Benbrika was kept behind bars after his prison term ended on the basis he was an ongoing risk to national security.
This was based on the findings of a VERA-2R – the Violent Extremism Risk Assessment 2 Revised – report, which measures the threat posed by extremists when considering their release from prison.
Abdul Nacer Benbrika won a High Court bid to retain his Australian citizenship.Credit: ABC
But the test has fallen out of favour following a report written by Australian National University lecturer Dr Emily Corner, who found the assessment was unable to accurately predict a person’s “specified risk with anything other than chance”.
Corner’s report was completed in May 2020 and submitted to the Department of Home Affairs.
The then Coalition government failed to send Corner’s report and four other reports critical of the extremism assessment to Benbrika’s defence team. In December 2020, a judge ruled Benbrika should stay in custody for another three years.
“There is no doubt that the administration of justice has been adversely affected by the non-disclosure of the Corner report and the four other expert reports critical of VERA-2R,” Hollingworth said on Wednesday.
“The accepted validity of VERA-2R was absolutely fundamental to the decisions to impose and continue the CDO [continuing detention order].”
Hollingworth found: “The statutory requirement that the AFP minister disclose exculpatory material [such as the reports] is 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.”
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Benbrika’s ongoing detention has presented considerable political and legal complications for the Commonwealth since 2020.
Benbrika, an Algerian grandfather who goes by “Nacer”, was convicted in 2009 of directing a terrorist organisation. A jury found him guilty of being the spiritual leader of a terror cell, with members in Melbourne and Sydney, that planned attacks on Australian soil.
Benbrika’s group discussed carrying out attacks because it wanted the Australian government to withdraw troops from Iraq and Afghanistan. No attacks were ever carried out.
In December last year, the former watchdog for Australia’s national security laws, Grant Donaldson, SC, labelled the Commonwealth’s treatment of Benbrika a disgrace and criticised his continued detention.
In his final report, Donaldson said the government had failed to explain why it had concealed the Corner report criticising the efficacy of VERA-2R. Donaldson also called for an inquiry to examine the government’s withholding of crucial evidence.
Hollingworth ordered Benbrika be released into the community last year. Benbrika is currently in the community subject to 30 conditions imposed by the court, including a curfew, an order he live at a specific address that he cannot change without permission, and must come to the door when called upon by police.
He must also continue receiving psychological treatment and continue to engage with de-radicalisation programs.
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