Terrorist Abdul Nacer Benbrika should be released now: QC

Lawyers for a convicted terrorist have argued that a bid to ­extend their client’s detention is unconstitutional and he should be released from prison now.

Lawyers for a convicted terrorist who plotted attacks on Australian soil have argued that a bid to ­extend their client’s detention is unconstitutional and he should be released from prison now that his sentence is up.

Convicted terrorist Abdul Nacer Benbrika was jailed in 2009 and was due to be released last month after serving 15 years behind bars.

Home Affairs Minister Peter Dutton is pushing to extend Benbrika’s imprisonment through a continuing detention order that can keep convicted terrorists in custody for up to three years after their sentence has ended.

But Benbrika’s lawyers are asking the High Court to consider whether the power conferred to the Victorian Supreme Court to extend Benbrika’s detention was valid or within the judicial power of the commonwealth.

Last month, Mr Dutton said it was appropriate to keep Benbrika, who once threatened to assassinate former prime minister John Howard, behind bars because he remained a serious threat to the community.

Benbrika’s lawyer, Ron Merkel QC, told the High Court on Thursday the push to extend his client’s time behind bars was not within the commonwealth’s remit because it was a punitive and not a preventive measure. “We say it would be wrong to treat this as part of a sentencing,” Mr Merkel said.

“The preventive purpose has to be one that displaces the original punishment — it fails to do that. His continued detention does not fall under the exceptions that have been recognised.”

A submission to the court shows that non-punitive examples that can be “justified as part of the judicial power of the commonwealth” are the continued detention of the mentally ill or those suffering from an infectious disease.

Chief Justice Susan Kiefel asked Mr Merkel to explain how being mentally ill and a threat to the community was any different to a person with extremist views.

“At least two of these examples where it is accepted that a law with a purpose of protecting community is appropriate,” she said.

“What about the exception of a person who is mentally ill because they might be a danger to the community?

“What is the difference when a person has an ideology that involves the administration of harm to a community?

Mr Merkel said the separation of powers was a bulwark of liberty and the High Court has not previously ruled that the commonwealth has the power to imprison a person for “what he might do rather than what he did”.