A court is expected to rule on Tuesday next week that convicted terrorist Abdul Nacer Benbrika should be released from prison and placed on a supervision order that will force him to comply with strict conditions.
Guardian Australia understands that the Victorian supreme court will find Benbrika should be released on an extended supervision order (ESO) on Tuesday, meaning that he will free for the first time since being arrested on terror charges in 2005.
He was due for release in 2020 but instead became the first person held on a continuing detention order (CDO), a post-sentence regime that the country’s former national security legislation watchdog said should be scrapped.
Benbrika’s order was due to expire on 24 December.
The attorney general’s department applied for Benbrika to be placed on an ESO at the expiration of this order, a spokesperson for the attorney general, Mark Dreyfus, said, for the maximum period of three years.
“The commonwealth has taken the strongest possible action available under law in accordance with the advice from all operational agencies involved in the matter, including AFP and Victoria police.
“The attorney general’s application for an extended supervision order is in addition to the existing powers available to law enforcement and security agencies to protect the community.
“The Albanese government has confidence in the AFP and our security agencies to ensure community safety.”
The exact nature of Benbrika’s proposed supervision under the order will be determined on Tuesday. It could include electronic monitoring, regular reporting to authorities and restrictions over who he associates with, where he travels, his use of social media and his forms of communication.
Just before Benbrika’s sentence was due to expire in 2020, the then home affairs minister Peter Dutton also cancelled his citizenship using recently introduced powers. The laws gave broad power to the minister to revoke a person’s citizenship after they were convicted of a terror offence.
Benbrika, 63, successfully appealed against the stripping of his Australian citizenship in the high court last month. His release is set to raise further questions about how authorities manage the risk posed by convicted terrorists who have completed their prison sentences.
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 had praised Osama bin Laden and those responsible for attacks in London and Madrid, encouraged training in the use of knives to maim nonbelievers, 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, authorities argue, remains a threat by virtue of his influence over others. He was accused of following al-Qaida at the time of his arrest, and of having had contact during his time in prison 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.
He has effectively been held in a prison within a prison, subject to similar conditions as maximum security inmates but without the same privileges relating to education and socialisation, his lawyers say.
“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 last year.
“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.”
One of his lawyers, Isabelle Skaburskis, told the Guardian last year: “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.
“The worst part is that even though his situation is clearly harming him, he has no legal recourse.
“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.”
Hearings about the post-sentence orders had become a quasi-inquiry into the reliability of a risk assessment tool favoured by the government to assess extremists, VERA-2R.
