Minister for Home Affairs v Benbrika [2021] HCA 4

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.

CATCHWORDS

Minister for Home Affairs v Benbrika

Constitutional law (Cth) – Judicial power of Commonwealth – Jurisdiction vested in State courts – Where Div 105A of Criminal Code (Cth) empowered Supreme Court of State or Territory, on application of Minister for Home Affairs, to order that person convicted of terrorist offence be detained in prison for further period after expiration of sentence of imprisonment pursuant to continuing detention order ("CDO") – Whether all or any part of Div 105A of Criminal Code invalid because power to make CDO not within judicial power of Commonwealth having been conferred, inter alia, on Supreme Court of Victoria contrary to Ch III of Constitution – Whether scheme for preventative detention of terrorist offender capable of falling within exception to principle articulated in Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 that involuntary detention of citizen in custody by the State is penal or punitive in character and exists only as incident of exclusively judicial function of adjudging and punishing criminal guilt – Whether Div 105A of Criminal Code directed to ensuring safety and protection of community from risk of harm posed by threat of terrorism.