Lawyers mull challenges to terror orders as extremist freed

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Lawyers are canvassing challenges to orders keeping extremists behind bars or under close police watch as the release of notorious Muslim cleric Abdul Nacer Benbrika from a Victorian prison on Tuesday prompted the NSW government to look at its own counter-terror regime.

The Albanese government is being called on to stage an inquiry into the Commonwealth’s handling of the high-profile case, while Victoria is warning its federal counterpart to keep its residents safe after Benbrika was released into the community with Attorney-General Mark Dreyfus’ consent.

Abdul Nacer Benbrika leaving Barwon prison on Tuesday.Credit: Justin McManus

The federal opposition accused the government of ending the year by “releasing a terrorist into the community”, while Dreyfus has already left the door open to appealing the length of the one-year supervision order on which Benbrika was released, and the number of conditions attached to it.

“The government will carefully consider the court’s written reasons when published, in consultation with the Commonwealth’s lawyers and our security and law enforcement agencies, before determining next steps,” Dreyfus said in a statement.

Supreme Court judge Elizabeth Hollingworth said the government and Benbrika’s lawyers agreed he should be released into the community because of his reduced risk of offending, however she disagreed with Dreyfus’ application for a three-year order and the number of conditions he sought.

The 30 conditions attached to the order include a curfew, living at a specific address, and answering the door when called upon by police. He must also continue receiving psychological treatment and continue to engage with de-radicalisation programs.

Prime Minister Anthony Albanese told a press conference in Queensland it was a “matter of the law” about whether Benbrika should be released.

“And we have put in place the strongest possible recommendations to ensure community safety. And it is a good thing that the courts have determined to do that,” he said.

But deputy Liberal leader Sussan Ley said the government had not done enough to keep Australians safe from Benbrika, who she described as “the worst of the worst”.

“The government has ended the year by releasing a terrorist into the Australian community,” she said.

A Victorian government spokesperson said the state was working through the decision, “however ongoing supervision of this individual is the responsibility of the Commonwealth”.

“We will continue to work with relevant agencies but we expect the federal government to take all necessary steps to ensure there is no risk to the safety of Victorians,” the spokesperson said.

WHO IS ABDUL NACER BENBRIKA?

Benbrika was sentenced to 15 years in prison after a Victorian 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, none of which were ever carried out.

In 2020, the former government successfully applied to have Benbrika kept behind bars for a further three years under a continuing detention order, but Hollingworth said the then-Coalition government had failed to disclose a key report casting doubt on the validity of the Commonwealth tool used to assess his risk.

She also referred the current government’s late disclosure of significant documents to the Independent National Security Legislation Monitor.

VERA-2R – the Violent Extremism Risk Assessment 2 Revised – is a tool licensed to the Department of Home Affairs that is used to measure the threat posed by extremists, often when determining whether they should be subject to restrictions once they have completed their prison sentence.

Australian National University researcher Emily Corner said in the secret report commissioned by the department that the tool was unable to predict the specific risk “with anything other than chance”.

“VERA-2R offered poor predictive validity,” she said.

A spokesperson for NSW Attorney-General Michael Daley said Daley had asked his department to review Hollingworth’s ruling and advise if it recommended any changes to legislation relating to extended supervision orders, “noting the current legislative regime permits but does not mandate the use of VERA-2R assessments”.

Multiple sources have said Legal Aid NSW is exploring the potential to challenge previous orders where the tool was used, but a spokesperson for Legal Aid declined to comment.

Former national security legislation watchdog Grant Donaldson, SC, said he expected there to be challenges to orders based on the risk assessment following the concerns expressed by Hollingworth. He also called for an inquiry into the handling of the case, saying the issue should not be ignored.

“I don’t think there’s any reason why it couldn’t be held in public,” he said.

Greens’ justice spokesman David Shoebridge said: “When the dust settles, there needs to be a thorough and independent investigation into the layers of malpractice and incompetence that led us here.”

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