Minister for Home Affairs v Benbrika

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HIGH COURT OF AUSTRALIA

KIEFEL CJ,
BELL, GAGELER, KEANE, GORDON, EDELMAN AND STEWARD JJ

MINISTER FOR HOME AFFAIRS  APPLICANT

AND

ABDUL NACER BENBRIKA  RESPONDENT

Minister for Home Affairs v Benbrika

[2021] HCA 4

Date of Hearing: 10 December 2020

Date of Judgment: 10 February 2021

M112/2020

ORDER

1.The question reserved for the consideration of the Court of Appeal of the Supreme Court of Victoria and removed into this Court pursuant to s 40 of the Judiciary Act 1903 (Cth) is answered as follows:

Q.Is all or any part of Division 105A of the Criminal Code (Cth) and, if so, which part, invalid because the power to make a continuing detention order under section 105A.7 of the Code is not within the judicial power of the Commonwealth and has been conferred, inter alia, on the Supreme Court of Victoria contrary to Chapter III of the Commonwealth Constitution?

A.No.

2.The respondent is to pay the applicant's costs. 

Representation

A P Berger QC for the applicant (instructed by Australian Government Solicitor)

R Merkel QC and C J Tran with E S Jones for the respondent (instructed by Doogue + George Lawyers)

S P Donaghue QC, Solicitor-General of the Commonwealth, with M A Hosking for the Attorney-General of the Commonwealth, intervening (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, BELL, KEANE AND STEWARD JJ. Division 105A of the Criminal Code (Cth) ("the Code") empowers the Supreme Court of a State or Territory, on the application of the Minister for Home Affairs ("the Minister"), to order that a person who has been convicted of a terrorist offence be detained in prison for a further period after the expiration of his or her sentence of imprisonment. The scheme is comparable to the Dangerous Prisoners (Sexual Offenders) Act2003 (Qld) ("the Qld Act"), which empowers the Supreme Court of Queensland to order the continuing detention of persons convicted of serious sexual offences.

  2. The validity of the Qld Act survived challenge on Kable[1] grounds in Fardon v Attorney-General (Qld)[2]. Fardon allows that, consistently with its position within the integrated Australian court system, the Supreme Court of a State or Territory may commit a person to prison in the exercise of State judicial power after determining, by orthodox judicial process, that the person is a serious danger to the community because there is an unacceptable risk that he or she would commit a serious sexual offence if released from custody. The question in this proceeding is whether the Supreme Court of a State or Territory may commit a person to prison in the exercise of federal judicial power after determining, by orthodox judicial process, that the person presents an unacceptable risk of committing a terrorist offence if released from custody. For the reasons to be given, the answer is that it may.

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Details
Case
[2021] HCA 4
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered the constitutional validity of Division 105A of the Criminal Code (Cth), which allows for the making of continuing detention orders against individuals convicted of terrorist offences. The Minister for Home Affairs sought such an order against Mr Benbrika, leading to a challenge to the constitutional basis of the Division. The central dispute concerned whether the power to make these orders, conferred on State Supreme Courts, infringed Chapter III of the Constitution by vesting non-judicial power in courts that exercise federal jurisdiction.

The legal issues before the Court were whether Division 105A, or any part of it, was invalid because the power to make a continuing detention order under section 105A.7 of the Code was not within the judicial power of the Commonwealth and had been conferred on State Supreme Courts contrary to Chapter III of the Constitution. This required the Court to consider whether the scheme for preventative detention of terrorist offenders could fall within an exception to the principle that involuntary detention is penal or punitive and thus an incident of the judicial function of adjudging and punishing criminal guilt. The Court also had to determine if the Division was directed towards the safety and protection of the community from the risk of harm posed by terrorism.

The Court reasoned that the power to make a continuing detention order under Division 105A was not invalid. It held that such orders were not punitive in character but rather served a protective purpose, aimed at preventing future harm to the community by individuals posing an unacceptable risk of engaging in terrorist acts. This protective purpose distinguished the orders from the penal consequences of adjudging and punishing criminal guilt, thereby allowing them to be made by courts exercising federal jurisdiction without violating Chapter III of the Constitution. The Court applied the exception to the principle established in *Chu Kheng Lim v Minister for Immigration* (1992) 176 CLR 1, finding that the involuntary detention authorised by Division 105A was for a non-punitive, protective purpose.

The Court answered the question reserved for its consideration in the negative, holding that no part of Division 105A of the Criminal Code was invalid on the grounds raised. The respondent, Mr Benbrika, was ordered to pay the applicant's costs.

Orders

Orders of the court

1. The question reserved for the consideration of the Court of Appeal of the Supreme Court of Victoria and removed into this Court pursuant to s 40 of the Judiciary Act 1903 (Cth) is answered as follows:

Q. Is all or any part of Division 105A of the Criminal Code (Cth) and, if so, which part, invalid because the power to make a continuing detention order under section 105A.7 of the Code is not within the judicial power of the Commonwealth and has been conferred, inter alia, on the Supreme Court of Victoria contrary to Chapter III of the Commonwealth Constitution?

A. No.

2. The respondent is to pay the applicant's costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

KIEFEL CJ, BELL, KEANE AND STEWARD JJ GAGELER J
The proceeding in relation to which Tinney J's order was made is the Minister's application under Div 105A that a continuing detention order be made with respect to Mr Benbrika. The making of the order does not provide a good reason for requiring the Commonwealth to pay Mr Benbrika's costs of his unsuccessful challenge to the validity of Div 105A.Conclusion and orders For these reasons there should be the following orders:1.The question reserved for the consideration of the Court of Appeal of the Supreme Court of Victoria and removed into this Court pursuant to s 40 of the Judiciary Act 1903 (Cth) is answered as follows:Q.Is all or any part of Division 105A of the Criminal Code (Cth) and, if so, which part, invalid because the power to make a continuing detention order under section 105A.7 of the Code is not within the judicial power of the Commonwealth and has been conferred, inter alia, on the Supreme Court of Victoria contrary to Chapter III of the Commonwealth Constitution?A.No.2.The respondent is to pay the applicant's costs. Central to the operation of Pt 5.3 of the Criminal Code (Cth) is the notion of a "terrorist act". Engaging in a "terrorist act" involves taking or threatening specified action intending to advance a political, religious or ideological cause and intending either to coerce or intimidate a government or to intimidate the public or a section of the public. The specified action is action that causes death or serious physical harm to another person, that endangers another person's life, that creates a serious risk to the health or safety of the public or a section of the public, that causes serious damage to property, or that seriously interferes with or seriously disrupts or destroys an electronic system such as a telecommunications system or a financial system[115].[115]Section 100.1(1) of the Criminal Code (definition of "terrorist act") read with s 100.1(2) and (3). Provisions within Pt 5.3 create offences having some connection to actual or potential terrorist acts. The degree of connection varies from offence to offence. At one end of the spectrum is the offence of engaging in a terrorist act, which carries a maximum penalty of imprisonment for life[116]. At the other end of the spectrum is the offence of associating with a person who is a member of a "terrorist organisation", which carries a maximum penalty of imprisonment for three years[117]. The definition of "terrorist organisation" is met by an organisation that is "directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act"[118]. [116]Section 101.1 of the Criminal Code.[117]Section 102.8 of the Criminal Code read with s 102.1(1) (definition of "member").[118]Section 102.1(1) of the Criminal Code (definition of "terrorist organisation"). Most offences within the spectrum are "prophylactic offences" in the sense that "the risk of harm", relevantly from the commission of a terrorist act, "does not arise straightforwardly from the prohibited act" but "only after, or in conjunction with, further human interventions - either by the original actor or by others"[119]. An example is the offence of taking steps to become a member of a terrorist organisation, which carries a maximum penalty of imprisonment for ten years[120]. In R v Abdirahman-Khalif[121] the offence was committed by a young Australian woman who attempted to travel from Australia to Turkey in order to "engage" with Islamic State with the intention of becoming a nurse or a bride.[119]Simester and von Hirsch, Crimes, Harms, and Wrongs: On the Principles of Criminalisation (2011) at 79. See also Lodhi v The Queen (2006) 199 FLR 303 at 318 [66].[120]Section 102.3 of the Criminal Code read with s 102.1(1) (definition of "member").[121](2020) 94 ALJR 981; 384 ALR 1.

Ratio Decidendi

Legal Principle Established

Established by: KIEFEL CJ, BELL, KEANE AND STEWARD JJ, GAGELER J

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