Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Hansard source

I am certainly very much aware that the government has given consideration to what can be done about Mr Benbrika as an individual. I know that, because I have personally spoken about that with the home affairs minister. The powers that are set out in this bill will not apply to cases where an individual has already been sentenced—I think that's been explained to the opposition previously—but, if these individuals do commit further offences covered under this legislation, the Minister for Home Affairs may be able to make an application to the court to have citizenship cessation considered as part of sentencing. The amendments apply to convictions that occur after the commencement of the legislation, where the conduct occurred on or after 12 December 2015.

That obviously begs the question: why can't the legislation apply to the likes of Mr Benbrika or people who've already been sentenced? The short answer is that it is because Mr Dutton's laws were unconstitutional. The key finding of the High Court in the Benbrika case was that citizenship can only be stripped from someone by the decision of a court after the application of a minister and that the decision to strip their citizenship can only happen in the course of sentencing for an offence. Mr Benbrika obviously committed his offence some time ago. He was charged, convicted and sentenced some time ago and, because the laws that Mr Dutton had passed were unconstitutional, the opportunity for Mr Benbrika's citizenship to be stripped as part of his sentencing has passed.

If Mr Dutton's laws had been constitutional, then Mr Benbrika could have been stripped of his citizenship at the time, as part of his sentencing. But, because the laws weren't constitutional, we're now in a situation where he has been sentenced and there is no opportunity for the minister of the day to apply for his citizenship to be stripped as part of a sentencing process, because that sentencing process has already happened.

I agree it is deeply unfortunate that Mr Benbrika can't have his citizenship stripped of him under the laws being passed now. That is because his sentencing has occurred and what the court has found is that, to be constitutional, the laws require the stripping of citizenship to be done as part of the sentencing process. The effect of the recent High Court decision about Mr Benbrika is that he never ceased to be an Australian citizen. So the actions of the former government, in purporting to strip Mr Benbrika of his citizenship, were ineffective. They were unconstitutional. They were unlawful. In fact, Mr Benbrika never ceased to be an Australian citizen. Again, that is the direct consequence of Mr Dutton bringing in laws that were unconstitutional. As I've said, the powers that are set out in this bill, to enable someone to be stripped of their citizenship, will not apply to cases where the individual has already been sentenced, and that includes Mr Benbrika.

You've referred to the fact that Mr Benbrika is currently on a continuing detention order. Mr Benbrika remains in custody on a continuing detention order, which is due to expire on 23 December 2023. On 13 December last year, Mr Benbrika's lawyers filed an application for a review of his continuing detention order on the basis that new material had been made available to Mr Benbrika. On 27 February this year, the Attorney-General, Mr Dreyfus, made an application to the Supreme Court of Australia for an extended supervision order in respect of Mr Benbrika. On 20 June this year, the hearing of Mr Benbrika's continuing detention order review and the Attorney-General's extended supervision order application resumed in the Supreme Court of Victoria. As judgement in this matter remains reserved, it is inappropriate to comment further.