a comparative judgment that notes the same point I have just been making about the availability of the different statutory scheme.

It is a decision – somewhat unusually, for a case decided in this Court – in the Supreme Court of Ireland – it is Damache v Minister for Justice, which is in volume 13, tab 96.  I take it to you in part, your Honours, for the point I have just mentioned but also to note it is really a remarkably similar case to the present, in that it is a case where the proposition – as you can see this from the first paragraph in the judgment once your Honours get it – it is the judgment of the whole court, delivered by Ms Justice Dunne.  The heart of the case – you see from the second – it was a citizenship cessation case and:

At the heart of the appellant’s case is the contention that –

the relevant power:

is a category of power that can only be exercised lawfully by the courts.

It was a case, so it was said, the Executive cannot validly be empowered by section 19 to remove – having regard to separation of powers‑type considerations reflected, amongst other places, in Article 37 of the Irish Constitution.  As in this case, it was a citizenship revocation of a person born in Algeria – an Algerian national by birth who subsequently became naturalised, and then engaged in terrorism‑related activities.  So, the factual parallel is self‑evident.  But the challenge on this judicial power ground failed, as your Honours can see at paragraphs 67 and following.

Perhaps before – I will, having taken your Honours to the case, note the relevant paragraphs that go to the case more generally so I do not need to come back – but just before I do that, could your Honours note paragraph 70, where the court makes the same point that I have just been making in, in that:

the revocation of the certificate of naturalisation has a number of legal effects . . . However, as was pointed out on behalf of the Minister, whilst the individual may lose the right to reside in this jurisdiction as a result of the revocation . . . deportation of such an individual would involve the invocation of an entirely separate statutory procedure and the making of an entirely separate decision and order.  In other words, the revocation of the certificate of naturalisation by itself would not automatically result in the deportation of the individual concerned . . . not something that is enforceable . . . without further and different procedures –

So, that is the point I was just making; it is equally true of the Migration Act here.  On the wider point that the judicial power argument or that citizenship cessation has to be done by a court was rejected.  At 67 you see in the second half of the paragraph, it being pointed out, the court accepting:

it has never been part of the function of a court to make a decision in relation to the naturalisation . . . from an historical point of view it has long been the function of the executive to decide . . . never been the role of the courts to make such decisions . . . at issue in this case, is of course not a decision to grant . . . but rather the question of revocation . . . as a matter of logic –

there is no difference.  At 71 ‑ ‑ ‑

KIEFEL CJ:   I take it that Irish jurisprudence does not involve the Lim jurisprudence.

MR DONAGHUE:   Well, it does involve a separation of powers idea.  I accept, your Honours, I cannot get too far from the case, save that it does grapple with an argument that because of the severe consequences of this, it is something which should be done by a court, and the Irish Supreme Court said it never has been and we do not accept that it has to be done in that way.  Beyond that – and your Honours see the conclusion encapsulated at paragraph 133 of the judgment:

“(t)he enforcement of those rights

GORDON J:   Sorry, where are you, 133?

MR DONAGHUE:   Sorry, 133 in the conclusion.  The court says, in the second sentence:

I have considered the jurisprudence and am satisfied that the revocation of a certificate is not the administration of justice but is the exercise of an executive function . . . 

“(t)he enforcement of those rights or liabilities or the imposition of a penalty by the Court –

Sorry, the requirements are not met, and McDonald is their Lim equivalent.  I do not want to detain your Honours too long on the case but I do rely on it for the section 70 point, because it will matter when your Honours reach at a latter stage in my argument, that even if you characterise what happens under section 36D as punitive, it is important to accurately characterise the legal effect.  And an accurate characterisation of the legal effect must, in our submission, take account of the ex‑citizen visa regime and thus the material difference from the consequence identified in Alexander.

The other point, your Honours, that I will make about consequences is that – as your Honours recall and as Mr Horan emphasised this morning – there was an historical comparison drawn with the exile and banishment, and the identification of those consequences as very severe punishment – the civil death or the loss of all of the associated rights.  Now, that needs to be qualified, for the reason I have just given, but even taking that reasoning on its terms, the civil death or the loss of rights attached to citizenship that is there referred to is the same consequence as attends people who look their citizenship for other reasons – for example by, historically, a woman marrying a foreign national, or for someone voluntarily acquiring a foreign citizenship.

I appreciate your Honour Justice Edelman in Alexander characterised those two examples that I have just given as voluntary loss of citizenship and your Honour Justice Steward differed in that characterisation of them.  Our submission is that a person who loses their citizenship by marrying a foreign national or by applying for foreign citizenship may not know that that is a legal consequence of the action that they undertake. 

It is true to say that the action that they take that causes their loss of citizenship is voluntary.  I accept that the conduct is voluntary, but, in my submission, the loss of citizenship is not or may not be voluntary because it may either not be known to be a consequence of the conduct in question – and the statute drew no distinction based on knowledge – or it may be known and highly resisted that a person might, for example, say, I am very sad that I am going to lose my Australian citizenship, but I am not prepared to call off my marriage.   So, someone who proceeds with a marriage in those circumstances might knowingly suffer the consequence of loss of citizenship but, in my submission, could not fairly be said to have voluntarily lost their citizenship.

If I am wrong about that and the conduct being voluntary is enough to make the loss of citizenship voluntary, then the same should be true of the person who engages in the terrorist offence.  If you voluntarily engage in the conduct that involves a renunciation of your allegiance and that voluntary conduct has a consequence, then the same characterisation should follow.  In my submission, what that shows is that, notwithstanding the magnitude of the consequence, that cannot itself be enough to tell us that the function is exclusively judicial, because the magnitude of the consequence sometimes happens to people who we obviously do not wish to punish.  So, it must be that there is something extra.  Now, it might be that the something extra is the reason, as your Honour Justice Edelman put to me, and I accept that where the reason is to punish, that is a highly relevant factor in the overall characterisation, but the consequence alone does not get one there.

The purpose, I have already accepted, is shared between 36B and 36D, as your Honours explained in paragraphs [80] to [83] of Alexander, and I do not seek to pass that reasoning.  But the question, in my submission, that then arises is – and this is the question your Honour the Chief Justice put to me – what role does the third strand of the reasoning in Alexander play in explaining why the consequence that might or might not – sorry, I do not need to rehash what I have just said.  What role does the third strand play?

KIEFEL CJ:   When you say “third strand”, it is actually the heading of the – at page 580, that actually combines the two:  two and three.

MR DONAGHUE:   Indeed.  It does, your Honour, although – paragraph [70] separates them, but the heading then ‑ ‑ ‑ 

KIEFEL CJ:   It then goes on to deal with them consecutively, and as I discussed with Mr Horan, it discusses matters of commonality between 36B and 36D, and then goes on to point to the very important difference, and that relates, mostly, to the protection of a system of adjudication.

MR DONAGHUE:   I accept that, your Honour.  The points of commonality under that heading – that is, the two and three heading – are [80] through [83].  The commonality is the shared purpose and, in my submission, after ‑ ‑ ‑

KIEFEL CJ:   Or [84], really.

MR DONAGHUE:   Paragraph [84] as well, sorry.  Paragraph [84] is the break.  In my submission, up to [84], it is the second consideration, and after [85], it is the third which is the point of difference.

KIEFEL CJ:   Paragraphs [80] to [84] are, really, picking up the purpose of 36A as informing both.

MR DONAGHUE:   Yes.  And [85] and following is focusing on 36D – what the reasoning calls the “comparison of the operation” ‑ ‑ ‑

KIEFEL CJ:   The “procedural safeguards”, that are missing from 36B, which seems to assume some importance.

MR DONAGHUE:   Yes.  In my submission, the question is:  what importance does it assume?  What do we learn from a comparison of the two provisions?  We learn in summary – I will go to the detail, but we learn in summary that 36B does not ensure you a fair process; that the Minister makes fact‑finding without a specified standard of proof, without being required to accord procedural fairness; whereas, under section 36D, you get all the ordinary “procedural safeguards” of a criminal trial, including finding as a fact beyond reasonable doubt, burden of proof on prosecution – all of those matters.  The safeguards ‑ ‑ ‑

GORDON J:   And this highlights that there is a critical question:  whether what you describe as the “safeguards” of a criminal trial extend to imposition of punishment.

MR DONAGHUE:   I would identify the critical questions at a slightly earlier point to say, what was the constitutional significance of identifying the fact that section 36D was enlivened only by a process that had those safeguards – an ordinary judicial procedure, findings of fact beyond reasonable doubt, et cetera – and 36B that did not.

If both provisions were invalid – that is, if the addition of the safeguards makes no difference to validity – then, in my submission, the comparison serves no purpose because one can say, section 36B empowers the Minister to do this without procedural fairness and without a specified standard of proof; the section is invalid, for the reasons that have been given.  But the point of the comparison, in my submission, on a reasonable reading of the judgment, is to highlight the constitutional significance of a person being protected from the serious consequence of citizenship cessation by the interposition of a judicial process with all of its usual protections.  It is the interposition of those protections that explains why, ultimately, one passes constitutional muster and the other does not.

To try to – and I will not detain your Honours on this for too long, but just to highlight the key points that we rely upon – at paragraph [83], we simply note that the Court quotes, almost completely in full, 36D, which itself – given that there was a provision that was not challenged – suggests that the detail of the provision was thought to be important to what follows.  Then, in [85] – in our submission there are three separate points made in [85].  First, about three lines down, it is emphasised that the sanction under 36D arises from a:

discretion conferred on the Minister . . . rather than as a consequence of a conviction after a trial –

That is point one.  Point two is the next sentence:

True it is that the Minister . . . need not be satisfied of the same mental elements necessary to establish the commission of an offence –

but that is:

to draw attention to the lower factual threshold –

So, there was a lower requirement.  Point three:

It also highlights the absence of the procedural safeguards attending a criminal prosecution of an offence under s 36D.

That is, the procedural safeguards are significant.  Paragraph [86] then develops the first of those points.  So, the second and third sentences:

But in the case of s 36D, the power of the Minister arises only in relation to a person who has been convicted and sentenced of an offence or offences by a court.  In contrast, the Minister’s discretion under s 36B arises upon the Minister him or herself being satisfied that the conduct elements of the offence have occurred.  And the Minister may be satisfied –

without the fair hearing:

(or indeed any hearing at all), much less the benefit of the other safeguards of a criminal trial, including the incidence of the burden of proof.

So, not only is there a judicial function interposed, but it is one that ensures fair hearings, it ensures the safeguards of the criminal trial, including the relevant standards.  Then the Court makes that point again in [87], contrasting the ministerial fact finding – it may be:

contrast to the position under s 36D . . . the process under s 36B may result in the same outcome by way of deprivation of citizenship as under s 36D, where the protections afforded by a criminal trial have been afforded to the citizen.

And before I make submissions about it, at the end of [91], returning to the same theme, lack of due process under the 33AA provision:

While s 36D affords a citizen the due process of a criminal trial before the Minister’s discretion arises, a significant feature of s 36B is that it operates without due process –

Then [93] ‑ ‑ ‑

KIEFEL CJ:   Just before you go on to [93], at the end of [91] there is a conclusion stated that:

The power to determine the facts which enliven the power to impose –

what Alexander regards as a punishment:

is exercisable exclusively by a court –

The importance of that statement is to show, is it not, that the plurality did not deal with the situation where the power to impose punishment by way of cessation has arisen.  It just does not deal with it at all.  It stops at that point.

MR DONAGHUE:   I am sorry, your Honour, were you referring me there to [91] or to [90]?

KIEFEL CJ:   At the end of [91].

MR DONAGHUE:   The end of [91].

GLEESON J:   I think it might be [96].

KIEFEL CJ:   I am sorry, [96], you are quite right.  I do apologise.  It is the conclusion of [96].

MR DONAGHUE:   So, your Honour has put ‑ ‑ ‑

KIEFEL CJ:   All I am really pointing out is the plurality stopped short – they do not enter upon the debate we are now engaged in.

MR DONAGHUE:   Your Honour, my submission is that when one puts together the various passages I have just read – [85], [86], [87], [91], [93] – all of which draw this distinction and focus on the judicial finding of the facts pursuant to an ordinary criminal process, with all of its protection and the burden of proof – and then one gets [96], “Summary”:

In summary in relation to the Chapter III issue –

and the statement that is made in that last sentence that your Honour highlights, which is the sentence upon which we rely, in our submission, draws a line that reflects the discussion that immediately precedes it – it summarises the Chapter III problem ‑ ‑ ‑

KIEFEL CJ:   But it only takes it up to the point where the facts necessary to enliven the power are determined.  What we are concerned with here is the power, having been enlivened, who exercises it?

MR DONAGHUE:   Your Honour, that is true.  It certainly, in my submission, means that Alexander identified the problem – the constitutional problem with 36B – in a way that gave considerable significance to the fact‑finding role of the Minister.

KIEFEL CJ:   Yes, but it did not have to go further.  That was the issue.

MR DONAGHUE:   That fact‑finding power – but, of course, the Minister did two things under 36D – both found the facts and imposed the punishment.  The summary does not say that the Minister imposing the punishment is what crossed the constitutional line; it says the Minister finding the facts is what crossed the constitutional line.  So, I am not putting to your Honours that your Honours have already decided the question that is before you now.

KIEFEL CJ:   No.  You are trying to draw a lot from what was said, though, towards a conclusion to that effect.

MR DONAGHUE:   What I am trying to do, your Honour, is to say that, of the three identified reasons for finding 36B invalid, one of those reasons – which was accorded quite considerable significance in the passages that I have just gone through – does not apply here.

EDELMAN J:   Is it really – is the point you are making really not the same as your disjunctive and conjunctive point about Lim?

MR DONAGHUE:   What I am going to endeavour to do after lunch, your Honour, is to say that that point supports [96].

GORDON J:   What point?  What point supports [96] – the conjunction argument?

MR DONAGHUE:   The argument that it is constitutionally relevant that a court makes the findings that enliven a power and that one cannot ignore that in the characterisation of the power that is enlivened upon the finding of guilt by the Court.

EDELMAN J:   But you have to say it is more than constitutionally relevant.  You have to say it is a constitutional dividing line on which, on one side there is invalidity and on the other side there is validity.

MR DONAGHUE:   I intend not to be so stark.  In my submission, all I need to do is to say that it is not enough for me to lose to say the function that follows is punitive and that if you do not get to take anything else into consideration, my submission is that there is more to it where the power is enlivened by a judicial finding of fact so that it is not just a straightforward exercise – is this punitive?  If so, it is invalid.  If that were the case, you did not need any of the analysis on the third strand and so I am deploying the third strand in support of my proposition that there is more involved.  That is the limb that I will come back to after lunch.

KIEFEL CJ:   The Court will adjourn until 2.15 pm.

AT 12.51 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

KIEFEL CJ:   Yes, Mr Solicitor.

MR DONAGHUE:   Thank you, your Honour.  Can I ask your Honours to take up Lim (1992) 176 CLR 1, which is in volume 4, tab 37 of the joint book, and before taking your Honours to the famous passage, ask your Honours to start at page 67 in Justice McHugh’s reasons. We do not take what his Honour says here, in the passage I am about to take your Honours to, to be saying anything radical or unconventional, it is just a convenient statement of a conventional approach. Having quoted a number of famous passages from Tasmanian Breweries and Huddart, Parker, his Honour says – in the middle of the page, under the block quote – in the second sentence:

The line between judicial power and executive power in particular is very blurred.  Prescriptively separating the three powers has proved impossible.  The classification of the exercise of a power as legislative, executive or judicial frequently depends upon a value judgment as to whether the particular power, having regard to the circumstances which call for its exercise, falls into one category rather than another.  The application of analytical tests and descriptions does not always determine the correct classification.  Historical practice plays an important, sometimes decisive, part in determining whether the exercise of a particular power is legislative, executive or judicial –

GAGELER J:   Is a “value judgment” a judgment about values?

MR DONAGHUE:   Well, in my submission, “value judgment” is a high‑level expression which – one could substitute an “evaluative judgment” is, in my submission, how it should be read, because it has to be informed, as his Honour explains, by history and circumstance.

GAGELER J:   Are you going to tell us anything about the values at stake in the judgment to be made?  This is just a prelude to taking us to history, is it?

MR DONAGHUE:   It is a prelude to saying that when one sees the key formulation in paragraph 27 of Lim talking about the judgment and punishment of criminal guilt, the line is not blurred.  What his Honour is recognising is that sometimes the lines are hard to draw, but sometimes they are not – sometimes there are some categories that are clearly in one category or another – and one sees that combination of functions together, there is no difficulty – one immediately says, exclusively judicial.

It is no part of my case to say that, when one does not see them together, that it therefore follows that the functions are not judicial.  My submission is rather that where the functions are separated there is more need for an inquiry of the kind that his Honour identifies on page 67 – because the answer might not be clear.  I am certainly not saying that in any case where one can find punishment not associated with the adjudgment of guilt that the function is not judicial – I accept that very commonly it will be judicial – but one does, in my submission, need to go further than just to say because this is a function that is punitive – even though not associated with the adjudgment of guilt – it is exclusively judicial.

One needs to ask, what about the circumstances of its exercise – the effect, the procedure, that has to be followed?  Here, the points that I am going to emphasise are that it is relevant that a power is enlivened by the factum of a prior finding of guilt by a court.  That is one important factor.  Two, that aspects of the power in question are more institutionally appropriately adapted in the executive function, rather than to exercise by the judiciary.  That is a relevant factor.  Three, there is no historical practice of courts in Australia ever doing this.  That is also, in my submission, a relevant factor.

So, in the particular context of section 36D, the proposition that the loss of citizenship that follows from an exercise of that power can be characterised as punitive does not answer the question of whether it has to be characterised as judicial.  There are other aspects of the inquiry – bearing on the three factors that I just identified – that support, in this particular concatenation of circumstances – a different characterisation of the power.

GAGELER J:   Can I just be clear here – I am sorry if I am lagging behind your argument – but you are accepting that section 36D is punitive?

MR DONAGHUE:   I think I am required by Alexander to accept that.

GAGELER J:   Yes, thank you.

MR DONAGHUE:   As I said to Justice Edelman, I accept, therefore, that I need to establish the proposition that that does not conclude the case against me, and part of the way that I seek to do that, is to say that, while I can readily accept – and much authority establishes – that the judgment and punishment of criminal guilt together are exclusively judicial, in my submission, the authorities do not establish that when you separate those functions, either one of them by themselves is, necessarily, exclusively judicial.  There is, instead, a question to be asked.

And that, in my submission, is why one sees the conjunction in the Lim formulation repeated many times in authorities of this Court – so, seven Justices in Duncan v New South Wales at paragraph 41 used that formulation; it was used in Alexander; there are lots of other cases that use it.  But there is no case that holds that the conjunction was a mistake and that it should have been read as a disjunction, with the “or”.

KIEFEL CJ:   Does the statement which involves the conjunction both in Lim and in cases after Lim really stand for no more than it is usual, in the criminal process, for there to be both adjudication and punishment, and that is really all that can be drawn from it?

MR DONAGHUE:   And that that is the function, that usual function ‑ ‑ ‑ 

KIEFEL CJ:   That is the usual function.

MR DONAGHUE:   ‑ ‑ ‑ that is in the bright line category of a clearly exclusively judicial function.

KIEFEL CJ:   But that does not necessarily mean that if you have a process which is somehow bifurcated or it has a cumulative aspect to it, something added on to the criminal process, that you are necessarily – that you necessarily say that there must be a conjunction, that any form of punishment is combined as part of the judicial process.

MR DONAGHUE:   It does not necessarily mean that, I accept that, your Honour, but it does not necessarily mean the converse, either.

KIEFEL CJ:   I see.

MR DONAGHUE:   Because if your Honours were to say in this case, actually, Lim is wrong in the formulation, it should be a judgment of guilt or punishment, then it would follow in all subsequent cases that all someone needed to do was to put themselves in one box or the other box without worrying about whether they were combined, and that would answer the question.

GORDON J:   But that submission is, in a sense, against you, because it may very well be that it reads in conjunction in some cases, as the Chief Justice has put to you, and in other cases it may be disjunctive.  You do not need to rewrite Lim to get to that result.

MR DONAGHUE:   Your Honour, it is put against us that you read it as a disjunction; I think, certainly in writing, it seemed to be put that you read it as a disjunction in all cases.

GORDON J:   Well, I think it was at least put to Mr Horan this morning that there are a range of cases where it has been put in terms of disjunction, not limited to those cases which, on their face, are not involved in the exercise of judicial power.  A number of judges in judgments – I think I counted 13 when I went through the list – have adopted that sort of phrasing.  It has to be read in context in which the phrase is used, and the issues are raised. 

MR DONAGHUE:   Well, your Honour, I am not arguing against reading in context of functions used and the issues raised.  That is the very thing that I am arguing in favour of.  The three factors I identified earlier are the ones that I am inviting your Honours to focus upon.  But what I am seeking to do is to not collide with a principle that says because punishment is an exclusively judicial function – even if not associated with the adjudgment of guilt – the Minister cannot do it, because an absolute proposition like that, which would, on its face, be the consequence of a reformulation of Lim would ‑ ‑ ‑

GORDON J:   I think we are taking issue about the reformulation of Lim – I think that is where we are at, especially having regard to what is on pages 26 and 27.

MR DONAGHUE:   Your Honour, as your Honours have seen, the applicant in Falzon did attempt a reformulation; invited the Court to – the Commonwealth did not need to meet that, because the Commonwealth thought – correctly, as it turned out – that the power in question just was not punishment at all.  So, it was not in the – and so, the Commonwealth’s answer to the case in Falzon was, we are not punishing, so we are not in the Lim territory, and we won the case on that basis.  So, the fact that there was no debate joined in that case does not tell you anything, in my submission, about the correct principle.  Falzon, obviously, is not authority for the fact that the test should be reformulated, and the same is true of the subsequent cases – Minogue and the other cases that the applicant relies upon.

Interestingly, as we heard the oral argument this morning, the applicant did not actually, in the end, ask your Honours to reformulate Lim, because Mr Horan accepted that adjudgment of guilt that was not connected with the imposition of punishment would not be exclusively judicial.  I understood him to accept our reliance on the BLF Case as establishing that proposition, because the BLF Case is a case where terms of reference of a Royal Commission required the Royal Commissioner to find whether people had breached criminal offences on evidence that would be admissible in a court to establish that.  It was only the fact that the finding of the Royal Commissioner did not have any penal consequences that meant that that function could validly be conferred on the Executive.

If your Honours reformulated Lim, and said the adjudgment of guilt, by itself, is exclusively judicial, then BLF is wrong, because the function – the Royal Commissioner did adjudge guilt, in our submission.  You had an organ or the Executive Government finding that someone committed a crime.  BLF is correct because that function, when separated from the imposition of punishment is not an exclusively judicial function, and that is what BLF holds – Today FM says something similar.

That does not get me the whole distance I need to go, because this case, it is accepted, is a case about a provision that does not require the Minister to adjudge guilt because obviously a court has done that in the prior conviction.  This case is about whether the Executive can validly be empowered after a court has adjudged and punished criminal guilt – so a court has done the exclusively judicial thing and this case is about whether the Minister can validly be empowered to exercise the power enlivened by the factum of that conviction to do something that the Court in Alexander characterised as punishment, to come back to your Honour Justice Gageler’s question. 

So, it starkly raises the question:  can something that is capable of being characterised as punitive be added, or is the function of punishing following such an adjudication exclusively judicial?  In my submission, the answer, supported by the authorities, is that at least sometimes a function that is characterised as punitive can be added.  I seek to make that good primarily by reference to Emmerson, which I will take your Honours to in just a moment. 

Just before I do that – and I hope I am not unnecessarily detaining your Honours on this, but can I ask your Honours to go to the BLF Case just for one purpose, which is a case in our supplementary authorities.  Your Honours can see – I will not take you through it, but you can see the letters patent on page 37 that confer the function in the terms that I summarised a few moments ago.  Six justices said that those letters patent could validly give the function to the Executive that was recorded on in the letters patents on page 37.  I will not take your Honours through the references.  We have, I think, given your Honours in paragraph 10(a) of our oral outline the key pinpoints.

What I would seek to ask your Honours to do is to go to the dissent, which is Justice Murphy’s dissenting reasons at 109 and 110, because Justice Murphy thought that it was part of – I am sorry, I should have given the citation for the BLF Case which is (1982) 152 CLR 25. On page 109, in the middle of the page, you can see just after the reference to the Modern Constitutional Law text, his Honour said:

In my opinion, although it is not spelled out, our constitutional scheme contains such a fundamental principle.  It is that persons are not liable to be tried and declared guilty of criminal offences by government appointed non‑judicial bodies, even if the finding itself does not make the person liable to punishment.

Then, over the page at 110, after the quote:

The authority given to the Commissioner to exercise such an important ingredient of judicial power as finding a person guilty of ordinary crimes, is in itself an undermining of the separation of powers.  It is a fine point to answer that the finding is not binding and does not of itself make the person liable to punitive consequences.

Now, my point is that that is the dissent.  The other six members of the Court did not accept that proposition.  And to read Lim as disjunctive and as holding that the adjudgment of criminal guilt is itself exclusively judicial is, in effect, to adopt the Murphy view.  So, we submit that this case strongly points against the proposition that either or of the combined functions identified in Lim is enough for something to be exclusively judicial.

The same, in my submission, is true of punishment.  Your Honours are familiar across many cases of legislative regimes that take as a factum the conviction in an ordinary criminal process of a criminal offence, and then attach legislative consequences to it.  Your Honours have seen that in Fardon in the preventive detention context, in Falzon in the visa cancellation context, in Roach in the context of removing someone’s rights to vote – exclusion from political participation with some overlap with citizenship rights.

It is true, I accept, that in those contexts it might be said the further consequence, even though it is a hardship – in some cases it is a severe hardship; you stay in the same prison cell you were in before your sentence expired, you are removed from Australia – but that hardship has not been characterised as punitive because of its purpose.  I accept that that is so, but those cases do nevertheless illustrate that it is far from uncommon for the legislature to take a criminal conviction as a starting point and then to build upon it.  But the question is:  can the building upon it include a measure that is characterizable as punitive?  My answer to that is yes, in reliance on Emmerson – which is another case that was in our additional materials.  Can I ask your Honours to go to that?  It is Attorney‑General (NT) v Emmerson (2014) 253 CLR 393.

So, it is a forfeiture case.  Your Honours will see in the headnote that it is about two provisions that operated in conjunction with one another – 36A of the Misuse of Drugs Act and section 94(1) of the Criminal Property Forfeiture Act.  You can see the full text of section 36A in paragraph 24 of the judgment – in the joint judgment of six members of the Court.  If your Honours go there, you will see that in subparagraph (1), the Misuse of Drugs Act has empowered the DPP to:

apply to the Supreme Court for a declaration that a person is a drug trafficker.

That was an application that could be made, as you see in subparagraph (2), either:

at the time of a hearing . . . or at any other time.

The effect of the declaration, as you can see in subparagraph (3):

On hearing an application . . . the court must declare a person to be a drug trafficker if –

relevantly:

the person had been found guilty by a court –

of offences of the kinds identified in (a) and (b).  So, this is a procedure whereby an officer of the Executive applies for a court to have the court make a declaration that there are prior convictions of relevant kinds that have occurred in the past.  If that declaration is made by the court in what is a civil proceeding – as I will show in a minute – the consequence is the consequence that your Honours see in paragraph 27, where 94(1) of the Forfeiture Act is identified:

“If the person is declared to be a drug trafficker under section 36A . . . all property subject to a restraining order . . . is forfeited to the Territory.”

So, the court does not decide what property is forfeited and what property is not.  The forfeiture is effected by operation of 94(1), itself.  Your Honour, Justice Gageler, at paragraph 100, explained – and your Honour was in dissent on aspects of this, but not in this explanation, in my submission.  At paragraph 100, your Honour explained from the third line of that paragraph:

Proceedings on an application under s 36A . . . partake of the same civil character.  The Supreme Court’s adjudication of criminal guilt is a precondition to the Supreme Court making a declaration.  But the making of the declaration is the culmination of a civil process which operates separately from the criminal process.  The forfeiture which results under s 94 of the Forfeiture Act is independent of and cumulative upon the punishment for criminal guilt.

In my submission, it is – as that paragraph makes clear and is, in any event, plain on the face of 36A – the DPP might never apply for an order under 36A, and if the DPP does apply for an order under 36A, it might be well after the sentencing process has concluded, because the Act expressly says it can be made at the time of the hearing or at any other time.

In Emmerson, itself, the declaration was sought nearly six months after the conviction had been entered and was not made until about 11 months after the conviction.  So, what is happening here is a simple process that results in forfeiture based on the factum of earlier criminal convictions which, obviously, is not part of the process of adjudging or punishing criminal guilt, in the sense that that adjudgment and punishment has happened in a criminal trial. 

The reason that I emphasise all of this, your Honours, is that the Court accepted, in the passages I am about to come to, that the forfeiture of property under this regime was a punishment.  It expressly accepted that it was a punishment.  It was a punishment imposed as an automatic legislative consequence of a court order, and, in our submission, it necessarily follows that if the legislature can impose additional punishment over and above the punishment imposed by the sentencing court that convicts and sentences, then it must follow that the imposition of punishment of that kind is not invariably an exclusively judicial function.

Emmerson holds that, because it accepts that, on top of the adjudgment and punishment of criminal guilt by a court, legislation can impose a further punishment. To try to illustrate that, can your Honours go to the plurality reasons at paragraph 37. This is discussing the Forfeiture Act, and at paragraph 37 it is recorded:

That the stated objectives are penal, and additional to punishment imposed in criminal proceedings, was explained prior to the enactment of the statutory scheme.

And then there is a reference to the second reading speech.  So, additional to the punishment imposed in criminal proceedings.  Then, at 74 to 75, and the holding, relevantly, here is that the forfeiture in question was not an acquisition of property.  The reason it was not an “acquisition of property” was that it was a punishment, and property that is lost as a punishment stands outside the concepts of acquisition of property.  In 74, again, in the plurality reasons:

the relevant operation of the Forfeiture Act depends on the Supreme Court making a declaration that a person is a drug trafficker.  That is, the relevant operation of the Forfeiture Act depends upon the person’s conviction for certain crimes within a specified time.

They are the factum, in other words:

The stated objectives of the statutory scheme . . . must be read in the recognition that the Forfeiture Act –

The Act itself:

prescribes penal consequences which flow from a person’s conviction for crime.

And then the next paragraph, first sentence:

First, because the forfeiture worked by the Forfeiture Act is imposed as punishment for crime, the impugned provisions do not amount to an acquisition of property . . . whether that punishment fits the crime . . . is a matter for the legislature.

And, your Honour Justice Gageler, I will not go back there, but at 102 said that the declaration was:

the “factum” by reference to which the legislative scheme operates to effect forfeiture.

Which is, in my submission, to the same effect.  Those are, in my submission, unequivocal statements that additional punishment could be imposed by the legislature based on the factum of earlier convictions.  The Commonwealth statute book has long included forfeiture provisions of the same kind triggered by either an adjudgment of criminal guilt or sometimes by the commission of an offence, even without conviction, but I have focused on the first for my purposes.

So, in our submission, the notion that there are circumstances – I do not say untrammelled or invariable, but that there are circumstances where, after a person has been convicted and punished, additional punishment can be imposed, is not an unprecedented idea.  Forfeiture is an example of that very thing occurring.

GAGELER J:   It is the judgment of the court – even if it is a subsequent judgment of the court – that triggers the statutory consequence, is it not?

MR DONAGHUE:   The judgment of the court identifying that there are earlier convictions, yes.

GAGELER J:   It is a court order that produces the statutory consequence.

EDELMAN J:   In other words, it is not really any different to mandatory sentence.

MR DONAGHUE:   In my respectful submission, it is, your Honour.  Because your Honours have said that there is a different between a court imposing a mandatory sentence, which is still the court doing it, and legislation having an effect.

GORDON J:   It is a very fine line, is it not, though, given that the court must make the declaration if the DPP applies for it.

MR DONAGHUE:   If the DPP applies.

GORDON J:   You just took us to – if it applies.

MR DONAGHUE:   Yes.

GORDON J:   So, there is a step taken, and that is the factum upon which the status is declared.

MR DONAGHUE:   An executive step taken to apply to the – an executive step taken to apply to the court.  But the passages I have just read to your Honours recognise that the forfeiture is not affected by the judicial order.  The forfeiture is affected by the Act – the Forfeiture Act.  Now, it is true, as Justice Gageler puts to me, that there needs to be a court order as the factum there, but – I think the case is Palling v Corfield, which says you cannot skip the step of the judicial order having the consequence and just depose it as a legislative consequence.

KIEFEL CJ:   Well, does it depend whether you it as a separate step or the forfeiture as merely a consequence of the declaration, tied up – inextricably tied up.

MR DONAGHUE:   I suppose, several answers to that, your Honour.  If the DPP never applies under 36A, then the question of forfeiture never arises, and the only punishment for the offence is the punishment that the court imposed immediately – consequence on the conviction.  So, the person has been convicted and punished in the ordinary way.  Then the Forfeiture Act creates the potential for an extra punishment to be imposed, but only on a person who has already been previously convicted.  To that extent, up to that point ‑ ‑ ‑

KIEFEL CJ:   That is step 1.  Conviction is step 1.  Step 2 is declaration.

MR DONAGHUE:   Step 2 is declaration, which can only be made ‑ ‑ ‑

KIEFEL CJ:   Forfeiture is the consequence of step 2.

MR DONAGHUE:   But step 2 depends upon executive triggering of step 2.  So, the susceptibility to forfeiture exists only on the taking of action by the DPP, and it is the taking of that action with, then, the duty on the court to make the declaration if the past convictions exist.  And then a guillotine, in the form of the legislative consequence, descends, not by reason of the court having done anything other than declaring that there were past convictions of the relevant form.  But even if your Honours were to be – and in my submission, the passages I have read – 74 and 75 in particular – accurately state that the forfeiture is worked by the Act, not by a judicial order.

EDELMAN J:   Is it really any different from a deodand?

MR DONAGHUE:   Sorry, from ‑ ‑ ‑

EDELMAN J:   A deodand was the common law equivalent of the statutory forfeiture regimes.  They are really just giving effect to the same judicial‑type process, are they not?

MR DONAGHUE:   In my submission, one cannot escape the detail of how the consequence is given effect by the legislation.  In the deodand context, as I recall, the common law function was a function of the court.  My point here is that this function is not.  What one has – both in the forfeiture context and, in my submission, in section 36D – is a situation where there has to be a finding by a court in an ordinary criminal process that results in conviction and sentence, and then there is the possibility of an additional punishment being imposed.

In this case, the additional punishment is loss of property by reason of the DPP seeking a forfeiture order.  In 36D, the additional punishment is the decision that is made by the Minister under 36D.  In both cases, the additional punishment is only available because of the factum of the earlier conviction and in both cases there are historical reasons why that kind of additional punishment has been accepted as something that can be done by something other than the court.

GAGELER J:   There is something other than the court.  I am not quite sure whether you are focusing on the executive applicant for the court order or the statutory consequence of the court order.

MR DONAGHUE:   I focused on both, your Honour.  In my submission, where I started and where what is in my submission sufficient for my purpose is just the statutory consequence, because it is a statutory consequence – it would, I accept, be a different matter if the court were empowered to order the forfeiture of such property as it considers appropriate, based on an application from the DPP.

In my submission, this scheme is not that scheme.  It does not contemplate a court order of that kind.  The court order in question is made under a different Act and does nothing more than declare the existence of past convictions and then the forfeiture is effected, as is recorded in both paragraphs 74 and 75 by the Act, automatically.  In my submission, that is properly characterised as a legislative importance of a penalty over and above the court penalty.

If I am wrong about that, I also have the other answer that I gave, which is that exposure to that additional penalty here is completely dependent on executive application, so that one cannot say it is fine because of the judicial declaration controls, because the further punishment there is only available because of executive action – in the same way as the 36D punishment is only available because of executive action.

KIEFEL CJ:   As is a further punishment which depends upon a further step taken by a prosecutor or quasi‑prosecutor.

MR DONAGHUE:   A further punishment, yes, that would be so, your Honour.  But what I am trying to do here is to answer the proposition that it is fatal to our position, fatal to the validity of 36D, that it was characterised in Alexander as involving a punishment for the conduct in question.  Because if it were the case that anything that is characterizable as a penal consequence added to the factum of a prior conviction was contrary to Chapter III, then I would lose.

But, in my submission, it is not as simple as that and the forfeiture example demonstrates why and, in my submission, the other factors that I have relied upon point to the same conclusion, because here, if one is engaging in the kind of evaluation that Justice McHugh referred to, looking at the circumstances that call for the exercise of a historical practice, one sees in the citizenship cessation context no history of judges ordering citizenship cessation, but quite some history, both in Australia and overseas of the 36D kind of model where you have a court convicting of a crime and then a role for the Executive Government to decide whether an additional consequence of that conviction should be citizenship loss.

That structure mirrored in 36D or reflected in section 36D, in our submission, recognises the respective institutional competence of different arms of government, because it gives the protections that the third limb of the reasoning in Alexander calls for.  It ensures that no one will lose their citizenship unless there has been a fair judicial process to find all of the relevant facts, but then allows the public interest‑style evaluations – have you acted in a way that is inconsistent with your ongoing membership of the body politic – that judgment gets to be made by someone who is accountable to the electorate and the public interest factors, which in 36E expressly include international relations effects, for example, effects that it would be a very unusual thing to ask a sentencing court to evaluate what the international relations consequences were of the order that they were to be made, would be a very difficult situation to put the judge in. 

The 36D structure gives you the protections of the ordinary criminal process but then allows those other public interest‑type factors to be judged by members of the Executive.  So, that institutional competence‑type rationale ties in both with the history of provisions of this kind but also with the line that was drawn in paragraph [96] of Alexander, because paragraph [96] of Alexander neatly captures the permissibility of a model that gives the judicial protections while not preventing executive involvement of the kind that I have just tried to develop.

Can I take your Honours to some of those historical provisions to illustrate the point I have just been trying to make.  Can I start with the Act your Honours will see in volume 3, tab 14 – Nationality Act 1920 (Cth).

JAGOT J:   Sorry, what tab was that?

MR DONAGHUE:   Sorry, your Honour, it is tab 14 ‑ ‑ ‑

JAGOT J:   Tab 14.  Thanks.

MR DONAGHUE:   I hope, in volume 3.  And the provisions that I am about to show your Honours – so this is a 1920 Act – and if your Honours go to section 12, there is a range of different circumstances that can enliven cancellation – and I do not need to take your Honours through most of them.  But, if your Honours look at 12(2)(b), one of the things that could enliven the power to revoke a certificate of naturalisation was that:

within five years of the date of the grant of the certificate –

the person was sentenced by a court:

to imprisonment for a term of not less than twelve months, or to a term of penal servitude, or to a fine of not less than One hundred pounds –

so, the criminal conviction was one of the things that could enliven the executive power to revoke the certificate of naturalisation; a very – in fact, I do not even need to take your Honours to it – but the same regime was continued in the 1948 Act in section 21(1)(e), and (2) of the 1948 Act – which is behind the next tab, tab 15.

That provision was then significantly narrowed in 1958, but one does have a period, from 1920 through to 1958, so nearly 40 years, where one of the ways you could lose a certificate of naturalisation was an executive decision building on the conviction.  There was much the same provision in the United Kingdom – British Nationality Act – in a provision that we have cited in footnote 90 of our submissions, and it reflects that same division of responsibility.  The other historical model that one sees, if your Honours go to the next tab – volume 3, tab 15 – to the Nationality and Citizenship Act ‑ ‑ ‑

GORDON J:   What year is that?

MR DONAGHUE:   That is 1948, your Honour.

GORDON J:   So, is this tab 15?

MR DONAGHUE: Tab 15, and goes to section – so, the provision I just noted as the analogy is 21(1)(e) and (2), so you have a conviction within five years; the person has been sentenced and imprisoned. And you see there, there was also a public good judgment that the Minister had to make; so, something roughly equivalent to the public interest. But if your Honours go back to the top of that page, you see section 19, and this is the automatic operation of law provision:

An Australian citizen who . . . is a national or citizen –

of another country:

serves in the armed forces of a country at war with Australia shall, upon commencing so to serve, cease to be an Australian citizen.

So, that provision does not follow the same structure as 36B – there is no conviction and then cancellation – but nor is there, quite obviously, any exercise of judicial power.  There is just an automatic legislative consequence.  This was the provision I mentioned in my exchange earlier today with Justice Edelman ‑ ‑ ‑ 

EDELMAN J: It may be that section 19 is not punitive. It is very different context, very different circumstances from the legislation that we are concerned with.

MR DONAGHUE: Section 19 existed in that form right up until 2020, when 36B was enacted, which incorporated section 19 before it was invalidated. So, there is now, on the Australian statute book, no equivalent to section 19 because of Alexander.  My submission, your Honour, is that your Honours in Alexander focused on an analysis of substance over form and said of a provision that did not, on its face, say that we are seeking to punish this conduct – your Honours said of a provision that says what we are seeking to do is to exclude from the Australian community people whose conduct evidences inconsistency with the bonds of citizenship.

In my submission, there is no way of drafting a provision that ceases the citizenship – and your Honours focused on the consequence, exclusion from the political community, the same consequence as section 19 has. In my submission, it is impossible to draft a provision that excludes from citizenship someone who fights against Australia in a way that would escape the Alexander reasoning.

EDELMAN J: But it depends upon whether the norm that – the underlying norm that is motivating the purpose of Parliament here is one of sanctioning conduct or one of examining conduct to see if the conduct is sufficiently akin to a renunciation, because if section 19 had said, for example, that an Australian citizen who voluntarily renounces, by objective conduct, their citizenship, will no longer be an Australian citizen, there would be a very strong argument that that is not punitive.

MR DONAGHUE:   If it said voluntarily renounces ‑ ‑ ‑ 

EDELMAN J:   A voluntary renunciation, to be determined by objective conduct, not by subjective thoughts.  Then one turns to this and says, well, is that provision one which is more concerned with objective evidence of renunciation, or is it more concerned with punishing the breach of or sanctioning the breach of an underlying norm of conduct?  That is a line to be drawn.  It is a very different line, or very different circumstances, from the provision we are concerned with.

MR DONAGHUE:   In my submission, your Honours did that analysis in Alexander and said that because of the banishment – exile equivalent – and the severity of that consequence, a provision that said what it was doing was taking away the citizenship of people who engaged in conduct that was inconsistent with the bonds of the Australian community is, by definition, punitive.  It was the substance of it that your Honours focused upon.

So, in my submission, the purpose in 36A was quite similar to the purpose that your Honour is putting to me in that question.  It was not said to be a purpose to punish.  It was said to be a purpose to recognise inconsistent conduct.  Nevertheless, the Court held, as a matter of substance, that is punishment.  I am not taking issue with that; I am simply pointing out that the consequence of that reasoning seems to involve the proposition that the Australian statute book cannot contain a provision of that kind because it does not involve a court.

STEWARD J:   I must say, I am not sure whether you are right to concede that the two provisions have the same purpose, in the sense that what grouped the majority in Alexander was the idea of banishment – deportation as being a classic example of punishment – but here, you are not banished.  Your citizenship is taken away and is replaced with a visa.

MR DONAGHUE:   By 36D, your Honour.

STEWARD J:   Yes.

MR DONAGHUE:   I have not ‑ ‑ ‑

STEWARD J:   I know in the case of both these individuals, their visas have since been cancelled, but there is no necessity for that to take place.

MR DONAGHUE:   No.  As your Honour knows, I rely on that.  It is in distinguishing the consequences of the two provisions that I make the concession as to purpose because there are several paragraphs ‑ ‑ ‑

STEWARD J:   So, the punishment must – if it is punitive in nature, it must be because of other things, not banishment; loss of right to vote, perhaps; loss of welfare entitlements, no doubt; avoidance of jury duty.  There will be a whole list of rights affected, but it is not banishment.

MR DONAGHUE: Your Honour, I do not disagree at all. In my submission, that matters in the evaluative exercise that Justice McHugh called for in saying, well, is this the kind of thing that can only, and exclusively, be done by a court. The consequence does matter. I totally embrace that. But, all I was seeking to do, really, by reference to these provisions – including section 19 – is to emphasise that to conclude that the consequence of loss of citizenship with its historical connection to banishment or exile is an exclusively judicial function, such that even if, separated from the judgment of guilt – and then, here, of course, in 36D, we have a court doing the judgment of guilt; in 19, we do not have that. But, even if separated from that function is an exclusively judicial one – is to, at the very least, cast very grave doubt over very longstanding legislative provisions.

From the perspective of the legislative drafter confronted with, well, the Court has said in Alexander that the Commonwealth has the power to exclude people who repudiate their allegiance to Australia, how do we do it; that is a practical problem that needs to be confronted.  When reading Alexander and looking at the substance over form analysis, and looking at the consequences, it is difficult, in my submission, to see how the Commonwealth could frame a provision that was not susceptible to being characterised as punishing reprehensible conduct.

GAGELER J: Was the conduct referred to in section 19 of the 1948 Act a crime?

MR DONAGHUE:   Your Honour, I do not believe so.  Can I check that?  I do not believe it was.  But it was, in my submission, clearly reprehensible conduct, and ‑ ‑ ‑

GAGELER J:   Not necessarily.

MR DONAGHUE:   “At war with Australia” – it is fighting against the country of which you are a citizen.

GAGELER J:   I really do not want to argue ‑ ‑ ‑

MR DONAGHUE:   No.

GAGELER J:   ‑ ‑ ‑ but a person could find themselves in the armed services of a country which then becomes at war with Australia.  I mean, it is not necessarily their fault.

MR DONAGHUE: Your Honour, I accept that that may be so. That, I suppose, was not a nuance that section 19 accommodated. It took citizenship away in those circumstances. In the two models of provisions that I have shown your Honours, the section 19 model that continued up until section 35 of the Citizenship Act 2007, which enacted much the same provision, and then that continued until – replaced in 2020 by 36B, which included this as one of the many limbs.

JAGOT J:   Is section 35 – is there an equivalent to the visa, the automatic grant of the visa provision seems to have disappeared from the – was repealed in 2020, or something.

MR DONAGHUE:   The visa provision in the Migration Act, your Honour?

JAGOT J:   The automatic visa that you referred to.  Is that ‑ ‑ ‑

MR DONAGHUE:   I believe, your Honour, that that was in the Migration Act at all relevant times.  It is in section 35 of the Migration Act, rather than the Citizenship Act. What one does not see in either the legislative model that builds upon the factum of a prior conviction and empowers the Executive to cancel, or in the automatic legislative cancellation, one does not see the court making the relevant orders.

To the extent that one is looking at historical practice to ask, well, is this the kind of – if this is a form of extra or additional punishment for the conduct involved, is this a kind of punishment that can only be imposed by a court?  In my submission, the history suggests no, because if one is going to look at the history going back to banishment and exile, that is history hundreds of years ago, one should also look at the more recent history, the history of the last 100 or 150 years.  In the more recent history, one sees provisions of the kind I have just shown your Honours.

GORDON J:   You also see a fundamental shift and change in the way in which the package of provisions is drafted in each of the – I think you accepted there was a narrowing at one stage and then there is a limitation which we do not find in the current provisions by reference to time period, by reference to the point after the grant of citizenship.  There are a whole range of different types of mechanisms that are adopted.

MR DONAGHUE:   There have certainly been adjustments in the thresholds; how long you need to be imprisoned, or matters of that kind.  So, at the moment, 36D says three years.  The threshold has been lower in the past.  It has been one year at various times.  But in terms of the model, what one never sees is – we are not aware of not only no Australian example, but we are not aware of any overseas example of a court as part of a criminal sentence removing citizenship.  That just does not seem to be something that happens.

KIEFEL CJ:   Mr Solicitor, what you have referred to are different historical practices at different points.  Is this really historical context which is proper for the purpose of construction?

MR DONAGHUE:   Well, in my submission, yes, because ultimately the question your Honours are confronting is:  is section 36D valid?  And section 36D is a provision that adopts a model that involves an added executive consequence upon a court judgment of a kind that is familiar.

KIEFEL CJ:   But we are not really looking at the historical background to 36D itself.

MR DONAGHUE:   Well, your Honours, no, because what your Honours, in my submission, are doing is – this construction exercise, in some respects, is really a construction exercise about Chapter III, rather than about 36D.  It is to identify what kinds of function can only ever be validly performed by a court, and what I am seeking to persuade your Honours of is that one does not find in the historical record a grounding for saying that only a court can ever do this.

So, even on the premise that I have accepted, that 36D can be characterised as involving an additional punishment, that might well be problematic if it did not – indeed, Alexander holds that it is problematic if it does not contain the protections of judicial findings of the facts that enliven the power.  If you just go straight to empowering the Minister to impose this punishment, then we know from Alexander that that is invalid.

On the 36D model which does not have that difficulty and so not only does the – it does not have the difficulty in paragraph [96] of Alexander.  The power is enlivened by a judicial finding of fact.  That has the fairness protections, and then one has the additional punishment possibly being imposed.  In my submission, there are no grounds to say that the imposition of that additional sanction, however it be characterised – and I take Justice Steward’s points in that regard – the addition of that additional punishment is not an exclusively judicial function.  There is no reason to think it has ever been a judicial function.

One sees, interestingly, that same kind of model in other places, including in the United States, which, as your Honours will be aware, has a greater level of constitutional protection for citizenship under, I think, the 14th Amendment.  Can I show your Honours the relevant US ‑ ‑ ‑

GORDON J:   Before you go there, can I ask one question, Mr Solicitor?

MR DONAGHUE:   Of course, your Honour.

GORDON J:   This is really picking up something the Chief Justice asked you about the historical context.  These provisions which are dealing with the terrorism the offences were first introduced in 2015, were they not?

MR DONAGHUE:   They were.

GORDON J: So, what do we make of what has come before it in that context? So, originally it was in section 33AAA and following, and they get repealed and replaced by the current package of provisions we are looking at. It really ties back to the question you were asked also by Justice Edelman about purpose.

MR DONAGHUE:   Part of the point, your Honour, I have sought to make is that the new provisions that were introduced then went further then, but included the old provisions.

GORDON J:   Not quite.  It is a different package.

MR DONAGHUE: The fighting for a foreign army, for example, was incorporated into 36B. That was one of the paragraphs in 36B. So, one has a fairly direct line from section 19 through to 36B. Extra things were added by the Parliament but, in my submission, that gave rise to the head of power argument that was had before your Honours in Alexander about whether the alien’s power actually authorised you to remove citizenship for conduct of that kind, and your Honours said yes.  In terms of the broadening of the kind of conduct that can enliven the question, that question has been answered – not challenged by the applicant here.

The Chapter III question – as I said in opening – is about how you can cancel the citizenship of a person who, by definition, following Alexander, we do have power to exclude.  What I am submitting to your Honours is that a model that protects the person by exposing them to citizenship loss only with the benefit of a full judicial procedure before the power is enlivened does not cross the line, even though the Executive has a role to play.  If I am wrong about that, then, in my submission, the consequence seems to be that it is only by a judicial sentencing that one could comply with the Chapter III limit, and that is something nowhere in the world requires as far – and is also something that, in practical terms, may well be very difficult to make work in terms of how one could inform a sentencing court and ask it to make the kind of judgment required.

So, we are urging your Honours to accept that the 36D approach to this – which does have the historical pedigree that I have identified, and the international comparative pedigree that I am about to identify – is consistent with Chapter III as an evaluation of the function concerned, bearing in mind the way it can be exercised and the consequences that it has – that it passes constitutional muster.  If one reads paragraph [96] of Alexander as the ratio of Alexander, it is certainly compatible with what your Honours decided last year in that case.

Can I ask your Honours – and I will not do this at any length – just to note the relevant US statute; it is volume 3, tab 32.  When your Honour has that, it is in “Title 8 – Aliens and Nationality” – 1481 – if your Honours go to volume 3, tab 32, and then turn to page 868 in the joint book, you will see it in the right-hand column.

KIEFEL CJ:   I am sorry, what was the page, again?

MR DONAGHUE:   Page 868, your Honour.

KIEFEL CJ:   Thank you.

MR DONAGHUE:   So, there is a heading in the right-hand column near the top, “Part III – Loss of Nationality” – “1481.  Loss of nationality by native-born or naturalized citizen; voluntary action”:

A person who is a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing –

as, I think, it is already being noted, the case law in the US says that that intent can be inferred from proven conduct, one of the cases that establishes that, being, Vance v Terrazas (1980) 444 US 252, which your Honours have in the joint book, volume 13, tab 105. My point in going to this is to ask your Honours is to look at subsection (7). So, one of the things that could have this legislative consequence was:

committing any act of treason against, or attempting by force to overthrow, or bearing arms against, the United States –

and I will not keep reading, but then go up five lines up from the bottom:

conspiracy to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, if and when he is convicted thereof by a court martial or by a court of competent jurisdiction.

So, this is legislation, the providence of which goes back to 1940, that waits for an exercise of judicial power to convict a person and then automatically, by force of legislation, adds the consequence of citizenship loss.  Now, we make two points about that.  One, that kind of model is not judicial power removing the citizenship; it is legislative power.  Two, that kind of model is the kind of model, in fact, that Australia used in the legislation your Honour Justice Gordon just referred me to – the 2015 or 2016 legislation.

Your Honours might recall from Alexander that there was an INSLM report into that regime that said it would be fairer if, instead of automatic legislative consequence upon the conviction, there was interposed a Ministerial discretion.  And, accepting the recommendations of that INSLM report, 36B was introduced, and then invalidated.  But I have probably confused matters there, because there was an equivalent to 36D, even under the old model; that it was not just automatic consequences – 36D sat in parallel with that automatic model.

EDELMAN J:   Is there any US authority on section 1481, in particular whether it whether any of the subprovisions, or subprovision (7), is punitive?

MR DONAGHUE:   I do not know the answer to that, your Honour.  Can I take that on notice, and we will have a look.

GAGELER J:   Mr Solicitor, if we are looking at substance rather than form, if you have an automatic legal consequence of a court making a certain kind of order, is that not, in substance, an effect of the order?

MR DONAGHUE:   Your Honour, I think that this Court’s jurisprudence would suggest not – that it is important, whether something is done by force of a judicial order or by a legislative factum attached to it.  I accept, as a matter of substance, they look much the same but in the latter context, in my submission, it is still the legislation that does the thing, even if enlivened by a court order rather than a court that does the thing.  I think Palling v Corfield is an example.

GORDON J:   What was the example?  Sorry, I missed the word.

MR DONAGHUE:   Palling v Corfield, I think, your Honour, is an example of that distinction being significant.  Parliament cannot say, if a court finds you guilty you go to gaol for life, even though Parliament can say the mandatory sentence for this offence is imprisonment for life.  The court still has to impose the mandatory sentence rather than the Parliament imposing the sentence, cutting out the court from that exercise.  I will not take your Honours through the provisions but, at various times, Canadian legislation has followed a model similar to section 36D.  I think we have given your Honours ‑ ‑ ‑

GORDON J:   Can I ask about one other matter – which is probably my bad memory – but does your argument also extend to the imposition of continuing detention orders as part of the sentencing process?

MR DONAGHUE:   Your Honour, a continuing detention order imposed as part of a sentencing process would be an order imposed by the court as part of the adjudgment and punishment of criminal guilt, and so would ‑ ‑ ‑

GORDON J:   Punishment, at least.

MR DONAGHUE:   And punishment at least, but, if imposed – I thought your Honour put to me as part of the sentencing ‑ ‑ ‑ 

GORDON J:   Part of the sentencing, yes.

MR DONAGHUE:   ‑ ‑ ‑ process – so, in my submission, that would clearly be compatible with Lim.  So, I suppose, in that sense, my argument extends to it, but I have a higher burden that I need to clear, in that I ‑ ‑ ‑

GORDON J:   No, I am looking at this question about practicalities.  There are schemes in place which permit that to happen.

MR DONAGHUE:   Yes, your Honour.  But part of the difference here, though – and this is my institutional capacities‑type point – is that your Honours will recall that this Court has emphasised on multiple occasions that it is unfair for a criminal defendant to meet multiple manifestations of the Executive appearing against the criminal defendant.  Usually, for that reason, one has the DPP on the one side, the defendant on the other, and the Crown otherwise is to be kept out of things.

How, then, is the Court to know about the foreign relations, ramifications or otherwise, of a possible order cancelling someone’s citizenship?  Does the Executive come in a different guise and make submissions to the sentencing court about whether or not the sentence should or should not include a deprivation of citizenship?  How does the – if the judge or if the evaluation of those matters involves sensitive or classified foreign intelligence, or other matters of that kind, that cannot be put before the judge without the accused knowing about it.

So, there are reasons why, institutionally, a court is not well-placed to make judgments of that kind, and the Executive can.  That, in our submission, is no doubt part of the reason why one does not see courts having done this before, but one does see the Executive doing it after the protections of the court are available, and our submissions urge upon your Honour the, insofar as there is a value judgment involved, that there is no reason to conclude that this function must be performed by a court, and there are very good reasons to conclude why it need not be performed by a court, at least as long as the power is only available following the protections of the judicial process, and that is all your Honours need to accept in order to uphold the validity of 36D.

I was going to say to your Honours that I will not take your Honours through the Canadian or UK or New Zealand equivalents, but in none of them does one see a court making the citizenship cessation orders, and in some of them one does see the same structure as 36D, particularly in Canada at various times, though the provisions have changed over the years.

The final point, your Honours, that I would seek to make – or two final points, one in support of the institutional competence‑type point that I just made, there is a recent decision of the UK Supreme Court that I am afraid we have not given your Honours, but can I give your Honours the reference.  Of course, we can provide it if that would assist your Honours.  The case is R (on the Application of Begum) v Special Immigration Appeals Commission [2021] AC 765.

It is a judgment given by Lord Reed on behalf of the court and it concerned the special body, the Special Immigration Appeals Commission, that reviewed decision of the Home Secretary under the UK provision that allows the deprivation of citizenship which is, as your Honours might recall from Alexander, a much wider provision.  It is a provision like the provision Justice Steward put to my friend this morning.  It just says the Home Secretary can cancel citizenship if satisfied it would be conducive to the public good, or a phrase of that kind.

But there is a review of that decision to the Special Immigration Commission, and if your Honours would permit me to read on paragraph to you, it is paragraph 70 of the judgment, and in it Lord Reed for the court says this:

The exercise of the power conferred by section 40(2) must depend heavily upon a consideration of relevant aspects of the public interest, which may include considerations of national security and public safety, as in the present case.  Some aspects of the Secretary of State’s assessment may not be justiciable, as Lord Hoffmann explained in Rehman.  Others will depend, in many if not most cases, on an evaluative judgment of matters, such as the level and nature of the risk posed by the appellant, the effectiveness of the means available to address it, and the acceptability or otherwise of the consequent danger, which are incapable of objectively verifiable assessment, as Lord Hoffmann pointed out in Rehman and Lord Bingham of Cornhill reiterated in A, paragraph 29.  SIAC has to bear in mind, in relation to matters of this kind, that the Secretary of State’s assessment should be accorded appropriate respect, for reasons both of institutional capacity . . . and democratic accountability –

We say the same is true in this context.  Those observations are uttered about decisions to cease people’s citizenship.  In our submission, they are equally true here as they are in the UK.  They give a functional justification for the conclusion that the division of responsibility one sees in 36B should be held to be compatible with the separation of powers.  We have advanced that argument principally on the footing that, although the function be viewed as punitive, it is not a function, having regard to all of the factors that I have relied upon, that can only be performed by a court.

Another path of analysis that relies on exactly the same considerations would be for your Honours to say that there is an exception to the Lim principle that reflects this particular function for, essentially, the same reasons as I have already given – there is a historical and functional justification for allowing this kind of function to be performed in the way that 36D requires.

EDELMAN J:   Was the jurisdiction that SIAC was exercising in Begum an appellate jurisdiction?

MR DONAGHUE:   I think, your Honour, it was a review jurisdiction of the Secretary’s decision, I believe.  It is a judicial review‑type function – sorry, your Honour, no it is ‑ ‑ ‑

EDELMAN J:   Paragraph 69.

MR DONAGHUE:   Yes.  As your Honour can see in paragraph 69, it is:

supervisory rather than appellate.

Is what Lord Reed said.

EDELMAN J:   No, he says, “not to say” that it is “supervisory”.

MR DONAGHUE:   Sorry:

rather than appellate.  Its jurisdiction is appellate –

by reference to the supervisory – but references are apt to be “a source of confusion”.  I think, your Honour, that – sorry, I am just re‑reading this, if your Honour would give me a moment.  Yes, it is appellate, but it said that that label can lead to confusion, and that the question, as you see, at the start of paragraph 70, is a judicial review‑type question and an unreasonableness‑type question.  But it is then the character of the kinds of factors that are there on the citizenship cessation decision in the paragraph that I rely upon.

In our submission, by either mode of analysis – by the mode of analysis that says it is not enough to conclude that the function is punitive, where it is separated from a judgment of guilt, as it is in this case, one needs to engage in the value judgment taking account of the circumstances of exercise and historical practice, and that that analysis means the punishment, even if imposed, is not exclusively judicial, supported by Emmerson.  That is path 1.  Path 2 is, for the same kinds of reasons, an exception to the Lim principle should be recognised by either path of reasoning.

In our submission, the line was reflective in paragraph [96] of Alexander is correct, and the demarcation between 36B on the one hand and 36D on the other that is suggested by – not just by paragraph [96], but by the comparison conducted in the judgment between the two provisions, in our submission, appropriately highlights that, notwithstanding

your Honour’s conclusion that 36B is invalid, 36D should be recognised as falling upon the right side of the dividing line.  If your Honours would pardon me for a moment.

In answer to your Honour Justice Edelman’s question about the United States’ jurisprudence, none that we are aware of, for those of my team who have looked into this in some detail. As to your Honour Justice Gageler’s question about section 19 of the Crimes Act, the conduct covered by section 19 for most of the relevant period was covered, provided that there was an intent to assist the enemy. So, some but not all of the conduct covered by section 19 would have been criminalised.

Unless your Honours have any ‑ ‑ ‑

EDELMAN J: That was section 19, also, of the Crimes Act, did you say?

MR DONAGHUE: No, it was section 19 of the – it was section 24 of the Crimes Act, I think ‑ ‑ ‑

EDELMAN J:   Thank you.

MR DONAGHUE: ‑ ‑ ‑ criminalising the section 19 behaviour. If your Honours please.

KIEFEL CJ:   Yes, thank you, Mr Solicitor.  Anything in reply, Mr Horan?

MR HORAN:   Yes, your Honour.  Just firstly in relation to the ground of the ex‑citizen visa, that has no constitutional significance for the purposes of this case, and that is because it is not a material distinction between the operation or validity of the two provisions – section 36D and section 36B.  That the latter, section 36B – a determination can be made for a person who is in Australia who would then, similarly, get an ex‑citizen visa.  Although that is not expressly provided in section 36B, it is subparagraph (1)(a)(i), which ‑ ‑ ‑

GORDON J:   Sorry, can you give us that reference again, please, in its entirety?

MR HORAN:   It is section 36B(1)(a)(i), as opposed to (ii), which would allow somebody who has committed the conduct while outside Australia but has returned could be subject to a determination.  Conversely, section 36D, a determination could be made for a person who was outside Australia, who would then not get an ex‑citizen visa.  So, the coincidence of whether or not someone is inside or outside Australia and receives that visa is not a material distinction of any constitutional significance for the validity of section 36D as opposed to ‑ ‑ ‑ 

GAGELER J:   Does that detail matter at all, once it is conceded that an exercise of power under section 36D is punitive?

MR HORAN:   No, I do not think so, your Honour, although it does bear upon some of the questions that your Honour Justice Steward asked as to what the consequence is.  In any event, a person such as the applicant in the present case, if and when removed, and then he is outside Australia, his position would be no different to that of Mr Alexander as described at paragraph [26] of the plurality.  I would just refer back to, also, the decision in Trop v Dulles at page 101 – which I have already taken the Court to – noted the penal consequence was to render the person’s:

very existence . . . at the sufferance of the country in which he happens to find himself.

And that the “limited rights of an alien” might be terminated by deportation.  Essentially, that is the punitive consequence – or the penal consequence is the change in status that leads to that, and it is not an argument that the punishment is the detention or removal to which the person is exposed as the punishment; the punishment is the stripping of the rights of citizenship itself.  And that, I think, was clearly the case in Alexander.

The second point is just to respond to the submission that my learned friend made that the couch to the question for the Court is whether the only way in which citizenship can be ceased in response to criminal conduct is as part of a sentence.  We say, that is not the relevant question.  Our submission just means that citizenship in response to – as a sanction for criminal conduct, must be a function performed by a court. 

There may be ways to confer those powers on a court separately to the sentencing process.  Perhaps, if done for protective reasons such as the regimes considered in Benbrika or Fardon; perhaps, it if is based on risk‑based factors as in those cases and, perhaps, also, in the case to which the Solicitor‑General took the Court – the recent case in the UK Supreme Court.  But, in any event, the submission cannot be, effectively, that expediency should be elevated above constitutional principle.  So, if Chapter III is to be given its proper operation, we say that it is the case that citizenship, as a sanction for criminal conduct – citizenship deprivation as a sanction can only be performed by a court.

In relation to historical practice, whatever the case in relation to whether courts have ever exercised these types of powers, in sentencing or otherwise, we say there is certainly no long history of citizenship depravation by the Executive in retribution for, or as a sanction for, past criminal conduct.  The examples to which the Court was taken in the 1920 Act, that provision dealing with conviction or sentence within five years, we say, is essentially more in the category of a condition on the naturalisation of a person as a citizen, and it is a bit like a good behaviour bond within the first five years of naturalisation.

EDELMAN J:   It is a condition subsequent.

MR HORAN:   Yes, correct.  I do not want to trespass on the submissions that your Honours will need to get into in much greater detail in the case to follow, of Jones, but we say that that is not an example – or a clear example – of executive punishment by way of citizenship depravation.  As your Honour Justice Gordon pointed out, that subdivision C is effectively – when it was introduced in 2015, was breaking new ground in establishing a regime for that kind of punitive sanction model of citizenship cessation.

When one looks at that Irish Supreme Court case to which the Court was taken of Damache – I will not take your Honours back to it, but the terms of the provision that was considered in that case should be kept in mind.  At paragraph 33, the section is reproduced, and it is not in any way similar to section 36B or section 36D.  It is essentially a provision which is much more akin to the traditional deprivation of citizenship for matters such as naturalisation “procured by fraud, misrepresentation”:

that the person . . . has, by any overt act, shown himself to have failed in his duty of fidelity to the nation –

ordinary residence outside the country “for a continuous period of seven years”, citizen of a country “at war with the State”, and a:

voluntary act other than marriage acquired another citizenship.

All of those things are examples that have been in our citizenship and naturalisation legislation, but they are example of, essentially, non‑punitive deprivation of citizenship. So, the question that was considered insofar as the separation of judicial power in Ireland, which derives from the provision at paragraph 38 in their Constitution which required:

“Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution.”

That then became a question about whether the process by which citizenship was revoked under this section involved the administration of justice for those purposes.

EDELMAN J: Which subsection of section 19(1) was relied upon in the case?

MR HORAN:   I am not sure on my feet that I can answer that question.  I might need to take that on notice, your Honour.  One of the important things to note, though – and it is very relevant in this regard – is at paragraph 42; it was accepted in the case that:

the revocation procedure is not criminal in nature and that revocation does not amount to criminal sanction –

so, the whole case is not talking about revocation as sanction or punishment for past conduct; it was purely arguing that the consequence of citizenship alone was such as to make it exclusively judicial.  That is, I think, as my learned friend pointed out, not something that was established in Alexander, and it is not something that we need to rely upon here. 

The case of Emmerson that was relied upon, we say, can be distinguished, partly because there was a judicial process in making the court order that led to the consequence of forfeiture, and partly because the present case is not concerned with a situation of automatic legislative deprivation of citizenship upon conviction of an offence; the sort of thing that provision in US Title 8, section 1481, subsection (7) was concerned with – something which takes effect by operation of statute, rather than executive decision.

In the context of Emmerson, as I submitted earlier, that was a Kable challenge, and the argument in relation to why it was said to be inconsistent with the independence of the Court to confer that function on the Court was set out at paragraphs 51 to 53, and essentially was that the Court was really constrained to make the order on the application of the DPP, so that, effectively, it was a decision by the Executive to trigger the penalty.  That was rejected by the Court on Kable grounds, and essentially paragraphs 57 through to paragraph 69, and I will not detain the Court by going to those paragraphs, but it is clear there that the Court concluded that there was an ordinary judicial process, and that the real complaint was that this was a rubber-stamping of a decision by the Executive.

But in fact, what was fatal to the Kable challenge was that there was a process in open court, a recognised function of the Court determining whether certain statutory criteria were established and making an order from which certain consequences followed.  I am just told, in relation to the Damache Case, the Irish Supreme Court case, the relevant section was 19(1)(b).

EDELMAN J:   That is the “duty of fidelity to the nation”.

MR HORAN: By an “overt act”. I should note in passing that the question of renunciation – express renunciation – is dealt with by section 33 of the Citizenship Act, and it is noteworthy that that does not necessarily mandate revocation of citizenship. The Minister must approve or refuse that application based on renunciation. But essentially, all of these examples are dealing with circumstances in which deprivation of citizenship is either voluntary or is done for reasons which are far removed from punishment and the sanction that was the subject of the Court’s decision in Alexander.

Just finally, I wanted to say something briefly about the decision in Magaming which your Honour Justice Gordon referred to.  The question in that case was concerned with, effectively, whether the prosecutorial choice to bring charges under one section rather than other leading to different penalties was something which was inconsistent with Chapter III.  But the relevant passage, which we would respectfully adopt in the judgment of your Honour Justice Gageler, who was dissenting in the result – initially, going to page 400 at paragraphs 63 to 64, your Honour then identifies the controversy that arises in relation to a criminal process – or proceeding – so that where any deprivation, relevantly, of liberty:

the controversy between the executive and the individual –

that must be adjudicated by a court is, relevantly, as to:

whether that breach –

of law – the asserted breach of a criminal prohibition:

has occurred and if so whether that deprivation of . . . liberty is to occur.

So, it is quite clear in that formulation, that, whether sequentially or otherwise, that it was part of the function of the court to determine the controversy not just as to whether the breach had occurred, but as to whether as a result of that breach, the relevant deprivation of liberty should be applied.

Now, here, the relevant deprivation of liberty is the involuntary deprivation of citizenship and its attendant rights.  We would also just refer to the subsequent passages at – I will just give your Honours the passages – in part, referring to, and quoting from it, other cases, such as the Lord Diplock – paragraphs 76, 84, and 88 – which, in our submission, support a conclusion that one cannot have a structure whereby the court determines criminal guilt and then, essentially, hands over to the Executive to determine what the punishment or sentence should be for that guilt.

We say that is just a conventional application of principle expressed in the Lim principle, but also more generally that Chapter III – the effect of Chapter III of the Constitution is that it is an essential and exclusive judicial power to impose punishment as a result of criminal guilt, and we say that based on all the factors considered in Alexander, that is the case in relation to section 36D.

If your Honours please, those are our submissions.

KIEFEL CJ:   Thank you, Mr Horan.  The Court reserves its decision in this matter and adjourns to 9.30 am tomorrow for pronouncement of orders, and otherwise to 9.45 am.

AT 3.46 PM THE MATTER WAS ADJOURNED