Lawyers for convicted terrorist Abdul Nacer Benbrika say the Australian government may have conspired to pervert the course of justice when it did not disclose a report criticising a controversial risk assessment tool.
Dan Star KC, for Benbrika, told the Victorian supreme court on Thursday that he believed his client only continued to be held in prison after completing his sentence because of the failure to disclose the report during earlier hearings.
The report, by Dr Emily Corner, was completed in May 2020 and submitted to the Department of Home Affairs, but not disclosed to lawyers for Benbrika when he was contesting a government decision later that year to place him on a continuing detention order until 2023.
Justice Elizabeth Hollingworth said on Thursday that the Corner report raised “serious criticisms” about the Violent Extremism Risk Assessment 2 Revised, known as VERA-2R.
Star said it was unclear why the Corner report had not been provided, but that Benbrika and his team had “the highest degree of concern about this serious nondisclosure” and were “outraged by a serious breach of obligations in the criminal code”.
“We don’t know yet whether it’s an inadvertent error by one person or at the other end of the scale … a deliberate attempt to pervert the course of justice,” he said.
“It may go nowhere, or there may well be extremely serious consequences.”
Star did not seek any order from Hollingworth, saying Benbrika and his lawyers needed time to consider their position.
Andrew Berger KC, for the attorney general’s department, said the commonwealth was still working to determine why the report was not disclosed. He agreed to provide an unredacted copy to Benbrika’s lawyers within days.
The tool is used to measure the threat posed by extremists, often when considering whether they will be subject to strict court orders once their prison sentence is completed.
It has been used in about a dozen cases, the majority of them in New South Wales.
Benbrika commenced the court action against the department ahead of a decision whether to extend the continuing detention order.
Star said during the hearing that Benbrika would accept being released into a community on an extended supervision order.
In July, Guardian Australia reported that the Australian Human Rights Commission and Islamic Council of Victoria had both called for VERA-2R to be scrapped in submissions made to the Independent National Security Legislation Monitor (INSLM).
The INSLM, Grant Donaldson SC, is reviewing Division 105A of the criminal code, which allows the continuing detention of terrorist offenders if a court is satisfied a person at the end of their custodial sentence poses an unacceptable risk of committing a serious terrorism offence if released.
At a public hearing in November, Donaldson said it was a “concern” the 150-page Corner report was not disclosed to Benbrika’s lawyer.
He noted in an exchange with Brooke Hartigan, a first assistant secretary in the attorney general’s department: “it was the most extensive review that had been done. It was given to Home Affairs in May 2020.
“There was a hearing in November 2020 where Dr Benbrika’s sole attack was, ‘the VERA-2R tool is not a valid tool to be used for this purpose’ and he led expert evidence on it.
“Now, that [Corner report] should have been handed over on any view of the world.”
Benbrika and the attorney general’s department will return to court in February.
• This story was updated on 17 December 2022 to add further details
