Minister for Home Affairs v Benbrika

HIGH COURT OF AUSTRALIA

KIEFEL CJ,
BELL, GAGELER, KEANE, GORDON, EDELMAN AND STEWARD JJ

MINISTER FOR HOME AFFAIRS  APPLICANT

AND

ABDUL NACER BENBRIKA  RESPONDENT

Minister for Home Affairs v Benbrika

[2021] HCA 4

Date of Hearing: 10 December 2020

Date of Judgment: 10 February 2021

M112/2020

ORDER

1.The question reserved for the consideration of the Court of Appeal of the Supreme Court of Victoria and removed into this Court pursuant to s 40 of the Judiciary Act 1903 (Cth) is answered as follows:

Q.Is all or any part of Division 105A of the Criminal Code (Cth) and, if so, which part, invalid because the power to make a continuing detention order under section 105A.7 of the Code is not within the judicial power of the Commonwealth and has been conferred, inter alia, on the Supreme Court of Victoria contrary to Chapter III of the Commonwealth Constitution?

A.No.

2.The respondent is to pay the applicant's costs. 

Representation

A P Berger QC for the applicant (instructed by Australian Government Solicitor)

R Merkel QC and C J Tran with E S Jones for the respondent (instructed by Doogue + George Lawyers)

S P Donaghue QC, Solicitor-General of the Commonwealth, with M A Hosking for the Attorney-General of the Commonwealth, intervening (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

Minister for Home Affairs v Benbrika

Constitutional law (Cth) – Judicial power of Commonwealth – Jurisdiction vested in State courts – Where Div 105A of Criminal Code (Cth) empowered Supreme Court of State or Territory, on application of Minister for Home Affairs, to order that person convicted of terrorist offence be detained in prison for further period after expiration of sentence of imprisonment pursuant to continuing detention order ("CDO") – Whether all or any part of Div 105A of Criminal Code invalid because power to make CDO not within judicial power of Commonwealth having been conferred, inter alia, on Supreme Court of Victoria contrary to Ch III of Constitution – Whether scheme for preventative detention of terrorist offender capable of falling within exception to principle articulated in Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 that involuntary detention of citizen in custody by the State is penal or punitive in character and exists only as incident of exclusively judicial function of adjudging and punishing criminal guilt – Whether Div 105A of Criminal Code directed to ensuring safety and protection of community from risk of harm posed by threat of terrorism.

Words and phrases – "analogy", "apprehended conduct", "Ch III court", "continuing detention order", "exception to the Lim principle", "involuntary detention", "judicial function of adjudging and punishing criminal guilt", "judicial power of the Commonwealth", "less restrictive measure", "non-punitive purpose", "orthodox judicial process", "preventative detention", "protection of the community from harm", "protective punishment", "protective purpose", "punitive purpose", "restriction on liberty", "separation of powers", "serious Part 5.3 offence", "Supreme Court of a State or Territory", "terrorism", "terrorist act", "terrorist offence", "terrorist organisation", "unacceptable risk".

Constitution, Ch III.

Criminal Code (Cth), Div 105A.

1. KIEFEL CJ, BELL, KEANE AND STEWARD JJ. Division 105A of the Criminal Code (Cth) ("the Code") empowers the Supreme Court of a State or Territory, on the application of the Minister for Home Affairs ("the Minister"), to order that a person who has been convicted of a terrorist offence be detained in prison for a further period after the expiration of his or her sentence of imprisonment. The scheme is comparable to the Dangerous Prisoners (Sexual Offenders) Act2003 (Qld) ("the Qld Act"), which empowers the Supreme Court of Queensland to order the continuing detention of persons convicted of serious sexual offences.

2. The validity of the Qld Act survived challenge on Kable[1] grounds in Fardon v Attorney-General (Qld)[2]. Fardon allows that, consistently with its position within the integrated Australian court system, the Supreme Court of a State or Territory may commit a person to prison in the exercise of State judicial power after determining, by orthodox judicial process, that the person is a serious danger to the community because there is an unacceptable risk that he or she would commit a serious sexual offence if released from custody. The question in this proceeding is whether the Supreme Court of a State or Territory may commit a person to prison in the exercise of federal judicial power after determining, by orthodox judicial process, that the person presents an unacceptable risk of committing a terrorist offence if released from custody. For the reasons to be given, the answer is that it may.

   [1]Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.

   [2](2004) 223 CLR 575.

   Procedural history

3. On 15 September 2008, the respondent, Mr Benbrika, was convicted by the Supreme Court of Victoria of two terrorist offences. The offences were alleged to have occurred between July 2004 and November 2005. The first offence involved the intentional membership of a terrorist organisation knowing that the organisation was a terrorist organisation[3]. The offence has a maximum penalty of imprisonment for ten years. The second offence involved intentionally directing the activities of a terrorist organisation knowing the organisation to be a terrorist organisation[4]. This offence has a maximum penalty of imprisonment for 25 years. Each offence is a "serious Part 5.3 offence"[5].

   [3]Criminal Code (Cth), s 102.3(1).

   [4]Criminal Code, s 102.2(1).

   [5]Criminal Code, s 105A.2.

4. The Crown case against Mr Benbrika at his trial was that he and others were members of a Melbourne-based terrorist organisation that was fostering or preparing the doing of a terrorist act in Australia or overseas with the intention of causing death or serious physical harm in order to advance the cause – taught by Mr Benbrika and accepted by the other members of the organisation who had taken an oath of allegiance to him – that they were under a religious duty to pursue violent jihad against non‑believers[6]. The Crown case included evidence that, as part of the instruction in violent jihad that Mr Benbrika provided, he had taught other members of the organisation that death in pursuit of "Allah's cause" would result in martyrdom and thus entry into paradise[7]. Mr Benbrika was sentenced to an effective term of imprisonment of 15 years with a non-parole period of 12 years. Mr Benbrika was not granted parole. His sentence expired on 5 November 2020. On 4 September 2020, the Minister commenced proceedings in the Supreme Court of Victoria, seeking a continuing detention order in respect of Mr Benbrika to be in force from the date of its making until 5 November 2023 and an interim detention order to be in force from 5 November 2020. On 27 October 2020, Tinney J made an interim detention order[8]. On 24 December 2020, his Honour made an order that Mr Benbrika be subject to a continuing detention order to be in force for a period of three years[9].

   [6]Benbrika v The Queen (2010) 29 VR 593 at 601-602 [5]-[6].

   [7]Benbrika v The Queen (2010) 29 VR 593 at 604 [16].

   [8]Criminal Code, s 105A.9(2).

   [9]Minister for Home Affairs v Benbrika [2020] VSC 888 at [478]-[480].

5. On 2 October 2020, Mr Benbrika applied for an order reserving the following question for the consideration of the Court of Appeal of the Supreme Court of Victoria[10]:

   "Is all or any part of Division 105A of the Criminal Code (Cth) and, if so, which part, invalid because the power to make a continuing detention order under section 105A.7 of the Code is not within the judicial power of the Commonwealth and has been conferred, inter alia, on the Supreme Court of Victoria contrary to Chapter III of the Commonwealth Constitution?"

   [10]Supreme Court Act1986 (Vic), s 17B(2).

6. On 8 October 2020, Tinney J reserved the question for the consideration of the Court of Appeal. On 30 October 2020, on the application of the Attorney-General of the Commonwealth, the question reserved was removed into this Court[11]. The Attorney-General intervened in support of the Minister on the hearing of the question reserved. The Minister adopted the Attorney-General's submissions. In these reasons the Minister and the Attorney-General will be referred to collectively as "the Commonwealth".

   [11]Judiciary Act 1903 (Cth), s 40.

   The scheme of Div 105A of the Code

7. Division 105A was enacted by the Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 (Cth) and has as its object[12]:

   "to ensure the safety and protection of the community by providing for the continuing detention of terrorist offenders who pose an unacceptable risk of committing serious Part 5.3 offences if released into the community."

   [12]Criminal Code, s 105A.1.

8. The Minister may apply to the Supreme Court of a State or Territory for a continuing detention order[13]. A continuing detention order may only be made with respect to a "terrorist offender". Relevantly, there are three attributes of being a "terrorist offender". The first attribute is that the person has been convicted of an offence referred to in s 105A.3(1)(a) (a "terrorist offence"). These comprise those terrorism related offences in Pt 5.3 of the Code that have a maximum penalty of seven years' imprisonment or more ("serious Pt 5.3 offences"), certain offences involving international terrorist activities using explosives or lethal devices and certain terrorism related offences involving foreign incursions and recruitment. The second attribute is that the person is in custody, having been continuously in custody since being convicted of the terrorist offence, or is under a continuing or interim detention order[14]. The third attribute is that the person will be at least 18 years old at the expiration of the sentence[15].

   [13]Criminal Code, s 105A.5.

   [14]Criminal Code, s 105A.3(1)(b).

   [15]Criminal Code, s 105A.3(1)(c).

9. The effect of a continuing detention order is to commit the terrorist offender to detention in a prison for the period that the order is in force[16]. An application for a continuing detention order may only be made within 12 months before the end of the offender's sentence or, if a continuing detention order is in force, the application may not be made more than 12 months before the end of the period for which the order is in force[17]. The Court may appoint one or more experts to assess the risk of the offender committing a serious Pt 5.3 offence if released into the community[18].

   [16]Criminal Code, s 105A.3(2).

   [17]Criminal Code, s 105A.5(2).

   [18]Criminal Code, s 105A.6(1), (3) and (4).

10. Sections 105A.7 and 105A.8 should here be set out:

    "105A.7         Making a continuing detention order

    (1)A Supreme Court of a State or Territory may make a written order under this subsection if:

    (a)an application is made in accordance with section 105A.5 for a continuing detention order in relation to a terrorist offender; and

    (b)after having regard to matters in accordance with section 105A.8, the Court is satisfied to a high degree of probability, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious Part 5.3 offence if the offender is released into the community; and

    (c)the Court is satisfied that there is no other less restrictive measure that would be effective in preventing the unacceptable risk.

    (2)Otherwise, the Court must dismiss the application.

    Onus of satisfying Court

    (3)The AFP Minister bears the onus of satisfying the Court of the matters referred to in paragraphs (1)(b) and (c).

    Period of order

    (4)The order must specify the period during which it is in force.

    (5)The period must be a period of no more than 3 years that the Court is satisfied is reasonably necessary to prevent the unacceptable risk.

    Court may make successive continuing detention orders

    (6)To avoid doubt, subsection (5) does not prevent a Supreme Court of a State or Territory making a continuing detention order in relation to a terrorist offender that begins to be in force immediately after a previous continuing detention order in relation to the offender ceases to be in force.

    105A.8Matters a Court must have regard to in making a continuing detention order

    (1)In deciding whether the Court is satisfied as referred to in paragraph 105A.7(1)(b) in relation to a terrorist offender, a Supreme Court of a State or Territory must have regard to the following matters:

    (a)the safety and protection of the community;

    (b)any report received from a relevant expert under section 105A.6 in relation to the offender, and the level of the offender's participation in the assessment by the expert;

    (c)the results of any other assessment conducted by a relevant expert of the risk of the offender committing a serious Part 5.3 offence, and the level of the offender's participation in any such assessment;

    (d)any report, relating to the extent to which the offender can reasonably and practicably be managed in the community, that has been prepared by:

    (i)the relevant State or Territory corrective services; or

    (ii)any other person or body who is competent to assess that extent;

    (e)any treatment or rehabilitation programs in which the offender has had an opportunity to participate, and the level of the offender's participation in any such programs;

    (f)the level of the offender's compliance with any obligations to which he or she is or has been subject while:

    (i)on release on parole for any offence referred to in paragraph 105A.3(1)(a); or

    (ii)subject to a continuing detention order or interim detention order;

    (g)the offender's history of any prior convictions for, and findings of guilt made in relation to, any offence referred to in paragraph 105A.3(1)(a);

    (h)the views of the sentencing court at the time any sentence for any offence referred to in paragraph 105A.3(1)(a) was imposed on the offender;

    (i)any other information as to the risk of the offender committing a serious Part 5.3 offence.

    (2)Subsection (1) does not prevent the Court from having regard to any other matter the Court considers relevant.

    (3)To avoid doubt, section 105A.13 (civil evidence and procedure rules in relation to continuing detention order proceedings) applies to the Court's consideration of the matters referred to in subsections (1) and (2) of this section."

11. The power conferred on the Supreme Court of a State or Territory to make a continuing detention order under Div 105A is subject to the ordinary incidents of the exercise of judicial power. A continuing detention order may only be made following an inter partes hearing in open court (subject to the power to close the court under general statutory powers) at which the rules of evidence and procedure apply[19]. The offender has the opportunity to examine and cross-examine witnesses and to make submissions[20]. The onus is on the Minister to establish the conditions for the making of the order[21]. The criterion of "unacceptable risk of committing a serious Part 5.3 offence"[22] is capable of judicial application[23]. The Court has a discretion whether to make the order and as to the terms of the order[24]. The Court must give reasons for its decision[25] and the making of the decision is subject to appeal by way of rehearing as of right[26].

    [19]Criminal Code, s 105A.13.

    [20]Criminal Code, s 105A.14.

    [21]Criminal Code, s 105A.7(3).

    [22]Criminal Code, s 105A.7(1)(b).

    [23]Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 593 [22] per Gleeson CJ, 597 [34] per McHugh J, 616-617 [97]‑[98] per Gummow J, 657 [225] per Callinan and Heydon JJ; Thomas v Mowbray (2007) 233 CLR 307 at 327‑329 [15]-[16], 334 [28] per Gleeson CJ; Vella v Commissioner of Police (NSW) (2019) 93 ALJR 1236 at 1251 [57], 1253-1254 [66]-[68], 1255 [73]-[75], 1258-1259 [84]‑[89] per Bell, Keane, Nettle and Edelman JJ; 374 ALR 1 at 17, 20, 22, 26-28.

    [24]Criminal Code, s 105A.7(1).

    [25]Criminal Code, s 105A.16.

    [26]Criminal Code, s 105A.17.

12. The power to authorise the continuing detention of an offender in prison after the expiration of his or her sentence is subject to a number of statutory safeguards. The Minister is required to ensure that reasonable inquiries are made to ascertain any facts that would reasonably be regarded as supporting a finding that the order should not be made[27]. Subject to a qualification as to information which the Minister is likely to seek to prevent or control the disclosure of, whether under the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) or otherwise[28], the application must include a statement of any such facts[29]. In the event that circumstances beyond the offender's control prevent the offender from engaging a legal representative in relation to the proceeding, the Court may stay the proceeding or order the Commonwealth to pay the offender's reasonable costs and expenses[30]. Continuing detention orders are subject to annual review[31]. On the hearing of a review, unless the Court is satisfied of the same conditions specified in s 105A.7(1)(b) and (c) it must revoke the order[32]. In the event that the Minister fails to apply for a review before the end of the period specified in s 105A.10(1B) – within 12 months after the order began to be in force or since the last review – the order ceases to be in force at the end of such period[33].

    [27]Criminal Code, s 105A.5(2A).

    [28]Criminal Code, s 105A.5(5).

    [29]Criminal Code, s 105A.5(3)(aa)(ii).

    [30]Criminal Code, s 105A.15A.

    [31]Criminal Code, s 105A.10.

    [32]Criminal Code, s 105A.12(4) and (5).

    [33]Criminal Code, s 105A.10(4).

    Two arguments as to judicial power

13. In addition to the principal ground of his challenge to the validity of Div 105A, in written submissions Mr Benbrika makes two submissions which challenge the Division on the ground that the power it purports to confer on the Court is not judicial power. Both submissions can be dealt with shortly. First, he contends that the provision for review of the continuing detention order, on the application of the Minister, deprives the order of the conclusiveness that is essential to the exercise of judicial power: whether the order remains binding depends upon administrative action or non-action. The fact that a continuing detention order ceases to have force in the event that the Minister fails to apply for its review does not deprive the order of binding force at the time of its making. The order is the authority for the continuing detention of the offender under a statutory scheme which provides for annual curial review.

14. Secondly, Mr Benbrika contends that the making of a continuing detention order does not engage judicial power because it does not determine a controversy as to existing rights and obligations based on past events but rather it determines new rights and obligations[34]. McHugh J rejected the same argument in Fardon[35]:

    "[W]hen determining an application under [the Qld Act], the Supreme Court is exercising judicial power ... It is true that in form the Act does not require the Court to determine 'an actual or potential controversy as to existing rights or obligations'[36]. But that does not mean that the Court is not exercising judicial power. The exercise of judicial power often involves the making of orders upon determining that a particular fact or status exists. It does so, for example, in the cases of matrimonial causes, bankruptcy, probate and the winding up of companies. The powers exercised and orders made by the Court under [the Qld Act] are of the same jurisprudential character as in those cases."

    His Honour's statement was adopted by Gleeson CJ in Thomas v Mowbray[37] and by six Justices in Attorney-General (NT) v Emmerson[38]. The argument is in any event foreclosed by the holding in Thomas that the power conferred on a court to make a control order under Div 104 of the Code is within the judicial power of the Commonwealth[39].

    [34]Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 at 188‑189.

    [35](2004) 223 CLR 575 at 596‑597 [34].

    [36]R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 375 per Kitto J.

    [37](2007) 233 CLR 307 at 328 [15]-[16].

    [38](2014) 253 CLR 393 at 430-431 [57] per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ. See also their Honours' discussion at 430-433 [57]-[63].

    [39](2007) 233 CLR 307 at 335 [31]-[32] per Gleeson CJ, 358 [126] per Gummow and Crennan JJ, 507-509 [595]-[600] per Callinan J, 526 [651] per Heydon J.

    Mr Benbrika's principal argument

15. Mr Benbrika does not invite the Court to re-open Fardon or Thomas. He notes that Thomas was not concerned with the power of a Ch III court to authorise detention in prison based upon apprehended conduct and that the judicial power in Fardon was conferred by a State Act. Apart from its source, the judicial power of the Commonwealth is distinguished from the judicial power of a State by the separation of powers for which the Constitution provides[40] and the requirement that its exercise be with respect to a "matter"[41]. Mr Benbrika takes no point that an application for the making of a continuing detention order is not capable of constituting a "matter"[42]. It is the separation of powers that is said to explain why an order for continuing detention may be made in the exercise of State judicial power but not in the exercise of federal judicial power. Mr Benbrika points to judicial statements that have acknowledged that the separation of powers in the Australian constitutional setting ensures that Ch III courts serve as a bulwark of liberty[43]. They do so, he submits, because, as the principle was explained in the joint reasons of Brennan, Deane and Dawson JJ in Chu Kheng Lim v Minister for Immigration, exceptional cases aside, the involuntary detention of a citizen in custody by the State is penal or punitive in character and exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt (the "Lim principle")[44].

    [40]R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 269-270 per Dixon CJ, McTiernan, Fullagar and Kitto JJ.

    [41]In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265‑266 per Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ.

    [42]See Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 596-597 [34] per McHugh J.

    [43]See R v Quinn; Ex parte Consolidated Foods Corporation (1977) 138 CLR 1 at 11 per Jacobs J; Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 at 11-12 per Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ.

    [44](1992) 176 CLR 1 at 27.

16. Mr Benbrika's challenge depends upon acceptance that a scheme for preventative detention of the kind considered in Fardon is not an exception to the Lim principle and for that reason may not be conferred as federal judicial power. The argument adopts Gummow J's reasons in Fardon.

17. The Commonwealth contests that Lim is authority for the proposition that power to order the detention of a person in the custody of the State can only be within the judicial power of the Commonwealth if it is an incident of adjudging and punishing criminal guilt. In the Commonwealth's submission, correctly understood Lim is authority for the principle that the power to detain for a punitive purpose is exclusively judicial. Detention for any non‑punitive purpose, in the Commonwealth's submission, may be conferred on the executive or on a Ch III court.

    Lim

18. The issue in Lim was whether the administrative detention of non-citizens under the Migration Act 1958 (Cth) involved the impermissible conferral of the judicial power of the Commonwealth on the executive. The joint reasons explained that some functions are exclusively judicial in character, of which the most important is the adjudgment and punishment of criminal guilt under a law of the Commonwealth. In this connection, their Honours observed that it would be beyond the power of the Parliament to invest the executive with an arbitrary power of detention even if the power was stated in terms divorced from punishment and criminal guilt. The Lim principle was stated as a reason for that preclusion in these terms[45]:

    "[P]utting 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."

    The exceptional cases to which their Honours referred are arrest and detention pending trial and the detention of persons suffering from mental illness or infectious disease. In these cases, their Honours observed, the power to detain can legitimately be seen as non‑punitive and as not necessarily involving the exercise of judicial power. Their Honours also referred to exceptions to the requirement that punitive detention follows the judicial function of adjudging and punishing criminal guilt, namely the traditional powers of the Parliament to punish for contempt and of military tribunals to punish for breach of military discipline[46]. All were exceptions to the general proposition ("the Lim general proposition") that[47]:

    "[T]he power to order that a citizen be involuntarily confined in custody is, under the doctrine of the separation of judicial from executive and legislative powers enshrined in our Constitution, part of the judicial power of the Commonwealth entrusted exclusively to Ch III courts."

    [45]Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 27 per Brennan, Deane and Dawson JJ.

    [46]Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 28.

    [47]Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 28.

19. The Lim general proposition and the Lim principle have a long pedigree under our inherited common law tradition. Their Honours referenced Blackstone and Coke in support of the Lim general proposition[48] and Dicey's celebrated statement that every 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" in support of the allied Lim principle[49].

    [48]Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 28, citing Blackstone, Commentaries, 17th ed (1830), bk 1, paras 136-137 and Coke, Institutes of the Laws of England (1809), pt 2 at 589.

    [49]Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 27‑28, citing Dicey, Introduction to the Study of the Law of the Constitution, 10th ed (1959) at 202.

    An unexplained aspect of acceptance of the challenge

20. Before turning to the Qld Act considered in Fardon and Gummow J's analysis of federal judicial power on which Mr Benbrika's argument depends, one unexplained aspect of acceptance of his argument may be noted. Chapter III courts serve as the bulwark of liberty by virtue of the qualities of independence and impartiality that are secured by the separation of the judicial function from the other functions of government[50]. The absence of separation of powers under the Constitutions of the States allows that non-judicial functions may be conferred on the Supreme Courts provided the conferral does not substantially impair the institutional integrity of the Court as one in which federal jurisdiction is invested. On the authority of Kable v Director of Public Prosecutions (NSW)[51], the conferral of a non-judicial function that undermines the appearance of the independence and impartiality of the Court will be beyond legislative power. Informing the Kable doctrine is the recognition that the Constitution does not permit different grades or qualities of justice[52]. What remains unexplained is why the judicial power to order preventative detention conferred on the Supreme Court by the Qld Act, which does not trench on the Court's independence and impartiality, is not capable of being conferred on the Supreme Court under Commonwealth law.

    [50]Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 at 11-13 per Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ.

    [51](1996) 189 CLR 51.

    [52]Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 103 per Gaudron J; Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 617 [101] per Gummow J; Wainohu v New South Wales (2011) 243 CLR 181 at 209 [45] per French CJ and Kiefel J, 228-229 [105] per Gummow, Hayne, Crennan and Bell JJ; Condon v PompanoPty Ltd (2013) 252 CLR 38 at 89 [123] per Hayne, Crennan, Kiefel and Bell JJ; Vella v Commissioner of Police (NSW) (2019) 93 ALJR 1236 at 1270 [147] per Gageler J; 374 ALR 1 at 41-42.

    Fardon

21. The Qld Act considered in Fardon makes provision for the Attorney-General of the State of Queensland to apply to the Supreme Court of Queensland for an order that a prisoner serving a sentence of imprisonment for a "serious sexual offence" be detained in custody for an indefinite term if, on the hearing of the application, the Court is satisfied that the prisoner is "a serious danger to the community"[53]. A prisoner is considered to be a serious danger to the community if, inter alia, there is "an unacceptable risk that the prisoner [would] commit a serious sexual offence" if the prisoner were released from custody[54]. Any application is required to be made within the last six months of the sentence imposed for the serious sexual offence[55]. The Court is only to be "satisfied" if persuaded "by acceptable, cogent evidence" and "to a high degree of probability" that the evidence is sufficient to justify the decision[56].

    [53]Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), ss 5 and 13.

    [54]Dangerous Prisoners (Sexual Offenders) Act, s 13(2).

    [55]Dangerous Prisoners (Sexual Offenders) Act, s 5(2)(c).

    [56]Dangerous Prisoners (Sexual Offenders) Act, s 13(3).

22. It was argued in Fardon that the power to commit a person to prison because he or she poses a risk of re‑offending, and not as punishment for past criminal conduct, is repugnant to judicial process such that its conferral on the Supreme Court of Queensland is incompatible with that Court's role as a repository of federal judicial power[57]. The argument was rejected by six Justices, including Gummow J[58].

    [57]Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.

    [58]Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 592 [19] per Gleeson CJ, 594 [25], 598 [35] per McHugh J, 621 [117] per Gummow J (Hayne J agreeing at 647 [196]), 658 [234] per Callinan and Heydon JJ.

23. The Attorney-General of the Commonwealth, intervening in support of his Queensland counterpart, submitted that the function conferred on the Supreme Court could not contravene the Kable principle because the same function could validly be conferred on the Supreme Court under Commonwealth law[59]. Gummow J, with whose reasons in this respect Kirby J agreed[60], was the only member of the Court to express a concluded view on the Attorney‑General of the Commonwealth's submission. His Honour rejected it, holding, on the authority of Lim, that detention for apprehended conduct is inconsistent with "the central constitutional conception of detention as a consequence of judicial determination of engagement in past conduct"[61].

    [59]Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 580.

    [60]Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 631 [145].

    [61]Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 613 [84].

24. Gummow J favoured reformulating the Lim principle by removing reference to whether the detention is "penal or punitive in character", in order to emphasise that the constitutional concern is with the deprivation of liberty without adjudication of guilt. His Honour's statement of the principle was in these terms[62]:

    "'[E]xceptional cases' aside, the involuntary detention of a citizen in custody by the State is permissible only as a consequential step in the adjudication of criminal guilt of that citizen for past acts."

    In his Honour's judgment, the fact that a statutory scheme of preventative detention employs a judicial process of "some refinement" would not save it from invalidity because the vice for a Ch III court in such a scheme inheres in the outcome and not the means by which the outcome is obtained[63].

    [62]Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 612 [80].

    [63]Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 614 [85].

    The Commonwealth's submission

25. The Commonwealth is critical of Gummow J's formulation, characterising it as a radical reworking that converts a principle which articulates why the executive may not detain a person for a punitive purpose into a principle that precludes any detention for non-punitive purposes under Commonwealth law whether by the executive or by a Ch III court. In the result, the Commonwealth submits, the separation of powers operates to deny to each arm of government the ability to detain a person in the custody of the State for a non-punitive purpose. The Commonwealth invokes Gaudron J's analysis in Kruger v The Commonwealth in support of the contention that the exceptions to the Lim general proposition are so numerous as to belie the claim that the power to authorise detention in the custody of the State is exclusively judicial[64].

    [64](1997) 190 CLR 1 at 109-110. See also Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2004) 219 CLR 486 at 498-499 [20] per Gleeson CJ; Al-Kateb v Godwin (2004) 219 CLR 562 at 648-649 [257]‑[258] per Hayne J (Heydon J agreeing at 662-663 [303]).

26. The Commonwealth is also critical of Gummow J's rejection of the utility of the distinction between detention for punitive and non‑punitive purposes – a distinction, the Commonwealth submits, that has been endorsed in a line of decisions since Lim[65]. In the Commonwealth's submission, the principle to be distilled from this line of authority is that whether power to order detention in the custody of the State is exclusively entrusted to Ch III courts depends upon whether the detention is imposed as punishment for a breach of the law.

    [65]The submission references Al-Kateb v Godwin (2004) 219 CLR 562 at 584 [44]-[45], 586 [49] per McHugh J, 648 [255]-[256], 649-650 [263] per Hayne J (Heydon J agreeing at 662-663 [303]), 657 [287] per Callinan J; Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2004) 219 CLR 486 at 499 [21] per Gleeson CJ, 559 [218] per Callinan J; Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1 at 12 [17], 13 [19] per Gleeson CJ, 23-27 [53]-[62] per McHugh J, 75 [222], 77 [227] per Hayne J, 85 [261] per Callinan J; North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569 at 592-593 [36]-[37] per French CJ, Kiefel and Bell JJ, 610-612 [94]-[103] per Gageler J; Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42 at 69 [40] per French CJ, Kiefel and Nettle JJ, 86 [98], 87 [100] per Bell J, 111-112 [183]-[185] per Gageler J, 124-125 [238]-[241] per Keane J; Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 at 341 [17], 343 [27], 343-344 [29], 344 [33] per Kiefel CJ, Bell, Keane and Edelman JJ, 360 [96] per Nettle J.

27. The decisions to which the Commonwealth refers involve administrative detention of a kind that is acknowledged to be among the exceptions that qualify the Lim general proposition. The contention that the Parliament may empower the executive or Ch III courts to detain a person in the custody of the State for any purpose other than as punishment for breach of the law may be thought to be a radical reworking of the Lim general proposition[66].

    [66]Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 28 per Brennan, Deane and Dawson JJ.

    The exceptions to Lim

28. The answer to the question reserved does not require consideration of the scope of exceptions to the Lim general proposition that the power to order that a person be involuntarily detained in the custody of the State is entrusted exclusively to Ch III courts. Division 105A confers power on a Ch III court. The question reserved is concerned with the allied Lim principle that involuntary detention in the custody of the State under our system of government exists only as an incident of the adjudgment and punishment of criminal guilt.

29. As the joint reasons in Lim acknowledged, there are exceptions to the characterisation of detention by the State as penal or punitive in character. It is Mr Benbrika's case that the exceptions identified in Lim – committal to custody awaiting trial and detention of the mentally ill or those suffering from infectious disease – all pre-date federation and are to be taken to have been intended to fall within the judicial power of the Commonwealth. The absence of pre‑federation precedent for court-ordered committal to prison for apprehended conduct, divorced from any finding of criminal guilt or mental impairment, is submitted to be against finding that the power conferred by Div 105A can fall within an exception to the Lim principle.

30. Acceptance of Mr Benbrika's primary argument would produce the consequence that no arm of the federal government may authorise the detention of a person in custody for the purpose of protecting the community against the unacceptable risk of harm posed by a terrorist offender. Mr Benbrika's alternative, distinctly unattractive[67], argument is that the executive may authorise detention in such a case but a Ch III court may not.

    [67]Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 586 [2] per Gleeson CJ. See also Vella v Commissioner of Police (NSW) (2019) 93 ALJR 1236 at 1260 [90] per Bell, Keane, Nettle and Edelman JJ (quoting Thomas v Mowbray (2007) 233 CLR 307 at 329 [17] per Gleeson CJ), 1272 [158] per Gageler J; 374 ALR 1 at 28, 44.

31. In Fardon, Gummow J drew a distinction between the Qld Act and earlier schemes for preventative detention[68] by pointing out that those schemes were "attached" to, and derived their authority from, the sentencing of the offender for past conduct[69]. By contrast, the legislative scheme his Honour was considering took as the factum for engagement of the power the status of the person as a prisoner serving a sentence, but the sentencing itself was complete and the making of a continuing detention order could not be said to form part of it.

    [68]See Habitual Criminals Act 1905 (NSW) and Prevention of Crime Act 1908 (UK), Pt II.

    [69](2004) 223 CLR 575 at 613 [83].

32. It may be observed that the exceptions to the Lim principle involving the involuntary detention of those suffering from mental illness or infectious disease share a purpose of protection of the community from harm[70]. His Honour did not explain why an appropriately tailored scheme for the protection of the community from the harm that particular forms of criminal activity may pose is incapable of coming within an analogous exception. His Honour noted that[71]:

    "It may be accepted that the list of exceptions to which reference was made in Lim is not closed. But it is not suggested that regimes imposing upon the courts functions detached from the sentencing process form a new exceptional class, nor that the detention of the mentally ill for treatment is of the same character as the incarceration of those 'likely to' commit certain classes of offence." (footnote omitted)

    [70]Kruger v The Commonwealth (1997) 190 CLR 1 at 110 per Gaudron J.

    [71]Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 613 [83].

33. His Honour's evident concern was with detention for apprehended conduct. Yet, as his Honour acknowledged[72], schemes for preventative detention have a long history in common law countries[73]. The scheme considered in McGarry v The Queen[74] empowers a superior court when sentencing a person for an indictable offence, in addition to imposing the appropriate term of imprisonment for the offence ("the nominal sentence"), to order that the offender be imprisoned indefinitely. The making of such an order is conditioned on the court's satisfaction on the balance of probabilities that when the offender would otherwise be released he or she would be a danger to society, or a part of it, because of factors including the risk of the commission of further offences[75].

    [72]Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 613 [83].

    [73]Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 590 [13] per Gleeson CJ, citing Dershowitz, "The Origins of Preventive Confinement in Anglo-American Law – Part I: The English Experience" (1974) 43 University of Cincinnati Law Review 1. See also Professor Norval Morris' introduction to a number of the McGill Law Journal devoted to issues concerning habitual criminals and preventative detention, (1967) 13(4) McGill Law Journal 534 at 551 and Radzinowicz and Hood, "Incapacitating the Habitual Criminal: The English Experience" (1980) 78 Michigan Law Review 1305.

    [74](2001) 207 CLR 121.

    [75]Sentencing Act 1995 (WA), s 98.

34. The order for indefinite detention under that scheme is to be made at the time of sentencing but the detention for which it provides is not founded on the offender's past criminal conduct: the nominal sentence is imposed for that conduct and reflects the various purposes of punishment including protection of the community and general deterrence. The order for indefinite detention is founded on the court's assessment, in the exercise of State judicial power, of the danger to society that the offender would present at the completion of the nominal sentence. As Gleeson CJ observed in Fardon, if the lawful exercise of judicial power admits of the judge assessing the danger an offender poses to the community at the time of sentencing it is curious that it does not admit of the judge making such an assessment at or near the time of imminent release when that danger might be assessed more accurately[76].

    [76](2004) 223 CLR 575 at 586 [2].

35. The question reserved does not raise consideration of the Kable limitation, if any, on legislative power to confer on the Supreme Court of a State or Territory the function of ordering the detention in custody of a person in circumstances that do not fall within an exception to the Lim principle. For present purposes the conclusion in Fardon that the power conferred by the Qld Act to order the continuing detention of a prisoner who is found to be a danger to society is a judicial power that does not compromise the Supreme Court's institutional integrity as a court that may be invested with federal jurisdiction points powerfully against acceptance of Mr Benbrika's challenge.

36. Terrorism poses a singular threat to civil society[77]. The contention that the exceptions to the Lim principle are confined by history and are insusceptible of analogical development cannot be accepted. There is no principled reason for distinguishing the power of a Ch III court to order that a mentally ill person be detained in custody for the protection of the community from harm and the power to order that a terrorist offender be detained in custody for the same purpose. It is the protective purpose that qualifies a power as an exception to a principle that is recognised under our system of government as a safeguard on liberty. Demonstration that Div 105A is non‑punitive is essential to a conclusion that the regime that it establishes can validly be conferred on a Ch III court, but that conclusion does not suffice. As a matter of substance, the power must have as its object the protection of the community from harm.

    [77]    Thomas v Mowbray (2007) 233 CLR 307 at 490 [544] per Callinan J; Lodhi v The Queen (2007) 179 A Crim R 470 at 490 [86]-[87] per Spigelman CJ, quoting Sakr (1987) 31 A Crim R 444 at 451 per Crockett J.

    Characterisation of Div 105A as punitive or non-punitive

37. Mr Benbrika submits that the detention authorised by Div 105A is not correctly characterised as non-penal or non‑punitive. The fact of detention in custody, in his submission, is prima facie punitive whatever the reason may be for its imposition. He argues that if the overriding object of the scheme were the protection of the community and not any purpose of punishment it is to be expected that the Parliament would provide that any person found to pose an unacceptable risk of committing a serious Pt 5.3 offence, including persons not presently in detention, might be detained under it. Given that the condition for the engagement of the power is that the person is a "terrorist offender", he submits that a purpose of punishment cannot be quarantined from any purpose of protection. He points out that the prevention of future harm is itself an aspect of punishment. Other features of the scheme which he submits do not displace its prima facie characterisation as punitive are that the detention for which it provides is in a prison and no provision is made for the treatment and rehabilitation of detainees.

38. To observe that the protection of the community is a factor that is relevant in sentencing an offender for an offence against Commonwealth law[78] says nothing as to the characterisation of the power to make a continuing detention order. A court sentencing an offender for a terrorist offence is required to impose a sentence that is of a severity that is appropriate in all the circumstances of the offence[79]. The power conferred by s 105A.7 of the Code is an extraordinary power to detain a terrorist offender in prison notwithstanding that the purposes of punishment have been vindicated and the sentence served. The power is conditioned on the status of the offender as a prisoner serving a sentence for a terrorist offence (or having been in custody continuously since having been convicted of such an offence) but its making is divorced from sentencing the offender for the terrorist offence. The requirement that the sentencing court warn the offender that an application for a continuing detention order may be made in the future does not alter that fact[80].

    [78]Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638 at 650-651 [18]; Director of Public Prosecutions (Cth) vSaid Khodor el Karhani (1990) 21 NSWLR 370 at 377, quoting R v Radich [1954] NZLR 86 at 87.

    [79]Crimes Act 1914 (Cth), s 16A(1).

    [80]Criminal Code, s 105A.23(1).

39. The object of Div 105A, set out earlier in these reasons, is plainly directed to the protection of the community from harm. The fact that the Parliament has chosen not to pursue this object by a more extreme measure that is not conditioned on the subject being a "terrorist offender" does not gainsay that the object of the continuing detention order is community protection and not punishment. Nor does the fact that the detention for which Div 105A provides is in a prison detract from the conclusion that its purpose is protective and not punitive. That protection is its purpose is reinforced by the requirement that a person detained under a continuing detention order, as far as reasonably possible, is to be treated in a way that is appropriate to his or her status as a person who is not serving a sentence of imprisonment. Such a detainee is not to be accommodated in the same area of the prison as prisoners serving sentences of imprisonment unless that is necessary, or unless the person elects to be so accommodated[81]. A detainee under a continuing detention order is not denied access to such treatment and rehabilitation programs as may be available in the prison. The absence of special provision for treatment and rehabilitation of detainees under Div 105A does not deprive the scheme of its character as protective.

    [81]Criminal Code, s 105A.4(2).

40. The power is only enlivened in the last 12 months of the offender's sentence. In determining whether the conditions for the making of a continuing detention order are met the Court is, relevantly, to have regard to expert opinion about the risk of the offender committing a serious Pt 5.3 offence if released into the community[82]; any report relating to the extent to which the offender can be managed in the community[83]; and any treatment or rehabilitation programs in which the offender has had the opportunity to participate[84]. The evident focus is on the assessment of the risk the offender poses of future harm to the community upon release and not on punishing the offender for the offence for which he or she was sentenced. Similarly, the provision for annual reviews[85], and the requirement that the Court revoke the continuing detention order unless satisfied: (1) to a high degree of probability, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious Pt 5.3 offence if released into the community; and (2) that there is no other, less restrictive measure that would be effective in preventing that unacceptable risk[86], bespeak that the regime has as its object the protection of the community rather than punishment. Detention in prison is prima facie penal or punitive; however, that characterisation may be displaced by an evident non-punitive purpose[87]. Division 105A has an evident non-punitive, protective purpose.

    [82]Criminal Code, ss 105A.6(4) and 105A.8(1)(b) and (c).

    [83]Criminal Code, s 105A.8(1)(d).

    [84]Criminal Code, s 105A.8(1)(e).

    [85]Criminal Code, s 105A.10.

    [86]Criminal Code, s 105A.12(4) and (5).

    [87]Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 at 342 [24] per Kiefel CJ, Bell, Keane and Edelman JJ; North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569 at 611-612 [98] per Gageler J.

41. This Court has consistently held, and most recently in Fardon, that detention that has as its purpose the protection of the community is not punishment[88]. As Gummow J explained, the making of a continuing detention order under the Qld Act did not punish Fardon twice, nor did it increase his punishment for the offences of which he had been convicted[89]. Plainly enough, any suggestion that detention under a scheme such as that considered in Fardon is to supplement punishment for a crime would raise a large question as to double‑punishment. It is precisely because a just sentence must be proportionate to the offending being punished that adequate protection for the safety of the community from demonstrable threats cannot be assured under the ordinary criminal law (and sentences imposed thereunder). As Gleeson CJ noted in Fardon[90], the statement of Deane J in Veen v The Queen [No 2][91] is necessarily predicated upon a positive view of the legitimacy of preventative detention independently of punishment of crime.

    [88](2004) 223 CLR 575 at 592 [20] per Gleeson CJ, 597 [34] per McHugh J, 654 [217] per Callinan and Heydon JJ. See also Vella v Commissioner of Police (NSW) (2019) 93 ALJR 1236 at 1257-1258 [83] per Bell, Keane, Nettle and Edelman JJ; 374 ALR 1 at 25-26.

    [89]Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 610 [74] (Hayne J agreeing at 647 [196]).

    [90](2004) 223 CLR 575 at 588 [9].

    [91](1988) 164 CLR 465 at 495.

42. Mr Benbrika submits that if it is accepted that Div 105A does not have a punitive purpose, nonetheless it should not come within an exception to the Lim principle because the non-punitive object that it pursues is the prevention of crime as distinct from the protection of the community from harm. The unacceptable risk of which the Court must be satisfied is the commission of any serious Pt 5.3 offence. Mr Benbrika points out that serious Pt 5.3 offences cover a wide range of conduct including preparatory conduct that would not in other contexts amount to criminal conduct.

43. The submission raises an issue touched on in McGarry. It will be recalled that the regime in that case conditions the making of an indefinite detention order on a court's satisfaction that the offender is a danger to society, or some part of it, by reason of factors that include the risk that the offender would commit further indictable offences if released. As the joint reasons observed, the association between being a "danger to society" and recidivism is not without difficulty given that a fundamental premise of the criminal law is that conduct is regarded as criminal for the very reason that its commission harms society, or some part of it. On that view, the court's satisfaction of the risk of re-offending would suffice to establish that the offender is a danger to society and support the making of an indefinite detention order. However, it was held that correctly understood the power to make the order is only enlivened upon finding that the offender would engage in conduct the consequences of which would be grave or serious for society as a whole, or some part of it; a bare conclusion that it was probable the offender would commit some indictable offence in the future would not suffice[92].

    [92]McGarry v The Queen (2001) 207 CLR 121 at 129-130 [20]-[23] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ.

44. Part 5.3 enacts offences involving "terrorist acts" and offences involving "terrorist organisations"[93]. Terrorist acts are actions, or threats to take actions, that cause serious physical harm to a person or serious damage to property or which endanger human life (other than the life of the person taking the action) or which create a serious risk to the health or safety of the public, or a section of the public, or which seriously interfere with, disrupt or destroy various forms of infrastructure. The action or threat of action must be carried out, or threatened, with the intention of advancing a political, religious or ideological cause and coercing or influencing by intimidation a government or intimidating the public or a section of the public[94]. Serious Pt 5.3 offences involving terrorist acts include engaging in a terrorist act[95]; providing or receiving training connected with terrorist acts[96]; possessing things connected with terrorist acts[97]; collecting or making documents connected with preparation for, the engagement of a person in, or assistance in a terrorist act[98]; doing an act in preparation for, or planning, a terrorist act[99]; providing or collecting funds reckless as to whether the funds will be used to facilitate or engage in a terrorist act[100]; and making funds available to another person or collecting funds for, or on behalf of, another person and being reckless as to whether the other person will use the funds to facilitate or engage in a terrorist act[101].

    [93]See Australia, House of Representatives, Security Legislation Amendment (Terrorism) Bill 2002, Explanatory Memorandum at 9-10, noting Security Council of the United Nations, Resolution 1373 (2001), para 2(e).

    [94]Criminal Code, s 100.1(1), definition of "terrorist act".

    [95]Criminal Code, s 101.1(1).

    [96]Criminal Code, s 101.2(1) and (2).

    [97]Criminal Code, s 101.4(1) and (2).

    [98]Criminal Code, s 101.5(1) and (2).

    [99]Criminal Code, s 101.6(1).

    [100]Criminal Code, s 103.1(1). Note that this offence was enacted to implement Australia's international obligations to criminalise the collection and provision of funds for terrorist acts: see Australia, House of Representatives, Suppression of the Financing of Terrorism Bill 2002, Explanatory Memorandum at 5, referring to the International Convention for the Suppression of the Financing of Terrorism (2000) and Security Council of the United Nations, Resolution 1373 (2001), para 1(b). See also Australia, House of Representatives, Security Legislation Amendment (Terrorism) Bill 2002, Explanatory Memorandum at 9-10.

    [101]Criminal Code, s 103.2(1).

45. A "terrorist organisation" is an organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act or certain organisations that are specified as terrorist organisations in the regulations[102]. Serious Pt 5.3 offences involving terrorist organisations are directing the activities of a terrorist organisation[103]; being a member of a terrorist organisation[104]; recruiting a person to join, or participate in the activities of, a terrorist organisation[105]; providing or receiving training to or from a terrorist organisation[106]; receiving funds from, or making funds available to, or collecting funds for, or on behalf of, a terrorist organisation[107]; and providing support or resources to a terrorist organisation[108].

    [102]Criminal Code, s 102.1(1), definition of "terrorist organisation".

    [103]Criminal Code, s 102.2.

    [104]Criminal Code, s 102.3(1).

    [105]Criminal Code, s 102.4.

    [106]Criminal Code, s 102.5(1) and (2).

    [107]Criminal Code, s 102.6(1) and (2).

    [108]Criminal Code, s 102.7.

46. As Spigelman CJ has observed of the Pt 5.3 regime[109]:

    "Preparatory acts are not often made into criminal offences. The particular nature of terrorism has resulted in a special, and in many ways unique, legislative regime. It was, in my opinion, the clear intention of Parliament to create offences where an offender has not decided precisely what he or she intends to do. A policy judgment has been made that the prevention of terrorism requires criminal responsibility to arise at an earlier stage than is usually the case for other kinds of criminal conduct, eg well before an agreement has been reached for a conspiracy charge."

    It is difficult to envisage any circumstances in which a continuing detention order would be made to prevent the risk of the commission of a serious Pt 5.3 offence where that offence is of a kind that could not be seen to pose a real threat of harm to the community. Even where the apprehended serious Pt 5.3 offence does not involve as an element the inflicting, or having as an immediate purpose the actual inflicting, of personal injury on a person or persons, the advancement of terrorist ideology can readily be seen to create a milieu which fosters the prospect that personal injury will be suffered by innocent members of the community. A law directed against the implementation of such an ideology (even by preparatory acts) does not lack the character of a law for the protection of the community from harm simply because the law does not include the immediate likelihood or purpose of inflicting personal injury as an element of the offence. It is important that the restriction upon individual liberty involved in the making of a continuing detention order is dependent upon the risk of an offence being "unacceptable" to the judge in light of the facts as they appear at the time he or she is asked to make the order. Further, the power to address the risk of harm posed to the community in any particular case by the making of an order less intrusive on personal liberty than a continuing detention order serves to ensure that continuing detention orders are made to secure the protection of the community from unacceptable risks of actual harm.

    [109]Lodhi v The Queen (2006) 199 FLR 303 at 318 [66].

47. In this respect, it is to be noted that the Court is given wide powers to make control orders under Div 104 imposing restrictions, obligations and prohibitions that fall short of detention in custody[110] and that the power to make a continuing detention order is conditioned not only on the risk of the commission of a serious Pt 5.3 offence but on satisfaction that no other, less restrictive measure would be effective in preventing the unacceptable risk[111]. Correctly understood, a continuing detention order could not properly be made by a Court in the exercise of the discretion conferred by s 105A.7(1) in a case where the only risk of offending identified by the authorities did not carry a threat of harm to members of the community that was sufficiently serious in the assessment of the Court as to make the risk of the commission of the offence "unacceptable" to that Court. Contrary to Mr Benbrika's alternative submission, Div 105A is rightly characterised as directed to ensuring the safety and protection of the community from the risk of harm posed by the threat of terrorism.

    [110]Criminal Code, ss 104.4 and 104.5(3).

    [111]Criminal Code, s 105A.7(1)(c).

48. Division 105A validly confers the judicial power of the Commonwealth on the Supreme Court of a State or Territory. This conclusion makes it unnecessary to consider the Commonwealth's submission that New South Wales v Kable[112] is determinative of the capacity of the Parliament to validly empower a court exercising federal judicial power to order the detention of a person after the expiry of his or her sentence based upon an assessment of the risk of future offending by that person.

    [112](2013) 252 CLR 118.

    Costs

49. Mr Benbrika seeks an order for his costs whatever the event. The order is sought under s 105A.15A of the Code. The Commonwealth submits that there is no reason why costs should not follow the event.

50. Section 105A.15A applies if a continuing detention order proceeding relating to a terrorist offender is before a Supreme Court of a State or Territory and the offender, due to circumstances beyond the offender's control, is unable to engage legal representation in relation to the proceeding[113]. In such an event the Court is empowered to stay the proceeding and/or to order the Commonwealth to bear all or part of the reasonable costs and expenses of the offender's legal representation for the proceeding[114].

    [113]Criminal Code, s 105A.15A(1).

    [114]Criminal Code, s 105A.15A(2).

51. On 17 September 2020, Tinney J made orders pursuant to s 105A.15A(2)(b) requiring the Commonwealth to bear Mr Benbrika's reasonable costs and expenses of the proceeding for: a period of three weeks; until Legal Aid funding is granted to him; or until further order, whichever occurs first. It is submitted that in circumstances where the primary judge considered it appropriate to make orders covering Mr Benbrika's costs of defending the Minister's application this Court should make an order that he have his costs of the determination of a question of law that arose in that same proceeding.

52. The proceeding in relation to which Tinney J's order was made is the Minister's application under Div 105A that a continuing detention order be made with respect to Mr Benbrika. The making of the order does not provide a good reason for requiring the Commonwealth to pay Mr Benbrika's costs of his unsuccessful challenge to the validity of Div 105A.

    Conclusion and orders

53. For these reasons there should be the following orders:

    1.The question reserved for the consideration of the Court of Appeal of the Supreme Court of Victoria and removed into this Court pursuant to s 40 of the Judiciary Act 1903 (Cth) is answered as follows:

    Q.Is all or any part of Division 105A of the Criminal Code (Cth) and, if so, which part, invalid because the power to make a continuing detention order under section 105A.7 of the Code is not within the judicial power of the Commonwealth and has been conferred, inter alia, on the Supreme Court of Victoria contrary to Chapter III of the Commonwealth Constitution?

    A.No.

    2.The respondent is to pay the applicant's costs.

54. GAGELER J. Central to the operation of Pt 5.3 of the Criminal Code (Cth) is the notion of a "terrorist act". Engaging in a "terrorist act" involves taking or threatening specified action intending to advance a political, religious or ideological cause and intending either to coerce or intimidate a government or to intimidate the public or a section of the public. The specified action is action that causes death or serious physical harm to another person, that endangers another person's life, that creates a serious risk to the health or safety of the public or a section of the public, that causes serious damage to property, or that seriously interferes with or seriously disrupts or destroys an electronic system such as a telecommunications system or a financial system[115].

    [115]Section 100.1(1) of the Criminal Code (definition of "terrorist act") read with s 100.1(2) and (3).

55. Provisions within Pt 5.3 create offences having some connection to actual or potential terrorist acts. The degree of connection varies from offence to offence. At one end of the spectrum is the offence of engaging in a terrorist act, which carries a maximum penalty of imprisonment for life[116]. At the other end of the spectrum is the offence of associating with a person who is a member of a "terrorist organisation", which carries a maximum penalty of imprisonment for three years[117]. The definition of "terrorist organisation" is met by an organisation that is "directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act"[118].

    [116]Section 101.1 of the Criminal Code.

    [117]Section 102.8 of the Criminal Code read with s 102.1(1) (definition of "member").

    [118]Section 102.1(1) of the Criminal Code (definition of "terrorist organisation").

56. Most offences within the spectrum are "prophylactic offences" in the sense that "the risk of harm", relevantly from the commission of a terrorist act, "does not arise straightforwardly from the prohibited act" but "only after, or in conjunction with, further human interventions - either by the original actor or by others"[119]. An example is the offence of taking steps to become a member of a terrorist organisation, which carries a maximum penalty of imprisonment for ten years[120]. In R v Abdirahman-Khalif[121] the offence was committed by a young Australian woman who attempted to travel from Australia to Turkey in order to "engage" with Islamic State with the intention of becoming a nurse or a bride.

    [119]Simester and von Hirsch, Crimes, Harms, and Wrongs: On the Principles of Criminalisation (2011) at 79. See also Lodhi v The Queen (2006) 199 FLR 303 at 318 [66].

    [120]Section 102.3 of the Criminal Code read with s 102.1(1) (definition of "member").

    [121](2020) 94 ALJR 981; 384 ALR 1.

57. Division 104 of Pt 5.3 provides for the making of "control orders", imposing obligations, prohibitions and restrictions stopping short of detention in custody. The Division confers on the Federal Court and the Federal Circuit Court power[122], and jurisdiction[123], to make a control order on application of the Commissioner or another senior member of the Australian Federal Police. The Federal Court or the Federal Circuit Court can make a control order if, amongst other things, "the court is satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions to be imposed ... by the order is reasonably necessary, and reasonably appropriate and adapted", for the purpose of "protecting the public from a terrorist act" or "preventing the provision of support for or the facilitation of a terrorist act"[124].

    [122]Section 104.4 of the Criminal Code.

    [123]Section 15C of the Acts Interpretation Act 1901 (Cth).

    [124]Section 104.4(1)(d)(i) and (ii) of the Criminal Code.

58. Division 105A of Pt 5.3 provides for the making of "continuing detention orders", requiring persons convicted of terrorist offences to continue to be detained in custody beyond completion of their sentences. Division 105A confers on the Supreme Court of a State or Territory power[125], and jurisdiction[126], to make a continuing detention order in relation to a "terrorist offender" on application by the Minister administering the Australian Federal Police Act 1979 (Cth)[127]. The Supreme Court can make a continuing detention order if "satisfied to a high degree of probability, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious Part 5.3 offence if the offender is released into the community"[128] and if "satisfied that there is no other less restrictive measure that would be effective in preventing the unacceptable risk"[129]. The expression "serious Part 5.3 offence" is defined to mean an offence against Pt 5.3 the maximum penalty for which is seven or more years of imprisonment[130].

    [125]Section 105A.7 of the Criminal Code.

    [126]Section 15C of the Acts Interpretation Act.

    [127]Section 105A.5 of the Criminal Code.

    [128]Section 105A.7(1)(b) of the Criminal Code.

    [129]Section 105A.7(1)(c) of the Criminal Code.

    [130]Section 105A.2 of the Criminal Code.

59. Division 104's insertion in 2005[131] marked a development in Commonwealth legislative practice in that it was the first time that a Commonwealth law made provision for the making by judicial order of "preventative restraints on liberty"[132]. The Division as inserted was held to be compatible with Ch III of the Constitution in Thomas v Mowbray[133].

    [131]Anti-Terrorism Act(No 2)2005 (Cth).

    [132]Thomas v Mowbray (2007) 233 CLR 307 at 330 [18].

    [133](2007) 233 CLR 307.

60. Division 105A's insertion in 2017[134] marked a further development in Commonwealth legislative practice in that it was the first time that a Commonwealth law made provision for a person convicted of an offence to continue to be detained in custody by judicial order after the completion of his or her sentence. The Division was modelled on the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), compatibility of which with Ch III had been upheld in Fardon v Attorney-General (Qld)[135]. 

    [134]Item 1 of Sch 1 to the Criminal Code Amendment (High Risk Terrorist Offenders)Act 2016 (Cth), which relevantly commenced in 2017.

    [135](2004) 223 CLR 575.

61. The question of Div 105A's compatibility with Ch III arose on an application by the Minister for Home Affairs to the Supreme Court of Victoria for a continuing detention order in relation to Mr Benbrika. The question was formally reserved in the Trial Division of the Supreme Court for the consideration of the Court of Appeal and was removed into this Court by order under s 40 of the Judiciary Act 1903 (Cth).

62. The majority in Thomas v Mowbray held that the power to make a control order was judicial power within the meaning of s 71 of the Constitution. That holding was indispensable to the majority's conclusion that Div 104 was compatible with Ch III because the Commonwealth Parliament cannot confer anything but judicial power, or a power incidental to judicial power, in defining the jurisdiction of a federal court under s 77(i) of the Constitution[136].

    [136]R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254, affirmed in Attorney-General(Cth)v The Queen (1957) 95 CLR 529; [1957] AC 288.

63. Division 105A correspondingly can be compatible with Ch III only if, and to the extent that, the power to make a continuing detention order is judicial power within the meaning of s 71 of the Constitution. That is because of a corresponding incapacity of the Commonwealth Parliament to confer anything but judicial power, or a power incidental to judicial power, on a State court through the investiture of federal jurisdiction under s 77(iii)[137] or on a Territory court through the investiture of federal jurisdiction under s 122 of the Constitution[138].

    [137]Queen Victoria Memorial Hospital v Thornton (1953) 87 CLR 144 at 151-152; R v Murphy (1985) 158 CLR 596 at 614-615.

    [138]North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146 at 163 [28]; North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569 at 615 [111].

64. My conclusion is that the power to make a continuing detention order answers the description of judicial power within the meaning of s 71 of the Constitution only to the extent that the "serious Part 5.3 offence" to be prevented by the making of the order involves doing or supporting or facilitating a terrorist act.

65. Explaining how I reach that conclusion, I begin by examining the context and content of the canonical observation in the joint reasons for judgment in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs that, "exceptional cases" aside, "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"[139]. I then set out my understanding of the narrow basis on which the power to order continuing detention conferred by the legislation in issue in Fardon fell within the category of an "exceptional case" and contrast that power with the width of the power to order continuing detention conferred by Div 105A.

    Lim in context

    [139](1992) 176 CLR 1 at 27.

66. Nothing that has a history can be defined. Especially that is so of the concept of judicial power, which has been shown to "defy, perhaps it were better to say transcend, purely abstract conceptual analysis", to "inevitably attract[] consideration of predominant characteristics" and to "invite[] comparison with the historic functions and processes of courts of law"[140].

    [140]R v Trade Practices Tribunal;Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 394.

67. Chapter III's separation of the judicial power of the Commonwealth from the legislative and executive powers of the Commonwealth compels us to recognise "that we have inherited and were intended by our Constitution to live under a system of law and government which has traditionally protected the rights of persons by ensuring that those rights are determined by a judiciary independent of the parliament and the executive"[141]. The historically observed incidents of those separated powers also compel us to recognise that when the Constitution "prescribes as a safeguard of individual liberty a distribution of the functions of government amongst separate bodies, and does so by requiring a distinction to be maintained between powers described as legislative, executive and judicial, it is using terms which refer, not to fundamental functional differences between powers, but to distinctions generally accepted at the time when the Constitution was framed between classes of powers requiring different 'skills and professional habits' in the authorities entrusted with their exercise"[142]. The point is not that the judicial power of the Commonwealth is frozen in time. The point is that contemporary exposition of that judicial power is necessarily informed by traditional practices within historical institutional structures[143].

    [141]R v Quinn; Ex parte Consolidated Foods Corporation (1977) 138 CLR 1 at 11.

    [142]R v Davison (1954) 90 CLR 353 at 381-382.

    [143]cf Palmer v Ayres (2017) 259 CLR 478 at 504 [69]; Vella v Commissioner of Police(NSW) (2019) 93 ALJR 1236 at 1268 [141]; 374 ALR 1 at 40.

68. Our inherited system of law and government has not drawn a rigid distinction between judicial power exercised in a civil proceeding and judicial power exercised in a criminal proceeding[144]. Traditionally, however, an important distinction has been drawn between other exercises of judicial power and the exercise of judicial power that occurs in a proceeding in respect of a matter in which the life or liberty of an individual is put in jeopardy[145]. The importance of the distinction is given prominence within Ch III of the Constitution in the prescription of s 80 that "[t]he trial on indictment of any offence against any law of the Commonwealth shall be by jury". Traditionally, a proceeding on indictment is a proceeding in a matter between the State, represented by the executive, and an individual who is a citizen or subject of the State. The proceeding on indictment is "solemnly determined according to a procedure considered appropriate to the highest crimes by which the State may be affected and the gravest liabilities to which a subject may be exposed"[146].  

    [144]Witham v Holloway (1995) 183 CLR 525 at 534, 549; Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161 at 179 [56], 198-199 [114].

    [145]The Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482 at 516-518 [90]-[93].

    [146]Munday v Gill (1930) 44 CLR 38 at 86.

69. Trial of an individual for an offence at the instigation of the executive, whether by jury or by judge alone, exhibits features recognised in numerous standard descriptions of judicial power to epitomise judicial power and to define its distinctiveness. The judiciary is called on in the trial to hear and authoritatively determine a controversy about an existing liability of the individual which is claimed by the executive to arise solely from the operation of some positive law on some past event or conduct[147]. Judicial determination of the controversy, whether by conviction or acquittal, creates a "new charter" by reference to which the controversy as to the existence or non-existence of the claimed liability of the individual is thereafter taken to be resolved between the State and the individual[148]. Deprivation of the liberty of the individual occurs only if the determination of the controversy is by conviction. Then it occurs only through the judicial pronouncement of a sentence which reflects the penal consequence prescribed by law for the liability determined by the conviction to have arisen from the operation of the positive law on the past event or conduct.

    [147]Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 357; R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 374, 396; Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140 at 148-149; Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 at 188; Ha v New South Wales (1997) 189 CLR 465 at 503-504; Vella v Commissioner of Police(NSW) (2019) 93 ALJR 1236 at 1270-1271 [152]; 374 ALR 1 at 43.

    [148]R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 374. See Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73 at 106; New South Wales v Kable (2013) 252 CLR 118 at 139 [53].

70. Those standard incidents of the exercise of judicial power in the trial of an individual for an offence are "founded on deeply rooted notions of the relationship of the individual to the state going to the character of the national polity created and sustained by the Constitution"[149]. They render "beyond dispute that the power to determine whether a person has engaged in conduct which is forbidden by law and, if so, to make a binding and enforceable declaration as to the consequences which the law imposes by reason of that conduct lies at the heart of exclusive judicial power"[150].

    [149]Magaming v The Queen (2013) 252 CLR 381 at 400 [63].

    [150]Re Nolan; Ex parte Young (1991) 172 CLR 460 at 497. See Waterside Workers' Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434 at 444; Federal Commissioner of Taxation v Munro (1926) 38 CLR 153 at 175; Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 258, 269; Duncan v New South Wales (2015) 255 CLR 388 at 407 [41].

71. The observation in Lim can only be understood in light of those standard incidents of the exclusively judicial function of adjudging and punishing criminal guilt. Although expressed in relation to the position of a "citizen", the observation applies equally to the position of an alien, except perhaps an enemy alien[151]. The opening part of the observation, that detention in custody is to be characterised as "penal or punitive" other than in "exceptional cases", is inextricably linked to the concluding part of the observation concerning the limited means by which involuntary detention of that character is constitutionally permitted to occur. That the detention is in consequence of an exercise of judicial power is not enough. Necessary, other than in "exceptional cases", is that the detention is in consequence of an exercise of judicial power that amounts to performance of "the exclusively judicial function of adjudging and punishing criminal guilt". The observation is not simply as to a division of power, but as to a limitation on power inherent in that division that is protective of liberty.

    [151]Bradley v The Commonwealth (1973) 128 CLR 557 at 582-583; ReMinister for Immigration and Multicultural Affairs; Ex parte Te (2002) 212 CLR 162 at 197-199 [125]-[130].

72. Constitutional assignment of the function of imposing penal or punitive detention exclusively to the judicial power protects liberty by preventing detention in custody at the initiative of the executive other than through the agency of an independent and impartial tribunal according to a procedure that is fair and transparent. Constitutional assignment of that function exclusively to an exercise of judicial power involving adjudgment and punishment of criminal guilt further protects liberty by preventing detention in custody other than as the penal consequence prescribed by law for an existing liability determined to have arisen from the operation of positive law on past events or conduct.

215. In Fardon[437], Gummow J sought to reformulate the Lim principle as one based on individual liberty in which, subject to exceptions, "the involuntary detention of a citizen in custody by the State is permissible only as a consequential step in the adjudication of criminal guilt of that citizen for past acts". Mr Benbrika relied upon this formulation. There is, however, insufficient constitutional foundation to expand the Lim principle from one which is concerned with the separation of powers to one which is also founded upon the liberty of the individual and is a substantive constraint upon all legislative, executive, and judicial power.

     [437](2004) 223 CLR 575 at 612 [79]-[80].

216. For better or for worse, every day every branch of government exercises power which deprives people of their liberty of action. In some circumstances, the deprivation of a person's liberty might be slight. An example is laws that prevent a person driving through a red light at an intersection. In other circumstances, the deprivation might be more substantial. An example is the inability during a pandemic to leave one's premises to engage in many of the usual activities of life. The involuntary detention of a person in custody is one of the most extreme constraints upon liberty but, apart from considerations founded upon separation of powers or pertaining to the nature of judicial power, there has never been any independent constitutional principle of individual liberty that denies to the State the power to implement a policy choice that deprivation of liberty is required for an orderly society.

217. From a libertarian perspective, the creation of new constitutional restraints upon power to detain a person in order to ensure their liberty might be laudable. But constitutional implications to protect liberty must be based upon the text and structure of the Constitution. However desirable such implications might be thought to be, they cannot be superimposed without constitutional foundation[438]. Moreover, even as a matter of superimposed policy, it is hard to see why such an implication should be limited only to full‑time detention in the custody of the State. Why should the same protection of liberty not extend also to a regime of "periodic detention" in the custody of the State? Why should it not extend also to periods of home detention or detention at places outside a custodial institution? And why should the implication be limited to detention when non-custodial measures, such as sweeping control orders, could involve a greater overall restraint upon liberty than a short period of detention?

     [438]Gerner v Victoria (2020) 95 ALJR 107 at 111 [14].

218. The creation of a new implication that constrains the power of all branches of government to restrict a person's liberty by detention would also be subject to so many exceptions, which are neither "clear nor within precise and confined categories"[439], as to deny any coherence to the rule. The exceptions would include disparate circumstances such as the following[440]: detention to protect the community from threatened harm by persons with contagious diseases or chemical, biological and radiological emergencies; detention of persons with mental illnesses or in need of drug treatment even where those persons pose no threat of harm to anyone other than themselves; the detention of aliens pending deportation where no harm to the community would be involved at all because the detained aliens pose no threat of any harm to anyone; and the refusal of bail for a person who poses no threat of reoffending but who might abscond.

     [439]Kruger v The Commonwealth (1997) 190 CLR 1 at 110. See also Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2004) 219 CLR 486 at 499 [20].

     [440]See also the legislation referred to in Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 654 [217].

219. Even if the focus of the proposed new implication were confined to judicial power – an implication that, subject to exceptions, detention could only be ordered as a consequential step in the adjudication of criminal guilt of that citizen for past acts – such an implication would likely recognise so many varied and diverse historical exceptions that the implication would lack coherence. The exceptions on historical grounds could include: judicial orders committing a person to an institution to be detained on the ground of insanity or mental illness[441]; judicial orders for arrest and detention pending extradition[442]; judicial orders detaining a person by refusal of bail pending trial[443]; judicial orders detaining particular debtors who were in default[444]; and judicial orders detaining inebriates[445].

     The boundaries of judicial power

     [441]See Williamson v Brown (1914) 18 CLR 433, considering s 6 of the Lunacy Act 1898 (NSW). See also Lunacy Act 1890 (Vic) (54 Vict No 1113), ss 4, 9; The Lunatics Act 1865-6 (SA) (29 Vict No 19), ss 6, 7; The Lunacy Act 1871 (WA) (34 Vict No 9), ss 11, 12, 38; The Insane Persons' Hospitals Act 1858 (Tas) (22 Vict No 23), s 13.

     [442]See Extradition Act 1988 (Cth), ss 12, 15. See, earlier, The Extradition Act 1870 (Imp) (33 & 34 Vict c 52), ss 8, 10; Extradition (Foreign States) Act 1966 (Cth), ss 16, 17.

     [443]Blackstone, Commentarieson the Laws of England (1769), bk 4, ch 22 at 293-294.

     [444]Judgment Creditors' Remedies Act 1901 (NSW), ss 19-22; The Debtors Act 1870 (Tas) (34 Vict No 33), s 4. See also R v Wallace; Ex parte O'Keefe [1918] VLR 285, considering the Imprisonment of Fraudulent Debtors Act 1915 (Vic).

     [445] Inebriates Act 1900 (NSW), s 1; Inebriates Act 1890 (Vic) (54 Vict No 1101), ss 8, 9. See also Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 590 [13].

     The form of judicial power is not limited to adjudication of existing rights and obligations

220. Mr Benbrika submitted that the power to make a continuing detention order is not judicial as it involves the determination of new rights and obligations, as opposed to the determination of existing rights and obligations having regard to past events. The latter is certainly the most common feature of power that is judicial in form. The most famous expression of judicial power, by Griffith CJ, focuses upon a tribunal being called upon to give a decision concerning "controversies between its subjects, or between itself and its subjects"[446], which, as Kitto J has explained, generally involve "a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons"[447]. But while such statements aim to describe "what lies at the very centre of judicial power"[448], they are neither exclusive nor exhaustive statements of judicial power[449].

     [446]Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 357.

     [447]R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 374, quoted in R v Ludeke; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation (1985) 159 CLR 636 at 655.

     [448]R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 307.

     [449]R v Davison (1954) 90 CLR 353 at 366-367. See also Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 at 188-189.

221. It would be a flawed approach to constitutional interpretation to give the fluid concept of judicial power an essential meaning that is "cribbed, cabined and confined"[450] at a low level of generality closely associated with resolving controversies about rights and obligations. One reason this would be flawed is that this definition would exclude exercises of power, contemporary in 1901, involving the creation of rights and obligations by reference to a status such as in cases of matrimonial causes, bankruptcy, probate, and the winding up of companies[451]. Another reason is that it would exclude exercises of power, again contemporary in 1901, involving exposure of a party to a new liability such as an order to make discovery or to give an account[452]. Even more fundamentally, the fluidity of the concept of judicial power requires any attempt at essential meaning to be at a high level of generality. As Sawer wrote[453]:

     "[T]he delimitation of the frontiers of judicial power for the purpose of applying Chapter 3 of the Constitution is never likely to be reduced to a deductive system of propositions. Like so many other questions of constitutional law, its solution requires judicial statesmanship in which questions of expediency and the adjustment of governmental methods to the changing needs of a complex society must play a large part."

     [450]Mason, "Foreword", in Lindell, Cowen and Zines's Federal Jurisdiction in Australia, 4th ed (2016) v at vi. See Shakespeare, Macbeth, act III, scene 4.

     [451]Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 597 [34]; Thomas v Mowbray (2007) 233 CLR 307 at 328 [15]-[16]; Attorney-General (NT) v Emmerson (2014) 253 CLR 393 at 430‑431 [57].

     [452]  Bell Lawyers Pty Ltd v Pentelow (2019) 93 ALJR 1007 at 1029 [95]; 372 ALR 555 at 579.

     [453]Sawer, "The Judicial Power of the Commonwealth" (1948) 1 University of Western Australia Annual Law Review 29 at 29.

     Judicial power must be exercised judicially

222. It is not enough to satisfy the requirements of Ch III of the Constitution that a power conferred upon a court is judicial in form. Apart from matters incidental to the power, it must also only be exercisable judicially. Mr Benbrika submitted that the exercise of judicial power to punish a person by involuntary detention is impermissible where the detention is "divorced from the judgment of guilt because it is prospective". Although Mr Benbrika did not articulate precisely why punishment of a person for something they have not done, but might do, was contrary to the requirements for judicial power, the basis for the submission must lie in the individual injustice that arises from a continuing detention order made under s 105A.7 which, the submission assumed, would require the exercise of that power in an unjudicial manner. The use of a judicial power to impose further detention as protective punishment beyond that which Parliament has assessed as deserved for the offence is unjust from the perspective of the individual. The individual experiences the order as punishment that they do not deserve for something that they have not done. As Ashworth and Zedner have observed, the logic of protective punishment[454] "applies without respect for whether the subject is a responsible agent or not"[455].

     [454]Described by the authors as "punitive-preventive" measures: Ashworth and Zedner, Preventive Justice (2014) at 16.

     [455]Ashworth and Zedner, Preventive Justice (2014) at 19.

223. Consistently with the imprecision in any essential meaning of judicial power, the boundary at which the exercise of judicial power becomes unjudicial is also imprecise and elastic. But "[e]lasticity has not meant that what is of the essence of the judicial function may be destroyed"[456]. In different contexts, such as where judicial power is conferred without a duty to give reasons for decision on important issues[457] or arguably some instances where judicial power is to be exercised without key elements of procedural fairness[458], the assessment of when judicial power is exercised unjudicially, or contrary to the essence of the judicial function, will involve different considerations.

     [456]In re Richardson (1928) 160 NE 655 at 657. See Hilton v Wells (1985) 157 CLR 57 at 82; Grollo v Palmer (1995) 184 CLR 348 at 364; Wainohu v New South Wales (2011) 243 CLR 181 at 202 [30].

     [457]See Wainohu v New South Wales (2011) 243 CLR 181 at 213‑215 [54]-[58], 228 [104].

     [458]See Leeth v The Commonwealth (1992) 174 CLR 455 at 469‑470; International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319 at 354-355 [54]-[56], 379-380 [141].

224. The individual injustice of a continuing detention order is insufficient to make the manner of exercise of the relevant power unjudicial. The manner of exercise of judicial power does not cease to be judicial merely because that exercise would cause injustice from an individual perspective. Judicial power, and justice, also operate at a broader level of giving effect to the policy of Parliament as reflected in legislative purpose. But when considered from the perspective of both the individual and the legislative purpose then, almost by definition, power cannot be exercised judicially if its exercise would always cause injustice and if the power lacks justification.

225. The approach taken in the joint judgment in Lim when considering whether detention of aliens by the Executive was "justified by valid statutory provision"[459] was that detention would be punitive and invalid if it was not "limited to what is reasonably capable of being seen as necessary" for the purposes of deportation or processing of an entry permit[460]. And, as to the exercise of judicial power, as Gummow J observed in Fardon[461], the majority judgments in Kable v Director of Public Prosecutions (NSW)[462], to varying degrees, accepted the submission that the relevant Act, which was held to be invalid, was "not a carefully calculated legislative response to a general social problem".

     [459](1992) 176 CLR 1 at 19.

     [460](1992) 176 CLR 1 at 33.

     [461](2004) 223 CLR 575 at 614-615 [91].

     [462](1996) 189 CLR 51.

226. As an issue separate from the characterisation of the type of power involved[463], this "reasonable necessity" or "carefully calculated legislative response" approach to justification of the exercise of judicial power can be expressed with additional transparency by the more common explication of these concepts through a form of structured proportionality analysis. On that approach, protective punishment will be unable to be justified in two circumstances: (i) where the purpose of the protective punishment could easily be met to the same extent by reasonable alternatives, such as less restrictive control orders, which could achieve the statutory purpose without the extreme constraint upon liberty of detention; and (ii) where the purpose for the protective punishment, assessed primarily by reference to the importance placed upon that purpose by Parliament[464], is so slight or trivial that it cannot justify detention of an individual. As with other instances where structured proportionality applies, and subject to reading down, severance, or disapplication[465], it will only be in extreme cases that justification will fail on this latter basis: the very integrity and impartiality of the courts which the principle protects would be seriously impaired if the judiciary could generally refuse to implement statutory provisions on the grounds of an objection to legislative policy[466].

     [463]Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 at 343-344 [27]-[32].

     [464]Compare Clubb v Edwards (2019) 267 CLR 171 at 343-344 [496].

     [465]Acts Interpretation Act, s 15A.

     [466]Vella v Commissioner of Police (NSW) (2019) 93 ALJR 1236 at 1244-1245 [24]; 374 ALR 1 at 8, quoting Fardon v Attorney‑General (Qld) (2004) 223 CLR 575 at 593 [23].

227. An example of the first circumstance of lack of justification, in the different context of the fourteenth amendment due process limits to the exercise of judicial power in the United States, is the decision of Stevens J in BMW of North America Inc v Gore[467]. With the concurrence of four other members of the Supreme Court of the United States, Stevens J denied the power to make judicial awards that are "grossly excessive" in relation to the State's legitimate interests in punishing unlawful conduct and deterring its repetition[468]. As to the second circumstance where justification will not be established, an extreme example, which has been described as "difficult to defend" in the United States and which might equally face difficulty in Australia, may be life preventive detention, without further review, after a sentence is served for a third minor fraud offence[469].

     [467](1996) 517 US 559.

     [468]BMW of North America Inc v Gore (1996) 517 US 559 at 568.

     [469]See Robinson, "Punishing Dangerousness: Cloaking Preventive Detention as Criminal Justice" (2001) 114 Harvard Law Review 1429 at 1456.

228. Mr Benbrika approached the question of justification by reference to different criteria. In the context of a submission concerning whether s 105A.7 could be justified if it did not have a punitive character, Mr Benbrika submitted that justification required a purpose to prevent harm rather than to prevent crime. This approach to justification should not be accepted. It would depart from longstanding and fundamental premises of our criminal system: "conduct is regarded as criminal for the very reason that its commission harms society, or some part of it"[470] and it is rarely the role of a court to second-guess Parliament's decision about the seriousness of the harm that various crimes will have to the community.

     [470]  McGarry v The Queen (2001) 207 CLR 121 at 129 [20].

229. An example can illustrate the difficulty of Mr Benbrika's approach, which would have the courts reassess Parliament's assumption that a serious Pt 5.3 offence always has the potential to involve harm to the community so as to warrant continuing detention in cases where the likelihood of committing a serious Pt 5.3 offence is sufficiently high and the consequences of the offence involve sufficient threat to "the safety and protection of the community" as to make the risk of committing the offence "unacceptable". The example is the offence contained in s 101.4(1) in Pt 5.3, punishable by up to 15 years' imprisonment, of possessing a thing connected with preparation for, the engagement of a person in, or assistance in a terrorist act where the person in possession knows of that connection. When that offence was first introduced into Parliament, it was proposed as one of absolute liability with a penalty of a maximum term of life imprisonment[471], although the mental element was introduced following a report by the Senate Legal and Constitutional Legislation Committee[472]. Mr Benbrika's submission effectively invites this Court to conclude that, even when committed with the required mental element of knowledge of the connection with terrorism, Parliament erred by treating such conduct as always having the potential to involve harm to the community so as to empower continuing detention in cases involving relevantly "unacceptable" risk. This is so despite that conduct being connected with action which strikes at the heart of a civilised society, involving advancing a political, religious or ideological cause by intimidation or coercion, and excluding reasons of advocacy, protest, dissent or industrial action unless the action is intended to cause various types of serious harm to people.

     [471]Security Legislation Amendment (Terrorism) Bill 2002, Sch 1, item 4.

     [472]Parliament of Australia, Senate Legal and Constitutional Legislation Committee, Consideration of Legislation Referred to the Committee: Security Legislation Amendment (Terrorism) Bill 2002 [No 2], Report (May 2002) at 40-45 [3.81]‑[3.100].

230. An approach which asserts that the commission of any serious Pt 5.3 offences is not sufficient to empower a continuing detention order in appropriate cases is also inconsistent with this Court's decision in Fardon, which upheld the validity of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). That regime empowered continuing detention orders to be made against a person serving a term of imprisonment for the commission of a "serious sexual offence", which was defined in the Schedule to the Act in terms which, irrespective of circumstances, extended to all offences of a sexual nature committed involving violence or against children. The definition of "serious sexual offence" contained in the Schedule has since been amended also to include offences of a sexual nature "against a person, including a fictitious person represented to the prisoner as a real person, whom the prisoner believed to be a child under the age of 16 years". Notwithstanding the vast range and "spectrum of conduct"[473] involved in the included sexual offences, this Court in Fardon quite rightly did not second-guess Parliament's conclusion that all such offences could potentially involve harm to the community sufficient to permit consideration of a continuing detention order. It is hard to see why such an approach should be apt for sexual offences but not for offences of terrorism. This is particularly so in circumstances where the statutory scheme in Fardon provided for continuing detention orders to be ordered in relation to the risk of the commission of offences that are subject to any term of imprisonment, a power which contrasts with Div 105A, where a continuing detention order can be ordered only in relation to the risk of the commission of offences which carry sentences, none of which any party suggested to be contrived, that must be, at a minimum, seven years' imprisonment.

     [473]CTM v The Queen (2008) 236 CLR 440 at 450 [16].

231. Mr Benbrika's submission that the judiciary should draw a distinction, independently of the purpose of Parliament, between those crimes the commission of which will always involve harm to the community and those crimes which will not always do so has a strong resonance with Blackstone's distinction between those serious crimes and misdemeanours that are naturally wrongful, mala in se, and those that are only wrongful because Parliament has forbidden them, mala prohibita, "for promoting the welfare of the society, and more effectually carrying on the purposes of civil life"[474]. The classification of those wrongs that are naturally wrongful, causing harm between people, and those that are not, has always been fraught with difficulty. For instance, serious offences such as robbery and burglary for which sentences even at Federation could still deprive people of their lives and not merely their liberty[475] were considered at one point by Blackstone not to be "offences against natural, but only against social, rights"[476]. The distinction was described by Bentham as "being so shrewd and sounding so pretty" but having no meaning[477]. By 1822, Best J described the distinction as "long since exploded"[478] and much later, in this Court, Brennan J described the distinction as "discarded"[479]. Whatever the merits of the distinction elsewhere, it is not a basis for discerning whether the exercise of the judicial power of the Commonwealth to detain is justified or not.

     Division 105A creates judicial power to be exercised judicially

     [474]Blackstone, Commentarieson the Laws of England (1765), bk 1, Introduction at 54‑55.

     [475]Crimes Act 1890 (Vic) (54 Vict No 1079), ss 111, 122; The Criminal Law Consolidation Ordinance 1865 (WA) (29 Vict No 5), s 4.

     [476]Blackstone, Commentarieson the Laws of England (1769), bk 4, ch 1 at 9.

     [477]Bentham, A Comment on the Commentaries: A Criticism of William Blackstone's Commentaries on the Laws of England (1928), Section VIII at 80.

     [478]Bensley v Bignold (1822) 5 B & Ald 335 at 340-341 [106 ER 1214 at 1215-1216].

     [479]He Kaw Teh v The Queen (1985) 157 CLR 523 at 579.

     Division 105A involves power that is judicial in form

232. Mr Benbrika pointed to two aspects of the power to make a continuing detention order under Div 105A that, in his submission, supported the conclusion that the form of the power is not judicial: it creates new rights rather than determining existing rights or obligations; and it lacks the conclusiveness that attends an exercise of the judicial power of the Commonwealth because it is subject to continuing review which depends on an application for that review by the Minister[480]. As explained above, particular indicia such as these are not conclusive. In a different context, the failure of a power to determine existing rights or obligations or the involvement of the Executive might support a conclusion that the power is not, in form, judicial. But other significant aspects of Div 105A point powerfully to the judicial character of the power.

     [480]Criminal Code, s 105A.10(4).

233. First, the conferral on a court of the power to make a continuing detention order founds an inference that the power is a judicial power[481]. This inference is all the more compelling since the subject matter of the power to detain is analogous to traditional criminal punishment, which has long been accepted to be the exclusive province of the judiciary, and since the power is to be exercised, as described below, with the usual incidents of a judicial exercise of power. Secondly, as was explained in the joint judgment in Vella[482], although preventive justice powers might be enacted with considerable judicial latitude to develop governing principles within open-textured criteria, the development of the scope of judicial power in this epexegetical manner is consistent with history, authority, and principle and the approach of balancing matters including magnitude and likelihood of risk is an exercise in which courts engage nearly every day[483]. Finally, even if there were doubt about whether the making of continuing detention orders by courts involved an exercise of judicial power, historical considerations would provide confirmation[484]. Since the 14th century, preventive order regimes such as binding over orders, writs of supplicavit, and injunctions to restrain the commission of criminal acts and public wrongs have all been part of the exercise of judicial power[485].

     The judicial power to make a continuing detention order is required by Div 105A to be exercised judicially

     [481]R v Spicer; Ex parte Australian Builders' Labourers' Federation (1957) 100 CLR 277 at 305; Thomas v Mowbray (2007) 233 CLR 307 at 341 [59].

     [482](2019) 93 ALJR 1236 at 1257-1260 [82]-[90]; 374 ALR 1 at 25-28.

     [483](2019) 93 ALJR 1236 at 1259 [88]; 374 ALR 1 at 27-28.

     [484]TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia (2013) 251 CLR 533 at 574 [105], quoting R v Davison (1954) 90 CLR 353 at 382.

     [485]Vella v Commissioner of Police (NSW) (2019) 93 ALJR 1236 at 1257 [83]; 374 ALR 1 at 25.

234. There are many aspects of Div 105A that require that the judicial power in s 105A.7 be exercised in a judicial manner. The formal hearing is conducted according to established and accepted judicial methods[486]. Civil rules of evidence and procedure generally apply[487]; rules of procedural fairness are expressly or impliedly required[488]; provision is made for financial assistance to obtain legal representation[489]; reasons are required for decision[490]; and rights of appeal are created[491]. However, Mr Benbrika submitted that the power to make a continuing detention order would not be exercised in a judicial manner, and hence could not be conferred by the Commonwealth Parliament consistently with Ch III of the Constitution, because it involves the imposition of criminal punishment but not in the traditional category of a response to an anterior finding of criminal guilt. As explained above, this submission is too blunt. Although the judicial power of the Commonwealth contemplated by Ch III of the Constitution concerns power that must be exercised judicially, this does not preclude a court from making orders that impose an injustice upon an individual where that injustice is justified by the purpose of Parliament.

     [486]See Thomas v Mowbray (2007) 233 CLR 307 at 335 [30], 508 [598]-[599]; New South Wales v Kable (2013) 252 CLR 118 at 132 [27].

     [487]Criminal Code, ss 105A.13, 105A.14.

     [488]See, eg, Criminal Code, s 105A.14.

     [489]Criminal Code, s 105A.15A.

     [490]Criminal Code, s 105A.16. See Wainohu v New South Wales (2011) 243 CLR 181 at 225 [92].

     [491]Criminal Code, s 105A.17.

235. Division 105A of the Criminal Code is not unjustified on the basis that Parliament's purpose in empowering continuing detention orders by s 105A.7 could easily be met to the same extent by reasonable, less restrictive alternatives. The regime of continuing detention of serious sexual offenders that was considered in Fardon permitted a "lesser option"[492] of conditional release under a "supervision order". The terrorism regime in Div 105A goes further. It expressly requires, before a continuing detention order can be made under s 105A.7(1), that the court is satisfied that there is "no other less restrictive measure that would be effective in preventing the unacceptable risk" of the terrorist offender committing a serious Pt 5.3 offence.

     [492](2004) 223 CLR 575 at 619 [109].

236. Further, as explained above, the proper interpretation of s 105A.7(1) requires the judicial assessment of whether the risk of commission of a serious Pt 5.3 offence is "unacceptable" to take into account both the likelihood of the risk and the magnitude of the harm to the community, including by the mandatory consideration of "the safety and protection of the community"[493]. The alternative interpretation contemplated by Mr Benbrika, which ignores the magnitude of harm in an attempt to find invalidity, is not reasonably open[494]. And even if it were open it would be an example of an approach to interpretation deprecated by this Court as one of "mutilating narrowness"[495].

     [493]Criminal Code, s 105A.8(1)(a).

     [494]cf Vella v Commissioner of Police (NSW) (2019) 93 ALJR 1236 at 1249 [51]; 374 ALR 1 at 15.

     [495]Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629 at 644 [28], quoting United States v Hutcheson (1941) 312 US 219 at 235.

237. Nor can it be said that Div 105A is unjustified because the extreme restraint on liberty of a continuing detention order under s 105A.7 could be made for slight or trivial reasons. The legislative purpose, enunciated in s 105A.1, of providing for the possibility of continuing detention for those who pose an unacceptable threat of committing serious Pt 5.3 offences is one which concerns the protection of the community from offences which can be aimed at the very destruction of civilised society. The Commonwealth Parliament treated this as a purpose of great importance and no submission was made to suggest the contrary. Weighed against the importance of this purpose, Div 105A imposes a serious constraint on liberty by protective punishment but Div 105A also places limits upon the protective punishment of the continuing detention order. The maximum term of an initial continuing detention order is three years[496]. Reviews of the order are required at least on an annual basis[497]. And the terrorist offender can apply for a review of the order if there are new facts or circumstances which would justify the review or if a review would be in the interests of justice having regard to the purposes of the order and the manner and effect of its implementation[498].

     [496]Criminal Code, s 105A.7(5).

     [497]Criminal Code, s 105A.10.

     [498]Criminal Code, s 105A.11.

238. Finally, it should be noted that Mr Benbrika's submissions were premised upon the assumption that the protective punishment occasioned by a continuing detention order against him would arise from the order of a court. Mr Benbrika made no submission that the retrospective operation of Div 105A upon him, insofar as the regime of continuing detention applied to offenders like him whose offences were committed prior to its enactment, meant that the regime imposed punishment by the Commonwealth Parliament. A significant obstacle to such a submission in this case, as in Fardon, would be that the legislation created only the liability for protective punishment and that the form of protective punishment created was primarily forward-looking to Mr Benbrika's circumstances in the final 12 months of his sentence.

     Conclusion

239. As these reasons have explained, in answering the question reserved, namely whether all or any part of Div 105A is invalid for the reasons asserted, "deception or false labelling"[499] should be avoided and it should be recognised that a continuing detention order under s 105A.7 is within the category of "punishment" in a broad sense as contemplated by the joint judgment in Lim. But, howsoever described, the issues anterior to the question reserved are: (i) is the power in s 105A.7 of a nature that is exclusively judicial? If so, and in order for the conferral of power to be valid, (ii) has the power been conferred only upon the judiciary in the form of judicial power? and (iii) is the power to be exercised only judicially? The answers to these questions are "yes", "yes", and "yes". For these reasons the question reserved should be answered "no".

     [499]Husak, "Preventive Detention as Punishment? Some Possible Obstacles", in Ashworth, Zedner and Tomlin (eds), Prevention and the Limits of the Criminal Law (2013) 178 at 179.

240. Mr Benbrika sought to make further submissions concerning costs in light of this Court's reasons for decision if the question were answered adversely to him. It appears that he had in mind submissions concerning provisions such as s 105A.15A and protective costs orders that were made in his favour in the Supreme Court of Victoria. I would have granted him that liberty. But in the absence of that liberty, and hence without considered submissions by Mr Benbrika concerning any connection between, on the one hand, the reasons given by this Court and, on the other hand, the issues in the proceedings heard in the Supreme Court of Victoria and costs orders in that Court, the usual order as to costs should be made requiring Mr Benbrika to pay the costs of the applicant.