The opposition leader, Peter Dutton, may be investigated by the national security watchdog over the failure to disclose a crucial report that could have undermined efforts to impose post-sentence controls on convicted terrorist Abdul Nacer Benbrika.
The Victorian supreme court justice Elizabeth Hollingworth delivered a judgment on Wednesday that was scathing of Dutton’s handling of the undisclosed report while he was minister for the Australian federal police under the former government.
The Coalition government was, at the time, seeking to impose an extended supervision order on Benbrika, which would subject him to continuing controls and restrictions after the end of his sentence. In doing so, the government relied significantly on a tool designed to predict future risk of terror offending, known as the Vera-2R.
But the Department of Home Affairs deliberately withheld from Benbrika’s legal team information that cast doubt on the reliability of the Vera-2R tool, contained in a government-commissioned report prepared by Australian National University researchers and handed to the department in May 2020.
The ANU report had raised serious questions about the validity and reliability of the Vera-2R tool. Guardian Australia has previously revealed that the report was not disclosed in dozens of cases similar to Benbrika’s, despite the commonwealth being aware of it, leaving Legal Aid lawyers oblivious to its existence.
The Guardian has also previously reported that the department put pressure on the ANU researchers to change a draft version of their report and soften their criticisms of the Vera-2R tool.
In a decision on Wednesday, Hollingworth described the withholding of that report and four others questioning Vera-2R as “a serious interference with the administration of justice” in the Benbrika case.
She said she would refer the non-disclosure to the Independent National Security Legislation Monitor (INSLM) for possible further investigation.
She said the AFP minister had a “statutory requirement” to disclose such material that was a “fundamental safeguard to ensure the protection of individual liberty under what is very unusual and draconian legislation”.
“What happened in this case should never have happened and should not be repeated in the case of Mr Benbrika or any other person the subject of a post-sentence order application,” Hollingworth said.
“I am going to refer the non-disclosure of the Corner report and the four other expert reports to the current INSLM and provide him with a copy of these reasons and all of the relevant evidence. It will be for him to decide what, if any, further investigations he wants to make to get to the bottom of why the various expert reports were not disclosed to Mr Benbrika.”
Dutton’s office was approached for comment.
Benbrika was due for release in 2020, after completing a 15-year sentence for directing a terrorist organisation and other offences, when the government applied for a continuing detention order to keep him in custody.
Hollingworth has previously raised concerns about the non-disclosure. In a hearing in June last year, she said it potentially raised issues with the “interference with the administration of justice”.
“What has happened here is unacceptable, shouldn’t have happened … there has been an interference with the administration of justice, prima facie,” she said in June.
“It’s important … that what has happened be recorded because it’s an absolute disgrace in proceedings of this nature that something like this has happened and is still not properly explained by home affairs.”
The INSLM has previously examined the failure to disclose the ANU report to subjects of continuing detention orders and extended supervision orders. The former INSLM, Grant Donaldson, SC, was highly critical of the non-disclosure.
