How Australia detains suspected terrorists could undergo a major overhaul as a result of a secret report.
Abdul Nacer Benbrika has been detained on a continuing detention order (CDO) after serving a 15-year sentence stemming from two terrorism offences.
The order allows Benbrika to be detained, despite serving out his sentence, due to the risk he will reoffend.
But an assessment of the methodology used to determine the future risk of terrorism says a lack of evidence presents "potentially serious implications for their validity and reliability".
Snippets of researcher Dr Emily Corner's report - finalised in May 2020 - were only made public at a hearing by the Independent National Security Legislation Monitor late last year.
"It's not reasonable to anticipate the instruments are able to predict their specified risk with anything other than chance," it reads.
Benbrika's lawyers were initially kept in the dark about the report's findings. The assessment can now be shown to expert witnesses but is yet to be made public.
Dan Star KC argued the non-disclosure of the report to the Commonwealth's expert witnesses who gave evidence for Benbrika's continued detention "is likely to be negligent".
He said the report being public or available to the defence in full would have allowed the Commonwealth to make an extended supervision order instead of a CDO.
A supervision order gives the police extra powers to monitor a person after their release from prison.
"We say there's also been an adverse effect on the administration of justice," Mr Star told Victoria's Supreme Court on Wednesday.
"We do submit that this has caused, or at least contributed to, the deprivation of liberty of Mr Benbrika."
Benbrika's CDO was sought by the home affairs department when his sentence ended in November 2020, and was granted by the Victorian Supreme Court until November 2023.
Attorney-General Mark Dreyfus is considering advice about what order the Commonwealth will pursue and has been given until the end of the month to provide a draft of the order he will seek.
"We still don't know ... whether or not the attorney-general says that the CDO should be affirmed or whether it is acceptable for there to be an ESO," Mr Star said.
