Independent National Security Legislation Monitor urges abolition of continuing detention orders … Risky risk assessment tool … Critical review suppressed by Home Affairs … Benbrika case … Disproportionate Brandis-era terror laws … Max Shanahan reports 

The Independent National Security Legislation Monitor’s report into Division 105A of the Criminal Code recommended the abolition of continuing detention orders (CDOs) and criticised extraordinary anti-terror laws for having made Australia “a coarser and harsher society”.  

In an strong opening, the INSLM, Grant Donaldson SC, reserved opprobrium for the fact that “only one Australian parliament [the ACT], and a mere handful of parliamentarians, have resisted these laws”. 

The provisions covered by the review include those in Part 5.3 of the Criminal Code, which establish control orders, preventative detention orders, extended supervision orders, and continuing detention orders for those either convicted or suspected of terrorism offences. 

It was introduced in 2016 by attorney general George Brandis as part of his flurry of security themed legislation. 

“In gentler times, the types of laws discussed in this report were the subject of parody,” wrote Donaldson, quoting Lewis Carroll and Margaret Atwood. 

Applications for CDOs are made by the AFP minister – currently the Attorney-General, but previously the Home Affairs Minister under the Morrison government – to the relevant state or territory Supreme Court. 

In considering such an application, courts “must” have regard to any report from a “relevant expert”. Per section 105A(6)(4) the role of an expert is to “conduct an assessment of the risk of the offender committing a serious [terrorism] offence”. 

Only two CDOs have been sought by the Commonwealth. Donaldson used the example of Abdul Nacer Benbrika to illustrate the inherent problems with the regime, and the particular failings of the Department of Home Affairs. 

At the relevant hearing, the AFP lead evidence from two experts who used the VERA-2R tool – “a ‘structured professional judgment framework’ that assists the expert to make a ‘clinical judgment’ of a person’s ‘risk’.” It was asserted that Benbrika posed a risk of committing a serious terrorism offence upon completion of his sentence. 

By contrast, an expert led by Benbrika argued that VERA-2R was “not appropriate” for the task of predicting future offending. 

This evidence was dismissed by Justice Andrew Tinney of the Victorian Supreme Court as showing “a distinct lack of regard, bordering on contempt, for VERA-2R”. 

Benbrika remains in detention under a CDO.

What neither Justice Tinney nor Benbrika knew was that the Department of Home Affairs was sitting on a report it had commissioned itself, which detailed deficiencies with the VERA-2R tool.

The department commissioned Dr Emily Corner of ANU, and provided grants totalling almost $400,000, to deliver a report on the validity and reliability of terrorism risk assessment tools. 

Dr Corner came to the view that: 

“VERA-2R lacks a strong theoretical and empirical foundation … the lack of evidence underpinning [it] has potentially serious implications for their validity and reliability.” 

Indeed, research on the tool was made “virtually impossible” by the fact that DHA was the sole licensee of the product in Australia. 

Despite being delivered to DHA six months prior to the Benbrika application, the report: 

“… had never been produced to a court in any application made under Div 105A and it has not been disclosed to any defendant in such a proceeding … there is no excuse for not doing so.” 

The INSLM himself only discovered the report’s existence by googling Dr Corner, telling parliament that “there was not a bona fide reason” he had not been provided with a copy. 

After exercising his statutory powers to obtain a copy, the report was provided with a notation that it contained “operationally sensitive material.” 

The INSLM found the report “contained nothing” that could be described as such.  

Donaldson was critical of the department’s conduct: 

“It is shocking that orders have been made, and are being sought, with parties unaware that Dr Corner’s report exists.” 

Per s.105A.5(3), the Minister – that being Peter Dutton at the time of the Benbrika application – is required to include in the application any material “that would reasonably be regarded as supporting a finding that [a post-sentence order] should not be made”. In the Benbrika case, this was not done. 

Subsequent reporting by Guardian Australia showed that VERA-2R was used by Commonwealth-appointed experts on 14 occasions in post-sentence order proceedings after Dr Corner’s report was provided to DHA. 

The conduct of the department, and the very notion of post-sentence detention, was cause for concern for the INSLM: 

“All concerned citizens must be troubled by detention of a person in a prison other than as a sentence for a crime they have committed … In times past, people who had committed crimes and served their sentences were thought to have paid their debt to society … even though some reoffended.” 

Donaldson was careful to step around criticism of the High Court’s decision in Benbrika, which upheld Div 105A’s validity. The recommendation abolish CDOs was based solely on a finding that they were no longer proportionate to any terrorism or national security threat. 

Nevertheless, the very existence of the CDO regime – unique among similar countries, and passed without significant dissent in all but one parliament – poses uncomfortable questions. 

As Donaldson pointed out, “a wrong prediction of risk that results in an order for detention can never be tested,” especially where key contradictory information is withheld from courts by the executive. 

INSLM review of Division 105A Criminal Code Act