The continuing use of two risk assessment tools for convicted terrorists has been supported by the home affairs department after a report raised doubts about their efficacy.
VERA-2R and Radar are used to determine the risk a terrorist poses, which is then used to apply for a continuing detention order.
The order allows convicted terrorists to be held behind bars after their sentence is completed because they’re deemed a risk to public safety.
A report by Emily Corner and Helen Taylor from the Australian National University found the assessment tools were no better at predictions than flipping a coin.
This report was handed to the department in 2020, but not disclosed publicly in a decision that has drawn criticism from the independent monitor and legal figures after its findings came to light.
The department in 2022 commissioned the Australian Institute of Criminology to conduct a second report.
It said that report found VERA-2R remained “the most suitable tool for us with … post-sentence orders”.
“The department continues to support training in and application of the VERA-2R and Radar tools by commonwealth, state and territory agencies, and will continue to commission research and validation studies to support their ongoing improvement,” a spokesperson told AAP.
“The department is committed to supporting the full range of violent extremist risk assessment tools that are used by (countering violent extremism) practitioners nationally.”
The department would not confirm whether legal advice was sought or received after the initial report in 2020.
“The department generally does not comment on legal advice requested or received in order to protect legal privilege over such advice,” the spokesperson said.
Independent National Security Legislation Monitor (INSLM) Grant Donaldson chastised the government for not making the report public and recommended the continuing detention regime be abolished.
Mr Donaldson said the risk assessment “must be based on more than guesswork”.
Ministerial talking points first prepared in July 2021 and last updated in November 2022 said if asked why the report was not made public, to say the department had considered its disclosure obligations under the criminal code.
“Following this consideration the report was not disclosed,” the points, released to AAP under freedom of information laws, read.
If pressed, it told the minister to say “any legal advice obtained in this respect is the subject of legal professional privilege”.
Two continuing detention orders have been made since the regime was established in mid-2017. One remains in force.
Lawyers for convicted terrorist Abdul Nacer Benbrika, whose continuing detention order keeps him behind bars until at least November 2023, used the report’s disclosure to argue the order should not have been imposed.
Dan Star KC argued the non-disclosure of the report was “likely to be negligent” and that it would have allowed the Commonwealth to make a less restrictive supervision order instead.
He said he would be challenging the validity of the risk assessment that underpinned the continuing detention order being imposed.
Victorian Supreme Court Judge Elizabeth Hollingworth chastised the government for failing to explain why it buried the report when presiding over Benbrika’s case on Tuesday.
“The government is understandably embarrassed. I still haven’t seen a satisfactory explanation for the non-disclosure of the Corner report,” she said.
“What happened in relation to the Corner report is a disgrace. Blind Freddy, looking at the legislation, would have said it should have been disclosed.”
The judge said there had been a “deafening silence” from the upper echelons in the home affairs department about what happened.
