Recent Cases

Minister for Home Affairs v Benbrika [2021] HCA 4 (10 February 2021) (Kiefel CJ, Bell, Gageler, Keane, Gordon, Edelman and Steward JJ)


Constitutional law (Cth) – Judicial power of Commonwealth – Jurisdiction vested in State courts – Where Div 105A of Criminal Code (Cth) empowered Supreme

Court of State or Territory, on application of Minister for Home Affairs, to order that person convicted of terrorist offence be detained in prison for further period after expiration of sentence of imprisonment pursuant to continuing detention

order (“CDO”) – Whether all or any part of Div 105A of Criminal Code invalid

because power to make CDO not within judicial power of Commonwealth having been conferred, inter alia, on Supreme Court of Victoria contrary to Ch III of

Constitution – Whether scheme for preventative detention of terrorist offender

capable of falling within exception to principle articulated in Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 that involuntary detention of citizen in custody by the State is penal or punitive in character and exists only as incident

of exclusively judicial function of adjudging and punishing criminal guilt –

Whether Div 105A of Criminal Code directed to ensuring safety and protection of community from risk of harm posed by threat of terrorism.

Words and phrases – “analogy”, “apprehended conduct”, “Ch III court”,

“continuing detention order”, “exception to the Lim principle”, “involuntary detention”, “judicial function of adjudging and punishing criminal guilt”, “judicial power of the Commonwealth”, “less restrictive measure”, “non-punitive purpose”, “orthodox judicial process”, “preventative detention”, “protection of the community from harm”, “protective punishment”, “protective purpose”, “punitive purpose”, “restriction on liberty”, “separation of powers”, “serious Part 5.3 offence”, “Supreme Court of a State or Territory”, “terrorism”, “terrorist act”, “terrorist offence”, “terrorist organisation”, “unacceptable risk”.