A tool used by authorities to assess the risk posed by convicted terrorists before their release from prison is unreliable and should be investigated, the Australian Human Rights Commission and a peak body for Muslims have argued.
The Violent Extremism Risk Assessment 2 Revised, known as VERA-2R, is used to measure the threat posed by extremists, often when considering whether they will be subject to strict court orders once their prison sentence is completed.
The federal government said 21 people in jail with terrorism convictions were due for release before 2027. The tool has already been used in about a dozen cases, the majority of them in NSW.
But according to separate recent submissions made to the Independent National Security Legislation Monitor (INSLM), the AHRC and Islamic Council of Victoria (ICV) have serious concerns the tool could be used to justify an offender’s detention after they had served their sentence.
“Post-sentence orders based on anticipated harm can only be justified where there is cogent and compelling evidence of future risk,” the AHRC said in its submission.
“It is clear from experience in a number of cases that the primary tool relied on by expert witnesses in PSO [post-sentence order] matters, VERA-2R, is not sufficiently reliable for this purpose.
“The Commission urges the INSLM to inquire into the use of this tool.”
The Islamic Council said in its submission the factors measured using VERA-2R meant Muslims were more likely to be considered at risk of extremist violence than non-Muslims.
“Fundamentally, there is a lack of evidence to support that the VERA-2R has predictive validity in its application to assess risks posed by individuals suspected to have a propensity to commit acts of terrorism, as well as future risks after an offender’s sentence is served.
“The tool was never designed to be used outside of prisons and jails, and certainly not as a predictive tool of radicalisation to violence in the community.
“Increased use of the VERA-2R to predict violent radicalisation runs the risk of not appropriately addressing the risk of terrorism as well as subjecting individuals and communities to disproportionate surveillance and inappropriate interventions.”
The monitor, Grant Donaldson SC, is reviewing Division 105A of the criminal code, which allows the continuing detention of terrorist offenders if a court is satisfied a person at the end of their custodial sentence poses an unacceptable risk of committing a serious terrorism offence if released.
The laws support the issuing of continuing detention orders for up to three years.
Late last month, Donaldson mentioned during a public hearing held as part of his review that while he wanted to “stress that this is not an inquiry into the VERA-2R tool … the efficacy of tools or the efficacy of risk assessment is obviously central to what we are considering”.
He said material before him indicated that research into the efficacy of the tool could be impeded because home affairs was the licensee of the tool in Australia, but also responsible for its accreditation and the training of people who would use it.
“That seems to me to be a very unsatisfactory circumstance that the tool that is used by the government and put before the government to the court as the basis of risk assessment is not a tool the efficacy of which can be adequately the subject … of research.”
The AHRC said the tool, developed in the Netherlands in 2009, was described by its creators as having limitations, with a message on the VERA-2R website stating that its “predictive validity is problematic due to the low base rate of terrorists and violent extremists”.
“Great caution needs to be applied in relying on any such tool in the context of … making a [continuing order],” the human rights commission said.
“Before a tool is used in this context, it should be shown to produce objectively reliable evidence, to a standard that is commensurate with the gravity of the decision-making.
“That standard ought to be high: where a CDO is wrongly made, it would severely infringe an individual’s human rights, almost always amounting to arbitrary detention under the ICCPR (International Covenant on Civil and Political Rights).”
A joint submission by the home affairs and attorney general’s departments, dated January 2022, refers to the 2019 London Bridge and 2020 Streatham attacks in the UK, a 2020 attack in Austria, and an attack last year in Auckland as offences committed after terrorists were released, but noted Australia had not experienced such an attack.
Home affairs said in its submission it supported the use of VERA-2R, and the Australian Federal Police submission said the force used the tool, among other methods, when assessing the risk posed by offenders.
Donaldson will hold a further public hearing as part of his review in Canberra next month.
