By Paul Gregoire and Ugur Nedim
Algerian national Abdul Benbrika immigrated to Australia in 1989 and became a citizen in 1998, in line with section 15 of the Australian Citizenship Act 2007 (Cth) (the Act), which involved pledging allegiance to the nation. And he also maintained his Algerian citizenship.
Benbrika was found guilty by a Supreme Court of Victoria jury in 2008 in regard to three terrorism offences that sit under part 5.3 of the Criminal Code Act 1995 (Cth). On appealing this outcome in 2010, one charge was dismissed in court, which left him with an overall sentence of 12 years’ imprisonment.
The first convictions that were successful on appeal involved knowingly being a member of a terrorist organisation, contrary to section 102.3 of the Code. It carries 10 years’ imprisonment. The second count was directing the activities of a terrorist organisation, contrary to section 102.2, which carries 25 years in prison.
No longer an Australian citizen
The Home Affairs minister determined, in line with section 36D of the Act, that Benbrika ceased being an Australian in November 2020, as this applies to individuals who’ve been convicted of a terrorism offence under part 5.3 of the Code and is then sentenced to more than three years prison.
Benbrika launched a High Court challenge in response to this, citing the 2022 High Court case Alexander versus the Home Affairs Minister, which found that the citizenship cessation power in section 36B of the Act was unjust as it provides the minister with the judicial power to punish.
Beyond the executive
The laws governing citizenship cessation were inserted into the Act in 2020, replacing a previous set. Subdivision C division 3 part 2 of the Act permits the ending of citizenship that’s been granted to a foreign national if they’ve displayed behaviour incompatible with the shared values of the nation.
Alexander found that the law contained in section 36B of the Act was unconstitutional, as it provided that citizenship can be extinguished if the individual has partaken in terrorist activity, which is a punitive power that a judicial officer can exercise but a minister cannot.
Chapter III of the Australian Constitution establishes that judicial power is only to be exercised by the judiciary and not the executive. In Alexander, the court found that the minister, in cancelling citizenship, had been punishing a criminal, which is an exclusive function of the judiciary.
The majority of the High Court in Alexander noted that the extinguishment of citizenship was akin to the punishment of exile or banishment. And the imposition of it works to punish the subject as it robs them of their rights and totally destroys their status in organised society.
The High Court justices found that section 36A of the Act, which explains the purpose of the citizenship cessation laws, establishes a punitive regime, whereby society will exact retribution upon those who have transgressed the laws of the land via their expulsion from it.
Benbrika put to the court that the power in section 36D, which is triggered by an individual being convicted under Commonwealth terror laws, and the power in section 36B are indistinguishable and therefore, both powers are punitive in nature and beyond the role of a minister to exercise.
Exclusive to the judiciary
The Australian solicitor general explained that while it’s not within the power of the executive to judge and then punish, it is empowered to cast a judgement on guilt without punishing an individual, as well as to impose a further detriment upon a person found guilty that isn’t punishment.
And the court agreed with the solicitor general in that the executive can inquire into a person’s guilt but cannot punish them due to its findings. However, it found that the executive is not permitted to impose any more penalties such as the revocation of citizenship in light of a finding of guilt.
The terms of chapter III of the Constitution were seen to establish that both the act of judging criminal guilt and punishing it are exclusive powers of the judiciary, and this continues to be the case “even if the punishment is separated from adjudication of the criminal guilt”.
Legislative versus judicial
The solicitor general had also raised the point that whilst punishment might be an exclusive judicial power, the cessation of citizenship “should be recognised as an exception to that principle”, as it is not a punishment that can be imposed upon a defendant in a court room.
The court majority outlined that it’s accepted that chapter III “makes imposition of punishment consequent upon a finding of criminal guilt exclusively judicial”. And they further found that the 36D power is punitive and the absence of a precedent for a court to impose it doesn’t change this.
“Chapter III requires a punishment to be imposed by a court if it is to be imposed at all,” their Honours underscored. And they added that where the revocation of citizenship occurs it is usually as a result of a legislative process, rather than an imposed punitive measure.
The court outlined that legislative power is distinguished by that of the judiciary “in so far as the principal concern of the former is the laying down of rules and the principal concern of the latter is the binding resolution of controversies as to the existence and consequences of their breach”.
“A legislature does not usurp judicial power merely by enacting a rule of general application which provides for the automatic termination of a right or status by operation of law upon the occurrence of a specified event,” their Honours made clear.
The findings of the court
The majority finding was set out by Chief Justice Susan Kiefel and Justices Stephen Gageler, Jacqueline Gleeson and Jayne Jagot, who, in handing down their determination, found that the section 36D power to end citizenship is an exclusive judicial function of punishing criminal guilt.
Their Honours determined that section 36D of the Act is invalid and, therefore, Benbrika continues to be an Australian citizen.
High Court Justices Michelle Gordon and James Edelman were also in the majority, but they provided their own reasons, while Justice Simon Steward issued a dissenting opinion.