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Attorney-General (Cth) v Benbrika

Attorney-General (Cth) v Benbrika

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Case Copied 11 March 2025 66 min read

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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 HEARINGS:	7, 11 February 2025
DATE OF RULINGS:	11 February 2025
DATE OF REASONS:	11 March 2025
CASE MAY BE CITED AS:	Attorney-General (Cth) v Benbrika
MEDIUM NEUTRAL CITATION:	[2025] VSC 83

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PUBLIC LAW – Application for interim supervision order under Part 5.3 of the schedule to the Criminal Code Act 1995 (Cth) – Terrorist offender – Whether interim supervision order should include further conditions to those previously imposed – Whether conditions reasonably necessary and reasonably appropriate and adjusted for the purpose of protecting the community from an unacceptable risk of serious Part 5.3 offence – Interim supervision order made without further conditions – Criminal Code Act 1995 (Cth), sch, pt 5.3, div 105A.

PRACTICE AND PROCEDURE – Application for leave to amend originating motion seeking extended supervision order under Part 5.3 of the schedule to the Criminal Code Act 1995 (Cth) – Application for leave to amend summons seeking interim supervision order – Addition of further conditions – Whether amendments have real prospects of success – Delay – Applications for leave to amend granted.

PRACTICE AND PROCEDURE – Objection to disclosure of documents – Public interest immunity – National security – Objection to disclosure upheld – Evidence Act 2008 (Vic), ss 130, 131A – Criminal Code Act 1995 (Cth), sch, s 93.2 – Inherent jurisdiction of the court.

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APPEARANCES:	Counsel	Solicitors
For the plaintiff	Z Maud SC with A Yuile 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	T Glover SC with J Petry	Australian Government Solicitor

HIS HONOUR:

A. Introduction

By way of final relief, the Attorney-General of the Commonwealth (“the Attorney-General”) seeks an extended supervision order in respect of Nacer Benbrika (“Benbrika”). On 18 December 2024, the trial was listed for 4 days in early March 2025.[1]
[1]The day after rulings were given on these applications, directions were made for the Attorney-General’s additional evidence to be filed and served. The parties agreed the final hearing needed to be postponed for a short period to allow Benbrika an appropriate amount of time to respond.
In the meantime, there was no dispute that further interim supervision orders ought to be made under Part 5.3 of the schedule to the Criminal Code Act 1995 (Cth) (“the Criminal Code”).[2] Interim supervision orders were made on 18 December 2024 and 14 January 2025 (“the Previous Interim Orders”).[3] For reasons given orally on 11 February 2025, a third interim supervision order was made, commencing at 3.00pm on 13 February 2025 for a period of 28 days.
[2]Benbrika did not oppose a third interim supervision order being made, commencing on the expiry of the second interim supervision order on the same terms as previously…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] VSC 83
Decision Date: 11 March 2025

CaseChat Overview and Summary

In the matter of Attorney-General for the Commonwealth of Australia versus Faheem Khalid Benbrika, the Federal Court of Australia was called upon to consider an application for an interim supervision order under Part 5.3 of the schedule to the Criminal Code Act 1995 (Cth). The central issue was whether further conditions should be imposed on an interim supervision order previously granted to a terrorist offender, given the serious risk he posed to the community. This matter was significant as it involved balancing the rights of the offender with the need to protect the public from potential harm.

The court was tasked with determining whether the proposed additional conditions for the interim supervision order were reasonably necessary and appropriate, tailored to safeguard the community against the risk of serious Part 5.3 offences. Additionally, the court had to decide on an application for leave to amend the originating motion and summons, which sought to introduce further conditions. The Attorney-General argued against these amendments due to the delay and the lack of real prospects of success. However, the court granted the application for leave to amend, allowing the additional conditions to be considered.

The court's reasoning focused on the need for proportionality and the relevance of the proposed conditions to the risk posed by Benbrika. It was held that while the initial interim supervision order was adequate, the proposed further conditions did not sufficiently address the specific risks identified. Consequently, the court decided not to impose additional conditions beyond those already in place. The court also considered objections to the disclosure of certain documents, upholding the objection on grounds of public interest immunity and national security, under the Evidence Act 2008 (Vic) and the Criminal Code Act 1995 (Cth).

The final orders of the court included the denial of further conditions on the interim supervision order and the upholding of the objection to the disclosure of specific documents. The decision underscores the careful balancing act the court must undertake between the rights of the offender and the imperative to protect the community.

Orders