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The curious case of Benbrika and a near-cancelled citizenship



On Tuesday morning, the Victorian Supreme Court granted release to convicted terrorist Abdul Nacer Benbrika on an extended supervision order after spending nearly twenty years behind bars. Victorian Supreme Court justice Elizabeth Hollingworth granted Benbrika’s release on an extended supervision order for 12 months.

It was last month when the High Court of Australia ruled on this case, involving citizenship cancellation: Benbrika v Minister for Home Affairs. Benbrika won, and while the decision is welcomed, cases like this have focused attention on the highly questionable, indeed, unconstitutional, nature of using citizenship, and the threat of its revocation, as a tool in managing threats such as terrorism — either when an individual has already been brought to justice by the Australian judicial system and served their sentence, as in the Benbrika case, or even when a person hasn’t yet faced trial in Australia.

Algerian-born Abdul Nacer Benbrika arrived in Australia in 1989, aged in his late 20s, and became an Australian citizen in 1998 (while maintaining dual nationality with Algeria). In 2008 he was convicted of terror offences for his role in an extremist group that planned terrorist attacks on Australian landmarks (including the MCG), and was sentenced to 15 years in prison. Until this week, he remained in jail on a continuing detention order.

In 2020, when Benbrika's sentence was due to expire, former home affairs minister Peter Dutton terminated Benbrika’s Australian citizenship. He was able to do so because of an amendment to the Australian Citizenship Act, first introduced in 2015, which maintained that a person with dual citizenship renounces their Australian citizenship if they engage in conduct inconsistent with their allegiance to Australia (specifically terrorist activities).

Section 36D of the Australian Citizenship Act provided that the minister may determine that a person ceases to be an Australian citizen if they have been convicted of terrorism and sentenced to at least three years in prison, and the ‘conduct of the person to which the conviction or convictions relate demonstrates that the person has repudiated their allegiance to Australia’.

On 1 November, Benbrika successfully challenged s36D in the High Court, arguing that the laws were not constitutional as they invested the minister with powers that should be reserved for the judiciary — that is, the power to punish a person for criminal conduct. ‘The Commonwealth parliament cannot repose in any officer of the Commonwealth executive any function of sentencing persons convicted … of offences against Commonwealth laws,’ the judgement read, nor the power to ‘impose additional or further punishments’ on such persons.

A critical issue in the Benbrika case was the importance of the separation of powers in the Constitution. The essence of this principle is that the Constitution establishes three separate arms of government: the parliament, the executive, and the judiciary. The parliament makes the laws, the executive enforces the laws, and the courts interpret the laws.


"The focus in these case rulings on whether ‘denationalisation’ constitutes punishment — in which case it can only be enacted by the judiciary — relied on a 1992 case, Lim v Minister."


This separation of powers is a key part of our Constitution, and can result in a law passed by parliament being ruled as invalid, ultra vires (‘beyond the powers’), by the High Court.

This is precisely what occurred in the Benbrika case. In an earlier ruling of this kind, the Alexander case in 2022, the High Court had also ruled as invalid section 36B, a provision inserted in the Australian Citizenship Act (the Australian Citizenship Amendment [Citizenship Cessation] Act 2020) that enabled the home affairs minister to determine that a person’s citizenship ceased if they had engaged in conduct demonstrating they had ‘repudiated their allegiance to Australia’ even if they had not been tried and convicted of a crime in an Australian court. In both s36B and s36D, there is no requirement for ‘natural justice’ or granting the person an opportunity to respond to the allegations that led to the cessation of their citizenship.

Mr Delil Alexander was born in Australia and held dual Australian-Turkish citizenship. He travelled to Syria in 2013, where it was alleged by ASIO that he joined a terrorist organisation. He was detained by Kurdish militia and subsequently convicted by a Syrian court and imprisoned. Mr Alexander claimed he was tortured by the Syrians. He was later pardoned but remained in detention, as he could not be released into the Syrian community but also could not be repatriated to Turkey or Australia. He was transferred to a prison under the control of Syrian Intelligence (Mukhabarat) and has not been heard from for over 2 years. In July 2021, the minister for home affairs determined that Mr Alexander ceased to be an Australian citizen.

In June 2022 the High Court ruled the decision invalid, noting that the revocation of citizenship was imposed as punishment for unlawful conduct —­ a function of the judiciary, not the executive, and therefore in breach of the constitutional separation of powers.

This risk of the executive overreaching its constitutional authority was foreshadowed by Peter Shanks QC in 2019, before the citizenship changes became law, in an opinion attached to the Labor member’s report to the Parliamentary Joint Committee on Intelligence and Security. Although the law passed parliament, the High Court has now signalled that it is in breach of the Constitution in the cases of Benbrika and Alexander.

The focus in these case rulings on whether ‘denationalisation’ constitutes punishment — in which case it can only be enacted by the judiciary — relied on a 1992 case, Lim v Minister. This case addressed the legality of the ongoing detention of Cambodians who had arrived in Australia by boat.

Two days before the Federal Court was to hear the Cambodians’ case, parliament passed retrospective laws that effectively validated their detention, which had begun in 1989. The High Court ruled that the detention prior to this law change was unlawful, but the change itself was valid and did not constitute ‘punishment’. The Court held that this distinction was possible because the government was not holding people in ‘indefinite detention’ but only until they were granted permission to stay or until arrangements for their removal from Australia could be effected.

Interestingly, another recent decision of the High Court (involving a stateless Rinhingya man known by the pseudonym NZYQ) overturned the verdict in a 2004 case which had found that indefinite detention was lawful as long as the government had the intention of eventually removing that person from Australia. We await the court’s reasons with interest.


"These cases involving ‘citizen-stripping’ raise questions about what circumstances, if any, should make it possible for someone who has become an Australian citizen by conferral to cease being ‘Australian’."


In Lim v Minister, in what has become a canonical statement that proved particularly relevant in the Alexander and Benbrika cases, the court stated that ‘the adjudgement and punishment of criminal guilt under a law of the Commonwealth’ is a function exclusive to ‘the judicial power of the Commonwealth’.

The High Court finding in the Alexander case that the cessation of citizenship was punitive demonstrates that s36B was in breach of the ‘canonical statement’ from the Lim case. It did not take the Court long to reach the same conclusion regarding s36D in the Benbrika case, with a 6–1 decision.

The Benbrika case illustrates just how complex the judicial process can be. Mr Benbrika has completed his 15-year sentence and, until this week, was held on a controversial extended detention order. This type of order, introduced in 2016, makes it possible to hold someone in custody after their sentence is finished if they are seen to pose an ongoing risk to the community. With the expiry of the order, bringing resolution to the Benbrika case remains an ongoing problem for parliament.

One of the historical ironies here is in the Jones case, decided in the High Court the same day as Benbrika case. An important difference in the cases was when the offences occurred: Jones lost his case because some of his offences occurred before he became an Australian citizen while Benbrika’s occurred afterward. Jones migrated from the UK to Australia with his parents in 1966 and became a dual citizen in 1988. In 2003 he was convicted of indecent assault of a minor, but the offences dated back to before he became a citizen.

Another important difference in the Jones case was that the stripping of his citizenship was not seen as ‘punishment’ because he would not have been granted citizenship in the first place if that conduct had been known in 1988 (prior offences being relevant in the assessment of fitness for citizenship). It was therefore not in breach of the constitutional separation of powers of the judiciary and the executive. Mr Jones now faces removal to the UK, where he has not lived in nearly 50 years. It seems we are now sending convicts back to the UK rather than receiving them, as in 1788.

These cases involving ‘citizen-stripping’ raise questions about what circumstances, if any, should make it possible for someone who has become an Australian citizen by conferral to cease being ‘Australian’. Accusing someone of being ‘un-Australian’ is easily done, but what crimes or potential threats to the security and safety of Australians should trigger the practice of citizen-stripping?

Should the assessment and punishment in these cases be left to the criminal courts, or should the ministers of the government of the day have the right to intervene? When the High Court ruled in the Alexander case that it was unconstitutional for the minister to have the power to strip suspected terrorists of their citizenship, the government pledged to give courts the power instead. That proposal has been on hold pending the High Court decision in the Benbrika case. It will be of great interest to see how the government’s response to the ruling unfolds.

Since the High Court’s decision in the Benbrika case, the Opposition has called for new laws to ‘keep Australians safe’.  The Government announced a new Bill which it states will provide for citizenship cancellation but only by a Judge. These will require very careful drafting to ensure they are not in breach of the constitutional separation of powers of the judiciary and the executive and at risk of being found to be unconstitutional and subsequently overturned.





Kerry Murphy is an immigration and refugee lawyer and part-time lecturer on immigration and refugee law at ACU.

Main image: Abdul Nacer Benbrika (ABC News).

Topic tags: Kerry Murphy, Visa, Detention, Citizenship, High Court, AusPol



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Existing comments

There is a difference between indefinite detention imposed on a citizen and that on someone whose application to reside permanently in the country has been rejected after a proper administrative process supervised by judicial review.

Benbrika belongs to the community; a rejected applicant for citizenship (NZYQ), by nature of the matter, doesn't.

Does 'punishment' belong to the 'judicial power'? Yes. Is it punishment to detain a citizen indefinitely? Barring reasons to do with propensity to commit further crimes, a state of being infectious with disease, or some doubt as to loyalty to the country when it is in a state of war with a country aligned with the ethnicity of the citizen, probably - but because citizenship intrinsically implies the freedom to travel through and use the resources of the community.

The question is whether indefinite detention of a person who has been determined to have no right to live in the community is 'punishment'. Doesn't the determination establish the principle that the person cannot live in the community? Isn't sovereignty the principle that a national state may prevent an alien from living within it?

A principle (ie., a truth) may include mercy but it cannot be abrogated by it.

s martin | 20 December 2023  

Whilst I agree with the court's decision of ministerial over reach based on the separation of powers, once Benbrika is released we appear to be stuck with a cove whose primary allegiance is to Jihad.
Freedom of religion does not enter that equation.

Didn't JFK famously say "ask not what America can do for you, ask instead what you can do for America?"
A great thought from a great leader and one which (substituting Australia for America), Benbrika should be made to answer if indeed he does wish to make Australia home.

Francis Armstrong | 22 December 2023  

When animal shelters out-place rescued or surrendered dogs and cats they often use the term ‘forever home’, implying the hope that the out-placement will be permanent. When children are legally adopted they become part of their new family with the same rights and privileges as their natural-born siblings; there is no provision for them to be ‘dis-adopted’. When people are baptised into the Church, they are baptised ‘for keeps’; their baptised status is not conditional upon their behaviour, even excommunication does not cancel baptism. Yet when people become citizens, or ‘nationals’, of Australia, by a process of ‘naturalisation’, they cannot assume that their new home is a ‘forever home’, or that they will not be expelled from the adopted community, because their status remains conditional, and since the conditions are legislated, they can, and do, change. Their ‘citizenship’ is somehow inferior to those who were ‘born citizens’, Although they share the same responsibilities, they are denied the same rights; theirs is a second class citizenship.

In a supposedly egalitarian society like Australia, we don’t like, or at least in the past haven’t liked, to admit that we tolerate different levels of citizenship. Segregation was something that happened in the US South, apartheid was something that occurred in South Africa, the exclusion of Catholics from public office and universities was something that occurred in the UK in the nineteenth century, the denial of civic rights to even native-born Arabs in Israel today is something that occurs ‘over there’.

Yet by and large, those of us who are Australian citizens only by accident of birth show little concern that our ‘adopted sibling citizens’ can be deprived of their citizenship by legislation, or even worse, by ministerial fiat. They seem to find comfort in the assumption that legislation or ministerial fiat would never be used against them in ways that would leave them as second-class citizens or even effectively stateless.

It’s time we stood up for one single class of citizenship, a ‘forever citizenship’, which cannot be revoked, and which could be enjoyed by all no matter how it was acquired or how they subsequently behaved. That, I suggest, would then be at the top of the list of so-called ‘Australian Values’.

Ginger Meggs | 16 January 2024  

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