wiggins
Forum Veteran
It's wonderful living in Aus with our progressive High Court (Supreme Court for our US cousins).
Apart from making an interesting ruling last year that was based on some kind of magical thinking when they ruled that Mr Love, a white looking criminal born in NZ, and without Australian nationality, could not be deported back home after his criminal offences , like all the other non Aussies get, because he claimed some % aboriginality and thus 'was unable to be alienated from his land', they have now ruled that due to separation of powers the government cannot cancel the passport of a convicted terrorist who was planning on mayhem at the MCG (our Melbourne Cricket Ground sports Mecca ... pun here I think...).
So Johny Jihad, who has never recanted his radicalism, can have another go...
Michael PellyLegal editor
Nov 1, 2023 – 1.36pm
Convicted terrorist Abdul Nacer Benbrika has won a High Court bid to restore his Australian citizenship, three years after it was cancelled by the Morrison government.
The court said the section of the Migration Act used by then home affairs minister Peter Dutton was constitutionally invalid because it usurped “the exclusively judicial function of punishing criminal guilt”.
Terrorism plot: Abdul Nacer Benbrika has won a High Court bid to retain his Australian citizenship. ABC
Prime Minister Anthony Albanese said the government would “examine the ruling and respond appropriately”.
“Quite clearly, there was an issue with the former government’s legislation, which is what this ruling relates to, but when it comes to the legal consequences we will seek advice,” Mr Albanese said.
In another migration case, the court upheld the cancellation of citizenship for British-born Phyllip Jones, after he did not reveal offences against minors on his 1988 application.
Algerian-born Mr Benbrika, 63, was found guilty in 2008 of leading a terror cell that plotted attacks on Melbourne landmarks in 2005, including the AFL grand final at the MCG. He was sentenced to 15 years in jail.
When Mr Benbrika’s sentence expired in November 2020, Mr Dutton cancelled his citizenship and he was placed in immigration detention under continuing detention order. The order is due to expire on December 23.
It was the first time a person had been stripped of their citizenship for a terrorism offence while in Australia. Mr Benbrika had been in Australia since 1989 and a citizen since 1998.
Mr Dutton also stripped citizenship from Delil Alexander, a Turkish-Australian man accused of fighting for ISIS. Mr Alexander lost a High Court challenge last year.
The court rejected the Commonwealth argument that a minister should be “allowed to deprive a person of citizenship involuntarily as punishment following a conviction”.
The lead judgment of Chief Justice Susan Kiefel and Justices Stephen Gageler, Jacqueline Gleeson and Jayne Jagot said: “The Commonwealth parliament cannot repose in any officer of the Commonwealth executive any function of sentencing persons convicted by Chapter III courts of offences against Commonwealth laws.
“Nor can the Commonwealth parliament vest in any officer of the Commonwealth executive any power to impose additional or further punishment on persons convicted by Chapter III courts of offences against Commonwealth laws.
“Section 36D(1) [of the Migration Act] purports to vest such a power to impose additional or further punishment in the minister.”
In his dissent, Justice Simon Steward said it had “never been an essentially judicial function to make orders which denationalise a person”.
In the other migration case, Mr Jones, 73, lost his appeal and will be deported, despite having lived in Australia continuously since 1966.
In 2003, he was convicted of five counts of indecent dealing and indecent assault between 1980 and 2001. He has been in immigration detention since 2022.
The same majority as in Benbrika said “quirks of timing in the commencement and conclusion of criminal proceedings did not allow a person’s prior criminal conduct to remain unconsidered”.
The court also ruled on Wednesday that the Catholic Church should not have been granted a permanent stay in a historical sex abuse case involving a priest in Lismore.
In the 3-2 decision, the majority (Kiefel, Gageler and Jagot) said a permanent stay was “a measure of last resort”.
“The grant of a permanent stay to prevent an abuse of process involves a decision that permitting a matter to go to trial and the rendering of a verdict would be irreconcilable with the administration of justice through the operation of the adversarial system.”
Apart from making an interesting ruling last year that was based on some kind of magical thinking when they ruled that Mr Love, a white looking criminal born in NZ, and without Australian nationality, could not be deported back home after his criminal offences , like all the other non Aussies get, because he claimed some % aboriginality and thus 'was unable to be alienated from his land', they have now ruled that due to separation of powers the government cannot cancel the passport of a convicted terrorist who was planning on mayhem at the MCG (our Melbourne Cricket Ground sports Mecca ... pun here I think...).
So Johny Jihad, who has never recanted his radicalism, can have another go...
Terrorist wins citizenship battle in High Court
Michael PellyLegal editor
Nov 1, 2023 – 1.36pm
Convicted terrorist Abdul Nacer Benbrika has won a High Court bid to restore his Australian citizenship, three years after it was cancelled by the Morrison government.
The court said the section of the Migration Act used by then home affairs minister Peter Dutton was constitutionally invalid because it usurped “the exclusively judicial function of punishing criminal guilt”.
Terrorism plot: Abdul Nacer Benbrika has won a High Court bid to retain his Australian citizenship. ABC
Prime Minister Anthony Albanese said the government would “examine the ruling and respond appropriately”.
“Quite clearly, there was an issue with the former government’s legislation, which is what this ruling relates to, but when it comes to the legal consequences we will seek advice,” Mr Albanese said.
In another migration case, the court upheld the cancellation of citizenship for British-born Phyllip Jones, after he did not reveal offences against minors on his 1988 application.
Algerian-born Mr Benbrika, 63, was found guilty in 2008 of leading a terror cell that plotted attacks on Melbourne landmarks in 2005, including the AFL grand final at the MCG. He was sentenced to 15 years in jail.
When Mr Benbrika’s sentence expired in November 2020, Mr Dutton cancelled his citizenship and he was placed in immigration detention under continuing detention order. The order is due to expire on December 23.
It was the first time a person had been stripped of their citizenship for a terrorism offence while in Australia. Mr Benbrika had been in Australia since 1989 and a citizen since 1998.
Mr Dutton also stripped citizenship from Delil Alexander, a Turkish-Australian man accused of fighting for ISIS. Mr Alexander lost a High Court challenge last year.
The court rejected the Commonwealth argument that a minister should be “allowed to deprive a person of citizenship involuntarily as punishment following a conviction”.
The lead judgment of Chief Justice Susan Kiefel and Justices Stephen Gageler, Jacqueline Gleeson and Jayne Jagot said: “The Commonwealth parliament cannot repose in any officer of the Commonwealth executive any function of sentencing persons convicted by Chapter III courts of offences against Commonwealth laws.
“Nor can the Commonwealth parliament vest in any officer of the Commonwealth executive any power to impose additional or further punishment on persons convicted by Chapter III courts of offences against Commonwealth laws.
“Section 36D(1) [of the Migration Act] purports to vest such a power to impose additional or further punishment in the minister.”
In his dissent, Justice Simon Steward said it had “never been an essentially judicial function to make orders which denationalise a person”.
In the other migration case, Mr Jones, 73, lost his appeal and will be deported, despite having lived in Australia continuously since 1966.
In 2003, he was convicted of five counts of indecent dealing and indecent assault between 1980 and 2001. He has been in immigration detention since 2022.
The same majority as in Benbrika said “quirks of timing in the commencement and conclusion of criminal proceedings did not allow a person’s prior criminal conduct to remain unconsidered”.
The court also ruled on Wednesday that the Catholic Church should not have been granted a permanent stay in a historical sex abuse case involving a priest in Lismore.
In the 3-2 decision, the majority (Kiefel, Gageler and Jagot) said a permanent stay was “a measure of last resort”.
“The grant of a permanent stay to prevent an abuse of process involves a decision that permitting a matter to go to trial and the rendering of a verdict would be irreconcilable with the administration of justice through the operation of the adversarial system.”
