Court asks national security watchdog to investigate Dutton over terror leader’s detention

Peter Dutton could be investigated by the national security watchdog after a Victorian Supreme Court judge found that under his watch as home affairs minister, the department failed to disclose scathing reports questioning an assessment tool used to detain terror cell leader Abdul Nacer Benbrika.

Justice Elizabeth Hollingworth said on Wednesday that she had concerns there had been “a serious interference with the administration of justice”, and she was referring the matter to the Independent National Security Legislation Monitor.

Opposition Leader Peter Dutton.Credit: Alex Ellinghausen

Hollingworth was scathing of the conduct of the Australian Federal Police and the Department of Home Affairs for not sharing the expert reports with Benbrika’s legal team.

Dutton is now opposition leader but oversaw the Australian Federal Police and Home Affairs as part of a broad law-and-order portfolio from late 2017 to March 2021. During this period, an order extending Benbrika’s prison term was handed down and the matter was litigated in Victoria.

Hollingworth said the department had engaged in similar non-disclosure in relation to other terrorist offenders, which would also be referred to the security legislation monitor.

“The non-disclosure of the various expert reports amounts to a serious interference with the administration of justice,” she said.

Abdul Nacer Benbrika leaving Barwon Prison, near Geelong, in December.Credit: Justin McManus

“The wider implications of the [then] AFP minister’s conduct and terrorist proceedings are a matter more appropriately considered by the monitor than by a court hearing and an individual application.”

Dutton’s office did not respond to requests for comment.

Benbrika’s detention has presented considerable political and legal complications for the Commonwealth since 2020.

Benbrika was kept in custody after his prison term ended on the basis he was an ongoing risk to national security.

This was based on the findings of a VERA-2R (Violent Extremism Risk Assessment 2 Revised) report, which measures the threat posed by extremists when considering their release from prison.

But the test has fallen out of favour following a report written by Australian National University lecturer Dr Emily Corner, who found the assessment was unable to accurately predict a person’s “specified risk with anything other than chance”.

Corner’s report was completed in May 2020 and submitted to the Department of Home Affairs.

The then Coalition government failed to send Corner’s report and four other reports critical of the extremism assessment to Benbrika’s defence team. In December 2020, a judge ruled Benbrika should stay in custody for another three years.

“There is no doubt that the administration of justice has been adversely affected by the non-disclosure of the Corner report and the four other expert reports critical of VERA-2R,” Hollingworth said on Wednesday.

“The accepted validity of VERA-2R was absolutely fundamental to the decisions to impose and continue the CDO [continuing detention order].

“The statutory requirement that the AFP minister disclose exculpatory material [such as the reports] is a fundamental safeguard to ensure the protection of individual liberty under what is very unusual and draconian legislation.

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

Benbrika’s detention has presented considerable political and legal complications for the Commonwealth since 2020.

Benbrika, an Algerian grandfather who goes by the name “Nacer”, was convicted in 2009 of directing a terrorist organisation. A jury found him guilty of being the spiritual leader of a terror cell, with members in Melbourne and Sydney, that planned attacks on Australian soil.

His group discussed carrying out attacks because it wanted the Australian government to withdraw troops from Iraq and Afghanistan. No attacks were ever carried out.

Benbrika, speaking at his home in Melbourne’s north, said he wanted to see fairness in Australia’s legal system.

“We tell ourselves that we live in a country where everybody’s equal, so let’s see it. What I did in the past was bad and I was punished for it. Now it’s clear that the government has done something bad. I hope the monitor will do his job,” he said.

A spokesman for Attorney-General Mark Dreyfus said the former Coalition government was responsible for the High Risk Terrorist Offender scheme at that time.

In December, the former watchdog for Australia’s national security laws, Grant Donaldson, SC, labelled the Commonwealth’s treatment of Benbrika “a disgrace” and criticised his continued detention.

In his final report, Donaldson said the government had failed to explain why it had concealed the Corner report criticising the efficacy of VERA-2R. Donaldson also called for an inquiry to examine the government’s withholding of crucial evidence.

Australian Lawyers Alliance criminal justice spokesman Greg Barns, SC, said it was fundamentally important in Australia’s system of democracy that the rule of law be consistently applied by government departments.

“An element of this includes ensuring fairness in proceedings against individuals, particularly where a person’s freedom of movement and liberty is at stake because of course, these are fundamental human rights,” he said.

Hollingworth also specifically criticised the behaviour of a senior public servant inside Home Affairs, Stephen Webber, who she suggested was acting “disingenuously” when he apologised on behalf of the department.

“I do not accept the proffered ‘explanation’ or ‘apology’ from Mr Webber on behalf of Home Affairs. They are both utterly disingenuous, in circumstances where Mr Webber (or others in the department) has deliberately chosen not to put a proper explanation before the court,” she found.

Hollingworth said that after she referred the matter, it would be up to the watchdog to undertake any further investigations “to get to the bottom of why the various expert reports were not disclosed to Mr Benbrika”.

“I am going to refer the non-disclosure of the Corner report and the four other expert reports to the current [Independent National Security Legislation Monitor], and provide him with a copy of these reasons and all of the relevant evidence,” she said.

Hollingworth also flagged that lawyers within Home Affairs might be subject to professional sanction for failing to disclose the information they were legally obliged to.

“If any of [the lawyers] have been involved in improperly withholding exculpatory material, that may have professional disciplinary consequences for them,” she said.

Doogue + George partner Isabelle Skaburskis, who has worked on Benbrika’s case for four years, said the government had harmed many people with the CDO legislation, and that many people were still impacted by it.

“In hundreds of hours of contact I’ve had with Nacer and his family, I have seen how desperately this man wants to live his life, peacefully, outside of the public eye and outside the constant surveillance,” Skaburskis said.

Hollingworth ordered Benbrika be released into the community last year. Benbrika is currently in the community subject to 30 conditions imposed by the court, including a curfew, an order that he live at a specific address that he cannot change without permission, and that he must come to the door when called on by police.

He must also continue receiving psychological treatment and engage with de-radicalisation programs.

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