Benbrika v Minister for Home Affairs

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HIGH COURT OF AUSTRALIA

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?

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.

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.

  1. KIEFEL CJ, GAGELER, GLEESON AND JAGOT JJ. This is the determination of questions stated by the parties for the consideration of the Full Court by means of a special case under r 27.08 of the High Court Rules 2004 (Cth) in a proceeding commenced in the Federal Court of Australia under s 39B of the Judiciary Act 1903 (Cth) and removed into the High Court by order under s 40 of that Act.

  2. The special case is a sequel to Alexander v Minister for Home Affairs[1]. There, s 36B of the Australian Citizenship Act 2007 (Cth) ("the Citizenship Act") was held invalid on the basis that "it reposes in the Minister for Home Affairs the exclusively judicial function of punishing criminal guilt"[2] contrary to Ch III of the Constitution. Here, the sole substantive question for determination is whether s 36D of the Citizenship Act is invalid on the same basis.

  3. For the reasons which follow, it is.

    Factual context

  4. The applicant, Mr Benbrika, was born in 1960 in Algeria. He was and remains an Algerian citizen.

  5. Mr Benbrika arrived in Australia in 1989. He became an Australian citizen in 1998 by operation of s 15(1) of the Australian Citizenship Act 1948 (Cth), having been granted on application a certificate of Australian citizenship pursuant to s 13 and having made a pledge of commitment in a form specified in Sch 2 to that Act.

  6. In 2008,…

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Details
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

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