A tool used to predict future terror offences is still being used by Home Affairs despite several expert reports and a Supreme Court judge deeming it “extremely poor” at assessing individuals’ risk of committing terror-related crimes.
The ‘VERA-2R’, widely criticised by a series of reports questioning its efficacy, is still being used by the government and psychologists to assess the ongoing risks of terrorist offenders in considering whether they should be detained beyond their sentence – despite the tool not working.
Convicted terror cell leader Abdul Nacer Benbrika riding a horse following his release from detention in December 2023.
However, after several reports were made public, courts are applying a more sceptical approach to risk assessments that rely primarily on the Violent Extremist Risk Assessment 2 Revised (VERA-2R).
On Wednesday, Victorian Supreme Court judge Elizabeth Hollingworth said she had concerns that the Home Affairs department, while being run by Opposition Leader Peter Dutton, had engaged in “a serious interference with the administration of justice” and that she was referring the matter to the Independent National Security Legislation Monitor.
People convicted of terrorism offences can be kept in prison beyond their sentence or have conditions placed on their release by application of the government, and be placed on a continuing detention order (CDO) or extended supervision order (ESO).
To obtain these orders, the government must apply to the courts, which assess the results of the VERA-2R – among other factors – to determine whether a convicted terrorist remains a risk to the community and should be held in custody.
Convicted terrorist Abdul Nacer Benbrika was subject to VERA-2R risk assessment protocols, and, on the strength of that assessment, held a further three years beyond his sentence.
Grant Donaldson SC, formerly Australia’s Independent National Security Legislation Monitor, a watchdog for national security, said the government believed mechanisms used to detain sex offenders after their sentence could also be transposed onto people convicted of terrorism – which he said was wrong.
“When the Act was conceived, the Commonwealth thought that the mechanisms for dangerous sex offenders could simply be transposed for terrorism offenders. They could not be, and this should have been understood and as we now know was understood within Home Affairs,” he said.
He said that courts were initially sceptical to accept ongoing risk reports for sex offenders, but this same level of scepticism was not applied to the assessment generated by the VERA-2R and people convicted of terrorism offences.
Abdul Nacer Benbrika leaving Barwon Prison, near Geelong, in December.Credit: Justin McManus
“The Commonwealth bought the VERA-2R product, trained people to use it, sought to conceal known difficulties with the tool and silence people who actually knew of the problems,” he said.
“Far too little thought was given in the past to difficulties with prediction of future offending, and particularly the risk of future terrorism offending.”
Donaldson said he does not see any use for the VERA-2R presently, and last year recommended that CDOs be abolished and ESOs be overhauled.
The issue about the government’s reliance on the VERA-2R came to a head during the Benbrika trial, after government lawyers considered disclosing, but subsequently did not, a report written by Dr Emily Corner that said the assessments had poor predictive validity.
After the tool was savaged, courts have placed less emphasis on its findings, and practitioners have begun to limit its capacity to predict risk.
Forensic psychologist Dr Chelsey Dewson – who told the court in 2020 she found Benbrika posed a high risk to Australian security based on the VERA-2R – said in a recent NSW case she uses the tool “as a non-exhaustive checklist for the purposes of identifying relevant factors to which she then applied her clinical judgment”.
Corner, an associate professor from Australian National University, declined to comment. In her report, she found “the VERA-2R has ... extremely poor predictive validity”.
Greens Justice Spokesperson senator David Shoebridge said he was “deeply concerned” that a fair court process was disregarded by Home Affairs on multiple occasions.
“The judge in the Benbrika matter clearly expressed her concerns that the discredited VERA-2R tool has been used in other matters and continues to be used to justify ongoing incarceration of people,” he said.
Abdul Nacer Benbrika and Peter Dutton.
”Undermining fundamental legal principles to rig court outcomes does not make for a safer society, that’s a lesson this government desperately needs to learn.”
Doogue & George partner Isabelle Skaburskis, who worked on Benbrika’s case for six years and successfully freed him in December last year, said courts should stop accepting expert opinions based on the VERA-2R.
“The legislation to imprison people for their risk of committing a terrorism offence still exists. It has been widely condemned by experts and legal bodies around the country, and there are calls across the political spectrum to abolish the legislation. There is no other country in the world that has a comparable scheme,” she said.
“What a case will come down to in the future is not the tool but the expert. If the government wants to say that someone is a risk because of their ideology, then they’ll have to get an expert with knowledge of that ideology.
“They haven’t done that in the past. They have relied on experts with no knowledge of the ideology, but some working experience with the VERA-2R.”
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.
In response to questions about the case on 2GB, Dutton said the court could not refer him as former home affairs minister to the national security watchdog.
The federal government did not respond before deadline.
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