Judge rebukes government’s ‘disgraceful’ handling of terrorist Abdul Nacer Benbrika’s court case

Judge rebukes government’s ‘disgraceful’ handling of terrorist Abdul Nacer Benbrika’s court case, says Home Affairs hung junior solicitor ‘out to dry’ over hidden report.

Abdul Nacer Benbrika.

A Supreme Court judge has robustly criticised the government’s handling of terrorist Abdul Nacer Benbrika, saying “quite disgraceful’’ resources had been allocated to the case but last-minute developments including revoking Benbrika’s visa were still occurring.

Judge Elizabeth Hollingworth also said she had been given no adequate explanation for why the government had failed to disclose to the court and Benbrika’s lawyers a report by academic Emily Corner that criticised the assessment tool used to deem him a continued terrorism risk. “The government is understandably embarrassed. I still haven’t seen a satisfactory explanation for nondisclosure of the Corner report,’’ she said in the Supreme Court of Victoria.

“A junior solicitor has largely been hung out to dry … There is still quite a deafening silence from people high up in Home Affairs about what happened.’’

Supreme Court judge Elizabeth Hollingworth.

Her comments came in a direction hearing where Benbrika, the Algerian-bornspiritual leader of an al-Qa’ida-linked terror cell that plotted attacks on Australian landmarks in the early 2000s, is challenging continuation of his continued detention order, which has kept him in jail for three years after the conclusion of his 15-year sentence.

The court heard the government and Benbrika’s legal team had agreed he would be placed on an extended supervision order, a strict supervision regime within the community, once his continued detention order expired or was revoked.

However, the barrister for ­Attorney-General Mark Dreyfus, Peter Hanks KC, told the court that Home Affairs Minister Clare O’Neil had on Friday made the decision to revoke Benbrika’s visa. “The consequence of that is he must be taken into immigration detention,’’ Mr Hanks said.

The court did not make a decision as to which act – the Criminal Code or the Migration Act – “trumped’’ the other but discussed wording in the Migration Act that stated “immigration detention’’ could include a location determined in writing by the minister, such as a residence within the community.

Mr Hanks said the Australian Border Force and Victorian state agencies were working to determine where Benbrika would be detained.

The court is expected to hear arguments in June about the conditions Benbrika would face on an extended supervision order, and the potential length of any such order.

The matter is further complicated by his High Court appeal against the stripping of his Australian citizenship, which, if successful, would override the revocation of his visa, and allow him to live in the community.

He will remain in Barwon prison in the short term but Justice Hollingworth said she would have to consider how to manage whatever risk Benbrika posed if he was living in the community, unless the “bureaucrats have pulled their fingers out and made a decision’’ about where he would be detained.

Benbrika’s lawyer, Dan Star KC, noted the government had filed affidavits relating to the failure to disclose the Corner report but had not said whether it would call witnesses to explain the nondisclosure.

Home Affairs commissioned the report and promptly buried it after Dr Corner found there was no evidence the primary tool used in Australia to determine whether a terrorist posed an ongoing risk, known as VERA-2R, was effective.

She questioned its validity and reliability and said its evidentiary basis was weak.

Justice Hollingworth said it seemed clear government did not want nondisclosure of the report “explored in court.’’

“It’s actually quite disgraceful, the amount of resources … there are now five barristers and eight solicitors at last count for the commonwealth, you’ve (Benbrika’s team) got three barristers and umpteen solicitors on your side,” she said.

“The amount of money that’s been spent on these proceedings, and decisions have still not been made by relevant government officials. I can understand your outage on this.’’

She urged Mr Star to end the “stand-off’’ by serving a notice and requiring the Government to produce witnesses to discuss the findings of the Corner report and the VERA-2R assessment tool.

“If you articulate what its relevance is, on the record, and they chose not to put it in evidence, you can then invite me to draw every inference under the sun about that. But at the moment you are both playing stand off and I’m just suggesting you bite the bullet,’’ she said.

“I see Mr Hanks shaking his head but what happened with the Corner report is a disgrace.

“The government solicitor quite properly agrees it should have been disclosed.’’

Mr Star said it was open for the court to find the government had intentionally not disclosed the report, “because they knew it was fatal to the reliance on VERA.’’

Mr Hanks replied that “We understand the significance, as far as the court is concerned, of the nondisclosure.’’

Justice Hollingworth said the commonwealth government was supposed to be a model litigant.

“The government solicitor concedes the corner report should have been disclosed. A previous judge of this court, three Court of Appeal judges, who have all heard argument about the validity of this, did so without this disclosure being made,’’ she said.

“Why is the commonwealth playing ducks and drakes as a model litigant?

“You’ve put these affidavits in, presumably to try to placate the court but you’re not wanting to table them because heaven forbid we might have a court hearing about why we didn’t disclose this clearly disclosable document.’’