Judge ‘staggered’ that Home Affairs withheld a critical report while arguing to extend the detention of a convicted terrorist. By Karen Middleton.

Dreyfus probes secrecy offences

A grainy faded image of a man of Middle-Eastern appearance wearing a Muslim cleric's white garb and round headpiece, who appears to be in an office or library with bookshelves behind him.
A screenshot of Muslim cleric Abdul Nacer Benbrika, who remains in jail.
Credit: AAP Image / Network Seven

Federal Attorney-General Mark Dreyfus is initiating a review of secrecy offences across every Commonwealth portfolio, after years of warnings that the increasingly complex laws could threaten open democracy.

The renewed focus on what should – and should not – be kept secret comes as a Victorian Supreme Court judge expressed serious concern this week at revelations that the former federal government hid potentially crucial evidence from her court while arguing to keep a convicted terrorist in jail beyond the end of his 15-year sentence.

“I was as staggered as you were, no doubt, that such a piece of information was withheld from the court,” Justice Elizabeth Hollingworth told lawyers for Abdul Nacer Benbrika on Thursday.

Benbrika’s lawyers are seeking to have their client released from the Victorian jail where he is being held without sentence on a continuing detention order. They want him placed on an extended supervision order in the community instead. Their application follows the recent discovery by the Independent National Security Legislation Monitor, Grant Donaldson, SC, during an inquiry into the ongoing detention regime, that the Department of Home Affairs withheld the existence of a report that identified serious flaws in the tool it uses to assess the future community risk of terrorists due for release.

Benbrika’s lawyer, Dan Star, KC, told the Victorian Supreme Court he and his client were “outraged” by what had occurred.

“We believe it either is, or is akin to, a miscarriage of justice,” Star said of his client’s ongoing detention. “There is no evidence yet as to why this has occurred.”

Star said it was not clear whether the omission was “inadvertent” or “at the other end of the scale, a conspiracy by an entity or entities to pervert the course of justice”.

Justice Hollingworth called it “a very serious matter”. She said it was not clear yet whether the federal government would stand by the assessment tool it had used to argue successfully for Benbrika’s ongoing detention.

Hollingworth revealed the defence had now been provided with a copy of the report by researcher Dr Emily Corner, but that parts were still redacted. She instructed counsel for the Commonwealth, Andrew Berger, KC, to provide them with an unredacted version by this coming Monday afternoon.

Setting February 8 for a directions hearing in Benbrika’s challenge to his detention, followed by a week-long hearing on June 1, Hollingworth flagged potentially serious consequences for any officials or others responsible for withholding such information from a court.

“There is a lot to lose in this case for all sorts of people, depending on what has actually happened with the Corner report, and I presume people will be busily considering their situation over the next seven weeks,” Hollingworth said.

With the change of government and departmental responsibilities, new attorney-general Dreyfus is now the defendant in the Benbrika case. Separately, Dreyfus is pressing on with moves to more closely examine the use of laws to keep material away from public view.

Respected agencies have warned successive Australian governments about the creeping nature of secrecy laws and the growing tendency to use them, along with excessively generalised definitions of “national security”, to mask embarrassment, muzzle the media and avoid accountability.

In 2018, the bipartisan parliamentary joint committee on intelligence and security (PJCIS) urged the Morrison government to refine the secrecy offences regime, based on the principles laid out in a report by the Australian Law Reform Commission (ALRC) Secrecy Laws and Open Government in Australia, published in 2009. It was the ALRC’s fourth report warning of inconsistencies since 1995.

“The ALRC identified 506 secrecy provisions in 176 pieces of legislation, including 358 distinct criminal offences – a ‘plethora’ of provisions…” the 2009 report said. “A number of key issues emerged – including the catch-all nature of some of the provisions and an over-reliance on criminal sanctions.”

The report proposed an overhaul that balanced national security considerations against the need for open and accountable government, categorising offences based on the level of harm caused or likely from a disclosure and who made it – Commonwealth officers or others, including journalists.

In its 2018 report examining legislation to combat espionage and foreign interference, the PJCIS urged then attorney-general Christian Porter to use the ALRC’s findings as a model. Porter agreed to a review, but none ensued.

Dreyfus was a member of the joint committee at the time. His spokesman had no comment this week when asked about the new push to instigate a review, but The Saturday Paper confirmed separately that federal departments have been asked to identify all secrecy offences within their jurisdictions to determine what should stay, go or be amended.

When the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 was passed in 2018, it contained new secrecy offences, and reflected some but not all of the ALRC’s proposals.

Two years later, following an inquiry into press freedom, the PJCIS re-emphasised the urgent need for the review. It recommended it “specifically consider” whether public interest journalism was adequately protected and be completed by June 2021.

Dreyfus’s review and the Victorian judge’s alarm at how secrecy is being invoked come about three weeks after the Independent National Security Legislation Monitor revealed his discovery of the hidden report and rebuked Home Affairs.

Donaldson is currently examining the law that underpins the scheme which allows convicted terrorists to be jailed beyond their sentences if deemed an ongoing risk.

At a November 21 hearing, he revealed Home Affairs had hidden Dr Corner’s report, which cast serious doubt on the credibility of its central ongoing-risk assessment tool, known as Violent Extremist Risk Assessment Version 2 Revised, or VERA-2R.

Donaldson said the commissioned independent research into the effectiveness of VERA-2R and another similar tool, Radar, received in May 2020, found they offered “poor predictive validity” and were underpinned by a “lack of evidence”. It was the first such research conducted.

After compelling the department to provide a copy, Donaldson quoted its conclusion as saying the instruments could not predict specified risk “with anything other than chance”.

He said Home Affairs had defended its decision by arguing the report contained “operationally sensitive information”.

“I have formed the view that that report does not contain operationally sensitive information,” Donaldson said.

He suggested the tools may be inappropriate “for determining questions of detention, which, after all, are about as stark an affront to a person’s human rights as one can imagine”.

Home Affairs used a VERA-2R risk assessment to secure Benbrika’s ongoing detention after his 15-year jail term for terrorism offences ended in November 2020. The Corner report criticising VERA-2R was not disclosed.

“I have a view, having read it and knowing a lot about the Benbrika matter, that that should have been disclosed,” Donaldson said. He noted the law requires applicants for ongoing detention or supervision orders to provide the court any material they obtain that does not support their application, as well as material on which they rely.

He offered the department of Home Affairs the opportunity to respond during the hearing, but it elected not to do so.

This article was first published in the print edition of The Saturday Paper on December 17, 2022 as "Secrecy under scrutiny".

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