Peter Dutton referred to national security watchdog over failure to disclose Abdul Benbrika reports
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Benbrica, who is now in his 60s, is under supervision and a curfew for a year.
Part of the reason the Commonwealth chose a continuing detention supervision order was a report buried by the Home Office under the former coalition government.
The report was not handed over to Benbricka’s defense team during court proceedings, which resulted in him remaining behind bars after his prison sentence expired because he was deemed a risk to the public.
The methods used to assess the future risk a person poses to the community have been found to be no better than flipping a coin.
Victorian Supreme Court Justice Elizabeth Hollingworth said it was “obviously a document that should have been disclosed” and revealed that four other reports critical of the assessment tool had not been disclosed.
In written reasons published on Wednesday, the judge said he would refer former Home Affairs Minister Dutton, who was in charge of the Australian Federal Police in that role, to the independent National Security Legislation Monitor to decide whether to investigate further.
She said the legal requirement for the minister responsible for the AFP to disclose exculpatory material was a “fundamental safeguard to ensure that personal liberty is protected under what is very unusual and draconian legislation”.
“What happened in this case should never have happened and should not happen again in the case of Mr. Benbricka or any other person who is the subject of a post-conviction order,” Hollingworth wrote.
“The non-disclosure of the various expertises constitutes a serious interference in the administration of justice.
She said the INSLM would decide whether further investigations would be carried out “to find out why the various expert reports were not disclosed to Mr Benbrica” and whether the non-disclosure had wider implications.
“It appears from the INSLM report that the AFP minister [Dutton] has engaged in similar non-disclosure with respect to other terrorist criminals,” she wrote.
“The wider implications of the AFP Minister’s conduct in terrorism proceedings is a matter more appropriately addressed by the INSLM than by a court dealing with an individual application.”
AAP has contacted Dutton’s office for a response.
Benbrica spent almost 20 years behind bars after being convicted of plotting to attack the MCG during the 2005 AFL grand final and Melbourne’s Crown Casino.
He must wear a monitoring ankle bracelet and cannot leave Victoria without approval, with police given broad powers to monitor his electronic communications.
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