Attorney General Mark Dreyfus appointed Jake Blight to the job of Independent National Security Legislation Monitor in September 2023.
His appointment runs for three years from November 26, 2023. Mr Blight had been an Associate Professor in the Practice of National Security Law at the ANU, a colleague of Bookshelves Brandis “KC” at the same university.
For ten years he was the Deputy to the Inspector General of Intelligence and Security.
Before that he was in the AG’s Department with various jobs at AGS.
His appointment was a contrast to the previous four INSLMs, who were all senior, independent barristers: Bret Walker, Roger Gyles, James Renwick and Grant Donaldson.
Blight was the first full-time INSLM and the first from the public service. In other words, someone from within the government’s national security hemisphere is now the independent monitor of its legislative terror framework.
This set the scene for a feisty row between Blight and his immediate predecessor, Grant Donaldson – a former Solicitor General for WA.
Donaldson was shocked to read that his 2023 report to parliament had been “clarified” in his successor’s 2024 annual report – to the extent that criticism the Perth silk had made of AG Dreyfus’ handling of the Abdul Nacer Benbrika case was ameliorated.
Following the May 2022 election, the departmental responsibility for the AFP and Division 105A of the Criminal Code had shifted from Home Affairs to Mark Dreyfus at AGs.
The Attorney General was concerned that criticism of ministers in the previous government would not be confused with his and his department’s subsequent handling of the Benbrika case – even though Donaldson reserved plenty of opprobrium for what happened on Dreyfus’ watch.
Donaldson had reviewed the post sentencing options under the Criminal Code: control orders, continuing detention orders, preventative detention orders and extended supervision orders – a basket of goodies conjured by Bookshelves in 2016.
His enquiry paid attention to the case of Benbrika who did close to 20 years for his involvement in a terror plot to attack the Melbourne Cricket Ground and Packer’s Crown Casino.
Donaldson recommended the abolition of CDOs – they were no longer proportionate to national security threats and were unknown in countries comparable to Australia, having been bustled through parliament without proper consideration.
As part of his investigation Donaldson discovered a report commissioned by Home Affairs and written by ANU academic Dr Emily Corner. It was highly critical of the risk assessment tool used to predict the extent of post-sentence terrorism radicalisation.
Dr Corner: report on radicalisation assesment not disclosed
At the completion of his sentence Benbrika was subject to two continuing detention orders, in 2020 and affirmed in 2022, on applications made by by the lovely people at Home Affairs.
What the department neglected to tell the Victorian Supreme Court on both occasions was that it was in possession of the Corner report – important evidence not disclosed to the defendant.
This was back at the time Benito Dutton and then Karen Andrews were at the helm of Home Affairs.
Following public statements made by Donaldson about the non-disclose of evidence by the department, Benbrika commenced proceedings to lift his CDO.
Justice Elizabeth Hollingworth, in a scathing judgment, replaced Benbrika’s CDO with an Extended Supervision Order and released him into the community. The ESO expires on December 19, 2024.
Hollingworth was not only critical of the non-disclosure in the earlier CDO hearing of 2020, but also of the Attorney General in the later proceedings before her.
The Attorney General claimed the failure to disclose was due to “error and inadvertence”, which the judge did not accept.
Further, there were successive attempts to provide Hollingworth with censored versions of the Corner report. Ultimately, the judge ordered the complete and unreacted version of the Corner report be provided to Benbrika’s lawyers and the court.
HH said:
“The non-disclosure of the various expert reports amounts to a serious interference with the administration of justice.”
[snip]
“Not only was the Corner report not produced to Mr Benbrika in the CDO, CDO appeal or first review proceedings, it was not even produced to him after the INSLM started asking difficult questions about its non-production during 2022.”
In his 2022-2023 INSLM report, Donaldson said:
“What has happened in the treatment of Mr Benbrika, not only in applications for the CDO but also in his review application, is a disgrace. This disgrace reflects on many who have responsibility for administering this most important part of the Commonwealth Criminal Code.
The Minister responsible for responding to Mr Benbrika’s s.105A.11 application is the Attorney-General. It must have been obvious to the those advising and representing the Attorney-General, if not the Attorney himself, that the failure to disclose the Corner Report to Mr Benbrika and to the court required frank, fulsome, forthright and complete explanation to the court. This did not occur.”
Blight: request from Dreyfus
In the subsequent INSLM annual report Blight set about “clarifying” Donaldson’s remarks about non-disclosure by the “relevant minister”, keen to ensure that no one would think for a minute it was Mark Dreyfus.
“For the avoidance of doubt it is noted that, at the time of those proceedings, the ‘relevant Minister’ was the Minister for Home Affairs (the Hon Peter Dutton MP and subsequently the Hon Karen Andrews MP).
“Shortly after Mr Donaldson stated publicly that he believed the report by Dr Corner should have been disclosed (21 November 2022) the ‘relevant Minister’, who by that point in time was the Attorney-General (the Hon Mark Dreyfus KC MP), provided the Corner report to the Court, Mr Benbrika and all other offenders for whom post-sentence orders had been made. Paragraphs 41 and 44 of the Annual Report discuss what Justice Hollingworth described as an inadequate explanation for the initial non-disclosure by Home Affairs including in affidavits filed after responsibility for the matter transferred to the Attorney General.”
Reference to the judge having to order the production of the uncensored Corner report was confined to a footnote:
“Initially the report was provided to Mr Benbrika’s lawyers in a redacted form on 6 December 2022. Following orders made by Justice Hollingworth on 15 December the unredacted report was provided to Mr Benbrika’s lawyers and the Court on 19 December 2022.”
Donaldson was ropable. He told Blight that his “clarification” was unnecessary and had an “odd emphasis”.
Donaldson: ropable
He pointed out that the AG’s people had sought a “clarification” from him prior to publication of the 2022-2023 annual report.
“I refused to change what I had written because clarification was not required.
I considered that the acceding to the requests for change would have been, in the circumstances, inconsistent with the independence of the office of the INSLM.
No doubt you were advised that the ‘clarification’ that you have made, to a report authored by me, was sought and refused by me. Why you have then unnecessarily ‘clarified’ what I wrote, without raising it with me and when you knew that I had refused to ‘clarify’, is bewildering.”
In an interview with The Grauniad, Blight confirmed that he had been approached both by Dreyfus and his staff, who said the 2023 report was “ambiguous”, i.e. apportioned blame to the current minister when the non-disclosure was down to Benito and Andrews.
“I stand by my independence. I stand by the way I’m going about the role,” Blight told political editor Karen Middleton.
He denied that he was directed by the Attorney to put anything in his annual report and claimed that clarifications of this nature occur all the time.
“All I’ve really done is clarify which minister was responsible at which times because I didn’t think that was clear … There is really nothing more to it.”
Donaldson said he expected his letter to Blight of November 7, 2024 to be published on the INSLM’s website. Blight has refused to do this.
Hollingworth referred the Corner report’s non-disclosure, along with four other expert reports, to the INSLM to further investigate “disputed issues”.
In a carefully assembled word salad from June 19 this year, Blight said it was not his job to do this and flicked it to …
“… an eminent person (such as a former judge) to undertake a preliminary inquiry to determine whether there should be a code of conduct or other process in relation to the non-disclosure of material by any officer in the Benbrika proceedings. The proposed approach to reviewing the conduct of those involved is more appropriate than a review by the INSLM given my statutory functions.”
The following month former Federal Court judge Alan Robertson was given the job. Nothing further has been heard since and the government has not responded to Donaldson’s March 2023 recommendations about the Criminal Code’s provisions dealing with orders for terror offenders who have done their time.