The Lim principle at play: terrorist offenders and Chapter III of the Constitution

Minister for Home Affairs v Benbrika [2021] HCA 4 (10 February 2021)

In September 2008, the Supreme Court of Victoria convicted and sentenced Mr Benbrika in relation to two terrorist offences. Prior to his sentence expiring on 5 November 2020, the Minister for Home Affairs commenced proceedings in the Supreme Court under Division 105A of the Criminal Code (Cth) seeking a continuing detention order (“CDO”) which, in effect, would commit Mr Benbrika to a State prison for an additional three years. An order in those terms was made by Tinney J on 24 December 2020.That decision is currently under appeal.

In Minister for Home Affairs v Benbrika, the High Court was asked to answer whether all or any part of Div 105A of the Criminal Code (Cth) was invalid because the power to make a CDO is not within the judicial power of the Commonwealth and its conferral on the Supreme Court of Victoria is therefore contrary to Chapter III of the Commonwealth Constitution. This question had been reserved by Tinney J to the Court of Appeal of the Supreme Court of Victoria and was then removed into the High Court of Australia pursuant to section 40 of the Judiciary Act 1903 (Cth). There were four separate judgments — Kiefel CJ, Bell, Keane and Steward JJ (“the plurality”); Gageler J; Gordon J; and Edelman J.

Mr Benbrika argued that the power to make a CDO is punitive because it is conditioned on a person’s status as a “terrorist offender” (connected to a relevant conviction) and this punitive purpose cannot be quarantined from any protective purpose: [37]. In the alternative, Mr Benbrika argued that Div 105A should not come within an exception to the Lim principle because the non-punitive object is the prevention of a serious Part 5.3 offence and not the protection of the community: [42]. Mr Benbrika did not seek that the Court re-open the decisions in Fardon v Attorney-General (Qld) (2004) 223 CLR 575 or Thomas v Mowbray (2007) 233 CLR 307, because the former concerned the judicial power conferred by a state Act while the latter did not concern the power of a Ch III court to authorise detention in prison based on future conduct: [15].

In order to understand the plurality’s reasons, it is necessary to first outline the joint reasons of Brennan, Deane and Dawson JJ in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 (“Lim”). The so-called ‘Lim principle’ is that the involuntary detention of a citizen in custody by the State is penal or punitive in character and exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt (Lim at 27): [15]. There are exceptions to the Lim principle, which include arrest and detention pending trial and detention of those suffering from mental illness or infectious disease (of particular relevance in 2021): [28]. That is, these exceptions permit characterisation of detention, in certain circumstances, as not penal or not punitive in character. The so-called ‘Lim general proposition’ is that to order that a citizen be involuntarily confined in custody is, under the doctrine of the separation of judicial from executive and legislative powers enshrined in the Commonwealth Constitution, part of the judicial power of the Commonwealth entrusted exclusively to Ch III courts (Lim at 28): [18]. According to the plurality, the question reserved did not touch on the Lim general proposition (at all) but concerned only the Lim principle: [28].

Demonstration of the non-punitive nature of Div 105A was thus essential to a conclusion that the power it conferred did not offend Ch III of the Constitution and so the plurality undertook a detailed analysis of Div 105A: [7]-[12] and [37]-[46]. Central to this analysis was that Div 105A not only requires that a Supreme Court must be satisfied that a terrorist offender’s risk level is “unacceptable”, but also to be satisfied that no other, less restrictive measure would be effective in preventing the risk from eventuating: [47]. The plurality also considered (in possible response to the concerns raised by Gageler J and Gordon J in their dissenting judgments) that a CDO could not be made properly where the risk of reoffending (i.e. of committing a serious Part 5.3 offence) did not carry with it a threat of harm to the members of the community that was “sufficiently serious” so as to make the risk unacceptable: [47]. The plurality considered that the “extraordinary” power to detain a person under Div 105A is divorced from sentencing the offender for the terrorist offence (at [38]) and the purpose to be achieved is the protection of the community and not punishment: [41], [47]. Accordingly, Div 105A validly confers the judicial power of the Commonwealth on the Supreme Court of a State or Territory: [48]. The plurality found it was not necessary to consider any matters concerning the Kable limitation (per New South Wales v Kable (2013) 252 CLR 118).  

Gageler J (dissenting) considered that Div 105A, in its current form, is not wholly compatible with Ch III: [100]-[102]. Div 105A and the power to make a CDO may bejudicial power within the meaning of section 71 of the Australian Constitution and thus compatible with Ch III: [63]. However, after considering the design and object of Div 105A, his Honour raised several concerns with the purpose of a CDO being to detain terrorist offenders who pose an unacceptable risk of committing a serious Part 5.3 offence: [92]. The issue for his Honour was that the definition of serious Part 5.3 offences includes both conduct offences, conduct that supports or facilitates any terrorist act, and other conduct “many steps removed” from such acts: [93]. Gageler J considered it difficult to determine whether Div 105A is reasonably capable of being seen as necessary for (what his Honour considered was) a legitimate non-punitive object. In principle, his Honour considered that the power to make a CDO could be capable of being legitimately conferred on the Supreme Court, but under the current drafting of Div 105A, the reference to a serious Part 5.3 offence was so broad as to confer a power contrary to Ch III of the Constitution.

Gordon J (dissenting) considered that Div 105A is wholly invalid. Her Honour considered that the power granted to a Supreme Court to make a CDO was not sufficiently tailored to Div 105A’s stated purpose: [163], [177]. Crucial to this finding was that a Supreme Court may make a CDO without being satisfied that the person subject to the order poses an unacceptable risk of committing a terrorist act, or that the person will aid, abet, counsel or procure another person to commit a terrorist act: [173]. In her Honour’s view, the legislative test focused not on the unacceptable risk of harm to the community, but on preventing the commission of a serious Part 5.3 offence: [170]. Similar to Gageler J, her Honour considered that the offences and conduct underlying serious Part 5.3 offences are not sufficiently tailored for the intended purpose: [175]. Edelman J agreed with the plurality but for separate reasons. Notably, Edelman J explicitly rejected any approach that asserted the commission of any serious Part 5.3 offences is not sufficient to empower a CDO in appropriate cases: [229]-[231]. However, his Honour considered that the power to make a CDO involves notions sufficiently similar to traditional criminal punishment so as to be an exclusively judicial power – that is, the CDO should be described as a form of “protective punishment”: [182], [184]. Indeed, Edelman J considered it is a “category error” to reason that Div 105A is not punitive or that a CDO cannot be punitive in the broad sense as conveyed in Lim: [183], [185]. It is a judicial power that is required by Div 105A to be exercised judicially: [185], [234]. Interestingly, Edelman J reasoned that to confine the meaning of “punishment” to backwards looking orders of State retribution for the adjudication of offences is not consistent with the broader approach taken to the joint judgment in Lim: [196]. Notions of punishment might be best understood as a spectrum with purely protective orders at one end and “protective punishment” orders at the other: [197]-[198]. Edelman J identified three key reasons for taking a broader interpretation. First, the close association between detention and punishment means that deprivation of liberty is the mark of a punitive power, and the preventative detention is not an independent purpose divorced from punishment: [201]-[202]. Secondly, the making of a CDO is not independent of the adjudication of guilt: [203]. Finally, a CDO is analogous to types of matters identified by H.L.A. Hart (in Punishment and Responsibility (1968)) and that there are elements of specific deterrence in the criteria of Div 105A: [204]. Somewhat beyond the scope of this article, Edelman J also considered whether there was a constitutional foundation to impose an overall restraint on the power of all branches of government to detain a person (spoiler: there was not): [215]-[219].