Supreme Court judge slams federal police and the Department of Home Affairs over Abdul Nacer Benbrika case

The Greens say an independent investigation is needed to look into Peter Dutton’s handling of reports involving notorious terrorist Abdul Nacer Benbrika, while a terror expert says the case is a “wake up call”.

A Supreme Court judge has slammed federal police and the Department of Home Affairs for failing to hand over critical reports about an assessment tool used to keep notorious terrorist Abdul Nacer Benbrika behind bars.

Justice Elizabeth Hollingworth on Wednesday revealed she had referred the matter to the national security watchdog over fears of “a serious interference with the administration of justice”.

The AFP Minister’s failure to hand over five expert reports that were critical of the Violent Extremist Risk Assessment tool – used by the minister’s expert to argue that Benbrika was an ongoing risk to the community – was a factor in Justice Hollingworth not giving him a longer supervision order.

Peter Dutton held the home affairs portfolio between 2017 and 2021. This means he was in charge when the controversial Corner report was commissioned, with officials fearing even the draft report could present “serious problems” for post-sentence order applications because it was critical of the VERA-2R tool.

Convicted terrorist Abdul Nacer Benbrika following his release into the community. Picture: David Crosling

Greens justice spokesman, Senator David Shoebridge, said an independent investigation was critical because neither Home Affairs or the Attorney-General’s Department gave the court any credible explanation for why evidence about the assessment tool was withheld.

“This should have already produced a self referral to the National Anti-Corruption Commision by both Home Affairs and the Attorney-General’s Department,” Senator Shoebridge said.

“There must be an urgent investigation to determine if a contempt of court was committed by former Minister Dutton, or other senior officers in Home Affairs.”

Senator Shoebridge said the refusal to produce evidence that was favourable to the government in order to keep terrorists in prison was a “deep and fundamental breach of public trust and must come with serious consequences”.

Terrorism expert Prof Greg Barton said Mr Dutton’s handling of the reports “potentially jeopardises future cases”.

“What it should be is a wake up call,” the Deakin University academic said.

“The truth is that we don’t have a tool that can predict how somebody’s going to behave, in criminal terms, reliably and safely when it comes to terrorism offending.”

The Independent National Security Legislation Monitor is focused on law reform and independently reviews the operation, effectiveness and implications of certain national security and counter-terrorism laws.

Justice Hollingworth is expected to provide monitor Jake Blight with the relevant evidence for him to review and assess whether it falls under the jurisdiction detailed in the Act.

Opposition home affairs spokesman, Senator James Paterson, on Thursday said it had “no power” to investigate departments, agencies or ministers.

Anthony Albanese said three reviews into the Department of Home Affairs and Immigration, including during Mr Dutton’s time in the portfolio, found it was “dysfunctional”.

“We’ve been busy cleaning up the mess that Peter Dutton left in that department,” the Prime Minister said.

‘What happened in this case should never have happened’

Justice Hollingworth was scathing of the Home Affairs department’s “critical role” in the nondisclosure of the documents, saying she did not accept the “bold assertion” that it was a “system failure”.

Justice Hollingworth said she would refer the matter to the Independent National Security Legislation Monitor but would not report individuals to professional disciplinary bodies.

“What happened in this case should never have happened, and should not be repeated in the case of Mr Benbrika or any other person subject of a post-sentence order application,” she wrote in her published reasons on Wednesday.

“The nondisclosure of the various expert reports amounts to a serious interference with the administration of justice.”

She said Benbrika’s earlier proceedings had “all been tainted to varying degrees by the nondisclosure” and it would have been “unfair” for her to impose an extremely onerous extended supervision order (ESO) for three years after he was deemed a “moderate-low” risk.

“Had I done so, the AFP Minister would have continue to have the benefit of the improper nondisclosure, and Mr Benbrika would have borne the onus of persuading a future judge to reduce the ESO’s strictness or duration,” Justice Hollingworth said.

“It will be fairer if the judge hearing the matter at the end of 2024 starts with a clean slate when considering what, if any, ESO conditions would be appropriate at that time, having regard to all the relevant material.”

Abdul Nacer Benbrika leaves Barwon Prison. Picture: Andrew Henshaw

Benbrika was released into the community in December, after commonwealth prosecutors failed to secure another detention order or a three year supervision order.

Justice Hollingworth imposed a one year ESO on Algerian-born criminal, primarily due to expert advice that if he fully participates in a deradicalisation program with a Sheikh he may not need to be on a supervision order going forward.

Experts had found him to be “honest” and a “willing and enthusiastic pupil”, who did not currently support an ideology that “justified the use of violence” but could play a “supportive role within a terrorist organisation”.

They said he was “terrified of the prospect of returning to prison, and would not do anything to put that in jeopardy”.

Mr Dutton was contacted for comment.

A Home Affairs department spokesman said: “The Australian Government is carefully reviewing the judgment and will consider its implications”.

Benbrika’s landmark release followed 18 years in prison, after he was found guilty of leading a terror cell.

The court had heard there was still a danger that he could “radicalise others or encourage them to engage in acts of religious-inspired violence”.

Abdul Nacer Benbrika told the Herald Sun he had “learnt a huge lesson” following his release from prison.

But Justice Hollingworth said the risk of Benbrika committing further offences was “now low enough” that he could be managed in the community.

He was ordered to participate in Commonwealth-paid psychological treatment and a deradicalisation program with a Sheikh.

Thirty strict conditions including wearing an electronic monitoring device, submitting to a curfew between 10pm and 6am, and only using one phone, were also imposed.

Commonwealth lawyers sought to reinforce that any breaches of the conditions would be a serious offence that could trigger a court application to strip his citizenship under new laws passed in the federal parliament this month.

The laws were prompted by the High Court’s November decision to overturn a ministerial move to revoke Benbrika’s Australian citizenship under the former Coalition government.

In an exclusive interview with the Herald Sun following his release from prison, Abdul Nacer Benbrika said: “I’ve thought about it and I have learnt a huge lesson”.

“After 18 years, it’s an adjustment,” he said. “It’s from zero to the complete opposite.

“There are different places, different people and different things. It’s totally different.

He also urged people concerned about his release not to lose sleep.

“It’s completely different now,” he said. “We just want to tell people we are like any other family.”

In April, it was revealed that taxpayers had forked out more than $10m on jail and legal costs for Benbrika in the past three years.