[2021] HCA 4
Kiefel CJ, Bell, Gageler, Keane, Gordon, Edelman and Steward JJ
M112/2020
HIGH COURT OF AUSTRALIA
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.
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 Governmentx Solicitor)
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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:
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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?
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A. No.
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2. The respondent is to pay the applicant's costs.
Kiefel CJ, Bell, Gageler, Keane, Gordon, Edelman 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) Act 2003 (Qld) (“the Qld Act”), which empowers the Supreme Court of Queensland to order the continuing detention of persons convicted of serious sexual offences.
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.
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
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.
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?”
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”.
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.”
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
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.
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