Minister for Home Affairs v Benbrika
High Court of Australia · 2021
Minister for Home Affairs v Benbrika [2021] HCA 4
A man had served his full sentence for terrorist offences. A federal law let a state Supreme Court order him held in prison for a further period because of what he might do. Could a court be given that power at all?
YBFZ concerned a regulation requiring monitoring and curfew conditions on a bridging visa and was decided by five Justices to two. Gageler CJ, Gordon, Gleeson and Jagot JJ, in joint reasons that do not mention Benbrika, said that a power of prima facie punitive character is non-punitive if it is reasonably capable of being seen to be necessary, in the sense of reasonably appropriate and adapted, for a legitimate and non-punitive purpose ([18]), and that protection of any part of the Australian community from harm, "a purpose expressed at that level of generality, is not a legitimate non-punitive purpose for Ch III" ([82]). They added that where the Court has accepted protection of the community from the harm of criminal offending as a legitimate non-punitive purpose for a Commonwealth law authorising imprisonment, the harm was a more specific one, such as the harm caused to the community by terrorism ([82]). The level of generality at which the protected harm is stated therefore matters when Benbrika is relied on for protective purpose. Edelman J, in separate reasons, said that the joint judgment in Benbrika was wrong to treat punishment and prevention as separate categories ([130]-[132]).
In EGH19 v Commonwealth of Australia [2026] HCA 7, on monitoring and curfew conditions on bridging visas, decided in six separate judgments, Gageler CJ and Gleeson J described Thomas v Mowbray and Benbrika as the two cases in which a Commonwealth law authorising preventive restrictions on liberty outside the exclusively judicial function of adjudging and punishing criminal guilt had been held reasonably capable of being seen as necessary for a legitimate and non-punitive purpose, each pursuing its purpose by conferring federal jurisdiction on a court to order the restrictions in the exercise of judicial power ([24]). Edelman J said that there are two grave difficulties with the reasoning of the joint judgment in Benbrika: the category error of a strict dichotomy between punishment and protection, and the notion of an "allied Lim principle" ([192]). Steward J, who was one of the joint judgment in Benbrika and dissented in EGH19, said that Benbrika and Garlett v Western Australia, "whilst not formally overruled, would now appear to have been effectively diluted, or at least re-explained" ([225]). The observations on Benbrika's reasoning in this case are those of Edelman J and Steward J, each separately.
What happened?
Abdul Nacer Benbrika was convicted by the Supreme Court of Victoria on 15 September 2008 of intentionally being a member of a terrorist organisation and of intentionally directing the activities of a terrorist organisation ([3]). He was sentenced to an effective term of 15 years' imprisonment with a non-parole period of 12 years, was not granted parole, and his sentence expired on 5 November 2020 ([4]). On 4 September 2020 the Minister for Home Affairs applied in the Supreme Court of Victoria for a continuing detention order under Div 105A of the Criminal Code (Cth) and an interim detention order. Tinney J made an interim detention order on 27 October 2020 and, on 24 December 2020, an order that Mr Benbrika be subject to a continuing detention order in force for three years ([4]).
Division 105A lets the Supreme Court of a State or Territory, on the Minister's application, order that a convicted terrorist offender be detained in prison after the sentence expires, if the Court is satisfied to a high degree of probability, on admissible evidence, that the offender poses an unacceptable risk of committing a serious Pt 5.3 offence if released, and that no other less restrictive measure would be effective in preventing that risk ([10]). The order is for no more than three years, and is reviewed annually ([10], [12]).
On 2 October 2020 Mr Benbrika applied for a question to be reserved for the Court of Appeal of the Supreme Court of Victoria. Tinney J reserved it on 8 October 2020, and on 30 October 2020, on the application of the Attorney-General of the Commonwealth, it was removed into the High Court ([5]-[6]). It asked whether all or any part of Div 105A was invalid because the power to make a continuing detention order was not within the judicial power of the Commonwealth and had been conferred on the Supreme Court of Victoria, among others, contrary to Ch III ([5]).
What did the Court decide?
The question reserved was answered "No", and Mr Benbrika was ordered to pay the Minister's costs (orders; [53]). Five of the seven Justices joined in that answer. Gageler J and Gordon J would have answered differently ([102], [109]).
Proposition
What is the principle?
By a majority of five Justices to two, the High Court answered No to the question whether all or any part of Div 105A of the Criminal Code (Cth) is invalid because the power to make a continuing detention order, conferred on the Supreme Court of a State or Territory, is not within the judicial power of the Commonwealth (orders). Kiefel CJ, Bell, Keane and Steward JJ, in joint reasons, rejected the argument, which adopted Gummow J's reasons in Fardon, that a scheme of preventive detention of the kind considered in Fardon is not an exception to the Lim principle and for that reason cannot be conferred as federal judicial power ([15]-[16]). They noted that Gummow J, with whose reasons in this respect Kirby J agreed, was the only member of the Court in Fardon to express a concluded view on the Commonwealth's submission that the function could be conferred under Commonwealth law ([23]), and that 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 exception analogous to the detention of those suffering from mental illness or infectious disease ([32]). They held that it is the protective purpose that qualifies a power as an exception to the Lim principle, that demonstration that Div 105A is non-punitive is essential but does not suffice, and that as a matter of substance the power must have as its object the protection of the community from harm ([36]). They found that Div 105A has an evident non-punitive, protective purpose ([40]) and 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 ([47]). Their Honours said that the answer to the question reserved did not require consideration of the scope of the exceptions to the Lim general proposition, because Div 105A confers power on a Ch III court ([28]); that the question did not raise the Kable limitation, if any, on conferring on a State or Territory court the function of ordering detention in circumstances that do not fall within an exception to the Lim principle ([35]); and that it was unnecessary to consider the Commonwealth's submission that New South Wales v Kable is determinative of Parliament's capacity to empower a court exercising federal judicial power to order detention on that basis ([48]).
Three Justices wrote separately, and their reasons are not the reasons of the Court. Edelman J also answered No, but described a continuing detention order as a form of "protective punishment" falling within the category of punishment in the broad sense contemplated by the joint judgment in Lim and so within the sphere of power that is exclusively judicial ([182], [239]). His Honour said it is a category error to reason that Div 105A is not punitive because it aims to protect the community by preventing the commission of offences ([183]), and held that the power is judicial in form, is to be exercised judicially, and is justified ([185], [233]-[237], [239]). Gageler J would have answered that Div 105A is not wholly compatible with Ch III ([102]). His Honour considered Gummow J wrong to reject the Commonwealth's argument in Fardon, on the limited basis that a power to order continuing detention under the Fardon regime could have been conferred as part of the judicial power of the Commonwealth ([85]-[88]). He saw the difficulty with Div 105A in the lack of close correspondence between the non-punitive objective of protecting against terrorist acts and the immediate statutory object of preventing serious Pt 5.3 offences ([95]), and said that compliance with the principle in Lim requires that a line be drawn ([100]). Gordon J would have answered that Div 105A is wholly invalid ([109]) because it is not sufficiently tailored to its stated purpose to be an exercise of Commonwealth judicial power, its criteria being too broad ([175], [177]); her Honour found it unnecessary to decide whether there should be a new exception to the Lim principle for judicially ordered preventative detention to protect the public from serious harm of the kind described in the definition of a terrorist act ([177]). Her Honour said that the Court did not decide in Fardon whether a law of that kind would be valid if made by the Commonwealth Parliament ([155]), and that to contend that a task which would not impair the integrity of a State court can for that reason be given to a federal court inverts established doctrine ([159]).
Why does this case matter?
Benbrika is the case an examiner sets when a problem puts a post-sentence detention scheme in a Commonwealth statute rather than a State one, and an answer built on Fardon alone treats the two settings as the same. A second source of lost marks is attribution: seven Justices sat, four sets of reasons were written, and the Justices who agreed on the answer did not all reason alike, so a sentence taken from the case needs its author.
Exam and application relevance
Begin with the question the case asked, which the joint reasons put as whether a State or Territory Supreme Court may commit a person to prison in the exercise of federal judicial power ([2]). For the answer, cite the Court's order and the joint reasons of Kiefel CJ, Bell, Keane and Steward JJ. Attribute the description of the order as "protective punishment" to Edelman J ([182]), and the contrary answers to Gageler J ([102]) and Gordon J ([109]). Where a problem describes a scheme whose trigger offences cover conduct of very different seriousness, the joint reasons ([46]-[47]), Gageler J ([93]-[95]) and Gordon J ([175], [177]) each addressed the breadth of Div 105A, so say whose reasoning is being applied. The criticisms of the joint reasons in later decisions come from individual Justices, so attribute each to the Justice who made it.
Check your understanding
1. What did the joint reasons say it is that qualifies a power as an exception to the Lim principle ([36])? 2. Which two Justices would have answered the question reserved differently from the other five, and how did each of them answer it ([102], [109])? 3. Edelman J reached the same answer as the joint reasons. How did his Honour describe a continuing detention order, and what did he say about reasoning that Div 105A is not punitive because it aims to protect the community ([182]-[183])?