Benbrika v Minister for Home Affairs [2023] HCA 33

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.

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.