KIEFEL CJ, GAGELER, GORDON, EDELMAN, STEWARD, GLEESON AND JAGOT JJ
ABDUL NACER BENBRIKA APPLICANT
AND
MINISTER FOR HOME AFFAIRS & ANOR RESPONDENTS
Benbrika v Minister for Home Affairs
[2023] HCA 33
Date of Hearing: 14 June 2023 Date of Judgment: 1 November 2023
M90/2022
ORDER
The questions stated for the opinion of the Full Court in the further amended special case filed on 6 June 2023 be answered as follows:
Question 1: Is s 36D of the Australian Citizenship Act 2007 (Cth) invalid in its operation in respect of the applicant because it reposes in the Minister for Home Affairs the exclusively judicial function of punishing criminal guilt?
Answer:Yes.
Question 2:What, if any, relief should be granted to the applicant?
Question 3:Who should pay the costs of the special case?
Answer:The respondents.
Representation
C J Horan KC with A Aleksov, J E Hartley and E A M Brumby for the applicant (instructed by Doogue + George Lawyers)
S P Donaghue KC, Solicitor-General of the Commonwealth, with F I Gordon SC, L G Moretti and A N Regan for the respondents (instructed by Australian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Benbrika v Minister for Home Affairs
Constitutional law (Cth) – Judicial power of Commonwealth – Cessation of Australian citizenship – Where s 36D of Australian Citizenship Act 2007 (Cth) ("Act") provided Minister for Home Affairs may make determination that person ceases to be Australian citizen if, among other matters, person has been convicted of offence against provision of Pt 5.3 of Criminal Code (Cth) (terrorism) and sentenced to period of imprisonment of at least 3 years in respect of conviction, and Minister satisfied conduct demonstrates repudiation of allegiance to Australia – Where s 36B of Act held in Alexander v Minister for Home Affairs (2022) 96 ALJR 560; 401 ALR 438 to be contrary to Ch III of Constitution for conferring upon Minister exclusively judicial function of adjudging and punishing criminal guilt – Where applicant citizen of Algeria and Australia – Where applicant convicted of and sentenced to term of imprisonment exceeding 3 years for offences against provisions of Pt 5.3 of Criminal Code – Where Minister determined pursuant to s 36D of Act that applicant cease to be Australian citizen – Where accepted, on authority of Alexander, that s 36D of Act properly characterised as punitive – Whether s 36D, like s 36B, contrary to Ch III of Constitution for conferring upon Minister exclusively judicial function of punishing criminal guilt – Whether Ch III prohibits reposing in Commonwealth Executive power to punish criminal guilt where court has adjudged criminal guilt – Whether prohibition subject to exception for involuntary deprivation of citizenship as punishment following conviction.
Words…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Benbrika v Minister for Home Affairs [2023] HCA 33
Case
[2023] HCA 33
Decision Date
CaseChat Overview and Summary
In this matter before the High Court of Australia, the applicant, Mr. Benbrika, an Algerian and Australian citizen, challenged a determination by the Minister for Home Affairs that he had ceased to be an Australian citizen. This determination was made under section 36D of the *Australian Citizenship Act 2007* (Cth), which allows the Minister to make such a determination if a person has been convicted of a terrorism offence under Chapter 5.3 of the *Criminal Code* (Cth) and sentenced to at least three years imprisonment, and the Minister is satisfied the conduct demonstrates a repudiation of allegiance to Australia. The applicant had been convicted of such offences and sentenced accordingly.
The central legal issue before the Court was whether section 36D of the *Australian Citizenship Act 2007* (Cth), like section 36B of the same Act which had previously been held invalid in *Alexander v Minister for Home Affairs*, was contrary to Chapter III of the Constitution. Specifically, the Court had to determine if section 36D improperly conferred upon the Minister the exclusively judicial function of punishing criminal guilt, thereby infringing the separation of powers. This involved considering whether Chapter III prohibits the Commonwealth Executive from exercising the power to punish criminal guilt when a court has already adjudged that guilt, and whether any exception exists for the involuntary deprivation of citizenship as a form of punishment following a conviction.
The High Court, applying the principles established in *Alexander*, concluded that section 36D of the *Australian Citizenship Act 2007* (Cth) was invalid. The Court reasoned that the power to determine that a person ceases to be an Australian citizen under section 36D, in circumstances where that cessation is predicated on a criminal conviction and sentence for a terrorism offence, constitutes the exercise of the judicial function of punishing criminal guilt. The Court found that this power, when vested in the Minister, transgressed the constitutional prohibition against the repository of executive power exercising the judicial power of the Commonwealth, particularly in the context of punishing criminal guilt already adjudicated by a court.
Consequently, the High Court answered the questions stated for its opinion. It declared that section 36D of the *Australian Citizenship Act 2007* (Cth) is invalid in its operation in respect of the applicant because it reposes in the Minister for Home Affairs the exclusively judicial function of punishing criminal guilt. The Court further declared that the applicant remains an Australian citizen and ordered that the respondents pay the costs of the special case.
Orders
Orders of the court
The questions stated for the opinion of the Full Court in the further amended special case filed on 6 June 2023 be answered as follows:
Question 1: Is s 36D of the Australian Citizenship Act 2007 (Cth) invalid in its operation in respect of the applicant because it reposes in the Minister for Home Affairs the exclusively judicial function of punishing criminal guilt?
Answer: Yes.
Question 2:What, if any, relief should be granted to the applicant?
Answer: It is declared that:
(a) s 36D of the Australian Citizenship Act 2007 (Cth) is invalid; and
(b) the applicant is an Australian citizen.
Question 3:Who should pay the costs of the special case?
Answer: The respondents.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
KIEFEL CJ, GAGELER, GLEESON AND JAGOT JJ
GORDON J
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Ratio Decidendi
Legal Principle Established
Established by:
KIEFEL CJ, GAGELER, GLEESON AND JAGOT JJ,
GORDON J