The Department of Home Affairs deliberately withheld information that raised serious questions about the reliability of a future crime prediction tool because it wanted to keep using it on other offenders, the Victorian supreme court has heard.
The supreme court justice Elizabeth Hollingworth is considering whether convicted terrorist Abdul Nacer Benbrika should be subject to an extended supervision order while he is held in immigration detention, and the conditions of such an order.
The hearings, however, have also repeatedly shed light on an issue that impacts many other offenders: how the federal and New South Wales governments used the Vera-2R tool to justify the detention of individuals after they had completed their sentence.
At a hearing this week, Hollingworth said it appeared there had been an “interference with the administration of justice” in relation to the matter of Benbrika, and government officials, including from home affairs, would be referred “to relevant authorities” because of their conduct.
The court also heard this week that it was possible the department had four separate reports raising questions about the predictive tool, Vera-2R, at the time it was arguing that an assessment using the same tool should be used to justify the ongoing detention of Benbrika.
Benbrika was due for release in 2020, after completing a 15-year sentence for directing a terrorist organisation and other offences, when the government applied for a continuing detention order to keep him in custody.
During this hearing, and at a later review of the detention order, it did not disclose a critical report known as the Corner report, which found Vera-2R could not predict risk with “anything other than chance”.
The government has conceded the failure to disclose the Corner report had an impact on the administration of justice, but say it is unclear that the department had the three other reports in its possession at the time of Benbrika’s earlier hearing.
Hollingworth said that regardless of whether the department had all four reports or not, its officials had still not been able to explain why the Corner report was not disclosed.
“What has happened here is unacceptable, shouldn’t have happened … there has been an interference with the administration of justice, prima facie,” she said.
“It’s important … that what has happened be recorded because it’s an absolute disgrace in proceedings of this nature that something like this has happened and is still not properly explained by home affairs.”
She said that she would make referrals in relation to the matter, but would not single out in her public decision relatively junior public servants who may have been involved in the decision not to disclose the Corner report in Benbrika’s earlier hearing.
But the department’s first assistant secretary, Steve Webber, was singled out by Hollingworth, who described affidavits he had provided in the case as “utterly disingenuous”, and noted that Webber had provided no explanation for how the Corner report was not disclosed, although he had apologised for the failure to Benbrika.
Barrister Grace Morgan, for Benbrika, told the court on Tuesday that it was submitted that home affairs deliberately failed to disclose the Corner report as to do so could have prevented the department and the Australian federal police from continuing to use Vera-2R.
The submission is rejected by the attorney general’s department, though Hollingworth criticised it for the “indignation” it had expressed about the claim.
“Methinks they protested a bit much on this non-disclosure issue given what has happened here,” Hollingworth said.
“I’m not criticising the attorney general who has taken over the portfolio. The original blame, I have no doubt, lies back with home affairs when the previous minister for home affairs was the relevant minister.
“But the indignation and the outrage of his submissions doesn’t sit well on behalf of the commonwealth if I can put it that way.”
Peter Hanks KC, for the attorney general, said there was no basis for the inference claimed by Benbrika’s lawyers, saying that it was possible the report was simply not disclosed because of “misconceived” legal advice.
But Hollingworth said it undoubtedly suited home affairs not to seek further legal advice about disclosing the report, though noted that was not the same thing as saying that was the reason why no further advice was sought.
“They were keen to defend it because they didn’t have anything else to use.
“They spent a lot of money training all these people to use it.
“Why isn’t it a fair inference that they were invested in continuing to support Vera-2R?”
Morgan, for Benbrika, said there had been no apology to him in terms that she would consider “genuine”, nor any apology in writing from the minister, and she urged Hollingworth to denounce the failure to disclose in the strongest possible terms.
Hollingworth will make a decision regarding the case at a later date.
