The former independent watchdog on Australia’s national security laws has accused his successor of bowing to pressure from the attorney general, Mark Dreyfus, in publishing a “clarification” to an old annual report that had criticised Dreyfus over a terrorism case.
The current Independent Security Legislation Monitor (INSLM), Jake Blight, has confirmed to Guardian Australia that both Dreyfus and one of his staff separately raised concerns earlier this year about what they alleged was “ambiguity” in the INSLM’s 2022-23 report, written by his predecessor, Grant Donaldson.
Three weeks ago, the former INSLM, Donaldson, wrote a blistering letter to Blight after discovering Blight had used his recently published 2023-24 annual report to “clarify” Donaldson’s work from the year before.
Donaldson accused Blight of acting at Dreyfus’s behest and compromising the independence of the office by adding a clarification that he alleges changed the meaning of what he wrote – allegations Blight denies.
“I stand by my independence,” Blight told Guardian Australia. “I stand by the way I’m going about the role.”
In his letter, Donaldson said that when he was INSLM, he had received requests from Dreyfus’s office to change the language in the draft annual report.
“I refused to change what I had written because clarification was not required,” Donaldson wrote to Blight.
Blight insists neither Dreyfus nor his adviser directly asked him for the clarification and the decision was his alone.
“I reject the suggestion that I’ve acted at the behest of anyone,” Blight told Guardian Australia. “The issue of the ambiguity in his report was raised with me by the attorney’s office. It was raised by the attorney at one stage … To be completely clear, there was no request that I put anything in my annual report. There was no direction,” Blight said.
A spokesperson for Dreyfus declined to comment.
In Donaldson’s letter, seen by Guardian Australia, the former INSLM was further incensed that Blight neither consulted nor notified him before publication.
“I am surprised that you purported to ‘clarify’ something in a report for which I was responsible,” Donaldson wrote. “I am unaware of an INSLM ever ‘clarifying’ something in the work of a predecessor.”
A secret report
The issue centres on the Victorian supreme court’s criticisms in 2022 and 2023 of both the former Liberal home affairs minister Peter Dutton and current Labor attorney general Dreyfus in relation to convicted terrorist Abdul Nacer Benbrika.
Benbrika’s almost-20-year sentence for terrorism offences ended in 2020 but the government successfully applied for a continuing detention order.
The same year, Home Affairs under Dutton had commissioned and received a secret assessment of the process it was using to assess the risk individual terrorism offenders could pose if released.
The report, by the Australian National University’s Dr Emily Corner, cast serious doubt on the validity of that process, potentially undermining the government’s legal justification for Benbrika’s ongoing detention.
The Morrison government failed to provide the report to Benbrika and his lawyers during the detention application proceedings.
Donaldson uncovered and revealed its existence two years later.
By then, the 2022 federal election had occurred, the government had changed and Dreyfus was the minister responsible for defending the commonwealth’s actions. Benbrika’s lawyers then lodged a supreme court application for his release. During the hearings, Justice Elizabeth Hollingworth condemned the actions of the department and previous minister in not disclosing the report, and demanded it be provided.
It was – but only in redacted form. The judge then demanded it be provided in full.
Hollingworth directed her primary condemnation at the failure to disclose it which occurred under Dutton. But she also strongly criticised the subsequent refusal to explain and reluctance to provide it in full, both of which occurred under Dreyfus.
A different perspective
At issue now is the way the consecutive INSLM annual reports have portrayed this criticism and whether they fairly apportion blame.
In his 2022-23 annual report, Donaldson referred to Home Affairs having commissioned and not provided the Corner assessment – but did not refer specifically to the minister. Donaldson’s report was based on the judge’s comments in court and was published before her final judgment.
He noted that the attorney general was the responsible minister during the proceedings before Hollingworth. Donaldson described the original failure to disclose the report as “inexcusable” and the later failure to explain as “disgraceful”.
“It must have been obvious to those advising and representing the Attorney-General, if not the Attorney himself, that the failure to disclose the Corner Report to Mr Benbrika and to the court required frank, fulsome, forthright and complete explanation to the court,” Donaldson’s annual report said. “This did not occur.”
Blight said he believed it was not clear in Donaldson’s wording that there had been a machinery-of-government change and therefore a change of minister. He believed it was “reasonable” to clarify that.
“I reject that I’ve done anything to skew what he said,” Blight said. “All I’ve really done is clarify which minister was responsible at which times because I didn’t think that was clear … There is really nothing more to it.”
In his clarification, which took most of a page, Blight wrote that “Mr Donaldson was of the view that the report was exculpatory and should have been disclosed by the ‘relevant Minister’”. In brackets, he added that “the judge later agreed with this characterisation”.
“For the avoidance of doubt it is noted that, at the time of those proceedings, the ‘relevant Minister’ was the Minister for Home Affairs (the Hon Peter Dutton MP and subsequently the Hon Karen Andrews MP),” Blight wrote.
The clarification did not mention the judge’s unmet request for an explanation. Its reference to the judge having to press for the unredacted report was in a footnote, which Blight said reflects his usual practice. It did not mention the criticism she made in court of that initial reluctance.
Donaldson told Guardian Australia he believes the “clarification” has changed the meaning of what he wrote.
“I think it does distort what should be a clear understanding of what I’d written,” he said.
Blight said his clarification was not a criticism.
“I don’t think it damages his reputation. I don’t think it changes the meaning of his report at all.”
Donaldson told Guardian Australia he had decided to speak publicly about the letter because he had asked Blight to publish it on the INSLM website and was refused.
