On 1 November 2023, the High Court handed down its judgment in the matter of Benbrika v Minister for Home Affairs & Anor 2023 HCA 33. A majority of the High Court held that the power purportedly conferred on the Minister by s 36D of the Citizenship Act is indistinguishable from, and has the same purpose as, that purportedly conferred on the Minister by s 36B of the Citizenship Act. Accordingly, s 36D of the Citizenship Act is invalid because it purports to repose in the Minister for Home Affairs the exclusively judicial function of punishing criminal guilt, contrary to Ch III of the Constitution.
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On 1 November 2023, the High Court handed down its judgment in the matter of Benbrika v Minister for Home Affairs & Anor 2023 HCA 33. A majority of the High Court held that the power purportedly conferred on the Minister by s 36D of the Citizenship Act is indistinguishable from, and has the same purpose as, that purportedly conferred on the Minister by s 36B of the Citizenship Act. Accordingly, s 36D of the Citizenship Act is invalid because it purports to repose in the Minister for Home Affairs the exclusively judicial function of punishing criminal guilt, contrary to Ch III of the Constitution.