What has happened to His Hon Alan Robertson?
After Benito Dutton and the Home Affairs Department were sprung hiding exculpatory evidence in the Benbrika case wheels cranked into motion to inquire more deeply into the department’s concealment.
The former Federal Court judge was appointed in July to report on what happened, who was responsible, and what should be done about the department’s failure to produce to the defence crucial evidence in Benbrika’s case.
At issue are the range of post-sentencing options under Part 5.3 of the Criminal Code: control orders, preventative detention orders, extended supervision orders and continuing supervision orders – all creatures of Bookshelves Brandis’ heightened terror mania.
Nothing to date has emerged from Robertson on what appropriate response should apply to Home Affairs’ lawyers’ failure to produce to Benbrika a report critical of the risk assessment tools used to determine the likelihood of his reoffending.
Maybe the former judge’s attention was diverted to assist Gail Furness SC, the Inspector of the National Corruption Concealment Commission, with her report into the cover-up by the NCCC’s commissioner, Major General Paul Le Gay Brereton.
Abdul Nacer Benbrika did close to 20 years in pokey for his part in terror plots to attack the Melbourne Cricket Ground during the 2005 AFL Grand Final and the Crown Casino.
On Christmas Eve 2020, Justice Andrew Tinney from the Vic Supremes extended Benbrika’s continuing detention for another three years, rejecting his submissions that VERA-2R was “not appropriate” for the task of predicting future offending.
HH was unaware that Home Affairs was sitting on a report it had commissioned, detailing the deficiencies of VERA-2R. Dr Emily Corner, who did the study, found:
“VERA-2R lacks a strong theoretical and empirical foundation … the lack of evidence underpinning [it] has potentially serious implications for their validity and reliability.”
This was known to Home Affairs six months before Benbrika turned up before Tinney.
In March 2023, Grant Donaldson SC, the Independent National Security Legislation Monitor, released a report on Division 105A of the Criminal Code with a recommendation that continuing detention orders be scrapped.
Donaldson, discovered Corner’s report
Donaldson discovered Dr Corner’s study while preparing his report. He used his statutory powers to obtain a copy, which was provided with the usual overwrought note that it contained “operationally sensitive material”. The INSLM said:
“It is shocking that orders have been made, and are being sought, with parties unaware that Dr Corner’s report exists.”
He recommended the abolition of continuing detention orders because they are no longer proportionate to any terrorism or national security threats.
Tinney’s CDO was due to expire in December 2023 when it came before Justice Elizabeth Hollingworth (Vic Supremes) for assessment.
That same month she released Benbrika on an extended supervision order with restrictions which expires next month.
Hollingworth’s reasons were released nearly six months later, in which she issued a scalding rebuke to Home Affairs for failing to disclose to the defence Dr Corner’s report critical of the application of VERA-2R to the risk assessment posed by terror offenders who have done their time.
“The statutory requirement that the AFP Minister disclose exculpatory material 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.
The non-disclosure of the various expert reports amounts to a serious interference with the administration of justice.”
[Snip]
“Many of the Home Affairs officers involved in the non-disclosure are lawyers and officers of this court. Ms [Kerrie] Cowan and Ms [Annabel] Knott are both senior lawyers, who have not exactly demonstrated professional excellence in their handling of the Corner report.”
[Snip]
“If any of them have been involved in improperly withholding exculpatory material, that may have professional disciplinary consequences for them. However, I do not propose to make any referral to the relevant professional disciplinary body, given the incomplete evidence before me.”
Instead HH decided to refer the non-disclosure issues to the new INSLM, Jake Blight.
A fortnight later Blight issued a statement saying the government would find a suitable eminent person to inquire into “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”.
Experts in Linear Script B from the Palace of Knossos are trying to decode that message.
On July 5, 2024 it was announced that former judge Alan Robertson got the gig.
Continuing detention orders still exist and we still need the follow-up report.
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Brereton and Campbell: quick march
Robbo has been busy lending a hand to Gail Furness SC, the Corruption Concealment Commission’s independent Inspector.
Together they got to grips with Maj. Gen. Paul Le Gay Brereton’s weird Clayton’s recusal from the decision not to inquire into the Robodebt Six, one of whom is Maj. Gen Kathryn Campbell, the ex-head of the Department of Inhuman Services – a reservist pal of Commissioner Brereton.
Why the former Federal Court judge had to provide legal advice is not clear – Furness herself had all the powers and capability to make findings and decisions.
Maybe she wanted backup if she was going to poke an ex-Supreme Court appeal judge in the eye with a sharp stick.
Furness found Brereton was apprehendedly biased, had been procedurally unfair, which, according to the NACC Act amounted to misconduct. This was supported by Robbo.
Ever since Brereton has been spinning like a top, with campaigning speeches and statements putting his gloss on the damning findings.
In a speech on Friday (Nov. 15) the Concealment Commissioner announced he was digging in and won’t be leaving his post.
“Calls to produce scalps publicly and promptly are unhelpful,” the Maj. Gen. announced.
He has introduced a new page on the commission’s website called “Corrections to misinformation” – dedicated to sugar coating the bias and officer misconduct findings.
Gleeson: dropped by a nerve racked NACC
In the process he steadfastly ignores the fact that public confidence in the commission has been shot in the foot – and the only way out is out.
The Saturday Paper had a story on Nov. 16 that the NACC rescinded an offer to former solicitor general Justin Gleeson for the critical task of reconsidering the Robodebt investigation.
Apparently, sensitivities were white hot over concerns that a former Liberal minister, one of the six, may not be comfortable with Gleeson, because in 2016 he stood up to an unlawful direction from Attorney General Brandis.
Quite possibly, this relates to former frontbencher adornment Stuey Robert.
Can it get any worse?