Attorney-General Of the Commonwealth and Minister For Home Affairs & Abdul Nacer Benbrika

The parties before the High Court were the Attorney-General of the Commonwealth and the Minister for Home Affairs (the applicants), and Abdul Nacer Benbrika (the second respondent). The dispute concerned the validity of Division 105A of the Criminal Code (Cth), specifically the power to make continuing detention orders under section 105A.7 of the Code. The applicants sought the removal of this constitutional question from the Supreme Court of Victoria's Court of Appeal to the High Court for determination.

The central legal issue before the High Court was whether the power to make continuing detention orders under section 105A.7 of the Criminal Code (Cth) was conferred upon the Supreme Court of Victoria contrary to Chapter III of the Commonwealth Constitution, as it was argued that this power was not within the judicial power of the Commonwealth. The Court was also required to determine the procedural matters related to the removal of the cause and the allocation of hearing time, as well as the question of costs associated with the application.

The Court's reasoning focused on the agreed proposed orders presented by the parties, which facilitated the removal of the constitutional question under section 40 of the Judiciary Act 1903 (Cth). The Court dispensed with certain procedural rules and established a timetable for the filing of submissions and the hearing of the matter. The constitutional question itself was identified as whether Division 105A of the Criminal Code, and specifically the power to make continuing detention orders, was invalid for encroaching upon the judicial power of the Commonwealth and being conferred on a State court. The Court also addressed the issue of costs, agreeing to reserve their determination for the Full Court hearing the substantive matter.

The High Court made orders substantially in accordance with the draft minutes provided by the parties. These orders included the removal of the constitutional question to the High Court, the abridgement of time for compliance with certain rules, and the dispensing with compliance with others. A detailed timetable was set for the filing of submissions by the parties and any proposed interveners, with the matter listed for hearing before the Full Court on 10 December 2020, with the expectation that the argument would be completed within that single day. The costs of the application were reserved for determination by the Full Court.