HIGH COURT OF AUSTRALIA
KIEFEL CJ,
GAGELER, GORDON, EDELMAN, STEWARD, GLEESON AND JAGOT JJABDUL 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 2023M90/2022
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.
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.
KIEFEL CJ, GAGELER, GLEESON AND JAGOT JJ. This is the determination of questions stated by the parties for the consideration of the Full Court by means of a special case under r 27.08 of the High Court Rules 2004 (Cth) in a proceeding commenced in the Federal Court of Australia under s 39B of the Judiciary Act 1903 (Cth) and removed into the High Court by order under s 40 of that Act.
The special case is a sequel to Alexander v Minister for Home Affairs[1]. There, s 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"[2] contrary to Ch III of the Constitution. Here, the sole substantive question for determination is whether s 36D of the Citizenship Act is invalid on the same basis.
[1](2022) 96 ALJR 560; 401 ALR 438.
[2](2022) 96 ALJR 560 at 634; 401 ALR 438 at 528.
For the reasons which follow, it is.
Factual context
The applicant, Mr Benbrika, was born in 1960 in Algeria. He was and remains an Algerian citizen.
Mr Benbrika arrived in Australia in 1989. He became an Australian citizen in 1998 by operation of s 15(1) of the Australian Citizenship Act 1948 (Cth), having been granted on application a certificate of Australian citizenship pursuant to s 13 and having made a pledge of commitment in a form specified in Sch 2 to that Act.
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): intentionally being a member of a terrorist organisation, knowing that it was a terrorist organisation, contrary to s 102.3(1); intentionally directing activities of a terrorist organisation, knowing it was a terrorist organisation, contrary to s 102.2(1); and possessing a thing connected with preparation for a terrorist act, knowing of that connection, contrary to s 101.4(1). 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[3].
[3]R v Benbrika (2009) 222 FLR 433 at 471 [247].
In 2010, 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. The Court of Appeal also reduced his sentence of imprisonment to five years for the first offence but upheld his sentence of 15 years' imprisonment for the second offence[4]. That sentence expired on 5 November 2020.
[4]Benbrika v The Queen (2010) 29 VR 593.
On 20 November 2020, the Minister for Home Affairs determined in writing pursuant to s 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 s 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[5], 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).
[5](2022) 96 ALJR 560 at 570 [19]; 401 ALR 438 at 443.
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[6], 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".
[6](2022) 96 ALJR 560 at 587 [120]; 401 ALR 438 at 466.
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[7] and without need for the Minister to observe any requirement of natural justice[8]. 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[9]. The power expressed to be conferred by each provision is applicable regardless of how the person became an Australian citizen[10] but cannot be exercised if the Minister is satisfied that the person would thereby cease to be a national or citizen of any country[11].
[7]Sections 36B(9) and 36D(7) of the Citizenship Act.
[8]Sections 36B(11) and 36D(9) of the Citizenship Act.
[9]Sections 36B(3) and 36D(3) of the Citizenship Act.
[10]Sections 36B(4) and 36D(4) of the Citizenship Act.
[11]Sections 36B(2) and 36D(2) of the Citizenship Act.
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[12], 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[13]. 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[14]; and that the Minister is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen[15].
[12]Section 36B(1)(a), (5) and (6) of the Citizenship Act.
[13]Section 36D(1)(a) and (b), (5) and (6) of the Citizenship Act.
[14]Sections 36B(1)(b) and 36D(1)(c) of the Citizenship Act.
[15]Sections 36B(1)(c) and 36D(1)(d) of the Citizenship Act.
Specifically, when read with so much of s 36D(5) as is relevant to the circumstances of Mr Benbrika, s 36D(1) provides:
"(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); 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 (see section 36E).
...
(5)For the purposes of paragraph (1)(a), the provisions are the following:
...
(f)a provision of Part 5.3 of the Criminal Code (terrorism), other than section 102.8 or Division 104 or 105;
...
Note:A determination may be made in relation to a conviction for an offence against a provision specified in subsection (5) that occurred before the subsection commenced (see item 19 of Schedule 1 to the Australian Citizenship Amendment (Citizenship Cessation) Act 2020)."
Like a determination under s 36B(1), a determination under s 36D(1) is subject to powers conferred on the Minister to revoke the determination with retrospective effect in circumstances which include where the Minister is satisfied that revoking the determination would be in the public interest. One of those powers of revocation in the public interest, conferred by s 36H(3)(b), is exercisable on application by the person whose citizenship has been revoked made within a specified time after the person is notified of the determination. The other, conferred by s 36J(1), is exercisable at any time on the Minister's own initiative. Each can be exercised only by the Minister personally[16]. The latter can be exercised without need for the Minister to observe any requirement of natural justice[17].
[16]Sections 36H(8) and 36J(8) of the Citizenship Act.
[17]Section 36J(7) of the Citizenship Act.
Section 36E provides:
"(1)This section applies when the Minister is considering the public interest for the purposes of deciding whether to make a determination under subsection 36B(1) or 36D(1), or whether to revoke such a determination.
...
(2)The Minister must have regard to the following matters:
(a)in deciding whether to make a determination under subsection 36B(1) or revoke such a determination—the severity of the conduct to which the determination relates;
(b)in deciding whether to make a determination under subsection 36D(1) or revoke such a determination—the severity of the conduct that was the basis of the conviction or convictions, and the sentence or sentences, to which the determination relates;
(c)the degree of threat posed by the person to the Australian community;
(d) the age of the person;
(e)if the person is aged under 18—the best interests of the child as a primary consideration;
(f)in deciding whether to make a determination under subsection 36B(1) or revoke such a determination—whether the person is being or is likely to be prosecuted in relation to conduct to which the determination relates;
(g)the person's connection to the other country of which the person is a national or citizen and the availability of the rights of citizenship of that country to the person;
(h) Australia's international relations;
(i) any other matters of public interest."
Like a determination under s 36B(1), a determination under s 36D(1) does not of itself result in the immediate detention and subsequent removal from Australia of a person who, like Mr Benbrika, was in Australia when the determination was made. Upon being stripped by the determination of Australian citizenship, and thereby being deprived of the "fundamental" entitlement of a citizen "to enter and live at liberty in Australia"[18], the person becomes a "non-citizen" whose permission to enter and remain in Australia depends on the holding of a visa[19]. But the person is saved from becoming an "unlawful non-citizen" and from thereby becoming subject to immediate detention and subsequent removal[20] by s 35(3) of the Migration Act, which provides that the person is taken to have been granted an ex-citizen visa at the time of cessation of citizenship. By operation of s 35(1) of the Migration Act, an ex-citizen visa is a permanent visa by which its holder is granted permission "to remain in, but not re-enter, Australia".
[18]Alexander v Minister for Home Affairs (2022) 96 ALJR 560 at 578-579 [74], 583 [96]; 401 ALR 438 at 454-455, 460.
[19]Sections 13 and 29 of the Migration Act.
[20]Sections 14, 189, 196 and 198 of the Migration Act.
The significance of the reasoning in Alexander
The reasoning of the majority in Alexander which led to the conclusion of the invalidity of s 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[21] 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 s 51 of the Constitution, of any law purporting to vest any part of that function in the Commonwealth Executive".
[21](1992) 176 CLR 1 at 27 (citations and internal quotation marks omitted).
The majority in Alexander rejected an argument that the principle so stated in Lim is limited to Commonwealth laws which purport to empower the Commonwealth Executive to detain persons in custody[22]. The majority instead arrived at the conclusion that the principle is applicable to a Commonwealth law which purports to empower the Commonwealth Executive to strip a person of Australian citizenship, a conclusion which was concisely expressed in its formal answer to a question reserved that s 36B(1) is invalid because "it reposes in the Minister for Home Affairs the exclusively judicial function of punishing criminal guilt"[23].
[22](2022) 96 ALJR 560 at 577 [67], 578 [70], 583 [98]; 401 ALR 438 at 453-454, 461.
[23](2022) 96 ALJR 560 at 583 [97]; 401 ALR 438 at 461.
The majority arrived at the conclusion that the power reposed in the Minister by s 36B(1) infringed the principle in Lim having regard to two principal considerations. One concerned the nature and severity of the consequences of a purported exercise of the power. The other concerned the purpose of the power as identified in s 36A.
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[24]. The plurality, comprising Kiefel CJ, Keane and Gleeson JJ, with whom Gageler J expressed substantial agreement[25], described cessation of Australian citizenship as involving the loss of "public rights" of "fundamental importance"[26]. Gordon and Edelman JJ each described it, in the language of Warren CJ in Trop v Dulles[27], as involving "the total destruction of the individual's status in organized society"[28].
[24](2022) 96 ALJR 560 at 578 [72], 583 [98], 597-598 [168]-[170], 613-614 [250]; 401 ALR 438 at 454, 461, 479-480, 501.
[25](2022) 96 ALJR 560 at 583 [98]; 401 ALR 438 at 461.
[26](2022) 96 ALJR 560 at 579 [74]; 401 ALR 438 at 454-455.
[27](1958) 356 US 86 at 101.
[28](2022) 96 ALJR 560 at 598 [172], 613 [248]; 401 ALR 438 at 480, 500.
As to the purpose of the power identified in s 36A, the plurality described it as one of "[r]etribution ... characteristic of punishment under the criminal law" associated with which "are notions of denunciation and deterrence of conduct that is regarded as reprehensible by the community"[29]. Gageler J described it as one of "denunciation and exclusion from formal membership of the Australian community ... solely on the basis of past criminal conduct", which "can only be characterised as 'punitive'"[30]. To similar effect, Gordon J said that s 36A confirms that citizenship cessation in the context of s 36B(1) "is a measure taken in the name of society to exact just retribution on those who have offended against the laws of society by engaging in past conduct that is identified and articulated wrongdoing"[31] and Edelman J referred to s 36A as indicating that "s 36B, like s 36D, has a purpose of deterrence of a particular category of extreme, reprehensible conduct"[32].
[29](2022) 96 ALJR 560 at 580 [82]; 401 ALR 438 at 457.
[30](2022) 96 ALJR 560 at 587 [120]; 401 ALR 438 at 466.
[31](2022) 96 ALJR 560 at 596 [163]; 401 ALR 438 at 477 (citations and internal quotation marks omitted).
[32](2022) 96 ALJR 560 at 614 [251]; 401 ALR 438 at 501.
The plurality also identified a comparison of s 36B with s 36D as a consideration pointing to "the conclusion that the power reposed in the Minister by s 36B(1) is a power which Ch III of the Constitution requires to be exercised by a court that is part of the federal judicature"[33]. The plurality went on in undertaking that comparison to note differences between s 36B and s 36D[34] but also to note that an exercise of power under each provision resulted in the "same outcome by way of deprivation of citizenship"[35] and imposed "relevantly the same punishment"[36]. The only point the plurality ultimately drew from the comparison uniquely adverse to the validity of s 36B(1) was that "[w]hile s 36D affords a citizen the due process of a criminal trial before the Minister's discretion arises, a significant feature of s 36B is that it operates without due process at all"[37].
[33](2022) 96 ALJR 560 at 578 [70]; 401 ALR 438 at 454.
[34](2022) 96 ALJR 560 at 581 [85]-[87], 582 [93]; 401 ALR 438 at 458, 460.
[35](2022) 96 ALJR 560 at 581 [87]; 401 ALR 438 at 458.
[36](2022) 96 ALJR 560 at 582 [93]; 401 ALR 438 at 460.
[37](2022) 96 ALJR 560 at 582 [91]; 401 ALR 438 at 459.
The plurality summarised its conclusion in terms that s 36B(1) purported to authorise a deprivation of Mr Alexander's "entitlement to enter and live at liberty in Australia ... upon satisfaction of the Minister that Mr Alexander engaged in conduct that is so reprehensible as to be deserving of the dire consequence of deprivation of citizenship and the rights, privileges, immunities and duties associated with it" and that "[t]he power to determine the facts which enliven the power to impose such a punishment is one which, in accordance with Ch III of the Constitution, is exercisable exclusively by a court that is a part of the federal judicature"[38]. That summary statement was not in tension with the formally stated conclusion of the plurality in its answer to the determinative question reserved in relation to Mr Alexander to the effect that the power to impose such a punishment is itself one which, in accordance with Ch III of the Constitution, is exercisable exclusively by a Ch III court.
[38](2022) 96 ALJR 560 at 583 [96]; 401 ALR 438 at 460.
Counsel for Mr Benbrika submitted that the power purportedly conferred on the Minister by s 36D(1) is indistinguishable from that purportedly conferred on the Minister by s 36B(1) to the extent that both of the two principal considerations relied on by the majority in Alexander to characterise the power purportedly conferred by s 36B(1) as punitive apply with equal force to the power purportedly conferred by s 36D(1).
That submission is unanswerable. Indeed, the Solicitor-General of the Commonwealth, who appeared for the respondents, frankly conceded that the power purportedly conferred by s 36D(1) is properly characterised as punitive in accordance with the reasoning of the majority in Alexander. His argument was that the characterisation of the power as punitive is insufficient to engage the principle in Lim.
The Solicitor-General argued that the principle in Lim relevantly applies only to a Commonwealth law which authorises the Commonwealth Executive to engage in the adjudgment and punishment of criminal guilt as distinct from a Commonwealth law which authorises the Commonwealth Executive to engage in the adjudgment or punishment of criminal guilt. He pointed out that it has long been accepted that the Commonwealth Executive can be empowered to adjudge criminal guilt so long as that adjudgment does not result in punishment[39]. He also pointed out that it has been recognised to be open to the Parliament to select a prior conviction as a "factum" which enlivens a power on the part of an officer of the Executive to inflict on a convicted person a further detriment not amounting to punishment[40]. He emphasised that, although the reasoning of the majority in Alexander supports the characterisation of s 36D(1) as authorising the Minister to punish criminal guilt, s 36D(1) materially differs from s 36B(1) in that s 36D(1) does not authorise the Minister to adjudge criminal guilt. Instead, s 36D(1) relies for the adjudgment of criminal guilt on prior conviction by a court.
[39]Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25 at 37, 68, 149-152; Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352 at 371-372 [33], 380-381 [63]-[64].
[40]Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 at 348 [48].
The Solicitor-General argued in the alternative for recognition of what in effect would be an exception to the principle in Lim. He argued that, though deprivation of citizenship consequent upon a finding of criminal guilt by a court might be characterised as a form of punishment, it should not be seen to be a form of punishment which Ch III of the Constitution commits exclusively to the judicial power. The argument was developed by reference to both historical and functional considerations. The historical considerations were the absence of any precedent for a court having been empowered to make an order terminating a person's citizenship as well as the existence of precedents both in Australia[41] and in the United States[42] for a person's citizenship being automatically terminated by operation of law upon the person engaging in or being convicted of conduct which constituted an offence. The functional considerations were the obvious interest of the Commonwealth Executive in ensuring that such cessation of citizenship as might occur is not in breach of Australia's international obligations combined with the evaluative decision as to whether to terminate a person's citizenship by reference to the broader range of legitimate public interest considerations identified in s 36E being more suited to executive determination than to judicial determination.
[41]Section 19 of the Nationality and Citizenship Act 1948 (Cth); s 35 of the Australian Citizenship Act 2007 (Cth), repealed by the Australian Citizenship Amendment (Citizenship Cessation) Act 2020 (Cth).
[42]8 USC §1481(7).
Neither argument can be accepted.
The principle in Lim
The argument that the principle in Lim is relevantly confined to a Commonwealth law which authorises the Commonwealth Executive to engage in the adjudgment and punishment of criminal guilt, and therefore has no application to a Commonwealth law which authorises the Commonwealth Executive to engage in the punishment of criminal guilt consequent upon the adjudgment of criminal guilt by a court, has been made somewhat belatedly. As Edelman J recorded in Alexander[43], no similar argument was raised in Falzon v Minister for Immigration and Border Protection[44].
[43](2022) 96 ALJR 560 at 611 [235]; 401 ALR 438 at 497.
[44](2018) 262 CLR 333 at 340-341 [15]-[16], 357 [88].
The argument is founded on an incomplete reading of Lim and an incomplete appreciation of the principle there expounded.
The statement of principle in Lim, as has been noted, was not simply in terms of "the adjudgment and punishment of criminal guilt under a law of the Commonwealth" constituting a single composite "function" that pertains exclusively to the judicial power of the Commonwealth[45]. The statement of principle critically included the proposition that "Ch III of the Constitution precludes the enactment, in purported pursuance of any of the sub-sections of s 51 of the Constitution, of any law purporting to vest any part of that function in the Commonwealth Executive"[46].
[45](1992) 176 CLR 1 at 27.
[46](1992) 176 CLR 1 at 27 (emphasis added).
Moreover, it was explained in Lim that the concern of the Constitution in "exclusively entrusting to the courts designated by Ch III the function of the adjudgment and punishment of criminal guilt under a law of the Commonwealth ... is with substance and not mere form" such as to make it "beyond the legislative power of the Parliament to invest the Executive with an arbitrary power to detain citizens in custody notwithstanding that the power was conferred in terms which sought to divorce such detention in custody from both punishment and criminal guilt"[47]. "The reason why that is so", as explained, was that, putting "exceptional cases" to one side, "the involuntary detention of a citizen in custody by the State is penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt"[48].
[47] (1992) 176 CLR 1 at 27.
[48](1992) 176 CLR 1 at 27.
The presently relevant significance of that more specific application of principle in Lim lies not in its "[d]efault characterisation"[49] of custodial detention of a citizen as penal or punitive in character. Its presently relevant significance lies rather in its assignment of the power to impose a measure that is properly characterised as penal or punitive to the exclusively judicial function of adjudging and punishing criminal guilt.
[49]Minister for Home Affairs v Benbrika (2021) 272 CLR 68 at 111 [73]. See also at 99-100 [40].
Through that operation of Ch III of the Constitution to assign the power to impose a measure properly characterised as penal or punitive to the exclusively judicial function of adjudging and punishing criminal guilt, as it was put in Lim in the words of Albert Venn Dicey, "[e]very citizen is 'ruled by the law, and by the law alone' and 'may with us be punished for a breach of law, but he can be punished for nothing else'"[50].
[50](1992) 176 CLR 1 at 27-28, quoting Dicey, Lectures Introductory to the Study of the Law of the Constitution (1885) at 215.
The connection so recognised in Lim between the operation of Ch III of the Constitution and the rule of law was elaborated by Gageler J, albeit in dissent in the result, in Magaming v The Queen[51]:
"The separation of the judicial power of the Commonwealth by Ch III of the Constitution ensures that no individual can be deprived of life or liberty at the instance of an officer of the Commonwealth executive as punishment for an asserted breach by the individual of a Commonwealth criminal prohibition, except as a result of adjudication by a court of the controversy between the executive and the individual as to whether that breach has occurred and if so whether that deprivation of life or liberty is to occur. Whether guilt is to be found, and if so what, if any, punishment is to be imposed, are questions which arise sequentially in the resolution of that single justiciable controversy."
[51](2013) 252 CLR 381 at 400 [63].
His Honour drew attention to a statement of Ó Dálaigh CJ of the Supreme Court of Ireland in Deaton v Attorney-General (Ire)[52] which was picked up by Lord Diplock in the Privy Council in Hinds v The Queen[53]. The statement was to the effect that "[t]he Legislature does not prescribe the penalty to be imposed in an individual citizen's case; it states the general rule, and the application of that rule is for the Courts" and that "the selection of punishment is an integral part of the administration of justice and, as such, cannot be committed to the hands of the Executive"[54].
[52][1963] IR 170 at 182-183.
[53][1977] AC 195 at 226-227.
[54]Deaton v Attorney-General (Ire) [1963] IR 170 at 182-183, quoted in Magaming v The Queen (2013) 252 CLR 381 at 409 [85].
That statement by Ó Dálaigh CJ is appropriate to express a limitation on the legislative power of the Commonwealth Parliament which arises from the separation of the judicial power of the Commonwealth by Ch III of the Constitution. It is consistent with the acceptance by the majority in Magaming of the proposition couched in terms drawn directly from Lim that "adjudging and punishing criminal guilt is an exclusively judicial function"[55] and is unaffected by the conclusions of the majority that legislative prescription of a mandatory minimum term of imprisonment for an offence was not, and is not, inconsistent with Ch III and that prosecutorial choice between charges of offences carrying different mandatory minimum terms of imprisonment is not, without more, an exercise of judicial power[56].
[55](2013) 252 CLR 381 at 396 [47].
[56](2013) 252 CLR 381 at 394 [39], 396 [49].
The Solicitor-General was correct in pointing out that an officer of the Commonwealth Executive does not trespass upon the exclusively judicial function of adjudging and punishing criminal guilt merely by conducting an inquiry and determining that a person has engaged in criminal conduct. But he was wrong in asserting that is so because the adjudgment and punishment of criminal guilt are exclusively judicial only if undertaken in combination. The reason there is no trespass upon the exclusively judicial function is that a power of inquiry and determination takes its legal character from the purpose for which the inquiry and determination are undertaken[57]. That is to say, "the effect of the inquiry, and of the decision upon it, is determined by the nature of the act to which the inquiry and decision lead up": "[t]he nature of the final act determines the nature of the previous inquiry"[58]. If the purpose of the inquiry into and determination of criminal guilt is to punish criminal guilt, the inquiry and determination are exclusively judicial.
[57]Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352 at 380 [64] and the cases there cited.
[58]Prentis v Atlantic Coast Line Co (1908) 211 US 210 at 227, quoted in R v Davison (1954) 90 CLR 353 at 370 and Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25 at 152.
The principle in Lim is not confined in the manner for which the Solicitor-General argued. 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
There remains to address the alternative argument advanced by the Solicitor-General to the effect that, if the principle in Lim means that Ch III of the Constitution makes imposition of punishment consequent upon a finding of criminal guilt by a court exclusively judicial, punishment by means of termination of citizenship should be recognised as an exception to that principle.
Attorney-General (NT) v Emmerson[59], on which the Solicitor-General relied, does not assist the argument. The legislative scheme there held not to infringe the principle associated with Kable v Director of Public Prosecutions (NSW)[60] imposed punishment by way of forfeiture of property consequent upon a finding of criminal guilt by a court only upon a further exercise of judicial power by a court[61].
[59](2014) 253 CLR 393.
[60](1996) 189 CLR 51.
[61]See Attorney-General (NT) v Emmerson (2014) 253 CLR 393 at 419-420 [24]-[27], 431 [60], 434 [69].
To the extent that the argument was sought to be advanced by reference to historical considerations, the argument must be evaluated with caution. There is no doubt that "the historical or traditional classification of a function is a significant factor to be taken into account in deciding whether there is an exercise of judicial power involved"[62]. The historical or traditional classification of a function, if any, can be relevant to, although not determinative of, the question of "how the particular function is now to be characterised having regard to the systemic values on which the framers can be taken to have drawn in isolating the judicial power of the Commonwealth and in vesting that power only in courts"[63].
[62]R v Hegarty; Ex parte City of Salisbury (1981) 147 CLR 617 at 627.
[63]Palmer v Ayres (2017) 259 CLR 478 at 504 [69].
The fundamental difficulty with the argument lay in the level of generality at which the argument was pitched. Once it is accepted that Ch III of the Constitution makes imposition of punishment consequent upon a finding of criminal guilt exclusively judicial and once it is further accepted, as it was by the Solicitor-General, that the termination of citizenship purportedly authorised by s 36D(1) is punitive in character, the absence of any precedent for a court being empowered to order this kind of punishment is not to the point. Chapter III requires a punishment to be imposed by a court if it is to be imposed at all.
Another difficulty with the argument lay in the paucity and inconstancy of the precedents for the legislative empowerment of executive deprivation of citizenship or nationality consequent upon a finding of criminal guilt by a court on which the argument relied. Notably, all were confined to powers of revocation of nationality or citizenship conferred by a process of naturalisation or registration. None could be characterised in that context as punitive. Those which empowered revocation in circumstances of a person being convicted of a serious crime within a specified period after being granted a certificate of naturalisation or registration[64] can be seen to have involved the outworking of a condition of the legislated process of naturalisation which did not come to completion until the end of that specified period. Others can be seen to have had the purpose of empowering the winding back of the grant of citizenship in circumstances where the integrity of the process by which that citizenship was granted was shown by a subsequent conviction to have been compromised[65].
[64]See s 12(2)(b) of the Nationality Act 1920 (Cth); and s 21(1)(e) of the Nationality and Citizenship Act 1948 (Cth) until its repeal by s 7 of the Nationality and Citizenship Act 1958 (Cth).
[65]See s 21(a) of the Nationality and Citizenship Act 1948 (Cth) after the enactment of s 7 of the Nationality and Citizenship Act 1958 (Cth) until its omission by s 15 of the Australian Citizenship Amendment Act 1984 (Cth); and s 21(1)(a)(i) and (ii) of the Australian Citizenship Act 1948 (Cth) as substituted by s 15 of the Australian Citizenship Amendment Act 1984 (Cth).
Nor was the argument assisted by the existence of legislative precedents for a person's citizenship or nationality being automatically terminated by operation of law upon the person engaging in conduct constituting an offence. Legislative power is relevantly distinguished from judicial power 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. As was explained in Duncan v New South Wales[66]:
"Two features are commonly identified as underlying the characterisation of a law as a bill of pains and penalties, and as thereby 'a legislative intrusion upon judicial power'. One is legislative determination of breach by some person of some antecedent standard of conduct. The other is legislative imposition on that person (alone or in company with other persons) of punishment consequent on that determination of breach."
[66](2015) 255 CLR 388 at 408 [43] (citations omitted).
To the extent that the argument was sought to be advanced by reference to functional considerations, the argument failed to show why considerations of peculiarly executive concern could not be accommodated within the curial paradigm by the simple and common legislative expedient of requiring executive application or certification as a precondition to a court making an order for cessation of citizenship as a component of the punishment the court might impose as a consequence of conviction of an offence[67].
[67]Compare Palling v Corfield (1970) 123 CLR 52 at 58-59. See also Magaming v The Queen (2013) 252 CLR 381 at 391 [27], 407 [80]; Kuczborski v Queensland (2014) 254 CLR 51 at 121 [236]-[237].
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)s 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.
GORDON J. The facts and statutory framework are set out in the reasons of Kiefel CJ, Gageler, Gleeson and Jagot JJ. I gratefully adopt them. I agree with the answers to the questions in the special case. Subject to what appears below, I generally agree with the reasons given for those answers. I write separately to emphasise that the principle in Chu Kheng Lim v Minister for Immigration[68] – that the adjudgment and punishment of criminal guilt is exclusively judicial – is underpinned by two key constitutional values or rationales for Ch III's strict separation of federal judicial power from executive and legislative power.
[68](1992) 176 CLR 1 at 27.
Those two key constitutional values or rationales are: first, the historical judicial protection of liberty against incursions by the legislature or the executive; and second, the protection of the independence and impartiality of the judiciary so as to ensure the judiciary can operate effectively as a check on legislative and executive power[69].
[69]Minister for Home Affairs v Benbrika ("Benbrika [No 1]") (2021) 272 CLR 68 at 131 [136], 132-134 [138]-[142], see also 108-111 [67]-[72]; Garlett v Western Australia (2022) 96 ALJR 888 at 921 [163], 923 [169]-[170], 924-925 [173]-[174]; 404 ALR 182 at 218, 221, 222-223. See also Garlett (2022) 96 ALJR 888 at 915‑917 [125]-[133]; 404 ALR 182 at 211-213. See also R v Davison (1954) 90 CLR 353 at 380-382; R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 390-393; Re Tracey; Ex parte Ryan (1989) 166 CLR 518 at 579-581; Polyukhovich v The Commonwealth (War Crimes Act Case) (1991) 172 CLR 501 at 684-685; Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 at 10-12; North Australian Aboriginal Justice Agency Ltd v Northern Territory ("NAAJA") (2015) 256 CLR 569 at 610 [94]-[95]; Vella v Commissioner of Police (NSW) (2019) 269 CLR 219 at 275-276 [140]-[142].
The first of those values or rationales is of particular significance in this case. The Blackstonian[70] common law conception of liberty lies at the heart of our inherited constitutional tradition[71]. The right to personal liberty – described as "the most elementary and important of all common law rights"[72] – cannot be impaired or taken away without lawful authority. And "[i]t is the judiciary, the 'bulwark of freedom', which traditionally and historically adjudges the most basic of rights upon the determination of criminal guilt"[73].
[70]See Blackstone, Commentaries on the Laws of England (1765), Bk 1, Ch 1 at 130‑133.
[71]Benbrika [No 1] (2021) 272 CLR 68 at 132 [138], citing Trobridge v Hardy (1955) 94 CLR 147 at 152, Williams v The Queen (1986) 161 CLR 278 at 292, Magaming v The Queen (2013) 252 CLR 381 at 400-401 [63]-[67], NAAJA (2015) 256 CLR 569 at 610-611 [94]-[97] and Vella (2019) 269 CLR 219 at 276 [141]-[142]. See also R v Quinn; Ex parte Consolidated Foods Corporation (1977) 138 CLR 1 at 11; Lim (1992) 176 CLR 1 at 28-29; Benbrika [No 1] (2021) 272 CLR 68 at 91 [19].
[72]Trobridge (1955) 94 CLR 147 at 152; Williams (1986) 161 CLR 278 at 292. See also Bunning v Cross (1978) 141 CLR 54 at 75; Baker v Campbell (1983) 153 CLR 52 at 95; Kruger v The Commonwealth (1997) 190 CLR 1 at 125; Lewis v Australian Capital Territory (2020) 271 CLR 192 at 212 [45].
[73]Benbrika [No 1] (2021) 272 CLR 68 at 132 [138], quoting Quinn (1977) 138 CLR 1 at 11.
The respondents properly accepted that, in light of Alexander v Minister for Home Affairs[74], the power in s 36D of the Australian Citizenship Act 2007 (Cth) for the Minister to "determine ... that a person ceases to be an Australian citizen" should be characterised as punitive. The respondents submitted that, notwithstanding that s 36D is punitive, there are two pathways for the Court to find that s 36D is valid. The first pathway is that this Court should hold that the imposition of punishment for criminal guilt under our constitutional system is not exclusively judicial – it is always an evaluative assessment based on the particular power in question. The second pathway is that this Court should identify a new exception to the Lim principle for this particular function – involuntary denationalisation and deprivation of citizenship following conviction – for historical and functional reasons. Both pathways should be rejected. Both are contrary to Lim and both would undermine the constitutional values or rationales that underpin Ch III's strict separation of federal judicial power from executive and legislative power.
[74](2022) 96 ALJR 560 at 580-581 [82]-[84], 587 [120], 596 [163], 614 [251]; 401 ALR 438 at 457, 466, 477, 501.
First pathway – punishment is exclusively judicial
In Lim, Brennan, Deane and Dawson JJ held that "the adjudgment and punishment of criminal guilt" is an exclusively judicial function under the Constitution[75]. That canonical statement has been approved in many decisions of this Court[76]. It was on the basis of the Lim principle that a majority of this Court last year held that s 36B of the Australian Citizenship Act was invalid[77].
[75](1992) 176 CLR 1 at 27 (emphasis added).
[76]See, eg, Magaming (2013) 252 CLR 381 at 396 [47], 399-400 [61]-[63]; Kuczborski v Queensland (2014) 254 CLR 51 at 120 [233]; Duncan v New South Wales (2015) 255 CLR 388 at 407 [41]; Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 at 340 [15]; Benbrika [No 1] (2021) 272 CLR 68 at 90-91 [18]-[19], 108 [65], 111 [72], 133 [140], 141 [160], 159-160 [207]-[208]. See also Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 258, 269; Attorney-General (Cth) v Breckler (1999) 197 CLR 83 at 109 [40].
[77]Alexander (2022) 96 ALJR 560 at 583 [97], 588 [127], 599 [175], 614 [254]; 401 ALR 438 at 460-461, 467, 481, 502.
The respondents sought to argue that this statement from Lim is conjunctive, rather than disjunctive. That is, they ventured to submit that Parliament or the executive crosses the line into the exercise of exclusively judicial power if it purports to both adjudge and punish criminal guilt. The respondents did not seek to deny that a power to impose punishment alone can be an exclusively judicial power. Rather, they sought to establish that a power to punish criminal guilt separate from the adjudgment of guilt is not necessarily exclusively judicial in nature.
In Lim, the Court was asked to determine whether provisions of the Migration Act 1958 (Cth) that provided for the mandatory detention of certain aliens were invalid for infringing Ch III of the Constitution. Brennan, Deane and Dawson JJ observed that it was "well settled" that, under the Constitution, Parliament cannot confer any part of the judicial power of the Commonwealth on any organ of the executive government, or make a law requiring judicial power to be exercised by a federal court in a manner inconsistent with the essential character of a court or with the nature of judicial power[78]. Their Honours observed[79]:
"There are some functions which, by reason of their nature or because of historical considerations, have become established as essentially and exclusively judicial in character. The most important of them is the adjudgment and punishment of criminal guilt under a law of the Commonwealth. That function appertains exclusively to[80] and 'could not be excluded from'[81] the judicial power of the Commonwealth[82]. That being so, Ch III of the Constitution precludes the enactment, in purported pursuance of any of the subsections of s 51 of the Constitution, of any law purporting to vest any part of that function in the Commonwealth Executive."
[78]Lim (1992) 176 CLR 1 at 26-27; see also 10, 53.
[79]Lim (1992) 176 CLR 1 at 27 (emphasis added).
[80]Waterside Workers' Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434 at 444.
[81]Davison (1954) 90 CLR 353 at 368, 383.
[82]See also War Crimes Act Case (1991) 172 CLR 501 at 536-539, 608-610, 613-614, 632, 647, 649, 685, 705-707, 721.
Their Honours emphasised that the Constitution is concerned with substance and not mere form, and that "[i]t would, for example, be beyond the legislative power of the Parliament to invest the Executive with an arbitrary power to detain citizens in custody notwithstanding that the power was conferred in terms which sought to divorce such detention in custody from both punishment and criminal guilt"[83]. That is, the example given by the plurality in Lim was of a law that involved no adjudication of guilt – only punishment, as a matter of substance, by arbitrary detention.
[83]Lim (1992) 176 CLR 1 at 27.
Their Honours explained that "[t]he reason why that is so is that, putting to one side the exceptional cases to which reference is made below, the involuntary detention of a citizen in custody by the State is penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt"[84]. Their Honours identified exceptional cases that are non‑punitive in character, being committal of a person to custody awaiting trial and involuntary detention in cases of mental illness or infectious disease[85]. Their Honours also identified two exceptional cases that are punitive but are nevertheless not exclusive to the judicial power of the Commonwealth, being the traditional powers of Parliament to punish for contempt and of military tribunals to punish for breach of military discipline[86].
[84]Lim (1992) 176 CLR 1 at 27.
[85]Lim (1992) 176 CLR 1 at 28.
[86]Lim (1992) 176 CLR 1 at 28.
In holding that the provisions for mandatory administrative detention were valid, their Honours emphasised that an alien has, in comparison to a citizen[87], significantly diminished protection against imprisonment otherwise than pursuant to judicial process[88]. That was because it has been consistently recognised that Parliament has power to make laws not only for the expulsion or deportation of aliens, but also for the detention of aliens in custody to the extent necessary to make the deportation effective[89]. Such a limited authority to detain an alien in custody for the purposes of expulsion or deportation can be conferred on the executive without infringing Ch III, because "to that limited extent, authority to detain in custody is neither punitive in nature nor part of the judicial power of the Commonwealth"[90].
[87]Their Honours treated alien and citizen as antonyms: Lim (1992) 176 CLR 1 at 25. However, see Pochi v Macphee (1982) 151 CLR 101 at 109, 112, 116; Love v The Commonwealth (2020) 270 CLR 152 at 192 [81], 236-237 [236], 261-262 [295], 288 [394].
[88]Lim (1992) 176 CLR 1 at 29, 34.
[89]Lim (1992) 176 CLR 1 at 30-31.
[90]Lim (1992) 176 CLR 1 at 32 (emphasis added; footnote omitted).
Three matters evident in the plurality's reasons in Lim should be emphasised. First, a law purporting to vest in the executive any part of the function of adjudging and punishing criminal guilt under a law of the Commonwealth will be invalid. That is, a law purporting to empower the executive to punish criminal guilt will be invalid for that reason alone. That is consistent with many statements in decisions of this Court, before and after Lim[91].
[91]Waterside Workers' (1918) 25 CLR 434 at 444; Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 36 at 95-96; Federal Commissioner of Taxation v Munro (1926) 38 CLR 153 at 175; Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 240; Re Tracey (1989) 166 CLR 518 at 580; War Crimes Act Case (1991) 172 CLR 501 at 536; Brandy (1995) 183 CLR 245 at 258, 269; Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1 at 35 [82]; Crump v New South Wales (2012) 247 CLR 1 at 16 [27]-[28]; Magaming (2013) 252 CLR 381 at 401 [66]; Falzon (2018) 262 CLR 333 at 340 [14]-[15], 347 [47]; Minogue v Victoria (2019) 268 CLR 1 at 15 [13]; Private R v Cowen (2020) 271 CLR 316 at 379 [168]; Benbrika [No 1] (2021) 272 CLR 68 at 161 [210]; Alexander (2022) 96 ALJR 560 at 611 [235]; 401 ALR 438 at 497; Garlett (2022) 96 ALJR 888 at 902‑903 [46]; 404 ALR 182 at 193-194.
Second, the concern is with the substance and practical operation of the law, not merely its form. As McHugh J explained in Re Woolley; Ex parte Applicants M276/2003[92], "[a] law may infringe [Ch III] even if the punitive or penal sanction is not imposed for breach of the law or the existence of the fact or reason for the punishment is not transparent. If the purpose of the law is to punish or penalise the detainee without identifying the fact, reason or thing which gives rise to the punishment or penalty, then, as a matter of substance it gives rise to the strong inference that it is a disguised exercise of judicial power."
[92](2004) 225 CLR 1 at 35 [82] (emphasis in original).
Third, there are exceptions to the proposition that involuntary detention under a law of the Commonwealth is exclusive to the judicial power of the Commonwealth, but these are limited only to those exceptional cases that can be properly characterised as non-punitive, and to those (even more) exceptional cases that, although punitive, stand outside of Ch III of the Constitution (punishment by Parliament for contempt[93], and punishment by military tribunals for breach of military discipline[94]).
[93]See Constitution, s 49, discussed in R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157 at 166-167.
[94]See Private R (2020) 271 CLR 316 at 333 [46], 355 [111], 366-367 [133]-[134], 374 [154], 377-381 [163]-[170]. See also Re Tracey (1989) 166 CLR 518 at 540‑541, 564-565, 572-573, 580-582, 598; Benbrika [No 1] (2021) 272 CLR 68 at 161 [209].
The respondents argued that Lim has only limited relevance to the present proceeding because Lim dealt with provisions regarding detention in custody, which this Court has recognised as a detriment or hardship of such a kind that there is a "default characterisation" that it is punitive, and can, subject to exceptions where the detention is justified for another reason, be imposed only in the exercise of judicial power[95]. This attempted distinction between involuntary detention, and involuntary denationalisation and citizenship deprivation, should not be adopted. Like detention – indeed perhaps to a greater degree – the deprivation of nationality and citizenship imposes profound detriment on the individual. Detention may only be a temporary loss of rights and liberty. Deprivation of nationality and citizenship is a permanent rupture in the relationship between the individual and the State in which the individual had enjoyed equal participation in the exercise of political sovereignty[96], "destroy[ing] for the individual the political existence that was centuries in the development"[97]. It involves loss of fundamental rights of nationality and citizenship with immediate effect and permanently[98]. The individual is made vulnerable to exclusion or deportation from the territory (with no right of return), and to detention in custody to the extent necessary to make the deportation effective[99].
[95]NAAJA (2015) 256 CLR 569 at 611 [98], see also 610 [94]; Falzon (2018) 262 CLR 333 at 342 [23]-[24]; Benbrika [No 1] (2021) 272 CLR 68 at 111 [73], see also 99‑100 [40].
[96]Unions NSW v New South Wales (2019) 264 CLR 595 at 614 [40]; see also 646 [137], 660 [178]. See also Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 136-137, 174; Roach v Electoral Commissioner (2007) 233 CLR 162 at 174 [7], 198-199 [83]; McCloy v New South Wales (2015) 257 CLR 178 at 202 [27], 226 [110]-[111], 257 [215]-[216], 284 [318].
[97]Trop v Dulles (1958) 356 US 86 at 101, quoted in Alexander (2022) 96 ALJR 560 at 598 [172]; 401 ALR 438 at 480. See also Alexander (2022) 96 ALJR 560 at 613‑614 [248]-[250]; 401 ALR 438 at 500-501.
[98]Alexander (2022) 96 ALJR 560 at 597 [166], cf 578-579 [73]-[74]; 401 ALR 438 at 478, cf 454-455.
[99]Lim (1992) 176 CLR 1 at 29-32; The Commonwealth v AJL20 (2021) 273 CLR 43 at 83 [78]-[79]. See also Migration Act 1958 (Cth), ss 13(1), 14(1), 189(1), 196(1), 198, 200.
As observed by the plurality in Alexander, "the fundamental value accorded to the liberty of the individual provides the rationale for the strict insistence in the authorities that the liberty of the individual may be forfeited for misconduct by that person only in accordance with the safeguards against injustice that accompany the exercise of the judicial power of the Commonwealth"[100]. Their Honours observed that the case for the strict insistence on these safeguards is, if anything, stronger in relation to deprivation of nationality and citizenship than detention[101].
[100](2022) 96 ALJR 560 at 578 [73]; 401 ALR 438 at 454, citing Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161 at 179 [56] and Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 612 [79], 632‑633 [150]-[151].
[101]Alexander (2022) 96 ALJR 560 at 578 [73]; 401 ALR 438 at 454. See also Alexander (2022) 96 ALJR 560 at 597 [165], 598 [171]-[172], 613 [248]-[249]; 401 ALR 438 at 478, 480, 500-501.
Those observations by the plurality in Alexander are consistent with an understanding of the Lim principle as underpinned by both the strict separation of Commonwealth judicial power from executive and legislative power inherent in the text and structure of the Constitution, and the constitutional values protected by that separation[102].
[102]See [50]-[52] above.
In oral submissions, the respondents rightly accepted that they did not embrace any notion of an "Executive Sentencing Act". But, taken to its logical conclusion, if the respondents' submission were correct that Lim should be read only as conjunctive, then the constitutional limitation might be avoided by a drafting technique of conferring the power to adjudge on a court and the power to punish on the executive. The executive could set up a "Sentencing Committee" – an administrative body with the function of sentencing for Commonwealth offences. Or the Parliament could vest a power in the executive to resentence or impose additional or further punishment on a convicted offender for the purposes of retribution, denunciation and deterrence – for example, if the executive is not satisfied with the sentence imposed by a court. Such scenarios are contrary to fundamental constitutional principle.
Accepting the respondents' submission would erode a key constitutional value underpinning the separation of judicial power – the historical judicial protection of liberty against incursions by the legislature or the executive. It may be trite to observe that judicial power "involves the application of the relevant law to facts as found in proceedings conducted in accordance with the judicial process"[103]. But such standard non-exhaustive descriptions of the nature of judicial power have a basic significance that should not be overlooked; they "apply to the determination of criminal punishment no less than to the determination of criminal guilt"[104]. There is a need for legal control of punishment irrespective of whether the punisher also adjudges guilt; "in the absence of legal control of punishments ... there is the risk of administrative arbitrariness"[105]. For example, a court is required to provide reasons for sentence. The Minister is not obliged under s 36D to (and did not in this case) provide reasons for their decision. Procedural fairness is an essential characteristic of a Ch III court[106] – "[t]he method of 'administering justice' that lies at the heart of the common law tradition requires that courts adopt 'a procedure that gives each interested person an opportunity to be heard and to deal with any case presented by those with opposing interests'"[107]. In contrast, s 36D(9) of the Australian Citizenship Act specifies that the rules of natural justice do not apply in relation to making a decision under s 36D.
[103]Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 359 [56], and the authorities there cited.
[104]Magaming (2013) 252 CLR 381 at 401 [66] (emphasis added).
[105]Pollentine v Bleijie (2014) 253 CLR 629 at 643 [21], referring to Fardon (2004) 223 CLR 575 at 606-607 [62].
[106]See, eg, SDCV v Director-General of Security (2022) 96 ALJR 1002 at 1019 [50], 1030 [106], 1041-1042 [172]-[173]; 405 ALR 209 at 221, 236, 251-252.
[107]SDCV (2022) 96 ALJR 1002 at 1042 [173]; 405 ALR 209 at 252, quoting Condon v Pompano Pty Ltd (2013) 252 CLR 38 at 46 [1] and Wilson (1996) 189 CLR 1 at 17.
It follows that the first and critical element of the concept of punishment is not satisfied here. It is therefore unnecessary to consider the other four elements of Professor Hart's concept of punishment.
Trop v Dulles
In Alexander, both Gordon J[254] and Edelman J[255] referenced the majority opinion of the Supreme Court of the United States in Trop v Dulles[256]. The plurality in Jones v The Commonwealth also rely upon this decision[257]. Trop v Dulles was narrowly decided. Five out of nine Justices of the Supreme Court of the United States decided that §401(g) of the Nationality Act of 1940[258] was unconstitutional, at least as it applied to native-born citizens who had not abandoned their citizenship in any way or become involved with a foreign country. Section 401(g) provided that a citizen shall "lose his nationality" by "[d]eserting the military or naval forces of the United States in time of war, provided he is convicted thereof by court martial and as the result of such conviction is dismissed or dishonorably discharged from the service". Trop had been found guilty of deserting the army in 1944 whilst serving in North Africa. Like s 36D, §401(g) turned on conviction of an identified crime; unlike s 36D, it had no additional repudiation and public interest limbs. The majority decided that §401(g) imposed "cruel and unusual punishment" for the purposes of the Eighth Amendment to the Constitution of the United States.
[254](2022) 96 ALJR 560 at 598 [172]; 401 ALR 438 at 480.
[255](2022) 96 ALJR 560 at 613 [248]; 401 ALR 438 at 500.
[256](1958) 356 US 86.
[257][2023] HCA 34 at [46]-[48] per Kiefel CJ, Gageler, Gleeson and Jagot JJ.
[258]Pub L No 76-853, 54 Stat 1137 at 1168-1169.
Frankfurter J delivered a dissenting opinion. Burton, Clark and Harlan JJ agreed with Frankfurter J. With respect, I also agree with Frankfurter J. But why is it important to note this man's opinion? Sir Owen Dixon supplied the answer. In 1957, he wrote a "tribute" to Frankfurter J in the Yale Law Journal. Amongst other things, Sir Owen wrote[259]:
"You will see Frankfurter's name again and again in the reports of the constitutional decisions of the High Court. When you find in judicial writings repeated reliance upon the words of a contemporary judge, especially of another country, you may safely infer that his opinions tend to throw new light in dark places and to comfort other judicial wayfarers by giving apt and reassuring pointers to a true deliverance."
[259]Dixon, "Mr Justice Frankfurter – A Tribute from Australia" (1957) 67 Yale Law Journal 179 at 183. Republished as "The Honourable Mr Justice Felix Frankfurter – A Tribute from Australia", in Crennan and Gummow (eds), Jesting Pilate and Other Papers and Addresses, 3rd ed (2019) 104 at 107.
In Trop v Dulles, Frankfurter J decided that because the purpose of §401(g) was found to be in the need to regulate the military forces of the United States, the denationalisation it authorised could not be characterised as a species of punishment. He said[260]:
"Loss of citizenship entails undoubtedly severe – and in particular situations even tragic – consequences. Divestment of citizenship by the Government has been characterized, in the context of denaturalization, as 'more serious than a taking of one's property, or the imposition of a fine or other penalty.' However, like denaturalization, expatriation under the Nationality Act of 1940 is not 'punishment' in any valid constitutional sense. Simply because denationalization was attached by Congress as a consequence of conduct that it had elsewhere made unlawful, it does not follow that denationalization is a 'punishment,' any more than it can be said that loss of civil rights as a result of conviction for a felony, is a 'punishment' for any legally significant purposes. The process of denationalization, as devised by the expert Cabinet Committee on which Congress quite properly and responsibly relied and as established by Congress in the legislation before the Court, was related to the authority of Congress, pursuant to its constitutional powers, to regulate conduct free from restrictions that pertain to legislation in the field technically described as criminal justice. Since there are legislative ends within the scope of Congress' war power that are wholly consistent with a 'non-penal' purpose to regulate the military forces, and since there is nothing on the face of this legislation or in its history to indicate that Congress had a contrary purpose, there is no warrant for this Court's labeling the disability imposed by §401(g) as a 'punishment.'"
[260]Trop v Dulles (1958) 356 US 86 at 124-125 (citations and footnotes omitted).
Here, we are not concerned with the regulation of the army. But we are concerned, in a broader sense, with the regulation of membership of the people of the Commonwealth. The purpose of s 36D, like that of s 36B, is set out in s 36A, reproduced above. That purpose is to ensure that membership of the Australian body politic does not include those who have acted in a way incompatible with the shared values of the Australian community, and who have thereby demonstrated that they have severed their bond with that community by repudiating their allegiance to Australia. That purpose involves no species of punishment.
Alexander
I otherwise refer to what I said in Alexander about this issue. I remain of the views there expressed[261]. It would be counter-productive to describe them in any detail. In essence, three reasons were given for my conclusion that denationalisation in the circumstances of s 36B, and now also s 36D, did not involve punishment:
(a)First, consistently with the importance legal history can have in determining the scope of judicial power[262], it has never been an essentially judicial function to make orders which denationalise a person[263]. None of the early British or Australian legislation regulating denationalisation conferred power on courts to do so[264].
(b)Secondly, no part of the Minister's function under s 36B is to determine whether any particular crime had been committed. That is clearer under s 36D, where conviction by a court is a factum for the exercise of the Minister's power[265].
(c)Thirdly, for similar reasons to those given above, the purpose of s 36B, as with s 36D, is not punishment but recognition of the objective act of renunciation of allegiance to Australia – here, by a person convicted of terrorism-related offences[266].
[261]Alexander v Minister for Home Affairs (2022) 96 ALJR 560 at 628-633 [325]-[343]; 401 ALR 438 at 512-527.
[262]Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 67 per McHugh J.
[263]Alexander v Minister for Home Affairs (2022) 96 ALJR 560 at 630-631 [332]; 401 ALR 438 at 523.
[264]See, eg, Aliens Act 1864 (SA); Naturalization Act 1870 (UK); Naturalization Act1903 (Cth), s 11; Immigration Act 1901-1925 (Cth), s 8AA.
[265]Alexander v Minister for Home Affairs (2022) 96 ALJR 560 at 631-632 [336]; 401 ALR 438 at 524-525.
[266]Alexander v Minister for Home Affairs (2022) 96 ALJR 560 at 632 [337]-[338]; 401 ALR 438 at 525-526.
In Trop v Dulles, Frankfurter J made another, more general observation, which I also endorse, about the role of a court charged with guardianship of a Constitution in a democracy. He said[267]:
"This legislation is the result of an exercise by Congress of the legislative power vested in it by the Constitution and of an exercise by the President of his constitutional power in approving a bill and thereby making it 'a law.' To sustain it is to respect the actions of the two branches of our Government directly responsive to the will of the people and empowered under the Constitution to determine the wisdom of legislation. The awesome power of this Court to invalidate such legislation, because in practice it is bounded only by our own prudence in discerning the limits of the Court's constitutional function, must be exercised with the utmost restraint."
[267]Trop v Dulles (1958) 356 US 86 at 128.
The questions of law posed by the further amended special case should be answered 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: No.
(2) What, if any, relief should be granted to the Applicant?
Answer: None.
(3) Who should pay the costs of the special case?
Answer: The Applicant.