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 plotting to bomb Australian landmarks in Victoria. He was due for release in 2020 but remained in detention after then-Home Affairs Minister Peter Dutton revoked Mr. Benbrika’s citizenship.
Under a controversial law, the home affairs minister has powers to revoke an Australian’s citizenship if the person has been convicted of terror offences and “demonstrates repudiation of allegiance to Australia.”
In a 6-1 split, the High Court on Nov. 1 determined Mr. Dutton’s decision under the controversial law was invalid as it effectively gave the Commonwealth judicial powers, which breached the Constitution.
The ruling means that Mr. Benbrika could be released into the community in the next eight weeks.
Had Mr. Benbrika lost the case, he would have faced the likelihood of deportation.
“Nor can the Commonwealth parliament vest in any officer of the Commonwealth executive any power to impose additional or further punishment.”
However, Justice Simon Steward disagreed with the ruling, arguing the cancellation of citizenship in cases where a person repudiates their allegiance to Australia was not a form of punishment.
“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,” Mr. Steward said.
Meanwhile, in a separate case before Victorian courts, the Commonwealth conceded that it could not meet the threshold to keep Mr. Benbrika in jail after serving his sentence.
Mr. Benbrika’s 15-year sentence was expected to end in 2020, but he was kept in jail under a continuing detention order after a court deemed Mr. Benbrika to be an unacceptable risk to the community.
Opposition Says It Acted on the ‘Best Advice’
Acting opposition leader Sussan Ley said the Coalition had acted on the best advice when the Morrison government initially drafted the laws.“I don’t think the argument should be whether we could have or someone could have drafted better legislation, because we have to subject ourselves, of course, to the High Court ruling,” she told ABC Radio on Nov. 2.
“Mr. Benbrika is a convicted terrorist, and remember, he did plan to conduct violent attacks against Australians on Australian soil.”
Ms. Ley added that parliament needed legislation to “fix this situation” whereby Mr. Benbrika’s citizenship not be restored.
Under section 36D of the Australian Citizenship Act 2007 (Cth), the Home Affairs minister can extend a convicted terrorist’s sentence for at least three years if the minister deems the said terrorist “demonstrates repudiation of allegiance to Australia.”
“I cancelled the Australian citizenship of convicted terrorist Benbrika, [making him] the first individual to have lost citizenship onshore,” Mr. Dutton said in November 2020.
“He has been notified of the citizenship loss and he will remain in prison while an interim detention order is in place.”
But on Nov. 1, the High Court determined that the detention of a person was a temporary loss of rights and liberty, whereas stripping nationality “is a permanent rupture in the relationship between the individual and the state.”
“Nobody ... could possibly think that he should have Australian citizenship and, as a dual citizen, we have the right to take that away,” Ms. Ley said.
Home Affairs Minister Clare O'Neil has flagged new laws to strip dual citizens—in this case, Mr. Benbrika—found to engage in terrorist acts. The minister also wanted to make sure that the laws were robust enough to withstand a High Court challenge before introducing them.
Prime Minister Anthony Albanese said his government would seek advice on any implications of the decision.
“We will examine the ruling and respond appropriately,” Mr. Albanese said.
“Quite clearly there was an issue with the former government’s legislation, which is what this ruling relates to.
“When it comes to the legal consequences, we will seek advice for the ruling and respond appropriately.”
Constitutional lawyer George Williams told AAP that the Nov. 1 ruling was a vindication of the separation of powers in Australia.
“It applies the basic principle that it is for the courts and not politicians to judge guilt and impose criminal punishment,” he said.
What Benbrika Was Charged For?
In 2005, Algerian-born Mr. Benbrika was arrested and charged with plotting to attack Melbourne landmarks, including the AFL grand final at the MCG.The self-proclaimed Islamic cleric was later convicted for being a member of a terrorist organisation and for directing the activities of a terrorist organisation.
The terrorist also called on his followers to kill at least 1,000 non-believers to force the Australian government to withdraw troops from Iraq and Afghanistan.
