Attorney-General (Commonwealth) v Benbrika (No 2)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S ECI 2024 06580

ATTORNEY-GENERAL OF THE COMMONWEALTH	Plaintiff
v
NACER BENBRIKA	Defendant

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JUDGE:	Elliott J
WHERE HELD:	Melbourne
DATES OF HEARING:	31 March, 1-3 April 2025
DATE OF JUDGMENT:	8 April 2025
DATE OF REASONS:	30 April 2025
CASE MAY BE CITED AS:	Attorney-General (Commonwealth) v Benbrika (No 2)
MEDIUM NEUTRAL CITATION:	[2025] VSC 223

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PUBLIC LAW – Application for extended supervision order under Division 105A of Part 5.3 of the schedule to the Criminal Code Act 1995 (Cth) – Terrorist offender – Whether defendant poses an unacceptable risk of committing a serious Part 5.3 offence – Whether extended supervision order should be made – Whether conditions of extended supervision order reasonably necessary and reasonably appropriate and adapted for the purpose of protecting the community from an unacceptable risk of the defendant committing a serious Part 5.3 offence – Extended supervision order made for a period of 7 months and 18 days – Conditions directed towards therapeutic matters only – Criminal Code Act 1995 (Cth), sch, pt 5.3, div 105A.

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APPEARANCES:	Counsel	Solicitors
For the plaintiff	Z Maud SC with G Ayres and S Rajanayagam	Australian Government Solicitor
For the defendant	D Star KC with G Morgan and J Hartley	Doogue + George
For the Director-General of the Australian Security Intelligence Organisation (interested party)	J Petry	Australian Government Solicitor
For the Secretary to the Department of Justice and Community Safety (interested party)	S Fitzgerald	Victorian Government Solicitor’s Office
For the Commissioner of the Australian Federal Police (interested party)	T Glover SC	Australian Government Solicitor

HIS HONOUR:

A. Should an extended supervision order be made, and if so, on what terms?

The trial of this proceeding concerned 2 key questions:
(1)Should a further extended supervision order be made in respect of the defendant, Nacer Benbrika (“Benbrika”)?
(2)If an order is to be made, what conditions should it include?
The answers to those questions are:
(1)Yes, for a period expiring on 28 November 2025.
(2)The conditions summarised at paragraphs 28(1) to (4) and 29(1) below.

B. Why is Benbrika before the court?

Benbrika is 65 years old. On 5 November 2020, he completed a term of imprisonment imposed after he was found guilty by a jury in September 2008 of intentionally being a member, and directing the activities, of a terrorist organisation.[1]
[1]Benbrika was found guilty of a further charge (see R v Benbrika (2009) 222 FLR 433 (Bongiorno J)), but this was the subject of a successful appeal against conviction: Benbrika v The Queen (2010) 29 VR 593 (Maxwell P, Nettle and Weinberg JJA).
Since the expiration of his sentence, Benbrika has remained subject to successive post-sentence orders made under Division 105A of Part 5.3 of the schedule to the Criminal Code Act 1995 (Cth) (“the Criminal Code”) on the basis that he continues to pose an unacceptable risk of committing serious terrorism offences.[2]
[2]This is a reference to the offences referred to in s 105A.3(1)(a) of the Criminal Code.
On 5 December 2024, 2 weeks prior to the expiration of the last extended supervision order made in respect of Benbrika,[3] the Attorney-General of the Commonwealth (“the Attorney-General”) filed an originating motion seeking a further extended supervision order. Leave was subsequently granted for the Attorney-General to expand the supervisory conditions forming part of the proposed order.[4]
[3]See Benbrika v Attorney-General (Cth) (2024) 74 VR 379, 429 [331] (Hollingworth J).
[4]Attorney-General (Cth) v Benbrika [2025] VSC 83.
At the commencement of trial on 31 March 2025, the Attorney-General sought a 12-month extended supervision order with conditions covering both therapeutic and non-therapeutic matters, while Benbrika contended that no order should be made. However, as events transpired, both the Attorney-General and Benbrika ultimately accepted that, if an extended supervision order were to be made, the imposition of an order for a shorter period which included only therapeutic conditions was appropriate.
On 8 April 2025, an extended supervision order was made in these terms, for the reasons that follow.

C. How did Benbrika get here?

C.1 Statutory context and procedural history

Division 105A of the Criminal Code provides for the making of 2 types of post-sentence orders: continuing detention orders and extended supervision orders. Both detention and supervision orders can also be made on an interim basis. Post-sentence orders can be made on the application of the Attorney-General,[5] and in respect of, relevantly, a “terrorist offender”[6] who has been convicted of a “serious Part 5.3 offence”.[7] By virtue of his prior convictions, Benbrika falls within this definition.[8]
[5]As the minister presently administering the Australian Federal Police Act 1979 (Cth): see Criminal Code, s 100.1(1) (definition of “AFP Minister”).
[6]Ibid, ss 105A.2 (definition of “terrorist offender”), 105A.3(1).
[7]Defined as an offence against Part 5.3 of the Criminal Code, the maximum penalty for which is 7 or more years’ imprisonment: ibid, s 105A.2 (definition of “serious Part 5.3 offence”).
[8]Benbrika was convicted of offences contrary to ss 102.3(1) and 102.2(1) of the Criminal Code, both provisions appearing in Part 5.3. The offences carry maximum penalties of 10 and 25 years’ imprisonment respectively.
Though the specific criteria and preconditions for making each type of order vary, broadly, the court may only make a post-sentence order where it is satisfied that the offender poses an unacceptable risk of committing a serious Part 5.3 offence.[9] Importantly, an application for a post-sentence order may only be made where the individual concerned is detained in custody for a relevant offence or is already subject to a detention or supervision order.[10]
[9]See Criminal Code, ss 105A.7(1) for the making of a continuing detention order and s 105A.7A(1) for the making of an extended supervision order.
[10]Ibid, s 105A.3A.
At the conclusion of his term of imprisonment in 2020, Benbrika remained in custody pursuant to successive interim detention orders.[11] On 24 December 2020, Tinney J made a 3-year continuing detention order after finding that Benbrika posed an unacceptable risk, and that there was no less restrictive measure available that would be effective in preventing that risk.[12]
[11]Ibid, s 105A.9.
[12]Minister for Home Affairs v Benbrika [2020] VSC 888. An appeal against this decision was dismissed: see Benbrika v Minister for Home Affairs (2021) 365 FLR 209 (Beach, McLeish and Kennedy JJA).
Any post-sentence order made under Division 105A is subject to periodic review, as well as review upon the application of the responsible minister or the offender.[13] Review hearings in respect of Benbrika’s continuing detention order were held in late 2021 and early 2022. On 6 May 2022, Hollingworth J affirmed the continuing detention order.[14]
[13]Criminal Code, ss 105A.10, 105A.11.
[14]Minister for Home Affairs v Benbrika (2022) 366 FLR 32.
In December 2022, after it emerged that the Minister for Home Affairs[15] had failed to disclose important evidence in earlier post-sentence order proceedings concerning Benbrika,[16] Benbrika applied for a review of the continuing detention order, which was due to expire on 19 December 2023. In March 2023, the Attorney-General made an application for an extended supervision order. Both applications were heard together, with the parties in agreement that Benbrika’s now reduced level of risk meant that an extended supervision order was the appropriate course.
[15]Who was at that time the minister administering the Australian Federal Police Act 1979 (Cth), and therefore had conduct of the proceeding: see Criminal Code, s 100.1(1) (definition of “AFP Minister”).
[16]See Benbrika v Attorney-General (Cth) (2024) 74 VR 379, 383-387 [9]-[31].
On 19 December 2023, Hollingworth J made an extended supervision order for a period of 12 months in respect of Benbrika (“the Lapsed Supervision Order”).[17] In addressing the question of unacceptable risk, her Honour found that:[18]
It was undisputed that [Benbrika] had made substantial progress in deradicalisation since the first review and, at the time of trial, did not support an ideology that justified the use of violence. That was a relatively recent development in his ideology, which still remained potentially fragile. He still had unmet needs in terms of his deradicalisation.
If [Benbrika] continues to participate in further deradicalisation work under the [extended supervision order], particularly under the mentorship of the Sheikh, I accepted that his risk of committing a relevant offence would be minimal. However, if he fails to engage appropriately in further deradicalisation work, or re-engages with radical jihadists, there would be a risk of him reverting back to his previous ideology, which would increase his risk of committing a relevant offence.
[17]By operation of s 105A.7A(6) of the Criminal Code, the continuing detention order was revoked upon the imposition of the Lapsed Supervision Order.
[18]Benbrika v Attorney-General (Cth) (2024) 74 VR 379, 400 [129]-[130].
In reaching this conclusion, Hollingworth J placed significant weight on the evidence of Dr Anne Speckhard (“Speckhard”), a professor of psychiatry and internationally-renowned expert in terrorism and violent extremism.[19] Speckhard assessed Benbrika over several hours in March 2023, and along with an Islamic scholar from the International Center for the Study of Violent Extremism (“the Sheikh”), has been involved in delivering a community-based violent extremism disengagement and rehabilitation program geared towards Benbrika’s deradicalisation since January 2024 (“the Disengagement Program”). The long-term goals of that program are for Benbrika to “completely renounce militant jihadist ideology and activities” and to be so sure of his revised views that it would be impossible for him to revert to those he previously held.
[19]Ibid, 399-400 [116]-[122].
Participation in the Disengagement Program was one of the 30 supervisory conditions of the Lapsed Supervision Order. The remaining 29 conditions were extensive, covering matters including Benbrika’s place of residence and a curfew; participation in case management and mental health treatment; prohibited associations, activities, places, items and documents; restrictions relating to telecommunications, the use of electronic devices, education, employment, travel, mail, vehicles, name and identification documents and financial transactions; and electronic monitoring.[20] Most of these conditions were agreed, or were only the subject of minor dispute.[21] However, Hollingworth J did not consider it necessary or appropriate to impose some of the conditions, or parts of conditions, proposed by the Attorney-General.[22]
[20]Other conditions related to reasonable directions and information sharing requirements, access and searches, approvals, exemptions and reviews. For the full conditions of the Lapsed Supervision Order, see ibid, 401-416 [133]-[244].
[21]Ibid, 404 [150].
[22]Ibid, 416 [244].
Hollingworth J also declined to make an extended supervision order for the period sought by the Attorney-General, namely 3 years.[23] In arriving at the conclusion that 12 months was the appropriate period, her Honour observed that any assessment of how Benbrika would behave was necessarily based on predictions. She also referred to Speckhard’s evidence that if Benbrika continued to make good progress, this might have a significant bearing on whether the Lapsed Supervision Order should be continued at all and, if so, on what terms.[24]

C.2 The current proceeding

[23]Ibid, 428 [323]-[324].

[24]Ibid, 428 [325].

C.2.1 Before trial

There was no suggestion that Benbrika breached any of the conditions of the Lapsed Supervision Order in any material or significant way while it remained in place. In light of this, and the opinions and recommendations expressed in 2 expert reports of a forensic psychiatrist, Dr Andrew Ellis (“Ellis”),[25] the interim and extended supervision orders sought by the Attorney-General in his originating motion filed on 5 December 2024 included far fewer supervisory conditions.
[25]Following an assessment of Benbrika conducted pursuant to s 105A.18D of the Criminal Code.
These proposed conditions were, speaking broadly, directed primarily towards therapeutic matters, including case management and participation in mental health treatment and the Disengagement Program. A condition relating to the provision of information by Benbrika and sharing of information between those responsible for Benbrika’s treatment and supervision and a mechanism for exemptions to other conditions were also included (together, “the Therapeutic Conditions”).[26]
[26]See pars 28(1)-(4), 29(1) below.
Interim supervision orders including only the Therapeutic Conditions were made on 18 December 2024 and 14 January 2025,[27] and the matter was listed for trial for early March 2025.
[27]An interim supervision order may only be imposed for a maximum of 28 days: Criminal Code, s 105A.9A(7)(c).
On 31 January 2025, the Attorney-General filed a summons seeking a third interim supervision order, intended to be in place until the completion of trial (“the 31 January Summons”). Like the 2 interim supervision orders preceding it, only the Therapeutic Conditions were included in the interim order sought by the 31 January Summons. However, in accompanying submissions, the Attorney-General foreshadowed potential applications for leave to amend the conditions sought as part of both the third interim supervision order and the extended supervision order. Those applications were duly made by 2 further summonses filed on 5 February 2025 (“the 5 February Summonses”).
The circumstances surrounding the applications for leave to amend have been set out in detail elsewhere.[28] For present purposes, it suffices to note that the Attorney-General’s applications were based on opinions expressed by Ellis in 2 further reports, and particularly Ellis’ assessment of transcripts of surveilled communications involving Benbrika, and in particular conversations between Benbrika and another individual, Joshua Clavell (“Clavell”).
[28]Attorney-General (Cth) v Benbrika [2025] VSC 83, [11], [18]-[20], [34]-[51], [56]-[66].
To explain, since his release from custody, Benbrika has remained under ongoing physical surveillance by the Australian Federal Police (“the Federal Police”). He has also been the subject of numerous warrants obtained by the Federal Police[29] that are used to monitor his activities, communications and use of electronic devices. This surveillance has continued after the expiry of the Lapsed Supervision Order, despite the significantly less stringent conditions to which Benbrika has been subject under the interim supervision orders.
[29]Pursuant to the Surveillance Devices Act 2004 (Cth) and the Telecommunications (Interception and Access) Act 1979 (Cth).
It is through these channels that conversations between Benbrika and Clavell came to be recorded both during and after the expiry of the Lapsed Supervision Order. Clavell has a criminal record[30] and has been connected with Islamic extremism.[31] Transcripts of conversations between Benbrika and Clavell on 20 November 2024, 25 November 2024, 5 December 2024 and 12 December 2024 (“the Clavell Transcripts”) were provided to Ellis in January 2025, and he produced supplementary reports dated 28 January 2025 and 3 February 2025.
[30]See Director of Public Prosecutions v Clavell [2020] VCC 1437 (Judge Marich).
[31]Clavell has been named as a prohibited associate in control orders made against another person convicted of terrorism offences: see Booth v Abdirahman-Khalif [2021] FCA 1651 (Besanko J); McCartney v Abdirahman-Khalif (No 2) [2020] FCA 1002 (Charlesworth J).
The substance of these and Ellis’ other reports is discussed in greater detail below.[32] In short, Ellis identified various “topics of concern” within the Clavell Transcripts, and considered that these and other recorded communications may be indicative of subversion or secrecy on Benbrika’s part. In light of this new information, Ellis stated that his risk management recommendations had changed, and the conditions included in any future supervision order ought to be expanded.[33]
[32]See pars 41-66 below.
[33]See par 15 above.
Consequently, the 5 February Summonses sought leave to add a substantial number of further conditions to both the proposed third interim order and the extended supervision order. These further conditions effectively sought to reintroduce a number (though not all) of the categories of conditions that were included in the Lapsed Supervision Order (“the Further Conditions”).[34]
[34]See further par 28(5)-(12) below.
The Attorney-General’s applications for leave to amend the originating motion and the 31 January Summons were heard on 7 and 11 February 2025, along with the application for a third interim supervision order. Given the urgency of the matter,[35] rulings were given at the conclusion of argument on 11 February 2025.
[35]There are strict time limits imposed in Division 105A of the Criminal Code, in light of s 105A.3A: see par 9 above. If a third interim supervision order were to be made in respect of Benbrika, it was necessary for the court to make such an order before the second interim supervision order lapsed.
For reasons subsequently published, leave was granted to amend both the originating motion and the 31 January Summons to include the Further Conditions.[36] However, I was not satisfied on the basis of the evidence before me that any of the Further Conditions were necessary. As such, only the Therapeutic Conditions were imposed under the third interim supervision order made on 11 February 2025. In light of these developments, the original trial date of 4 March 2025 was required to be adjourned until 31 March 2025. The Therapeutic Conditions were again imposed under a fourth interim supervision order made on 11 March 2025 and expiring on 10 April 2025.
[36]Attorney-General (Cth) v Benbrika [2025] VSC 83, [100]-[115], [122].

C.2.2 The order and supervisory conditions initially sought at trial

At the commencement of trial on 31 March 2025, the Attorney-General opened his case seeking an extended supervision order for a period of 1 year, with a total of 15 conditions.[37] Broadly, these conditions included that Benbrika:
[37]A copy of the full revised schedule of conditions attached to the Attorney-General’s summons filed on 5 February 2025 is included as annexure A to these reasons.
(1)Participate in case management activities with an employee of the high-risk terrorist offenders therapeutic case management section of the Attorney-General’s Department (“the Case Manager”) (“the Case Management Condition”).
(2)Engage in ongoing psychological and psychiatric treatment and undergo any mental health assessment as directed by the Case Manager (“the Treatment Condition”).
(3)Participate in the Disengagement Program (“the Disengagement Condition”).
(4)Provide information relating to his compliance with other conditions upon request,[38] and agree to information being shared between government agencies and clinicians responsible for his case management and treatment (“the Information Condition”).
(5)Not knowingly communicate or associate with certain classes of person,[39] 7 named individuals,[40] as well as any other person or class of person notified to him in writing by the Federal Police.
(6)Not intentionally access or use any mobile device other than the device supplied to him by the Federal Police and only use the supplied device in accordance with certain conditions of use.
(7)Not intentionally access or use any fixed or landline telephone service without written approval from the Federal Police.
(8)Not intentionally access or use any internet service other than the internet service provided to him by the Federal Police.
(9)Not intentionally access or use any electronic mail account other than the account approved by the Federal Police.
(10)Not intentionally access or use any computer, tablet or other device that is capable of accessing the internet, other than a device provided to him or approved in writing by the Federal Police.
(11)Not intentionally use or access any application or computer program without prior written approval from the Federal Police.
(12)Facilitate the Federal Police’s access to electronic devices, equipment, accounts and platforms held or accessed by him and allow the Federal Police to enter his residence at any reasonable time for the purposes of search and seizure of such devices and equipment.
[38]Under the interim supervision orders, Benbrika was only required to provide information to the Case Manager in relation to case management matters. The 5 February Summons sought to expand the scope of the Information Condition to also require Benbrika to provide any information relating to his associations and use of mobile and other electronic devices to the Federal Police upon request, and to notify the Federal Police of any change to his residential address.
[39]Including persons incarcerated in a correctional facility; persons subject to a control order or post-sentence order under Divs 104 and 105A of the Criminal Code; and persons charged with, convicted of, or on parole or bail for an offence against the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) or a “terrorism offence” within the meaning of s 3(1) of the Crimes Act 1914 (Cth).
[40]Those individuals included Clavell.

In addition, there were machinery conditions concerning:
(1)A mechanism for exemptions to be made to other conditions at the request of Benbrika or without such a request (“the Exemption Conditions”).
(2)A process by which approvals could be sought from the Federal Police in relation to the use of telephone and internet services and electronic devices and platforms.
The conditions in paragraphs 28(1) to (4) and 29(1) above comprise the Therapeutic Conditions, while those in paragraphs 28(5) to (12) and 29(2) comprise the Further Conditions.

D. The evidence relied upon

In support of his application, the Attorney-General relied primarily on Ellis’ evidence. Reliance was also placed on affidavits of several representatives of the Attorney-General’s Department and the Australian Government Solicitor, and members of the Federal Police, in particular a commander within the counter-terrorism special investigations unit of the Federal Police (“the Commander”).[41]
[41]When giving evidence at trial, the Commander clarified that he currently holds the rank of acting assistant commissioner.
Until just over a week before trial, Benbrika intended to rely on evidence from Speckhard, including 2 reports prepared for the purposes of the trial. However, on 21 March 2025, Benbrika’s legal representatives advised the court that they no longer intended to call Speckhard as a witness, or rely on her reports.[42] Instead, Benbrika relied solely on reports of his treating psychologist, Dr Rachel MacKenzie (“MacKenzie”), and his treating psychiatrist, Associate Professor Rajan Darjee (“Darjee”), as well as several affidavits of his legal representatives.
[42]An explanation for this change in approach was given to the court at a directions hearing on 25 March 2025. However, no evidence was adduced at trial to support this explanation. That said, the Attorney-General did not invite the court to draw an adverse inference from the fact that Speckhard was not called to give evidence, in accordance with the principles in Jones v Dunkel (1959) 101 CLR 298.
Beyond this, a significant volume of documents relating to Benbrika held by various government departments were also tendered and relied upon by both parties.

D.1 The Commander’s evidence

The Commander oversees and monitors the release of persons convicted of terrorism offences, including those on post-sentence orders. He swore 3 affidavits and also gave evidence at trial. His evidence addressed general topics such as religiously-motivated violent extremism and the current national terrorism threat level, as well as matters specific to Benbrika.
As to the former, the Commander noted that in August 2024, the Director-General of Security raised Australia’s national terrorism threat level from “possible” to “probable”, meaning that the Australian Security Intelligence Organisation considers there to be a greater than 50 percent likelihood of an onshore terrorist attack, or attack planning, in the next year. His evidence was that the most likely type of attack would be a low-cost attack involving simple tactics and perpetrated by a lone actor.
As to the latter, the Commander’s evidence addressed the effect and the utility of the Further Conditions, as well as the risk associated with their absence. In respect of the proposed condition on prohibited associations, the Commander provided details of Benbrika’s associations with persons “of concern”, including:
(1)Clavell. In addition to the meetings in late November and early December 2024,[43] Benbrika had spoken to Clavell by telephone on at least 3 occasions since the expiry of the Lapsed Supervision Order, and they met in person on 11 February 2025. For the purposes of his second affidavit, prepared shortly after the filing of the 5 February Summonses, the Commander reviewed Clavell’s criminal history and expressed the view that Clavell should be included as a prohibited association in any future supervision order made in respect of Benbrika.
(2)Aimen Joud (“Joud”). Joud was one of Benbrika’s co-offenders. In February 2009, he was sentenced to 8 years’ imprisonment with a non-parole period of 6 years for membership of a terrorist organisation, and providing resources and making funds available to that terrorist organisation.[44] Joud was named as a prohibited association under the Lapsed Supervision Order. Since the expiry of the Lapsed Supervision order, Benbrika has spoken with Joud by telephone on at least 3 occasions.
(3)Wissam Haddad (“Haddad”). Haddad is an Islamic preacher who was the subject of a counter-terrorism investigation in 2015. He has previously been named as a prohibited association in an extended supervision order made in respect of another individual under Division 105A of the Criminal Code.[45] In late 2024, a proceeding was commenced in the Federal Court of Australia against Haddad in relation to allegations that he expressed anti-Semitic views in public speeches.[46] Benbrika and Haddad met in person in Sydney in late December 2024. In January 2025, Benbrika asked his son to arrange financial assistance for Haddad for the purposes of the Federal Court proceeding.
[43]See par 23 above.
[44]Benbrika v The Queen (2010) 29 VR 593, 717-719 [568]-[576], 724 [608] (Maxwell P, Nettle and Weinberg JJA).
[45]See Attorney-General (Cth) v Temssah (No 2) [2024] VSC 328 (Moore J).
[46]This proceeding, bearing proceeding number NSD1503/2024, alleges that Haddad contravened s 18C of the Racial Discrimination Act 1975 (Cth) by delivering 5 speeches that were reasonably likely to offend, insult, humiliate or intimidate Jewish members of the Australian community.
However, under cross-examination, the Commander accepted that the Federal Police became aware of Benbrika’s interactions with Clavell in late November 2024, and chose not to take any of several courses of action available to manage any risk that might arise from such interactions, including raising concerns with Benbrika or issuing a direction under the Lapsed Supervision Order that Benbrika not communicate or associate with Clavell. He accepted that neither course was taken as there was no immediate need to do so in order to manage a risk to the public.
The Commander was also asked about Joud. He confirmed that Joud was 18 years old at the time he was arrested, and was released on parole after serving 6 years of his 8 year sentence, almost immediately upon becoming eligible. Joud is now married with 4 children and works full-time running his own cabinet-making business. To the Commander’s knowledge, Joud has not been charged with or convicted of any further offences in the 14 years since his release from custody.
As to the necessity of the balance of the Further Conditions,[47] in his affidavit, the Commander stated that conditions limiting Benbrika’s use of electronic devices, services and online platforms would facilitate better monitoring of his activities, communications and whereabouts by the Federal Police and limit the measures Benbrika could take to circumvent surveillance and monitoring.
[47]That is, those in par 28(6)-(12) above.
However, under cross-examination, the Commander was asked about the investigative and intelligence-gathering measures that would be available to the Federal Police if no extended supervision order were in place, or an order made that only included the Therapeutic Conditions. The Commander accepted that several measures could be employed to monitor Benbrika’s activities, including physical surveillance; the use of human sources; obtaining information from the community; obtaining information from state, federal and overseas law enforcement and security agencies; obtaining information through the surveillance and intelligence-gathering powers of the Australian Security Intelligence Organisation; and obtaining warrants under various statutory regimes.[48]
[48]If no extended supervision order were in place, an application for a surveillance device or telecommunications warrant could be made if there were reasonable grounds for suspecting that information that would assist in the investigation of a serious offence would be obtained: Surveillance Devices Act 2004 (Cth), s 14(1); Telecommunications (Interception and Access) Act 1979 (Cth), s 46(1). However, if a post-sentence order were imposed, an application for a warrant could be made if there were reasonable grounds for suspecting that information that would assist in connection with achieving the objectives of Part 5.3 of the Criminal Code would be obtained: Surveillance Devices Act 2004 (Cth), s 14(3C); Telecommunications (Interception and Access) Act 1979 (Cth), s 46(4). Further, the Crimes Act 1914 (Cth) makes provision for monitoring warrants in relation to premises and persons where a Part 5.3 supervisory order is in place: ss 3ZZOA, 3ZZOB.

D.2 Ellis’ evidence

Ellis is a specialist psychiatrist with more than 20 years’ experience and particular expertise in forensic psychology. He does not have expertise in Islamic religious doctrine and ideology.
Ellis prepared 7 reports in respect of Benbrika, dated 13 October 2024, 3 November 2024, 28 January 2025, 3 February 2025, 21 February 2025, 28 February 2025 and 20 March 2025. These reports are based on a single meeting of approximately 3 hours’ duration that Ellis had with Benbrika and Benbrika’s solicitor[49] in September 2024,[50] as well as Ellis’ review of various documents and judicial decisions relating to Benbrika[51] that have been progressively provided to him by the Attorney-General’s legal representatives.[52]
[49]A footnote in Ellis’ first report noted that the presence of Benbrika’s solicitor was “not usual clinical practice” and “may lead to an inhibition in a person being assessed, altering the nature of usual medical assessment”. He also stated that this may indicate that Benbrika’s trust of legitimate authority remains limited. However, after being taken to various examples of Benbrika’s interactions with his supervisors while under cross-examination, Ellis stated that he no longer held this view.
[50]This meeting was for the purpose of conducting an assessment pursuant to a direction made under s 105A.18D of the Criminal Code. Ellis has not otherwise met with Benbrika.
[51]Including Benbrika v Attorney-General (Cth) (2024) 74 VR 379 (Hollingworth J); Minister for Home Affairs v Benbrika (2022) 366 FLR 32 (Hollingworth J); Minister for Home Affairs v Benbrika [2020] VSC 888 (Tinney J); Benbrika v The Queen (2010) 29 VR 593 (Maxwell P, Nettle and Weinberg JJA); R v Benbrika (2009) 222 FLR 433 (Bongiorno J).
[52]As the Attorney-General’s legal representatives made requests to Ellis for further reports, select documents deemed to be of relevance were provided by way of supplementary brief. Ellis received a total of 17 briefs enclosing close to 900 documents between 23 August 2024 and 18 March 2025.
Ellis’ first report was his most substantial. In terms of psychiatric diagnosis, Ellis was of the opinion that Benbrika would meet the criteria for post-traumatic stress disorder, with the several years he spent in solitary confinement qualifying as a traumatic event. An additional diagnosis of major depression was also said to be “warranted longitudinally”.
Ellis stated that a diagnosis of personality disorder was not warranted, however he noted that Benbrika displays personality problems that are a matter of clinical concern. Specifically, Ellis referred to Benbrika’s interpersonal function, emotional regulation, impulse control and self-identity as likely to have contributed to his offending. Ellis described Benbrika’s personality function as tending towards narcissistic, characterised by “self-important advice giving, and religious purpose and overconfidence”. However, he did not consider a diagnosis of narcissistic personality disorder to be appropriate.
Ellis then proceeded to outline the methods and results of risk assessments he conducted in relation to Benbrika. Ellis stated that Benbrika’s risk of general personal violence was lower in frequency compared to most prisoners released from custody. He repeatedly confirmed that Benbrika does not currently endorse violence, is unlikely to personally engage in any serious violence, and any risk of violence would likely only take the form of exhorting others. In Ellis’ opinion, this risk may be of a type associated with a serious Part 5.3 offence if Benbrika were to again adopt group grievances and was in a position to influence others to act. He described Benbrika’s personality style and self-concept as unstable, leaving him susceptible to both influencing and being influenced by others.
However, Ellis considered that Benbrika showed reasonable insight into his potential for violence and what is required to moderate it. He concluded that ongoing professional support would likely provide effective management of any latent and historical potential for violence.
To evaluate Benbrika’s risk of committing acts of extremist-terrorist related violence specifically, Ellis used 2 investigative templates, the TRAP-18[53] and the VERA-2R[54] tools, to assess Benbrika’s behaviours, beliefs, attitudes and ideology against those of persons who have completed terrorist attacks. Ellis observed that Benbrika does not presently display many of the features commonly observed in such persons.
[53]Being an initialism for the Terrorist Radicalisation Assessment Protocol 18.
[54]Being an initialism for the Violent Extremism Risk Assessment 2 Revised.
However, he did note that Benbrika has significant notoriety as someone convicted of terrorism offences, “and may be in a position to seek out others, or have others seek him out”. Ellis considered that if Benbrika were unable to manage stress or became dissatisfied with his life circumstances, he might channel this towards ideological grievances and this could result in responsive actions. If other persons were involved, Ellis considered that this could potentially lead to conduct constituting a serious Part 5.3 offence.
Ellis described Benbrika as showing fixation, identification and preoccupation on the topic of his religion, but noted that he now has other priorities, including family. Ellis observed that although Benbrika has adopted a “more mainstream view” of Islam in recent years, he has not completely rejected extremist ideologies. However, Benbrika does reject violent aspects of extremism and voices non-violent ideological goals. Ellis noted that although Benbrika still regards his arrest and imprisonment as unfair, his long-standing distrust of authority and dismissive views towards the Australian government and justice system have moderated over time, to the point where he now holds his supervisors in positive regard.
Ellis stated that Benbrika has made a number of significant changes in his life to reduce risk factors that were present at the time of his offending. However, Ellis noted that some of these reduced factors rely on Benbrika continuing clinical care and not relapsing into past patterns of behaviour, as well as not coming into contact with others who may influence him. It was also noted that there remains some uncertainty around certain risk factors to the extent they rely upon Benbrika’s self-reporting.
Ellis also identified a number of protective factors, including Benbrika’s:
(1)Satisfactory engagement with psychological programs, and likelihood to accept ongoing professional supports.
(2)Retractions of his past expressions of violence and greater flexibility in interpreting Islam.
(3)More cooperative interactions with supervising staff.
(4)Family and community supports.
(5)Age and reduction in rigid thinking style.
(6)Desire not to lose positive connections in the community.
(7)Desire not to return to custody.
In concluding his first report, Ellis stated that any risk Benbrika presents could be adequately managed by a firearms prohibition order,[55] ordinary surveillance and intelligence measures available to law enforcement, and clinical management by his treating psychologist and psychiatrist.
[55]On 18 December 2023, a delegate of the Chief Commissioner of Victoria Police made a firearm prohibition order against Benbrika under ss 112D and 112E of the Firearms Act 1996 (Vic). The effect of this is to prohibit Benbrika from acquiring, possessing, carrying or using any firearm or firearm-related item and from entering or remaining on certain premises, including those where firearms are stored. The order is in place for a period of 10 years.
Ellis’ second report elaborated on some of the matters raised in his first report. He confirmed that in his opinion, ongoing clinical management by Benbrika’s treating psychologist and psychiatrist and continued participation in the Disengagement Program were important and necessary to mitigate any risk of Benbrika committing a serious Part 5.3 offence. He also emphasised the importance of case coordination and the sharing of information between Benbrika’s treating clinicians and law enforcement from a risk management perspective.
These were the only 2 reports that had been produced by Ellis at the time this proceeding was commenced.
As mentioned above,[56] Ellis’ third and fourth reports were prepared after he was provided with further material, including the Clavell Transcripts and transcripts of Benbrika’s conversations with other individuals. Despite recording a significant revision of Ellis’ opinion, both reports were short, totalling only 3 and 4 pages in length respectively.
[56]See par 24 above.
In his third report, Ellis expressed concern that certain recorded telephone calls may indicate a desire on Benbrika’s part to subvert surveillance, as Benbrika “mentions not to speak about un-named topics as he is under surveillance” or “that he does not like to talk over the phone”. The fact that these telephone calls were in Arabic was also referred to.
Ellis stated that Benbrika’s conversations with Clavell were of particular concern. He explained:
He is aware that Clavell has a criminal record, holds Islamic beliefs and is seeking life guidance. The recording indicates they were in prison together. While the recording does not indicate specific violent extremist intent or planning, there are topics of concern (discussing how monitoring works, blasphemy, declaring someone an infidel, bullets). … There does not appear to be any discussion of this meeting with his case manager or treating clinicians. This indicates either deliberate deception about the meeting, or that [Benbrika] has not thought the interaction to be important. In either case it indicates difficulty with following directions and a need to interact and give advice to others who have a risk of extremist violence.
(Emphasis added.)
He stated that this new information altered his management recommendations. It also reinforced and made more certain his concern that Benbrika may be sought out by others due to his significant notoriety. Ellis also expressed concern about the “secretive” nature of this contact. In light of this, he recommended continued supervision by the Federal Police “in its current form”, in addition to the imposition of the Therapeutic Conditions.
Precisely what was meant by “continued supervision” was clarified by Ellis in his fourth report. He confirmed that his recommendation would be that the conditions under the Lapsed Supervision Order be reimposed,[57] to manage what he considered to be the most significant risk posed by Benbrika; namely, associating with others who may influence him, or be the subject of influence from him.
[57]See par 15 above.
Ellis also provided further context for his concern about the “secretive” nature of Benbrika and Clavell’s communications. He explained that he considered these communications secretive because they had not been mentioned in any reports by Benbrika’s treating clinicians or supervisors, which raised the possibility that Benbrika had not reported them. He continued:
This indicates either a deliberate withholding of information, or a lack of insight into the potential problematic contact. Either consideration is relevant to my final opinion on risk in that this is evidence [Benbrika] still requires external supports to manage his associations and insight. Another consideration is the content of the discussions … about how to interact with persons on the [Community Integration Support Program] and use of an Arabic term (pretend something and intend something else) are undertaken.
(Emphasis added.)

For the purposes of preparing his fifth report, Ellis was provided with further material, including information regarding meetings and telephone contact with 2 other “contacts of concern”, namely Joud and Haddad.
Ellis stated this information reinforced and strengthened the management opinions expressed in his third and fourth reports, as it increased the risk of Benbrika influencing, and being influenced by, others. In his sixth report, Ellis added that evidence of Benbrika associating with persons who may encourage, or be encouraged by, him to violent extremism was a clear risk factor for the commission of a serious Part 5.3 offence.
Ellis also provided further explanation of his concerns in relation to Benbrika’s other telephone calls.[58] According to Ellis, Benbrika’s efforts to keep certain topics out of telephone conversations “may indicate a wish to communicate about extremist beliefs or plans and avoid surveillance”. In his view, this risk would best be managed by continued surveillance and the imposition of barriers to Benbrika associating or communicating with others who may encourage risk-related behaviours.
[58]See pars 56-57 above.
Benbrika’s interactions with Clavell were also discussed in Ellis’ fifth and sixth reports. Ellis expressed concern that the contact with Clavell is ongoing, and “could represent a psychological need to be seen as a person of authority and seniority in matters to do with Islam and extremism”.
He maintained that Benbrika’s failure to disclose these interactions to his treating clinicians was a matter for concern, and potentially constituted a breach of the conditions of the Lapsed Supervision Order. Even if not a technical breach, Ellis still considered that this type of communication ought to be disclosed to Benbrika’s clinical and case management team. The fact that Benbrika did not see a need to report this contact was said to be indicative of a lack of understanding of “his motivations for the original offending and how to manage the risk of reverting to similar patterns”.
For the purposes of preparing his seventh and final report, Ellis was provided with further material, including a report prepared by Darjee.[59] He stated that none of this further information changed or otherwise affected any of the opinions expressed in his earlier reports. However, he agreed with Darjee’s opinion that any unnecessarily restrictive conditions within an extended supervision order could have an adverse impact on Benbrika’s mental health, and also on his relationships with his supervisors. For this reason, Ellis considered that any restriction needs to be weighed against its utility in detecting and managing risk.
[59]See par 82 below.
Under cross-examination, Ellis was taken to various parts of his first report where he had described Benbrika’s ideology as non-violent. He confirmed that this opinion remained unchanged. He also accepted the existence of several individual or environmental factors said to reduce the risk of Benbrika committing a serious Part 5.3 offence, including:
(1)Benbrika’s satisfactory engagement with psychological programs.
(2)The good working relationship Benbrika has with Speckhard and the Sheikh in the context of the Disengagement Program.
(3)The likelihood that Benbrika will continue to accept professional support.
(4)Benbrika’s cooperative relationships with supervising staff, including the Case Manager.
(5)Benbrika’s current endorsement of a non-violent ideology.
(6)Benbrika’s greater flexibility in interpreting Islam.[60]
(7)Benbrika’s positive interactions and relationships with his family, and his desire not to be separated from them.
(8)The specific deterrent effect of Benbrika’s strong desire not to return to custody.
[60]While the other matters referred to by Ellis were termed “protective factors”, Ellis instead considered that this was more appropriately labelled “the absence of a risk factor”. However, he accepted that whatever terminology was employed, each matter had the effect of reducing the risk of Benbrika committing a serious Part 5.3 offence.
Ellis also accepted that his third to seventh reports contained several errors, inconsistencies and inadequacies.[61] When asked about a number of these errors, he qualified or withdrew concerns expressed in relation to several aspects of the Clavell Transcripts.[62] He also gave evidence that:
(1)He was “very busy looking at documents and responding to … further requests for reports” in early 2025. He accepted in preparing these further reports he was often given a significant volume of material to review in very short timeframes. The time pressure he was under affected the quality of his work, such that the further reports were of a lesser quality than his first report.
(2)His fourth, fifth and sixth reports were produced primarily for the purposes of expanding on opinions and addressing errors and assumptions made in earlier reports.
(3)Many statements in his later reports were qualified by the words “may”, “might”, “could” or “can”, because they addressed less certain and more ephemeral factors concerning Benbrika’s thoughts and interactions, as opposed to the historical factors addressed in his first report.
(4)Although he was offered the opportunity of a further interview with Benbrika on multiple occasions, he elected not to take up this offer because of limited time and resources, and the availability of notes and reports prepared by Benbrika’s treating clinicians. He agreed that it would have been “preferable” to meet with Benbrika again, and that his opinion as to risk may have been better informed had he done so.
[61]See Attorney-General (Cth) v Benbrika [2025] VSC 83, [103] in relation to the third and fourth reports specifically.
[62]Specifically, Ellis acknowledged that Benbrika and Clavell’s meetings did not amount to a contravention of any condition of the Lapsed Supervision Order (see pars 57, 60 above) and that the word “bullets” was used benignly in their conversations (see par 57 above), among other matters.
Critically, Ellis was also taken to several documents and other information not provided to him by the Attorney-General’s legal representatives for the purposes of preparing his reports. This included:
(1)An intelligence report dated 19 December 2024 prepared by the Federal Police in response to a request for intelligence holdings in relation to Clavell and his association with Benbrika (“the Intelligence Report”). Importantly, the Intelligence Report noted that Clavell had been assessed in 2019 as “highly unlikely to undertake an act of politically motivated violence” and that since this date, the Federal Police had not identified any further intelligence to indicate a change to his ideology.[63]
(2)The evidence given by the Commander about Joud and his circumstances following his release from custody.[64]
(3)A Federal Police case note dated 23 October 2024 documenting an interaction with Benbrika (“the 23 October Case Note”). The 23 October Case Note records Benbrika having made a request to speak with the Federal Police at the conclusion of a case management session, and asking a police representative whether it was a requirement under the Lapsed Supervision Order that he report instances of contact with persons he met, for example, on the street. The police representative advised Benbrika that unless a person was specifically named as, or fell into one of the categories of, a prohibited association under the Lapsed Supervision Order, Benbrika would not be required to report contact with them.[65]
(4)The evidence given by the Commander about the ability of the Federal Police to make a direction under the Lapsed Supervision Order that Benbrika not associate with Clavell, and election not to do so on the basis that there was no immediate need to manage any risk to the public.[66]
[63]Despite the Intelligence Report being prepared in December 2024 upon the request of the Commander, it was not provided to the Attorney-General’s legal representatives until 13 March 2025 and was only disclosed to Benbrika’s solicitors on 20 March 2025. See further pars 183-185 below.
[64]See par 38 above.
[65]The 23 October Case Note was only disclosed to Benbrika’s solicitors on the evening of 1 April 2025, being the second day of trial. The Attorney-General’s legal representatives blamed an error in the document review process for the non-disclosure: see further pars 186-192 below.
[66]See par 37 above.
Ellis agreed that all of this information would have been relevant to his assessment of Benbrika’s risk and management opinions. Taken in combination with the various errors and assumptions made in his later reports,[67] it had the effect of lessening his opinion of the risk of Benbrika committing a serious Part 5.3 offence. In light of this, Ellis stated that he had reverted to the risk management opinions expressed in his first report,[68] namely that any risk posed by Benbrika could be sufficiently addressed by the imposition of an extended supervision order with the Therapeutic Conditions only, together with ordinary surveillance measures and the existing firearms prohibition order.
[67]See fnn 61, 62 above.
[68]See par 52 above.

D.3 MacKenzie’s evidence

MacKenzie commenced treating Benbrika in December 2022. Her role has included monitoring his mental health, and providing clinical psychological treatment and support regarding his mental health conditions. Between then and January 2025, she met with Benbrika on a weekly basis, and since January 2025 has met with him fortnightly. She also participates in regular case management meetings with the Case Manager and other clinicians involved in Benbrika’s treatment.
MacKenzie has written 3 reports in relation to Benbrika, dated 6 February 2025, 9 February 2025 and 7 March 2025. Appropriately to MacKenzie’s role and expertise, these reports discuss Benbrika’s mental health diagnoses and his responses to treatment. MacKenzie did not carry out any assessment of the risk that Benbrika may or may not pose of committing serious terrorism offences.
In her first report, MacKenzie stated that Benbrika currently meets the criteria for a diagnosis of complex post-traumatic stress disorder and major depressive disorder. She noted he exhibits symptoms of persistent anxiety directly related to the stress associated with his supervision orders and specifically his fear of breaching the conditions of such and being returned to custody. In MacKenzie’s opinion, Benbrika’s mental state has also exacerbated underlying physical ailments, including ulcerative colitis and headaches, which have had a detrimental impact on his general and social functioning.
In MacKenzie’s view, Benbrika would likely benefit from further mental health treatment. However, the frequency and duration of that treatment would depend on whether an extended supervision order were imposed, and if so, the associated conditions.
In this regard, she stated that the removal of Benbrika’s autonomy in respect of his mental health treatment under the compulsion of a supervision order, as well as the supervision order itself and associated stressors, are significantly impeding the progress of his treatment. In her view, the greatest therapeutic benefits would be achieved if no extended supervision order were imposed, and Benbrika could instead engage in treatment on a voluntary basis.
MacKenzie expressed a commitment to continue providing treatment to Benbrika on a bulk-billed basis[69] were no extended supervision order to be made, and stated that Benbrika has also expressed a desire to continue his sessions with her in the absence of a supervision order.
[69]That is, at no cost to Benbrika.
MacKenzie’s second report was prepared shortly after the Attorney-General sought leave to amend his originating motion to add the Further Conditions. It responded to questions concerning the impact of the proceeding and the proposed extended supervision order on Benbrika’s mental health. MacKenzie stated that Benbrika was highly distressed and felt a sense of helplessness and hopelessness in relation to the prospect of the Further Conditions being imposed. She explained Benbrika’s situation as comparable to that of a victim of stalking who is subjected to repeated and unwanted intrusive behaviour. It was stated to be well documented that such a situation can cause considerable psychological harm.
In her third report, MacKenzie stated that Benbrika has experienced a high level of distress since the proposed inclusion of the Further Conditions under a future extended supervision order. She also confirmed Benbrika’s intention to continue his treatment if no supervision order were made.

D.4 Darjee’s evidence

Darjee initially assessed Benbrika on 11 April 2024, and since then has seen him on a further 4 occasions. Each session lasted for around an hour and was conducted by video call. Darjee wrote a report following his initial assessment of Benbrika, dated 24 July 2024, and provided a second report dated 10 March 2025 for trial.
Darjee’s first report set out his opinion as to Benbrika’s current mental health and diagnoses, and made psychiatric recommendations. Like Ellis and MacKenzie, he was of the opinion that 2 diagnoses capture Benbrika’s symptoms, their effects and his functioning: major depressive disorder and post-traumatic stress disorder. He found no evidence of a personality disorder or any persistent or pervasive personality problems, though did describe Benbrika as having “a need for status, respect and autonomy”.
Darjee made recommendations as to Benbrika’s ongoing medication and treatment regimen. In summary, he was of the opinion that psychiatric and psychological treatment and continued involvement in the Disengagement Program are important, as is regular communication between those providing Benbrika with treatment and law enforcement officials so that there is a holistic and “joined up” approach which can be adapted to optimise his mental health and his management on any extended supervision order. He noted that:
(1)Given Benbrika’s prosocial nature and background, it is highly likely that he will adhere to conditions of an extended supervision order.
(2)If Benbrika feels he is being treated with respect, honesty and transparency, he will likely engage well with professionals and agencies.
(3)It will be important for Benbrika to feel that he has autonomy, respect and some control, despite being subject to an extended supervision order.
In his second report, Darjee emphasised that his role was not to assess the risk or threat Benbrika poses or to make recommendations regarding the management of any potential threat or risk. However, he repeated the importance of ensuring that any extended supervision order affords Benbrika as much autonomy, respect and control as possible. He stated that if Benbrika feels he is being unreasonably controlled, intruded on or disrespected, this may exacerbate his existing mental health issues and affect his responsivity to treatment and interventions, and may in turn increase the level of risk he poses. Any supervisory conditions therefore ought only be imposed if absolutely necessary, as the unnecessary inclusion of conditions would likely fuel feelings of resentment, humiliation and powerlessness in Benbrika.

D.5 Other documentary evidence

Hundreds of documents relating to Benbrika held by the Attorney-General’s Department, the Federal Police, Victoria Police and Corrections Victoria, among others, were also tendered. These included:
(1)Case notes prepared by the Case Manager between December 2023 and March 2025.
(2)Periodic reports prepared by Speckhard for the Case Manager on Benbrika’s participation in the Disengagement Program.
(3)Minutes of case management meetings attended by the Case Manager, Speckhard, Darjee, MacKenzie and others.
(4)Correspondence between Benbrika and the Case Manager or members of the Federal Police relating to compliance with the conditions of the Lapsed Supervision Order and interim supervision orders.
(5)Federal Police decision records and situation reports.
(6)Audio recordings and transcripts of Benbrika’s communications and interactions, including the Clavell Transcripts.
To the extent that any of these documents contained information that was material to the making of a particular finding, it is referred to below.

E. The order and conditions ultimately sought

At the close of the Attorney-General’s case on the third day of trial, senior counsel for the Attorney-General was asked whether any change was to be made to the case against Benbrika in light of Ellis’ revised opinion as to risk and management.[70] The matter was stood down for a short period so both parties could seek instructions. The court was informed that those representing the Attorney-General were unable to obtain instructions. A direction was given that the trial would not be permitted to continue until instructions were provided based on the evidence as it then stood.
[70]See par 70 above.
Later that day, the court was informed that in light of Ellis’ evidence, an extended supervision order with only the Therapeutic Conditions[71] would now be sought.
[71]With the narrower scope of the Information Condition contemplated under the interim orders to be reinstated: see fn 38 above.
Benbrika’s senior counsel advised that he had also obtained instructions that if the Attorney-General were to seek an extended supervision order confined to the Therapeutic Conditions for a shorter period of time, namely 6 to 8 months commencing from the time of trial, it would not be opposed by Benbrika. This position was expressly taken with no concession that Benbrika poses an unacceptable risk, but merely an acceptance that it would be open to the court to make such a finding.
Following another short adjournment, the Attorney-General’s senior counsel confirmed that an order would only be sought until 28 November 2025.[72]
[72]Being a period of approximately 8 months from the time of trial.

F. Relevant considerations in making an extended supervision order

Post-sentence orders are, by their very nature, exceptional.[73] As a form of preventative detention or supervision, as the case may be, they sit in tension with several of the fundamental precepts of our system of criminal justice, such as the presumption of innocence and the right to due process. For this reason, an extended supervision order may only be made where the risk of an offender committing a terrorist offence rises to an unacceptable level.
[73]Benbrika v Attorney-General (Cth) (2024) 74 VR 379, 385 [23] (Hollingworth J).
To make an extended supervision order,[74] the court must be satisfied, on the balance of probabilities and on the basis of admissible evidence, that an offender poses an unacceptable risk of committing a serious Part 5.3 offence.[75] The court is not necessarily required to identify with precision a specific individual offence that a particular offender might commit in future, provided the risk ultimately identified is a risk of committing one or more serious Part 5.3 offences.[76]
[74]There are also certain formal requirements that an application for an extended supervision order must meet, in respect of which there was no dispute between the parties: Criminal Code, s 105A.7A(1)(a).
[75]Ibid, s 105A.7A(1)(b).
[76]Benbrika v Minister for Home Affairs (2021) 365 FLR 209, 230 [73]-[74], 231 [79] (Beach, McLeish and Kennedy JJA).
The Criminal Code does not define what constitutes an unacceptable risk. However, in a distinct but comparable statutory context, the concept of unacceptable risk has been described as a flexible one, calibrated to the nature and degree of the risk, so as to be adapted to the particular case.[77] Whether a risk is unacceptable depends upon the nature of the risk, the degree of likelihood of the risk eventuating and the seriousness of the consequences if it does.[78] In other words, the unacceptability of risk balances the nature and likelihood of “the risk” and the seriousness of the outcome of its realisation.[79] So, it has been observed that even a slim risk of an offender committing a terrorist act may be an unacceptable one, in light of the serious consequences of such an act.[80]
[77]Nigro v Secretary to the Department of Justice (2013) 41 VR 359, 404 [165] (Redlich, Osborn and Priest JJA).
[78]Ibid, 363 [6], 404 [167].
[79]New South Wales v Ceissman (No 2) [2018] NSWSC 1237, [33] (Rothman J).
[80]New South Wales v Naaman (No 2) (2018) 365 ALR 179, 186 [29(5)] (Basten, Macfarlan and Leeming JJA), cited with approval in Minister for Home Affairs v Benbrika [2020] VSC 888, [405] (Tinney J) and Minister for Home Affairs v Benbrika (2022) 366 FLR 32, 43 [51] (Hollingworth J).

In assessing risk, the court is required to consider the effect of the evidence as a whole, rather than adopting a piecemeal approach.[81] It must also take into account:[82]
[81]Benbrika v Minister for Home Affairs (2021) 365 FLR 209, 235 [99]-[100] and the cases there cited.
[82]Criminal Code, s 105A.6B.
(1)The object of Division 105A of the Criminal Code, namely the protection of the community from serious Part 5.3 offences.
(2)Any report or results of any assessment conducted by a relevant expert, and the level of the offender’s participation in the assessment.[83]
(3)Any report relating to the extent to which the offender can reasonably and practicably be managed in the community.
(4)Any treatment or rehabilitation programs in which the offender has had an opportunity to participate, and the level of the offender’s participation.
(5)The level of the offender’s compliance with any obligations to which the offender is or has been subject while on release on parole for a terrorist offence[84] or subject to a post‑sentence, interim post-sentence or control order.
(6)The offender’s history of any prior convictions for, and findings of guilt made in relation to, serious terrorism offences.
(7)The views of the sentencing court at the time any sentence for a terrorist offence was imposed on the offender.
(8)Whether the offender is subject to any equivalent order under a state or territory law, and if so, the conditions of the order.
(9)Any other information as to the risk of the offender committing a serious Part 5.3 offence.
[83]Whether conducted under sections 105A.6 or 105A.18D of the Criminal Code or to otherwise assess the risk of the offender committing a serious Part 5.3 offence.
[84]As defined in the Criminal Code, s 105A.3(1)(a).
Further, section 105A.6B(2) of the Criminal Code provides that the court is not prevented from having regard to any other matter it considers relevant in determining whether an offender presents an unacceptable risk.
In addition to being satisfied that an offender poses an unacceptable risk, the court must also be satisfied on the balance of probabilities that each of the conditions to be imposed under an extended supervision order, as well as the combined effect of all of those conditions, is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from that unacceptable risk.[85] In making such a determination, the court is required to give paramountcy to the objective of protecting the community from serious Part 5.3 offences.[86]
[85]Criminal Code, s 105A.7A(1)(c).
[86]Ibid, s 105A.7A(2).
The requirement that each of the conditions to be imposed under a post-sentence order be reasonably necessary, and reasonably appropriate and adapted, focuses on proportionality.[87] A condition, or their cumulative effect, will not meet this criteria where it or they impose “a greater degree of restraint” than is necessary.[88]
[87]Attorney-General (Cth) v Sa’adat Khan (No 2) [2022] VSC 687, [41] (John Dixon J).
[88]Ibid.
The court must also be satisfied that there is a connection between the condition or conditions proposed and the risk they seek to address. In making such a determination, the court should have regard to:[89]
(a)whether the condition addresses a means of controlling possible risk factors related to the type of offending in question;
(b)whether the condition is designed to avoid situations where the offender’s rehabilitation or reintegration into the community might be compromised; or
(c)in some cases where the condition does not directly relate to the offender’s risk, whether it promotes the efficacy of other conditions that do.
[89]Ibid, [43], citing State of New South Wales v BP (No 2) [2019] NSWSC 806, [11] (Wright J).
The Attorney-General bears the burden of satisfying the court of both the existence of an unacceptable risk, and of the reasonableness of the conditions proposed.[90]
[90]Criminal Code, s 105A.7A(3).

G. Issue 1: Should an extended supervision order be made?

This issue turns on the question of unacceptable risk, and specifically whether the Attorney-General has satisfied the court that Benbrika poses an unacceptable risk of committing a serious Part 5.3 offence.

G.1 The respective positions as to risk

The Attorney-General’s position was that the court should be satisfied, on the balance of probabilities and on the basis of admissible evidence, that Benbrika poses an unacceptable risk of committing a serious Part 5.3 offence.
Benbrika made no formal concession or admission that he poses an unacceptable risk. However, he did ultimately accept that it was open to the court to make such a finding.[91] This was essentially identical to the position adopted in the Lapsed Supervision Order proceeding,[92] and was said to be a “pragmatic approach” to the resolution of the litigation.
[91]See par 87 above.
[92]Benbrika v Attorney-General (Cth) (2024) 74 VR 379, 391 [59] (Hollingworth J).

G.2 The nature and elements of the asserted risk

The specific risk asserted by the Attorney-General was one of Benbrika “radicalising others or encouraging them to engage in conduct constituting a terrorist act of religious-inspired violence”. Such a risk was said to be reflective of the index offending. Several possible serious Part 5.3 offences which Benbrika was said to pose a risk of committing were identified.[93]
[93]These included providing training connected with terrorist acts (under s 101.2 of the Criminal Code); directing the activities of a terrorist organisation (s 102.2); intentional membership of a terrorist organisation (s 102.3); recruiting for a terrorist organisation (s 102.4); providing or participating in training involving a terrorist organisation (s 102.5); and aiding or abetting a terrorist act: s 101.1.
The Attorney-General’s opening submissions relied on all 7 of Ellis’ reports to substantiate the existence of this risk. It was submitted that the risk posed by Benbrika in this regard was identified in Ellis’ first report but had increased in magnitude since 2024. The submissions were centred around 3 “critical integers” of that risk: Benbrika’s ideology, Benbrika’s associations, and Benbrika’s desire to provide religious leadership or guidance.
However, following Ellis’ evidence and the significant revision of the Attorney-General’s case,[94] only Ellis’ first and second reports were relied upon. While the nature of the asserted risk remained the same, the integers of that risk were revised to include:
(1)Benbrika’s ideology and ideological trajectory.
(2)Benbrika’s personality traits.
(3)The risk that Benbrika will assume a religious leadership role or a role as a religious advisor.
[94]See pars 86-88 above.

G.2.1 The index offending and views of the sentencing court

In assessing the risk Benbrika poses of committing a serious Part 5.3 offence, it is instructive to begin with a summary of the index offending, not least because an offender’s prior convictions for serious terrorism offences[95] and the views expressed by the sentencing court[96] are mandatory considerations in making a post-sentence order. However, the weight to be given to historical matters such as this in assessing risk depends on the individual circumstances and will vary from case to case.[97]
[95]Criminal Code, s 105A.6B(1)(g).
[96]Ibid, s 105A.6B(1)(h).
[97]Benbrika v Attorney-General (Cth) (2024) 74 VR 379, 394 [83] (Hollingworth J).
The Court of Appeal recently summarised the circumstances leading to Benbrika’s arrest as follows:[98]
The Crown case against [Benbrika] at his criminal trial was that he was a member of a Melbourne-based terrorist organisation that was fostering or preparing the doing of a terrorist act in Australia or overseas, with the intention of causing death or serious physical harm in order to advance a political, religious or ideological cause. The proposed terrorist act was alleged to be the intentional detonation of one or more explosive or incendiary devices, or the use of weapons. The cause to be advanced by terrorist action was said to be the belief — taught by [Benbrika] and accepted by members of the organisation — that they were under a religious obligation to pursue violent jihad against the kuffar (non-believers).
…
[Benbrika] taught at various mosques and Islamic organisations for a period until his attitudes to Islam and its practice brought him into conflict with other Muslims to such an extent that he was either excluded from or voluntarily desisted from those activities. The primary judge described [Benbrika] giving classes to young men and then, outside classes, associating and forming a group with those who were to become his co-accused. The group (referred to as a “jemaah”), of which [Benbrika] was the leader, existed under [Benbrika’s] direction for the purpose of engaging in violent jihad — something which [Benbrika] and the members of the jemaah regarded as an integral part of their religious obligations.
Financial contributions were made by members of the group to finance the activities of the jemaah, including those activities which made it a terrorist organisation. Funds were used for various purposes of the jemaah, although there was no evidence that any purchases of weapons or the like were made.
Hard and electronic copies of various extremist jihadi literature and media were viewed and circulated amongst members of the jemaah. This material included combat manuals, publications which contained recipes for making explosives, and diagrams showing how to make a timer for a bomb. Much of the material originated from extremist Islamic websites, upon which could also be viewed graphic footage showing the beheading of hostages.
[98]Benbrika v Minister for Home Affairs (2021) 365 FLR 209, 215-216 [16], [20]-[22] (Beach, McLeish and Kennedy JJA).
Bongiorno J’s sentencing remarks make abundantly clear that Benbrika’s offending was considered to be very serious.[99] His Honour explained:[100]
The essence of Benbrika’s criminality, with respect to the [c]ount of directing the activates of a terrorist organisation lies in his exercising an enormous influence over the young men who followed him, and imbuing, or seeking to imbue in them, a fanatical hatred of non-Muslims and, even, those vast majority of Muslims who abhor violence as much as anyone else. The degree of his criminality, both with respect to his membership and direction of the organisation, must be judged in light of the fact that the existence of that organisation and his leadership of it created a significant risk that a terrorist act would be committed in this community. Where and when such an act might have been committed, how devastating it would have been, or how many people would have been killed or injured as a result of it is impossible to say.
[99]Benbrika was later resentenced by the Court of Appeal: see Benbrika v The Queen (2010) 29 VR 593 (Maxwell P, Nettle and Weinberg JJA).
[100]R v Benbrika (2009) 222 FLR 433, 446-447 [68].
Relevantly, Bongiorno J also made various other findings with respect to Benbrika’s ideology. Most importantly, this included that at the time of the offending, Benbrika had a “zealous or fanatical belief” in violent jihadism, being an ideology that supported a violent struggle against the enemies of Islam, or the kuffar.[101] Bongiorno J concluded that there was no evidence that Benbrika had in any way renounced “his commitment to violent jihad” at the time of sentencing in February 2009.[102]
[101]Ibid, 438-440 [20]-[24], 446-447 [65]-[68], [71]. See also Minister for Home Affairs v Benbrika (2022) 366 FLR 32, 46-47 [77] (Hollingworth J).
[102]Ibid, 448 [77].

G.2.2 Benbrika’s ideology and ideological trajectory

As was the case in the proceeding relating to the Lapsed Supervision Order,[103] both parties agreed that Benbrika did not, at the time of trial, support an ideology that justifies the use of violence. This was consistent with Ellis’ evidence[104] and other documentary evidence, including periodic reports by Speckhard. Instead, what was in issue was the recency and stability of that ideology.
[103]Benbrika v Attorney-General (Cth) (2024) 74 VR 379, 395 [93], 400 [129] (Hollingworth J).
[104]See pars 45, 49, 67 above.
To explain, the Attorney-General submitted that not only is Benbrika’s current ideology relevant to an assessment of risk, but so is his ideological trajectory. It was accepted that Benbrika had renounced an ideology that justified violence by at least June 2023, and since then has moved “[c]onsiderably further down the path of deradicalisation”. However, it was submitted that this ideological change remains a relatively recent and therefore fragile development that has followed him holding a contrary ideology for at least 2 decades. For that reason, the Attorney-General submitted that there remains a possibility that Benbrika could regress to previously-held views.
Benbrika, by contrast, invited the court to make a finding that his ideology and religious view is stable and no longer recent. It was submitted that there was no evidence before the court to sustain a finding that Benbrika’s ideological change is fragile, nor that it is recent. Instead, it was submitted that the evidence established that it is an ideology and religious view he has held for at least 2 years, during a period where he has been closely monitored and supervised and has regularly participated in the Disengagement Program. As such, any possibility of ideological “backsliding” was said to be merely speculative. In Benbrika’s submission, “[a]nybody could, in theory, come to hold a violent ideology”, and as such, the court could not make any finding as to the risk of Benbrika reverting to his previously-held beliefs in any kind of probabilistic terms.
In considering the recency and stability of Benbrika’s ideological change, it is useful to first refer to findings made in recent judicial decisions concerning Benbrika.[105] At the time Benbrika was first made subject to a continuing detention order in 2020, Tinney J found that Benbrika had not renounced or changed his beliefs that justified terrorist violence, and any asserted change in ideology was no more than a “fabrication”.[106] In 2022, at the first periodic review of Benbrika’s continuing detention order, Hollingworth J was unable to come to a concluded view as to whether, and if so, when, Benbrika had come to embrace a non-violent ideology.[107]
[105]It was submitted on behalf of Benbrika that any decisions prior to 2023 must now “have an asterisk” against them due to the serious interference with the administration of justice caused by the failure to disclose exculpatory material to Benbrika: see par 12 above. The Attorney-General submitted – correctly, in my view – that insofar as this submission was made in relation to earlier findings about Benbrika’s ideology, it ought to be rejected, as the non-disclosure related to material concerning the validity and predictive capacity of particular risk assessment tools, an issue with no bearing on findings about Benbrika’s ideology.
[106]Minister for Home Affairs v Benbrika [2020] VSC 888, [431]-[432].
[107]Minister for Home Affairs v Benbrika (2022) 366 FLR 32, 64 [217].
It was only in the context of the Lapsed Supervision Order proceeding in 2023 that her Honour found that Benbrika no longer supported an ideology justifying the use of violence. That was then said to be a “relatively recent development in his ideology, which still remained potentially fragile”. At that time, there was still said to be a risk of Benbrika reverting to his previous ideology were he to re-engage with radical jihadists or fail to appropriately participate in deradicalisation work.[108]
[108]Benbrika v Attorney-General (Cth) (2024) 74 VR 379, 400 [129]-[130].
The potentially fragile nature of Benbrika’s ideological change was also discussed in Ellis’ first report.[109] He stated that although Benbrika currently frames his ideology as non-violent and does not see himself to be in a position to encourage others to use violence for a cause, there remains potential for these and other risk factors to fluctuate while Benbrika continues to seek a stable personal identity.[110] As such, Ellis considered that Benbrika may still, under certain circumstances, adopt group grievances of an ideological nature that could lead to responsive actions.[111]
[109]Ellis was appointed by the Attorney-General to conduct an assessment of Benbrika pursuant to s 105A.18D of the Criminal Code, and meets the definition of a “relevant expert” in s 105A.2(1). The court is therefore required to take his reports into account in assessing Benbrika’s risk: s 105A.6B(1)(b)(ii).
[110]See also par 49 above.
[111]See pars 45, 48 above.
In addition to Ellis’ opinions on Benbrika’s ideology, both parties relied heavily on assessments and observations made by Speckhard in periodic reports and case management meetings between early 2024 and the time of trial.[112] Some of the views expressed by Speckhard over this period are illuminating as to Benbrika’s ideological trajectory, including that:
[112]Speckhard likewise meets the definition of “relevant expert” in s 105A.2(1), and as such, the court is required to take into account her assessment of Benbrika’s level of risk: Criminal Code, s 105.6B(1)(c).
(1)In February 2024, Speckhard reported that Benbrika “still lapses into extremist rhetoric and thinking”, which “could be problematic if he were to return down the same lines of thinking he held in the past”. Speckhard stated that some of Benbrika’s thinking and statements raised concern and that corrective teaching and encouragement were required. She noted that the first steps to slowly moving Benbrika to a deradicalised state were being taken.
(2)In April 2024, Speckhard noted that she was seeing “positive growth and movement to taking a much more nuanced view and backing away from militant jihadists (sic) ideology”. She stated that Benbrika was beginning to reconsider long held beliefs and open his mind to new ways of thinking about Islam.
(3)In May 2024, Speckhard noted that Benbrika was finding it “very hard” to reformulate his beliefs about Islam, and that his thinking was “still on the jihadist track in some areas”. She observed that he was showing some signs of resistance and clinging to deeply held views as the program delved deeper into militant jihadist concepts. Although he was showing openness to new beliefs, Speckhard noted that Benbrika “does continue to hold views that many militant jihadists hold”. At a case management review meeting, Speckhard again referred to Benbrika’s resistance, noting that “it is difficult to have life-long beliefs challenged”.
(4)In July 2024, Speckhard described Benbrika as “strongly convinced against terrorist interpretations” of Islam and noted that he was aligning with peaceful interpretations that do not justify terrorism. She also reported that Benbrika appeared to be changing his views, and efforts to encourage him to question aspects of Islam promotive of violence seemed to be working well.
(5)In August 2024, Speckhard noted that Benbrika was still at times defending the Islamic State[113] as upholding religious rights and freedoms. However, he was coming around to the view that many of the group’s activities were proscribed by Islam. At a case management meeting, Speckhard described Benbrika as having become “visibly disturbed” and “physically sick” while watching video footage of interviews with members of the group.
(6)In September 2024, Speckhard described Benbrika as “radicalised but not dangerous”, noting that while she does not see him committing a terrorist offence, she still holds some concerns about his views. Her monthly report noted that Benbrika continued to defend the Islamic State and its legitimate Islamic practices, “even claiming that living under [the Islamic State] could be preferable to living under a non-Islamic form of governance”. However, long debates with her and the Sheikh were helping him to slowly understand the group’s illegitimacy. At that month’s case management meeting, she relayed that Benbrika had asked to be provided with materials that were not critical of the Islamic State. She also expressed concerns about Benbrika’s reluctance to share details of the materials he had been independently reviewing and researching with her.
(7)In October 2024, Speckhard told Benbrika’s case management team of Benbrika’s continued struggle to denounce the Islamic State and violent jihad. She used an example of a discussion about a bombing in front of an ice cream shop, noting that while Benbrika eventually recognised that the act was wrong, he had initially appeared reluctant to denounce it, saying the discussion “was a matter for scholars”. However, she also stated that she was “quite certain” Benbrika would never plot a terrorist act again. Speckhard’s periodic report noted that in a discussion about the proper Islamic response to injustice, Benbrika had agreed that targeting children and innocent persons was impermissible.
(8)In November 2024, Speckhard described Benbrika’s responses to discussions about the occupation of Palestine and the war in Gaza as “thoughtful” and “peaceful”.
(9)In December 2024, Speckhard expressed confidence that Benbrika is “neither dangerous himself nor likely to mislead or encourage others into violent extremism”.
(10)In January 2025, Speckhard again expressed the view that Benbrika is not dangerous, because “he now clearly knows that plotting to harm Australia is unIslamic and he also could not face returning to prison”. While noting that Benbrika would continue to benefit from the support of the Disengagement Program, she stated that he now shows much more nuance and openness in his views than in the past.
(11)In March 2025, Speckhard stated that she does not consider Benbrika to be “dangerous or still heavily radicalized”, describing him as “essentially deradicalized”. However, she noted that she and the Sheikh had “still not convinced [Benbrika] that [the Islamic State] should receive no defense”. She made clear that there remained benefit in Benbrika’s continued participation in the Disengagement Program to consolidate and further develop his skills and knowledge. In discussing the Clavell Transcripts, Speckhard stated that her impression of the interaction was that Benbrika was acting as a moderating influence and steering Clavell away from problematic interpretations of Islam, which she considered to be “evidence that the [Disengagement] Program is working”.
[113]Being the transnational jihadist terrorist organisation often referred to as “ISIS”.

A fourth and final protective factor agreed by the parties was the deterrent effect of Benbrika’s strong desire not to return to custody.
Benbrika spent 18 years in custody, including significant periods of time in solitary confinement. He continues to suffer significant mental and physical health impacts directly linked to this experience, and has been diagnosed by numerous physicians with post-traumatic stress disorder.[137]
[137]See pars 43, 73, 80 above.
As both Ellis[138] and Speckhard[139] made clear, Benbrika’s traumatising experience of incarceration and strong motivation to remain in the community reduce the risk of him committing a serious Part 5.3 offence. It is likewise a significant protective factor to which weight must be given in assessing risk.
[138]See pars 51(7), 67(8) above.
[139]See par 114(10) above.

G.4 Conclusion as to unacceptable risk

There was rightly no dispute that Benbrika has made even further progress towards deradicalisation since December 2023, being the time at which the Lapsed Supervision Order was made. As such, the level of risk Benbrika poses of radicalising others or encouraging them to engage in conduct constituting a terrorist act of religious-inspired violence is unquestionably lower than it was at that time.
However, in light of the comparative recency and ongoing fragility of Benbrika’s ideological change, certain of Benbrika’s personality traits, and the real possibility that Benbrika will assume a formal or informal religious leadership role, there remains a risk of Benbrika radicalising or encouraging others to religious-inspired violence, and in doing so committing a serious Part 5.3 offence.[140] Although acknowledging that a number of protective factors exist, when the serious nature of the possible offending and its potential consequences are taken into account, I am satisfied that that risk presently remains at an unacceptable level.
[140]See fn 93 above.
In reaching this conclusion, in addition to the other mandatory considerations specifically referred to above,[141] regard has been had to the object of Division 105A of the Criminal Code, namely the protection of the community from serious Part 5.3 offences. Particular weight has also been placed on the evidence of Ellis and the opinions expressed in reports of Speckhard.
[141]See fnn 95, 96, 109, 112, 125, 133.
Both Ellis and Speckhard indicated that if Benbrika continues to participate in the Disengagement Program and engage positively with case management and mental health treatment, the risk of him committing a relevant offence will be minimal. However, their stated positions were also generally consistent with the proposition that, if Benbrika were to no longer have access to such supports, and certain circumstances or stressors were to arise in his life, the level of risk he presents would be significantly higher. In circumstances where many of these supports will only be available to Benbrika on an ongoing basis if an extended supervision order is made, this has a clear bearing on an assessment of Benbrika’s risk.
That being said, the reduced magnitude of risk Benbrika now presents warrants (and will be reflected in) a significant relaxation of conditions under the extended supervision order that is to be imposed when compared with those under the Lapsed Supervision Order.

H. Issue 2: What conditions should the order include?

H.1 The respective positions

The Attorney-General submitted that the court should be satisfied on the balance of probabilities and based on admissible evidence that each of the Therapeutic Conditions is reasonably necessary, appropriate and adapted to the risk posed by Benbrika. It was submitted that the Therapeutic Conditions represent a proportionate reduction to the restrictions under the Lapsed Supervision Order.
In line with his overarching position on risk,[142] Benbrika made no formal concession that any particular condition was reasonably necessary or reasonably appropriate and adapted. However, he did accept that it was open to the court to make such a finding in relation to each of the Therapeutic Conditions, if the court were to find that an unacceptable risk existed.
[142]See pars 87, 100 above.
As such, there was ultimately no real dispute between the parties as to what conditions should be included in an extended supervision order, including as to the precise formulation of those conditions. The reasonableness of each of the Therapeutic Conditions was not contested.
It is nevertheless necessary to consider each of the proposed conditions individually to be satisfied that they are both individually and together reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the risk Benbrika poses.

H.2 The proposed conditions

H.2.1 The Case Management Condition

This condition requires Benbrika to report to the Case Manager and also participate in assessments and reviews of his case plan. In this way, it facilitates the Case Manager’s broader case management role and supports coordination between those involved in Benbrika’s treatment.
The value of case coordination in circumstances where there are multiple treatment providers was emphasised by both Ellis[143] and Darjee.[144] The Case Manager’s involvement in Benbrika’s supervision facilitates the ongoing sharing of information between those responsible for his treatment, supports Benbrika’s engagement and enables any risks or concerns to be raised and appropriately addressed.
[143]See par 53 above.
[144]See par 81 above.
Further, the evidence shows that Benbrika has developed a positive relationship with the Case Manager and has, over the course of both the Lapsed Supervision Order and the 4 interim supervision orders, used this relationship to proactively raise concerns or issues and seek clarification of any conditions. Ellis characterised Benbrika’s cooperative relationship with the Case Manager as a factor which reduced his risk of committing a relevant offence.[145]
[145]See par 67(4) above.

H.2.2 The Treatment Condition

This condition requires Benbrika to engage in any psychological and psychiatric treatment that is recommended by his current treating practitioners (namely, MacKenzie and Darjee). It also provides a mechanism for the Case Manager to direct that Benbrika undergo an assessment for further treatment should his treatment with either MacKenzie or Darjee cease. Provision is also made for Benbrika to be assessed for, and to undergo, other forms of mental health treatment if he is found suitable. As part of this condition, Benbrika must not fail to attend 3 or more appointments in a row without a reasonable excuse. Benbrika’s participation in any mental health assessments and treatment is to be funded by the Commonwealth.
The utility and importance of Benbrika’s continued participation in mental health treatment in managing risk was confirmed by each of Ellis,[146] MacKenzie[147] and Darjee.[148] All 3 experts were in agreement that, in light of Benbrika’s ongoing struggles with post-traumatic stress disorder and depression, he will continue to derive benefit from psychological and psychiatric treatment and support. The evidence shows that Benbrika relies on the assistance of MacKenzie, in particular, in handling and addressing challenging circumstances and situations. Further, the minutes of a case management review meeting held on 17 May 2024 record that Darjee identified as a potential risk that Benbrika “may harm himself and may influence others if his mental health declines”.
[146]See pars 53, 67(1) above.
[147]See par 74 above.
[148]See par 81 above.

H.2.3 The Disengagement Condition

This condition mandates Benbrika’s continued participation in the Disengagement Program under the supervision of Speckhard and the Sheikh at the Commonwealth’s expense. It also provides a mechanism for the Case Manager to direct that Benbrika undergo an assessment for participation in another community-based tailored violent extremism disengagement and rehabilitation program should the Disengagement Program cease to be available, and a process by which Benbrika may submit a written request to change programs.
Benbrika’s continued participation in the Disengagement Program is critical in light of the recency and potential fragility of his ideological shift, and various statements made in Speckhard’s reports to the effect that Benbrika has not fully achieved the long-term objectives of the Disengagement Program, and will derive benefit from ongoing participation. It will also be essential should Benbrika assume any kind of formal or informal religious leadership role. So much was confirmed by Ellis’ opinions that continued participation in the Disengagement Program is an important aspect of risk management,[149] and that Benbrika’s good therapeutic alliance with Speckhard and the Sheikh is an important protective factor.[150]
[149]See par 53 above.
[150]See par 67(2) above.

H.2.4 The Information Condition

This condition requires Benbrika to provide any information about case management requested by the Case Manager,[151] as well as to agree to information being shared between persons and government agencies involved in his supervision and in his psychological and psychiatric treatment.
[151]But not about the substance of any mental health assessment or treatment. See Benbrika v Attorney-General (Cth) (2024) 74 VR 379, 406-407 [170]-[173] (Hollingworth J).
The importance of information being shared amongst those responsible for the various aspects of Benbrika’s treatment, as well as with authorities, from the perspective of risk reduction and rehabilitation was emphasised by both Ellis[152] and Darjee.[153]
[152]See par 53 above.
[153]See par 81 above.

H.2.5 The Exemption Conditions

The final 2 conditions provide a mechanism for Benbrika to make a written request for an exemption from any of the Case Management Condition, the Treatment Condition and the Disengagement Condition, as well as for such an exemption to be granted by the Case Manager (with Benbrika’s consent) without a written request from Benbrika.
It has previously been recognised that exemption conditions of this kind enable the moderation of certain conditions as and when it is considered appropriate, and thereby contribute to “a process of evaluation of progress and review of the continuing suitability of the conditions”.[154]
[154]Attorney-General (Cth) v Sa’adat Khan (No 2) [2022] VSC 687, [48] (John Dixon J).

H.3 Conclusion on proposed conditions

For the reasons outlined above, each of the proposed conditions, both individually and cumulatively, is reasonably necessary, and reasonably appropriate and adapted, to address the unacceptable risk that Benbrika poses of committing a serious Part 5.3 offence. Each condition has a direct and obvious connection to the specific risk posed by Benbrika, and therefore supports the broader objective of protecting the community from serious terrorism offences.
It is significant that each of the conditions ultimately agreed upon is directed towards facilitating Benbrika’s rehabilitation, rather than restricting his privacy or liberty. Together, they represent an incremental, proportionate and sensible reduction to the level of restriction involved in the conditions of the Lapsed Supervision Order[155] that is reflective of the magnitude of risk Benbrika poses and the significant progress he has made towards deradicalisation.
[155]See par 15 above.
Further, the fact that Benbrika does not oppose any of these conditions is itself significant from a risk management perspective. Darjee emphasised the importance of Benbrika feeling respected and maintaining a sense of autonomy and control.[156] The proposed conditions support this objective.
[156]See par 82 above.
Although any extended supervision order necessarily carries with it a degree of burden, I am satisfied that the conditions agreed by the parties are proportionate and represent the minimum interference with Benbrika’s liberty, privacy and autonomy required to manage any risk he continues to pose of committing a serious Part 5.3 offence.

Ancillary issue: For what duration should an order be made?

The Attorney-General proposed that an order be made until 28 November 2025, being a period of approximately 1 year from the expiry of the Lapsed Supervision Order.[157] Benbrika submitted that an extended supervision order should be made for the minimum time possible, with 6 months from the time of the trial proposed.
[157]A slightly earlier end date was proposed in light of difficulties and delays associated with the Lapsed Supervision Order expiring so close to the end of year.
At the time of Ellis’ first report in October 2024, he recommended that any further extended supervision order be made for a period of 1 year. He stated that this period would:
… consolidate the factors already managed, and for those where some uncertainty still exists (whether his attitudes to extremism and authority have indeed changed), there would be opportunity to further work with him around them.
An extended supervision order must be imposed for a period that the court considers reasonably necessary to prevent the identified risk.[158] In circumstances where Benbrika has made significant progress towards deradicalisation over the course of the Lapsed Supervision Order and during the operation of the 4 interim orders, the date proposed by the Attorney-General is to be preferred. Any shorter period would not properly address the ongoing risk that Benbrika poses or allow the issues identified to be meaningfully and sustainably addressed.
[158]Criminal Code, s 105A.7A(4)(d).

J. Non-disclosure issues

In recognition of the exceptionality of post-sentence orders, the powers contemplated under Division 105A of the Criminal Code are subject to a number of “statutory safeguards”.[159] These safeguards ensure the protection of individual liberty under “what is very unusual and draconian legislation”.[160] Among them are requirements that reasonable enquiries are made of Commonwealth law enforcement, intelligence or security officers to ascertain any facts that would reasonably be regarded as supporting a finding that an order should not be made,[161] and that any application be accompanied by a statement of any such facts[162] as well as any facts weighing against the imposition of any particular proposed condition.[163]
[159]Minister for Home Affairs v Benbrika (2021) 272 CLR 68, 87 [12] (Kiefel CJ, Bell, Keane and Steward JJ).
[160]See Benbrika v Attorney-General (Cth) (2024) 74 VR 379, 427 [315] (Hollingworth J).
[161]Criminal Code, s 105A.5(2A).
[162]Ibid, s 105A.5(3)(aa)(ii).
[163]Ibid, s 105A.5(3)(d)(iii).
As mentioned above,[164] despite these clear obligations, the proceeding relating to the Lapsed Supervision order was marred by serious non-disclosure of critical evidence. Hollingworth J described the conduct of the Minister for Home Affairs in failing to disclose exculpatory material as “a serious interference with the administration of justice”,[165] and stated:[166]
What happened in this case should never have happened, and should not be repeated in the case of [Benbrika] or any other person the subject of a post-sentence order application.
[164]See par 12 above.
[165]Benbrika v Attorney-General (Cth) (2024) 74 VR 379, 427 [317].
[166]Ibid, 427 [316].
Despite this history and the stern admonishment it attracted, 2 critical documents were not disclosed to Benbrika or the court until, respectively, immediately prior to[167] and during the trial of this proceeding.[168] The non-disclosure of the Intelligence Report and the 23 October Case Note significantly impacted the shape of the proceeding. It resulted in unnecessary delay and added expense, and has had serious adverse effects on Benbrika’s mental and physical health.[169]
[167]See fn 63 above.
[168]See fn 65 above.
[169]See pars 27, 73, 77, 82 above.
To explain, the primary basis for the applications for leave to amend made by way of the 5 February Summonses was the Clavell Transcripts, and Ellis’ revised opinion of risk in his third and fourth reports on the basis of Benbrika’s interactions with Clavell.[170] Among other things, Ellis expressed concern about Benbrika’s association with Clavell and stated that Benbrika’s failure to disclose these interactions to treating clinicians or supervisors was indicative of either deliberate concealment or a lack of insight on Benbrika’s part. It was for these reasons that he considered the imposition of the Further Conditions under any future order to be necessary.[171]
[170]See pars 21-25 above.
[171]See pars 58-59 above.
Both the Intelligence Report and the 23 October Case Note predate Ellis’ further reports. Given that they relate, respectively, to the level of risk posed by Clavell and the advice Benbrika received from his supervisors in relation to the absence of any requirement to disclose such an association, their contents were plainly relevant to Ellis’ assessment. Ellis himself accepted as much during cross-examination, and made clear that both documents would have affected his assessment of risk and management opinions.[172]
[172]See pars 69-70 above.
The Attorney-General’s senior counsel was initially equivocal as to whether either document would have influenced the submissions made in support of the applications for leave to amend to add the Further Conditions. However, in circumstances where both documents had a direct bearing on the basis on which the applications were made, serious questions must arise as to whether the 5 February Summonses would even have been filed if not for the non-disclosure.
Even putting this question to one side, had the Intelligence Report and the 23 October Case Note been before the court at that time, there can be no doubt that leave to amend would not have been granted. In my reasons for granting leave, I made clear my reservations as to the strength of the Attorney-General’s case for the Further Conditions on the evidence as it then stood.[173] However, I concluded that Ellis’ third and fourth reports in combination with the Clavell Transcripts had satisfied the low threshold of establishing that the amendments had some prospects of success.[174] That would not have been the case had the contents of the Intelligence Report and the 23 October Case Note been in evidence at this time. Both documents effectively undermined the underlying basis upon which Ellis formed his revised opinions. In light of the appropriate evidence he gave at trial, it must follow that his third and fourth reports would have been fundamentally different and would not have supported the Further Conditions.
[173]Attorney-General (Cth) v Benbrika [2025] VSC 83, [125].
[174]Ibid, [100]-[102].
With this in mind, after these issues were aired on the third day of trial, I requested that the Attorney-General obtain evidence in relation to the circumstances surrounding the non-disclosure of both documents.
An affidavit sworn by the Commander purported to explain the reasons the Intelligence Report was not disclosed. In short, the Intelligence Report was prepared at the Commander’s request in December 2024. On 5 February 2025, he was asked to prepare an affidavit in support of the applications for leave to amend.[175] The Commander deposed that in doing so, he reviewed and considered the Intelligence Report, but “placed minimal weight” on it as it did not change his opinion as to the risk involved in Benbrika’s association with Clavell. In circumstances where the Intelligence Report was directly relevant to the issues in dispute on that application, the Commander’s decision to not exhibit this document to his affidavit, or at the very least refer to its contents, was ill-informed. As the Commander was not cross-examined on his further affidavit (despite making himself available), it is not possible to form a view as to why he did not appreciate the need for some form of disclosure at the time.
[175]See par 36(1) above.

The Commander also provided a chronology of the circumstances that ultimately led to the disclosure of the Intelligence Report. Despite the Attorney-General’s legal representatives first making a request of the Federal Police for any “relevant contextual information” about Clavell as early as 15 January 2025, it was not until almost 2 months later that the Intelligence Report was provided to the Australian Government Solicitor. The Commander’s recounting of the correspondence and discussions that occurred between representatives of the Federal Police, the Australian Government Solicitor and Victoria Police in the intervening period does not provide any justification for the significant delay in providing a document that was incontrovertibly disclosable at a critical juncture in the proceeding.
When these matters were raised on the final day of trial, senior counsel for the Commissioner of the Australian Federal Police immediately conveyed the seriousness with which the issue was being treated and rightly accepted that the Intelligence Report should have been disclosed at an earlier time. He stated that “with hindsight it was an oversight” and agreed that a cautionary approach must be taken to obligations of disclosure. This concession was entirely appropriate.
Very different circumstances surround the non-disclosure of the 23 October Case Note. They were set out in an affidavit affirmed by a senior lawyer at the Australian Government Solicitor with responsibility for the conduct of this proceeding. That affidavit outlined in detail the process adopted for reviewing material in the Attorney-General’s possession to identify information required to be disclosed under section 105A.5(3)(aa) and (d)(iii) of the Criminal Code.
To summarise, as information is received from the Federal Police and other agencies it is uploaded to an electronic document review platform and then undergoes a 2-stage review process. The platform employs a coding template with several fields that reviewers must populate, including a mandatory “disclosure” field which can be populated with either a “yes” or a “no”. There is also a “disclosure comments” field where reasons can be provided for the response given.
In this matter, the 2 stages of review were carried out by a junior lawyer and a senior lawyer, respectively. A third level of review has sometimes been undertaken where particularly difficult disclosure issues have arisen. After a document has undergone the first level of review, it is automatically assigned to a second level reviewer. The second level reviewer has the benefit of the first reviewer’s assessment and comments. If the second level reviewer disagrees with the initial assessment, she or he can change the entry in the “disclosure” field from “yes” to “no” (or vice versa). This will override the first level reviewer’s entry, however any comments will be retained. Upon completion of the second level review, any documents coded as disclosable are automatically sorted and extracted for disclosure. There is no further re-review process for documents marked as not disclosable at the end of this 2-stage process.
Specifically in relation to the 23 October Case Note, it was received from the Federal Police on 13 November 2024 and underwent first level review on 15 November 2024. While the first level reviewer’s entry in the “disclosure” field has since been overridden, the disclosure comment that remains, namely “Benbrika seeking to further understand conditions of [extended supervision order] by asking [Federal Police]”, is strongly suggestive of an entry of “yes”. However, upon second level review some hours later, the 23 October Case Note was coded with a “no” for disclosure, and was therefore not extracted for disclosure. The reason provided for this later assessment was that the disclosable content was duplicated in another document that had already been marked for disclosure, namely a case note prepared by a representative of the Attorney-General’s Department on 22 October 2024.
As mentioned above,[176] the 23 October Case Note was prepared by a representative of the Federal Police and records the substance and outcome of a discussion in relation to Benbrika’s obligations with regard to disclosing his associations and interactions. This discussion came about after Benbrika asked a question on the subject during a case management meeting.
[176]See par 69(3) above.
The case note dated 22 October 2024 is a record of that case management meeting. It refers to Benbrika asking a question about disclosing his associations to an alternate case manager,[177] who suggested that the Federal Police be invited into the room to address the question. However, in contrast to the 23 October Case Note, there is no record of the substance or outcome of the discussion that ensued. Thus, the fact that Benbrika was told in unequivocal terms that he was not required to disclose associations or interactions with any person not specifically named as a prohibited associate under the Lapsed Supervision Order remained undisclosed because the case note of 22 October 2024 did not touch on this matter at all.
[177]The Case Manager was on leave at this time.
It was accepted by the Attorney-General that the marking of the 23 October Case Note as a duplication of this document was erroneous, and that it should instead have been marked as disclosable. However, the Attorney-General maintained that despite this error, the review process adopted was a reasonable one, because the second level review was conducted by a more senior lawyer.
It is not the role of the court to tell the executive how to allocate its resources in order to properly perform its functions.[178] However, a 2-stage review process that does not mandate a third level of review in any case where the first 2 reviewers disagree on the issue of disclosure would seem to be of questionable utility. In practice, it has the effect of leaving critical decisions about disclosure in the hands of a single lawyer. In view of the salience of the Attorney-General’s disclosure obligations under Division 105A, serious questions must arise as to the sufficiency of the process of review employed.
[178]Compare Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35.6-38.8, esp at 37.7 (Brennan J).
In putting it mildly, the senior lawyer at the Australian Government Solicitor described the delay in disclosing the 23 October Case Note as “regrettable”. As outlined above, the late disclosure of both this document and the Intelligence Report has had a significant impact on the course of the proceeding and on Benbrika personally.

K. Conclusion

For the reasons set out above, on 8 April 2025, an extended supervision order including the Therapeutic Conditions was made in respect of Benbrika for a period of 7 months and 18 days, ending on 28 November 2025.
In contrast to the position in the proceeding relating to the Lapsed Supervision Order,[179] there was no evidence led on this trial about the appropriateness or necessity of any future post-sentence order in respect of Benbrika after 28 November 2025. As such, no finding or view to this effect is expressed.
[179]See par 16 above.

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8 April 2025