Convicted terrorist Abdul Nacer Benbrika is set to be released from prison within hours and placed on an extended supervision order that will force him to comply with 30 conditions, including electronic monitoring.
The Victorian supreme court heard on Tuesday that Benbrika would be released later on Tuesday – after spending nearly 20 years behind bars – after the order was finalised.
Judge Elizabeth Hollingworth has imposed a year-long order with conditions requiring Benbrika to comply with electronic monitoring, along with deradicalisation and psychological treatment, and bans on who he can associate with.
She said the extended supervision order (ESO) would come into effect three hours after it was finalised, allowing authorities to release Benbrika.
He has been in custody since he was arrested in 2005 as part of the Operation Pendennis terror plot.
“The community will be protected by the extensive, comprehensive conditions imposed by the ESO,” Hollingworth said on Tuesday afternoon.
The federal Attorney General’s Department applied for the order as it acknowledged Benbrika was no longer an unacceptable risk of further offending, so he could not be subject to another continuing detention order (CDO). A CDO allows convicted terror offenders to be held in custody after they have completed their sentence.
Benbrika’s lawyers did not contest the ESO application, but the parties had different views about its conditions.
Hollingworth rejected several conditions proposed by the department, including that the Australian Federal Police be able to search Benbrika’s home at any time to ensure he was complying with his curfew, and that he be prevented from communicating with two of his children.
They had also sought a condition that Benbrika was only allowed to 13 people from a specified list allowed in his house, despite the list not including infant grandchildren. Hollingworth said the condition was impractical, as it would require Benbrika to seek AFP approval for tradespeople to enter his house to complete emergency works, for example.
“It could have criminalised a situation where a friend dropped round to their house,” she said.
The order prevents him from communicating or associating with anyone subject to a similar court order, anyone convicted or charged with a terror offence, anyone located in a host of regions or countries including Gaza, Somalia or Indonesia, and 14 individuals including his co-offenders.
The list of 14 individuals also includes Mostafa Mahamed, an Australian known by aliases including Abu Sulayman who has been linked to al Qaeda affiliates and is subject to Australian and US sanctions.
Benbrika will have conditions imposed that control his use of technology, his ability to seek employment or volunteer, his freedom to travel, his financial transactions, and his public comments.
Breaches of the order carry maximum prison terms of five years, and Peter Hanks KC, for the attorney general, noted that such a breach could also result in Benbrika’s citizenship being cancelled under newly passed legislation.
The department had sought a three year duration for the order, while Benbrika had sought a year-long order.
Hollingworth said she decided on the shorter time frame as it remained unclear how Benbrika would adjust to his release, given the amount of time he had spent in custody.
She also referred to the government’s failure to disclose documents in the case, saying she planned to refer the matter to the independent national security legislation monitor.
Hollingworth said the orders would come into effect from 3pm on Tuesday, and would expire on 19 December 2024. The department can apply for further ESOs.
“He will be released from custody today,” Hollingworth said.
Benbrika viewed the hearing remotely from prison.
He was due for release in 2020 but instead became the first person held on a continuing detention order, a post-sentence regime that the country’s former national security legislation watchdog said should be scrapped.
That order was due to expire later this month.
Just before Benbrika’s sentence was due to expire in 2020, the then home affairs minister Peter Dutton cancelled his citizenship using recently introduced powers. The laws gave broad power to the minister to revoke a person’s citizenship after they were convicted of a terror offence.
Benbrika, 63, successfully appealed against the stripping of his Australian citizenship in the high court last month. His release is set to raise further questions about how authorities manage the risk posed by convicted terrorists who have completed their prison sentences.
In 2009, Benbrika was sentenced to 15 years in prison – with a minimum term of 12 years – after he was convicted of directing a terrorist organisation and other charges when a Melbourne-based network was uncovered as part of Operation Pendennis.
