Posted 17/11/2023 by Peter Prince and Susan Love
Cultural warning: Aboriginal and Torres Strait Islander readers are advised that this article contains the names of people who have died.
The first week of November saw Australia’s High Court deliver 5 important decisions – and a new Chief Justice take the reins.
Only courts can impose punishment
The decisions in two ‘citizenship stripping’ cases (Benbrika and Jones) and an ‘indefinite detention’ case (NZYQ) all turned on whether the executive government was imposing ‘punishment’ contrary to the separation of powers in Australia’s Constitution which assigns this function exclusively to the courts.
In Benbrika v Minister for Home Affairs, Mr Benbrika, a man from Algeria who became an Australian (dual) citizen in 1998, received a lengthy prison sentence in 2008 for terrorism offences. The Home Affairs Minister revoked his Australian citizenship in 2020, making him vulnerable to removal from Australia. By a 6:1 majority, the High Court said the Minister’s power under the Australian Citizenship Act 2007 to revoke citizenship because of such offences was invalid because ‘it reposes in the Minister for Home Affairs the exclusively judicial function of punishing criminal guilt’. The High Court noted Benbrika was a sequel to Alexander v Minister for Home Affairs (2022) where removal of citizenship was found invalid on the same basis. The majority agreed with the court in Alexander that cessation of citizenship amounted to exile or banishment, which had historically been regarded as punishment.
There was a different outcome in Jones v Commonwealth. Mr Jones migrated from Britain with his parents in 1966, becoming an Australian (dual) citizen in 1988. In 2003 he was convicted of indecent assault and received a two-and-a-half-year prison sentence. Significantly, two of his offences occurred before citizenship was granted. The majority upheld the decision to revoke his citizenship, saying prior offences were relevant to character or fitness for citizenship. However, in a strong dissent, Justice Gordon highlighted the 15 year gap between Mr Jones’ conviction in 2003 and the Minister's decision to revoke his citizenship in 2018. Her Honour stated there was no reason why an indefinite power of revocation following conviction was needed to protect the integrity of the naturalisation process.
The need for immigration detention to be ‘limited to what is reasonably capable of being seen as necessary’ to avoid characterisation as ‘punishment’ (Lim, 1992) came to a head in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs, the first case presided over by new Chief Justice Stephen Gageler. NZYQ is from the persecuted Rohingya people not recognised as citizens in Myanmar. He was therefore stateless and could not be deported to his country of origin. NZYQ had been in immigration detention since 2018 after his temporary protection visa was cancelled following conviction for child sex offences. Unusually, the High Court announced its decision at the end of the hearings, with reasons to be published later. In a dramatic move, the court overturned a 2004 ruling used by officials to continue immigration detention under the Migration Act 1958 even when deportation was unlikely ‘in the reasonably foreseeable future’. As leading migration law expert Professor Mary Crock said:
With no country prepared to accept him, NZYQ faced the prospect of life in immigration detention. The High Court has found indefinite immigration detention constitutes punishment, making the relevant legislation unconstitutional. This is because the Migration Act’s mandatory provisions vest punitive powers in immigration officials when Chapter III of the Constitution dictates that such powers can only reside in a court of law.
Both Benbrika and NZYQ have generated significant public commentary. While much has centred on community safety concerns around release of people convicted of child sex or terrorism offences, legal commentators note the Government will be considering possible legislative changes.
Citizenship law expert Professor Kim Rubenstein says the decisions in Benbrika and Jones afford ‘a disequilibrium of citizenship – valuing sole citizenship above dual citizenship, and some classes of dual citizen as more vulnerable’. These questions were also raised in Alexander. With ‘citizenship stripping’ provisions of the Citizenship Act found to be unconstitutional, Rubenstein suggests the Government will need to bring forward legislative amendments.
In the matter of NZYQ, the High Court’s reasons are yet to be published. The plaintiff has been released – as per the court order, followed by over 80 other detainees in a similar situation. The Government emphasised the importance of protecting the community while adhering to the court’s ruling. The Parliament has passed the Migration Amendment (Bridging Visa Conditions) Bill 2023 which includes mandatory wearing of monitoring devices and curfews (unless the Minister is satisfied there is no risk to the community). A mandatory sentence of at least one year must be imposed on conviction for breach of these conditions. The Greens have criticised these measures as ‘draconian’. The Government has said further legislation may be necessary once the Court’s reasons are available.
Commentators including Professor Crock and Associate Professor Mary Anne Kenny have called for a return to discretionary immigration detention overseen by the courts, consistent with international standards.
Landlords take note – new compensation for tenants
In Young v Chief Executive Officer (Housing), the High Court said landlords may have to pay compensation not only for physical repair but also for distress and anxiety caused by failure to maintain rental properties.
Ms Young rented a house at Ltyentye Apurte (Santa Teresa), a Northern Territory Aboriginal community. For five-and-a-half years after she moved in, the landlord (an NT government corporation), failed to provide a back door. The landlord was required by the Residential Tenancies Act 1999 (NT) to ‘provide and maintain the locks and other security devices’. The NT Civil and Administrative Tribunal dismissed a complaint made to it by Ms Young, saying an external door was not a ‘security device’. Adopting a more commonsense attitude, the High Court said the purpose of the legislation was to ensure ‘that premises occupied by a tenant for the purpose of residency are reasonably secure’, so the tenant could ‘reside there free from threat of harm or unwanted access’. Ms Young was entitled to compensation for ‘the feeling of insecurity [she] experienced because of the landlord's failure to provide the residential premises with a back door’. After the High Court completed its judgment, it was informed that Ms Young had passed away, so the compensation would be payable to her estate.
The decision also covered 69 other tenants from the community with un-maintained facilities. The outcome in the case significantly raises the potential costs for negligent landlords across Australia. Following the ruling, law firm Slater and Gordon is investigating a possible class action into substandard public housing conditions for remote Western Australian Aboriginal tenants.
In a note of cultural interest, counsel for Ms Young relied in part on the common law doctrine that ‘a person’s home is their castle’ made famous by the 1997 Australian film The Castle.
Death of alleged perpetrator not a bar to action in abuse case
In GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore, the High Court said the Catholic Church could not use the death of an alleged perpetrator to avoid a legal claim from a victim of sexual abuse. GLJ said she had been abused by a priest from the Diocese of Lismore in 1968. In 2020 GLJ commenced legal proceedings seeking damages from the Diocese. In 2022 the NSW Court of Appeal granted a permanent stay, agreeing with the Church that the death of the priest meant there could not be a fair trial. However, the High Court said there was sufficient material for a trial even without the priest’s direct testimony. He had been de-frocked in 1971 because of ‘the wealth of credible evidence’ of his ‘recurring trouble in sexual matters’, said to be common knowledge in the Kyogle parish at the time. Before his death in 1996, the Diocese had ‘ample opportunity’ to fully inform itself about the extent of his alleged crimes and ‘the potential harm inflicted on victims who might need ongoing support’. Moreover, after his death the Diocese had paid monetary compensation to several men after finding that complaints of sexual abuse by the priest had been substantiated. The High Court agreed with GLJ that there was a ‘confected bewilderment at the heart of the [Diocese’s] case’.
It was reported that permanent stays because of the death of the alleged perpetrator have been increasingly sought by institutions to counter historical sexual abuse claims. The decision in this case is likely to mean that tactic is much less frequently used.