Convicted terrorist Abdul Nacer Benbrika has won a High Court challenge to keep his Australian citizenship after the High Court ruled against its cancellation. Mr. Benbrika was convicted of terror offences in 2008 for planning to bomb Australian landmarks in Victoria. Despite being due for release in 2020, he remained in detention after then-Home Affairs Minister Peter Dutton revoked his citizenship. Under a controversial law, the home affairs minister has the power to revoke an Australian’s citizenship if they have been convicted of terror offences and “demonstrate repudiation of allegiance to Australia.”
In a 6-1 split, the High Court determined that Mr. Dutton’s decision was invalid as it violated the Constitution by effectively giving the Commonwealth judicial powers. This ruling means that Mr. Benbrika could be released into the community within the next eight weeks. If he had lost the case, he would have been at risk of deportation. The judgment stated, “The Commonwealth parliament cannot repose in any officer of the Commonwealth executive any function of sentencing persons convicted … of offences against Commonwealth laws.” It also argued that the Commonwealth parliament cannot vest in any officer of the Commonwealth executive the power to impose additional or further punishment.
However, Justice Simon Steward disagreed with the ruling, contending that the cancellation of citizenship in cases where a person repudiates their allegiance to Australia is not a form of punishment. He stated, “Rather, cancellation of citizenship is a recognition that by extreme conduct, that person has inexorably separated themselves from the people as a community and from Australia itself.”
In a separate case before Victorian courts, the Commonwealth acknowledged that it could not meet the threshold to keep Mr. Benbrika in jail after his sentence was served. Mr. Benbrika’s current detention order expires on December 23, and a decision on whether to extend the order or release him on a supervision order is being reserved by a Victorian judge.
Acting opposition leader Sussan Ley stated that the Coalition had acted on the best advice when initially drafting the laws. She emphasized that the focus should not be on debating whether better legislation could have been drafted, but rather on subjecting themselves to the High Court ruling. Ms. Ley reiterated, “Mr. Benbrika is a convicted terrorist, and remember, he did plan to conduct violent attacks against Australians on Australian soil.” She called for parliament to enact legislation to resolve the situation and prevent the restoration of Mr. Benbrika’s citizenship.
Under section 36D of the Australian Citizenship Act 2007 (Cth), the Home Affairs minister can extend a convicted terrorist’s sentence by at least three years if they demonstrate repudiation of allegiance to Australia. Home Affairs Minister Clare O’Neil has indicated her intention to introduce new laws to strip dual citizens involved in terrorist acts, such as Mr. Benbrika. Prime Minister Anthony Albanese stated that his government would seek advice on the implications of the High Court decision and respond accordingly.
Constitutional lawyer George Williams hailed the High Court ruling as a vindication of the separation of powers in Australia. He emphasized that it is the role of the courts, not politicians, to judge guilt and impose criminal punishment. Williams argued that the law violated this principle by allowing a minister to impose the additional punishment of citizenship revocation.
In 2005, Algerian-born Mr. Benbrika was arrested and charged with plotting to attack Melbourne landmarks, including the AFL grand final at the MCG. He was later convicted for being a member of a terrorist organization and for directing its activities. Mr. Benbrika had also called on his followers to kill at least 1,000 non-believers to pressure the Australian government to withdraw troops from Iraq and Afghanistan.