Department of Home Affairs officials told researchers to water down a key report that threatened to undermine the government’s use of “extraordinary” counter-terror powers allowing individuals to be imprisoned for a crime they have not yet committed, documents show.
Australia’s preventive detention regime for terror offenders, which allows individuals to be imprisoned for up to three years to prevent a future crime, has been described as “extraordinary” and disproportionate by the nation’s independent national security laws watchdog, who called for its abolishment in March and said it was causing Australia to become a “coarser and harsher society”.
The powers, deployed using court-ordered continuing detention orders (CDOs), rely on the use of tools designed to assess the risk of someone committing a future terror offence or engaging in violent extremism.
In 2018, the home affairs department engaged leading researchers at the Australian National University to review the accuracy of the risk assessment tools. Their report was damning, finding a lack of evidence had “serious implications” for their validity and reliability.
The Morrison government was handed the report in May 2020 but sat on it and did not provide it to courts in cases where CDOs or extended supervision orders (ESOs) were being considered, denying individuals material casting doubt on the assessment process and prompting scathing criticism by defence lawyers and the Independent National Security Legislation Monitor (INSLM).
Internal documents obtained by Guardian Australia using freedom of information laws show that, once the researchers submitted their findings, the Department of Home Affairs attempted to remove the most serious criticisms contained in the report.
The department emailed researchers in June 2020 to tell them to “reconsider” findings suggesting two of the risk assessment tools, known as Vera-2R and Radar, were not fit for purpose.
It also urged them to “revisit the writing tone” to avoid suggestions that “the Australian government should dispense with both tools”.
“This is the section of the report most readers will visit,” the department told the ANU researchers, referring to the report’s executive summary. “We would be grateful if you would revisit the writing tone. Some decision makers might misinterpret your findings as they are currently expressed and conclude that the Australian Government should dispense with both tools, leaving law enforcement and correctional agencies with only operational experience.”
In another comment on the draft report, the department told the researchers to “reconsider how to express your finding”, apparently concerned at a suggestion that the tools should not be used.
“[These] represent important elements of your research findings, but we are concerned that the finding as they are expressed suggests that the instruments are not fit for purpose. We invite you to reconsider how to express your finding here and in the body of the report.”
The correspondence also refers to an earlier meeting during which, according to the department, the researchers said they “did not mean to suggest that the department should cease using the VERA2R and Radar instruments”.
“We are concerned that the casual reader or a reader without a research background might conclude that this is the report’s main conclusion,” the department told the researchers. “We request a paragraph to avoid this potential misinterpretation.”
The report was published with some changes, though it remained scathing and the ANU said “no changes were made to the fundamental research outcomes”. It also said the two researchers, Emily Corner and Helen Taylor, had no control over the report once it was submitted to government.
“Dr Corner and Dr Taylor submitted the evaluation findings to the Department of Home Affairs in May 2020,” a spokesperson said. “Their involvement in the process ended at this point. It was then up to the Department to produce the report.”
“No changes were made to the fundamental research outcomes.”
After receiving the report in May 2020, the Department of Home Affairs failed to provide the report in a series of cases where CDOs or ESOs were being sought.
Legal Aid lawyers have previously told Guardian Australia they were left oblivious to its existence in 25 separate cases where the government was seeking post-sentence detention or supervision of their clients.
In March, the INSLM, Grant Donaldson, recommended that CDOs be abolished and ESOs be significantly overhauled, including to promote a better focus on rehabilitation.
The existence of the ANU report was only revealed during the INSLM’s inquiry into the regime. Donaldson said there was “no excuse” for not having provided the report to defendants during court proceedings.
The department said it could not comment because matters remained before the court, but said the “research was commissioned to contribute to the department’s understanding of violent extremism risk assessment tools, including to support the ongoing refinement of these tools by the authors”.
The department has also received other reports about the risk assessment tools which are less critical of their accuracy and validity.
