In a prison within a prison, a convicted terrorist who has finished his sentence waits for another day in court.
“I’m like a person swimming in the middle of the ocean,” Abdul Nacer Benbrika said in a statement provided by his lawyers to the Guardian. “I look over there and all I see is water. I look over here and all I see is water. I don’t even know which way is the land any more or where I am supposed to be going.”
Benbrika, 62, embodies a wicked problem: what should be done with convicted terrorists who authorities say still pose a risk after serving their time?
In 2009, Benbrika was sentenced to 15 years in prison – with a minimum term of 12 years – after he was convicted of directing a terrorist organisation and other charges when a Melbourne-based network was uncovered as part of Operation Pendennis.
The organisation had no advanced plans to commit a terrorist act but the court found Benbrika praised Osama bin-Laden and those responsible for attacks in London and Madrid, encouraged training in the use of knives to maim non-believers, exhorted a follower to not just kill a few people but to “do a big thing”, and referred to killing a thousand people to coerce the government into withdrawing Australian troops from Muslim countries.
Benbrika has been in custody since 2005 and was due for release in 2020.
But instead of freedom, Benbrika became the first person held under a continuing detention order (CDO), and he is believed to be the only person in Australia still detained under such an order.
The orders, introduced in 2016, are designed to allow for the continuing detention of “terrorist offenders” where a court is satisfied they pose an unacceptable risk of committing a serious terrorism offence if released into the community at the end of their custodial sentence.
Others could soon be subject to the same orders, given that earlier this year there were 21 people in Australian prisons with terrorism convictions who were due for release before 2027.
The Independent National Security Legislation Monitor (INSLM), Grant Donaldson SC, is reviewing Division 105A of the commonwealth criminal code which authorises the orders.
The Australian Human Rights Commission and Law Council of Australia want the current control order regime repealed. The federal attorney general’s department is pushing for the current threshold and framework to be maintained.
An earlier submission by the home affairs and attorney general’s departments referred to attacks committed by terrorists after their release in the UK, Austria and New Zealand, but noted Australia had not experienced a similar attack.
Donaldson is essentially grappling with a simple problem involving a complex law: how to protect the rights of an individual while ensuring the safety of the community?
Benbrika would rather be serving a sentence than held under a continuing detention order.
His lawyers say he is effectively being held in isolation in a maximum security setting and subject to the same restrictions as he was while a sentenced prisoner – but with none of the benefits regarding work, education and socialising with other inmates.
They say he is suffering from medical conditions linked to his detention, including an inflammatory bowel disease known as ulcerative colitis, depression, panic disorder and extensive dermatitis.
Since he completed his sentence in 2020 and was moved to the specially constructed Piper unit within Barwon prison, Benbrika’s lawyers say he has been at risk of self-harm on multiple occasions and had months-long periods where he was prevented from seeing any other inmates, participating in group prayer, or having contact visits with family.
He is unable to work, as he did while serving his sentence, was initially denied access to new religious texts, and is locked in his room from 7pm on weeknights and from 4pm on Fridays and weekends, his lawyers say. Benbrika has also reported alleged mistreatment by guards to prison authorities.The high court has ruled that a CDO should be protective, not punitive.
Benbrika, authorities argue, remains a threat by virtue of his influence over others. He is alleged to have pledged allegiance to Islamic State while in custody after he was accused of following al-Qaida at the time of his arrest. He was accused of having had contact during his sentence with several people linked to extremism, including foreign fighters and those accused of domestic plots.
Benbrika has never been accused of harming anyone. A witness during his trial claimed he had planned a terror attack against a number of Melbourne targets, including the MCG, but that evidence was explicitly rejected by Victorian supreme court judge Bernard Bongiorno, who sentenced Benbrika.
There is no end to his detention in sight. Benbrika’s current order can be used to hold him until December 2023, and then another can then be applied for – which would allow a further three years’ detention.
He has had his citizenship cancelled, which means that once his detention finishes he is likely to be moved to immigration detention while he fights deportation to Algeria where he was born and raised.
His barrister, Dan Star KC, told the supreme court this week during a directions hearing regarding Benbrika’s CDO that his client was “not doing well at the moment and in particular it’s the uncertainty that’s having a real impact on his wellbeing”.
Another of Benbrika’s lawyers, Isabelle Skaburskis, told the Guardian: “He doesn’t know if, how or when it [his detention] will end. I don’t understand how this is anything but cruel and inhuman treatment.”
Skaburskis says the fact there is no need for a court to consider the harm suffered by Benbrika while he is detained under a CDO is particularly concerning.
“The worst part is that even though his situation is clearly harming him, he has no legal recourse,” she said.
“The law requires the detention order to be reviewed every year, but a detainee’s welfare has been excluded as a relevant consideration for the court. Whether his situation is helping, or hurting, or slowly killing him, is not even relevant.”
Other concerns raised during Donaldson’s public hearings regarding the CDO regime included the use of a controversial risk-assessment tool, whether CDOs breach Australia’s international human rights obligations, and whether there should be an obligation for the government to provide legal funding for related court hearings – and for such action to commence at a legislated period before an offender’s sentence is completed, to avoid unnecessary delays.
At times during these hearings, Donaldson has appeared willing to overhaul the scheme, and referenced the “discomfort that I think all people feel about detention other than as a direct response to conviction for crime”.
The hearings continue on Monday. Representatives from the Australian federal police, the Australian Human Rights Commission, the Law Council of Australia and the home affairs and attorney general’s departments are expected to appear.
In Australia, the crisis support service Lifeline is 13 11 14. In the UK and Ireland, Samaritans can be contacted on freephone 116 123, or email jo@samaritans.org or jo@samaritans.ie. In the US, the National Suicide Prevention Lifeline is at 800-273-8255 or chat for support. You can also text HOME to 741741 to connect with a crisis text line counsellor. Other international helplines can be found at befrienders.org
