High Court upholds power to detain terrorist offenders beyond the expiry of their sentence

Minister for Home Affairs v Benbrika [2021] HCA 4; (2021) 95 ALJR 166

10 February 2021

Summary

Division 105A of the Criminal Code 1995 (Cth) empowers a court to make an order to keep a terrorist offender imprisoned after the expiry of their sentence where they pose an unacceptable risk of committing certain offences if released into the community. By majority (5:2), the High Court held that this power was within the judicial power of the Commonwealth.

Facts

On 15 September 2008, Abdul Nacer Benbrika was convicted of two terrorism offences. His sentence was due to expire on 5 November 2020. At trial, the Crown case was that Benbrika was a member of a terrorist organisation that fostered or prepared to do a terrorist act in Australia or overseas with the intention of causing death or serious physical harm in order to advance their cause, and that he had provided instruction in violent jihad to members of a terrorist organisation who had taken an oath of allegiance to him. Pre-empting his impending release, on 4 September 2020 the Minister for Home Affairs sought a continuing detention order until 5 November 2023 from the Supreme Court of Victoria. An interim order was made on 27 October 2020, with a final order made on 24 December 2020 under Division 105A.7(1) of the Criminal Code 1995 (Cth) for a period of three years.

Benbrika challenged the validity of Division 105A on the basis that the power to make a continuing detention order was not within the judicial power of the Commonwealth and therefore had been conferred on the Supreme Court of Victoria contrary to Chapter III of the Constitution and requested that this question be reserved for the Court of Appeal of the Supreme Court of Victoria. Benbrika was then removed to the High Court of Australia. 

Decision

There were four judgments in Benbrika: the joint judgment of Kiefel CJ, Bell, Keane and Steward JJ and the judgment of Edelman J who held that Division 105A was within judicial power; and Gageler J and Gordon J who separately dissented.

Kiefel CJ, Bell, Keane and Steward JJ held that Division 105A.7 was not contrary to Chapter III of the Constitution. Their Honours relied on the principle in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 that judicial power to order involuntary imprisonment is generally only allowed as a consequence of a judgment of criminal guilt (the "Lim principle"), subject to some exceptions. Their Honours applied Fardon v Attorney-General (Qld) (2004) 223 CLR 575 to conclude that non-punitive imprisonment for the purpose of protecting the community from harm is an exception to the Lim principle which falls within judicial power and can be validly conferred on a Chapter III Court. Relying on the concept of "unacceptable risk", their Honours reasoned that Division 105A requires there to be a threat of harm to members of the community that is sufficiently serious to make the risk of an offence "unacceptable" before the Court can exercise its power to make a continuing detention order. It followed that although Division 105A gives the Court the power to order detention in prison, the purpose of this power is to protect the community from harm caused by terrorism rather than to punish an offender.  As this power is protective and non-punitive it therefore falls within an exception to the Lim principle and is within the judicial power of a Chapter III Court.

Edelman J agreed that a continuing detention order under Division 105 falls within judicial power, but his reasoning differed significantly from that of the joint judgment in that he disagreed that Division 105 fell within an exception to the Lim principle as it was a non-punitive order to protect the public. Instead, his Honour argued that there was no part of Division 105A that was contrary to Chapter III of the Constitution because Division 105 involves notions sufficiently similar to traditional criminal punishment to fall within the sphere of power that is exclusively judicial.  In his reasoning, his Honour also considered that the power to order continuing detention under Division 105A.7 is "exclusively judicial" because it is a power conferred only upon the judiciary in the form of judicial power and it is a power to be exercised only judicially. Moreover, his Honour noted that there would only be extreme circumstances where "the purpose for the protective punishment … is so slight or trivial … that it cannot justify detention", and accordingly that the Court should not intervene.

Gageler J, in dissent, held that Division 105A is not wholly compatible with Chapter III of the Constitution. His Honour noted that Lim required that detention otherwise than as a result of the adjudgment and punishment of criminal guilt must be "reasonably capable of being seen as necessary for a legitimate non-punitive objective". His Honour said that there were some "exceptional" cases in which the prevention of harm would constitute a non-punitive objective, and that these included cases where the relevant harm was grave and specific, but not merely where the objective of detention was preventing commission of a criminal offence. Relying on consideration of the ends and means of the legislation, Gageler J limited the validity of Division 105A to only offences that were to protect against the "doing or supporting or facilitating" of a terrorist act.

Gordon J, in dissent, held that Division 105A was wholly invalid because the power to make a continuing detention order was contrary to Chapter III of the Constitution. Her Honour said that this was an issue of statutory construction and that the substantive criteria to make an order was not sufficiently tailored to the purpose of Division 105A. Within this, Gordon J argued that there was a very broad range of harms that may be caused by the commission of a serious offence under Part 5.3. In fact, the satisfaction of "unacceptable risk" required of the relevant Supreme Court was not with respect to the harm caused to the community (and instead was to whether the offender would commit an offence at all).

Commentary

It is not in doubt that "[t]errorism poses a singular threat to civil society": [36]. But Benbrika is emblematic of a fundamental tension between ensuring the community is safe and committing someone to detention on what Gageler J termed a "prophylactic" basis. From a human rights perspective, it is difficult to apply a bright-line test that can delineate between acts that pose an unacceptable risk of harm to the community and those that do not. This is because the terms of Division 105A lack specificity and instead revert to the broad objective of preventing commission of a criminal offence. Where, for example, the acts are preparatory and are far-removed from the incident of grave harm, Division 105A places the assessment of risk of harm to the community in the hands of the Court. In so doing, there is a substantial risk that the cornerstone of criminal justice – considering whether past conduct constitutes a criminal offence – could waver.

There is a separate issue of the extent to which Chapter III of the Constitution should protect the liberty of Australians. Kiefel CJ, Bell, Keane and Steward JJ state that Chapter III Courts are a "bulwark of liberty" through the operation of an independent judiciary and Edelman J notes that there is no "independent constitutional principle of individual liberty" that would not allow the State to deprive liberties in certain situations. In contrast, Gageler J and Gordon J require a specific and narrow connection between the means and ends of the detention and its (legitimate) purpose. But it may be that the majority were correct in observing that even if there is no independent guarantee of liberty, the judiciary are able to only impinge on the liberty of Australians in matters that pose extreme risk of harm to the community.

The full text of the decision is available here.