04 November 2023

Background

Abdul Nacer Benbrika, who holds dual Algerian and Australian citizenship, was arrested in 2005 being charged of directing and being member of a terrorist organisation and participating in terrorist activities with intention of attacking a series of landmarks in Sydney and Melbourne.

Benbrika was later sentenced to 15 years in prison by the Supreme Court of Victoria (Melbourne) and was due to be released from prison on 5 November 2020.

Shortly after, on 20 November 2020, the then Minister of Home Affairs (formerly the Department of Immigration and Border Protection) Peter Dutton applied section 36D(1) of the Australian Citizenship Act 2007 (Cth) to strip Benbrika of his Australian citizenship.

In response, Benbrika’s lawyers appealed to the Federal Court of Australia, arguing that section 36D(1) was an invalid/unconstitutional provision because they purported to give the Minister of Home Affairs, who belongs to the Executive (government), a power that belongs to the Judiciary (the courts) to enforce the above decision.

Due to the constitutional nature of the issue, this case was subsequently referred to the High Court of Australia (the most supreme court within the Australian judicial system) for direct consideration and on 1 November 2023, 6 out of 7 High Court judges ruled in favour of Benbrika and announced that the Minister’s decision to strip his citizenship on 20 November 2020 as well as section 36D(1) of the Australian Citizenship Act 2007 were invalid.

With this judgement, Benbrika’s Australian citizenship was immediately restored despite national security concerns that have persisted as long as this man remains on Australian soil.

 

What does section 36D(1) of the Australian Citizenship Act 2007 say?

36D  Citizenship cessation determination for certain convictions

Cessation of citizenship on determination by Minister

             (1)  The Minister may determine in writing that a person ceases to be an Australian citizen if:

(a)  the person has been convicted of an offence, or offences, against one or more of the provisions specified in subsection (5) (which includes terrorism offences); and

(b)  the person has, in respect of the conviction or convictions, been sentenced to a period of imprisonment of at least 3 years, or to periods of imprisonment that total at least 3 years; and

(c)  the Minister is satisfied that the conduct of the person to which the conviction or convictions relate demonstrates that the person has repudiated their allegiance to Australia; and

(d)  the Minister is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen.

 

Application to Benbrika’s case

At a glance, it can be seen that Abdul Benbrika’s case is fully applicable with section 36D(1). He was convicted of terrorism, sentenced to more than three years and it would be more than reasonable to argue that planning terrorism acts that could have killed 30,000 people would certainly go against the public interest and loyalty to Australia as in the oath that all Australians must take before being awarded with the Australian citizenship.

Accordingly, there is no reason that a Minister of Home Affairs could not apply this section to eliminate a terrorist threat.

 

With judicial independence in Australia, things are not that simple

Australian society is led and governed according to the principle of “separation of powers”, divided into 3 independent branches of power: Legislative, Executive and Judiciary.

The “separation of powers” can be understood that these three branches of power are equally separate and each has its own functions which absolutely do not overlap with others.

The Legislative is headed by the federal Parliament and those of each state, whose main function is to create and amend laws.

The Executive, headed by the federal government and those of each state, has the primary function of applying laws into daily management of the society.

The Judiciary, represented by the court system, has the function of interpreting laws and ensuring fairness and correctness in the Executive’s application of the laws.

 

Section 36D(1) of the Australian Citizenship Act 2007 unfortunately violates the above principle

The High Court’s judgement on 1 November 2023 determined that section 36D(1) purported to provide the Minister of Home Affairs (under the Australian government and the Executive branch) with a power capable of prescribing sentences and punishing criminal offences.

The deprivation of citizenship of a convicted criminal is treated by the court as a punishment that the prisoner must be responsible for his acts, in addition to the imprisonment sentence that was already imposed.

Meanwhile, the determination of sentences and sentencing for a criminal offender inherently belongs to the power of the court, i.e. the Judiciary.

The decision by the Minister of Home Affairs to deprive from a criminal of his citizenship had accidentally altered the court’s function to make punitive decisions.

For this reason, the Executive breached the principle of “separation of powers” and this was contrary to the Australian Constitution. Chapter III of the Australian Constitution provides that the punishment of crime is an exclusive function of the Judiciary (courts).

Therefore, section 36D(1) is considered invalid and all decisions made by the Minister of Home Affairs under this section are quashed.

 

Why has section 36D(1) remained in the Australian Citizenship Act 2007 for 15 years since its introduction?

Although the Australia’s highest court may declare a particular law to be invalid, or unconstitutional, it does not have power to amend the law. It instead belongs to the function of the Parliament of Australia (Legislative branch). Therefore, Australian courts cannot remove or change any wording of the laws in general and the Australian Citizenship Act 2007 in particular.

However, with court rulings that deem a law invalid, individuals and entities affected by Australian laws can rest assured that such invalid laws will be almost permanently inapplicable, at least with cases similar to Benbrika. This is called “precedents”, or “case law” that many people may have heard of.

At the very least, we can expect that in the future the Parliament of Australia will take action to amend and improve the Australian Citizenship Act 2007.

 

Last words

The Australian courts, judicial officers, barristers and solicitors belong to the Judiciary branch which is one of the three independent branches of power in Australia.

These branches of power each have separate functions and tasks that the rest absolutely cannot infringe.

It is very important to the sustainability of the Australian legal system and the Australian society as a whole that the “Separation of Powers” cannot be taken lightly for any reason, even when facing with an inherently serious national security threat.

Therefore, individuals and entities under protection of the Australian law should always have reason to believe that they will be treated equally and are absolutely protected by the laws against any external socio-political factors.

 

A full 71-page judgement of this case can be accessed here.

 

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