Australia’s highest court on Wednesday overturned a government decision to strip citizenship from a man convicted of terrorism.
The ruling is a second blow in the High Court to the law introduced almost a decade ago that allows a government minister to strip dual nationals of their Australian citizenship on extremism-related grounds.
The ruling also prevents the government from deporting Algerian-born cleric Abdul Benbrika when he is released from prison, which is expected within weeks.
The High Court judges ruled 6-1 that the law that gave the home affairs minister power to strip citizenship in such instances was unconstitutional. The majority found that the minister was effectively exercising a judicial function of punishing criminal guilt.
Prime Minister Anthony Albanese said his government would examine the ruling in regards to the law passed by the previous government.
Constitutional lawyer George Williams said he was not surprised by the result.
“It’s a fundamental breach of the separation of powers in Australia which says that judging guilty and determining punishment should be by courts and not by people in Parliament,” Williams said.
Williams said he understood that Benbrika was the only person to lose citizenship under a particular clause of the law relating to convictions of terrorism-related offenses that are punished by more than three years in prison. Therefore the precedent did not effect any other person who had lost citizenship rights.
The High Court last year struck down a separate clause of the law that allowed a dual national imprisoned in Syria to lose his citizenship on suspicion that he had been an Islamic State group fighter.
In 2020, Benbrika became the first extremist, proven or alleged, to lose citizenship rights while still in Australia. The government has not disclosed how many there have been.
Benbrika was convicted in 2008 of three terrorism charges related to a plot to cause mass casualties at a public event in Melbourne. No attack took place.
He was sentenced to 15 years in prison and would have been released in 2020. But his sentence was extended by three years under a recent law that allowed the continued detention of prisoners convicted or terrorism offenses who a judge ruled posed an unacceptable risk to the community if released.
In 2021, he lost a High Court challenge to his continued detention in a 5-2 split decision.
He will be subjected to a court-imposed supervision order that can allow close scrutiny of his communications, associates and movements when he is released before the end of the year.
