Is Section 36D Australian Citizenship Act, 2007 (Cth), like Section 36B, contrary to Ch III of Constitution for conferring upon Minister exclusively judicial function of punishing criminal guilt?

Benbrika v Minister for Home Affairs [2023] HCA 33 (1 November 2023)

Intro:-

This is a proceeding commenced in the Federal Court of Australia under Section 39B Judiciary Act 1903 (Cth) and removed into the High Court by order under Section 40 of that Act.

Facts:-

The applicant, Mr Benbrika, was born in 1960 in Algeria. He was and remains an Algerian citizen.

In 2008, following a trial by jury in the Supreme Court of Victoria, Mr Benbrika was convicted of three offences under Pt 5.3 of the Criminal Code (Cth. He was sentenced to terms of imprisonment of seven years for the first offence, 15 years for the second offence and five years for the third offence.

The Court of Appeal of the Supreme Court of Victoria set aside Mr Benbrika's conviction for the third offence but upheld his convictions for the other two offences.

On 20 November 2020, the Minister for Home Affairs determined in writing pursuant to Section 36D(1) of the Citizenship Act that Mr Benbrika cease to be an Australian citizen. Mr Benbrika subsequently applied for revocation of that determination pursuant to Section 36H of the Citizenship Act. No decision has been made by the Minister on that application.

By operation of s 35(3) of the Migration Act 1958 (Cth) ("the Migration Act"), Mr Benbrika was granted an ex-citizen visa on the purported cessation of his Australian citizenship on 20 November 2020.

Statutory context

Together with s 36B, s 36D is within Subdiv C of Div 3 of Pt 2 of the Citizenship Act. That subdivision is headed "Citizenship cessation determinations". As was recorded in Alexander, the subdivision was inserted by the Australian Citizenship Amendment (Citizenship Cessation) Act 2020 (Cth) in partial replacement of the scheme for the cessation of citizenship previously inserted by the Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth).

Subdivision C is introduced by s 36A. That section provides:

"This Subdivision is enacted because the Parliament recognises that Australian citizenship is a common bond, involving reciprocal rights and obligations, and that citizens may, through certain conduct incompatible with the shared values of the Australian community, demonstrate that they have severed that bond and repudiated their allegiance to Australia."

The purpose declared by s 36A applies equally to s 36D as to s 36B. "Translated to the level appropriate for analysis of the compatibility of s 36B [or s 36D] with Ch III of the Constitution", as was put in Alexander, the purpose "is properly characterised as one of denunciation and exclusion from formal membership of the Australian community of persons shown by certain conduct to be unwilling to maintain or incapable of maintaining allegiance to Australia".

Like s 36B(1), s 36D(1) is expressed to confer a power on the Minister administering the Citizenship Act which can be exercised only by the Minister personally and without need for the Minister to observe any requirement of natural justice. The power expressed to be conferred by each provision is the power to determine in writing that a person ceases to be an Australian citizen, with the consequence that the person ceases to be an Australian citizen at the time the determination is made. The power expressed to be conferred by each provision is applicable regardless of how the person became an Australian citizen but cannot be exercised if the Minister is satisfied that the person would thereby cease to be a national or citizen of any country.

Whereas a condition of the exercise of the power conferred by s 36B(1) is that the Minister is satisfied that the person has engaged in conduct which satisfies the physical elements of one or more specified offences, a condition of the exercise of the power conferred by s 36D(1) is that the person has been convicted of one or more specified offences in respect of which the person has been sentenced to a specified period or periods of imprisonment. Otherwise, the two powers are conditioned by essentially identical requirements: that the Minister is satisfied that the person's conduct (as found by the Minister in the case of the power conferred by s 36B(1) or to which the conviction or convictions relate in the case of the power conferred by s 36D(1)) demonstrates repudiation of the person's allegiance to Australia; and that the Minister is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen.

Issue:-

The special case is a sequel to Alexander v Minister for Home Affairs. There, Section 36B of the Australian Citizenship Act 2007 (Cth) ("the Citizenship Act") was held invalid on the basis that "it reposes in the Minister for Home Affairs the exclusively judicial function of punishing criminal guilt" contrary to Ch III of the Constitution. Here, the sole substantive question for determination is whether Section 36D of the Citizenship Act is invalid on the same basis.

Consideration:-

The significance of the reasoning in Alexander

The reasoning of the majority in Alexander which led to the conclusion of the invalidity of Section 36B(1) of the Citizenship Act took as its starting point the canonical statement of principle in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs that "the adjudgment and punishment of criminal guilt under a law of the Commonwealth" is a "function" which "appertains exclusively to and could not be excluded from the judicial power of the Commonwealth" with the consequence that "Ch III of the Constitution precludes the enactment, in purported pursuance of any of the sub-sections of Section 51 of the Constitution, of any law purporting to vest any part of that function in the Commonwealth Executive"

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As to the nature and severity of the consequences of a purported exercise of power, all members of the majority equated cessation of citizenship with exile or banishment, which they noted had historically been regarded as punishment. The plurality, comprising Kiefel CJ, Keane and Gleeson JJ, with whom Gageler J expressed substantial agreement, described cessation of Australian citizenship as involving the loss of "public rights" of "fundamental importance". Gordon and Edelman JJ each described it, in the language of Warren CJ in Trop v Dulles, as involving "the total destruction of the individual's status in organized society".

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The effect of Ch III of the Constitution is to make punishment of criminal conduct exclusively judicial even if the punishment is separated from the adjudication of that criminal guilt. Consistently with Ch III, the Commonwealth Parliament cannot repose in any officer of the Commonwealth Executive any function of sentencing persons convicted by Ch III courts of offences against Commonwealth laws. Nor can the Commonwealth Parliament vest in any officer of the Commonwealth Executive any power to impose additional or further punishment on persons convicted by Ch III courts of offences against Commonwealth laws. Section 36D(1) purports to vest such a power to impose additional or further punishment in the Minister.

The absence of an applicable exception

The second pathway put forward by the respondents was that this Court should identify an exception to the Lim principle for this particular function – involuntary denationalisation and deprivation of citizenship as punishment following a conviction – for historical and functional reasons. If such an exception were identified, it would join the very limited category of exceptional cases of permissible punishment outside of Ch III of the Constitution. That submission of the respondents should also be rejected.

Formal answers to questions:-

The questions stated by the parties in the special case and the answers to them are as follows:

(1) Is s 36D of the Citizenship Act 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.

(2) What, if any, relief should be granted to the applicant?

Answer: It should be declared that:

(a) Section 36D of the Citizenship Act is invalid; and
(b) the applicant is an Australian citizen.

(3) Who should pay the costs of the special case?

Answer: The respondents