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Benbrika v Minister for Home Affairs

[2023] HCA 33
Case number
M90/2022
Before
Kiefel CJ, Gageler, Gordon, Edelman, Steward, Gleeson, Jagot JJ
Catchwords

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.

Words and phrases – "adjudging and punishing criminal guilt", "alien", "allegiance to Australia", "citizen", "citizenship", "citizenship cessation", "denationalisation", "deprivation of citizenship", "deprivation of liberty", "exercise of judicial power", "judicial function", "people of the Commonwealth", "punishment", "punitive", "separation of powers", "terrorism", "terrorism-related conduct".

Constitution – Ch III.

Australian Citizenship Act 2007 (Cth) – ss 36A, 36D.

Files
33.docx (135.86 KB)
33.pdf (502.72 KB)