Attorney-General (Cth) v Benbrika

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 ordered.
[3]Criminal Code, s 105A.9A.
The remaining issues were whether:
(1)Leave should be granted to amend the originating motion to expand the conditions sought to be imposed as part of any extended supervision order.
(2)Leave should be granted to amend a summons already filed so that the Attorney-General may seek further conditions as part of the third interim supervision order.
(3)If leave is granted to amend the summons, the third interim supervision order should include the further conditions.
(4)A claim for public interest immunity should be upheld; in particular, whether the public interest in preserving the secrecy or confidentiality of matters of state outweighed any public interest in their disclosure.
In light of the urgency,[4] the following rulings were given in relation to each issue at the conclusion of argument on 11 February 2025:[5]
[4]As to which, see par 22 below.
[5]These rulings were given on the basis that reasons would be published subsequently.
(1)Yes.
(2)Yes.
(3)No.
(4)Yes, the objection to disclosing the confidential information is upheld.

B. Background

B.1 Procedural history

B.1.1 Supervision orders

On 5 December 2024, the Attorney-General filed an originating motion seeking an extended supervision order and an interim supervision order in respect of Benbrika. Other documents filed at this time included a statement of disclosable facts and a concise statement of case.[6] As to the latter document, it provided a short outline of the case against Benbrika “to assist the Court and [Benbrika] in understanding the Attorney-General’s position on each application and the evidence”. It explained why the Attorney-General considered each of the proposed conditions should be imposed, pursuant to section 105A.5(3)(d)(ii) of the Criminal Code.
[6]As part of the application, the Attorney-General must include any report or other document that he intends to rely upon at the time of making the application (Criminal Code, s 105A.5(3)(a)), as well as a statement of any facts of which the Attorney-General is aware that would reasonably support a finding that, relevantly, the supervision order should not be made (s 105A.5(3)(aa)(ii)), or any condition should not be imposed: s 105A.5(3)(d)(iii).
The evidence identified by the Attorney-General included 2 expert reports of a forensic psychiatrist, Dr Andrew Ellis (“Ellis”). The reports were obtained following the Attorney-General’s direction that an assessment of Benbrika be conducted by Ellis.[7] Those reports, and other evidence referred to, provided the basis upon which the Attorney-General contended the proposed conditions ought to be the subject of both an extended and interim supervision orders.[8]
[7]Criminal Code, s 105A.18D. In September 2024, Ellis met with Benbrika on a single occasion in the presence of Benbrika’s solicitor. The meeting lasted approximately 3 hours. Otherwise, Ellis has not met with Benbrika.
[8]For further details of these 2 reports, see pars 34-39 below.
At the first directions hearing, Benbrika’s senior counsel voiced his consternation. It was submitted the late filing of the application had the consequence that Benbrika’s counsel were not in a position to meaningfully respond to the application for an interim order.
In response, the Attorney-General’s senior counsel stated the Attorney-General was mindful of the inconvenience caused by the late filing. It was submitted that the benefit of careful consideration by the Attorney-General was that the orders sought were very significantly reduced in scope when compared with the regime then in place.
On 18 December 2024, the Attorney-General filed a further concise statement of case. The changes were formal in nature. In essence, this statement repeated the contents of the earlier statement.
An interim supervision order may only be imposed for a maximum of 28 days.[9] The Previous Interim Orders reflected the conditions initially sought by the Attorney-General, which were far less onerous than those of the extended supervision order that preceded them (and expired on 19 December 2024) (“the Lapsed Supervision Order”).[10] Speaking broadly, the conditions of the Previous Interim Orders were primarily directed to therapeutic matters, including participation in mental health treatment and disengagement programs (“the Therapeutic Conditions”).[11] The making of those orders was not opposed, without prejudice to Benbrika’s right to challenge any final relief sought.
[9]Criminal Code, s 105A.9A(7)(c).
[10]For details of the conditions of the Lapsed Supervision Order, see Benbrika v Attorney-General (Cth) (2024) 74 VR 379, 401-416 [133]-[244] (Hollingworth J).
[11]There were also conditions dealing with case management and associated machinery conditions.
On 31 January 2025, the Attorney-General filed a summons seeking a third interim supervision order. That order was sought for a further 28 days on the same terms as the Previous Interim Orders, so that such an order would be in place until after the completion of the trial. However, in accompanying submissions, the Attorney-General referred to a further report of Ellis, noting consideration was being given as to whether an application should be made for leave to amend the conditions sought “in light of [Ellis’] revised opinion”.

B.1.2 Confidentiality

The Attorney-General has certain obligations when seeking post-sentence orders. These include ensuring reasonable inquiries are made to ascertain any facts known to, amongst others, any Commonwealth intelligence or security officer that would reasonably be regarded as supporting a finding that an extended supervision order should not be made in relation to an offender.[12] The director-general of security of the Australian Security Intelligence Organisation (“the Director-General”) is such an officer.[13]
[12]Criminal Code, s 105A.5(2A)(b).
[13]Ibid, ss 105A.2, 473.1 (definition of “intelligence or security officer”). The Australian Security Intelligence Organisation is under the control of the Director-General: Australian Security Intelligence Organisation Act1979 (Cth), s 8(1).
On 18 October 2024, the Director-General responded by letter to a request from the Attorney-General for any documents or information of such known facts. Under the heading “Summary of Exculpatory Extracts”, there were 5 main points. For each of them, various matters were set out in bullet-point form.[14] Unless this information was likely to be protected by a claim for public interest immunity, the Attorney-General would be required to disclose it as part of the process of filing the application for a post-sentence order.[15]
[14]See further par 137 below.
[15]See fn 6 above.
Following discussions between the Director-General and Benbrika, most of this information was provided to Benbrika’s counsel on a confidential basis (including that such information must not be disclosed to Benbrika). However, 5 matters remained the subject of an unqualified claim for public interest immunity. In short, the Director-General claimed that this information should not be provided to Benbrika’s counsel either confidentially or in any other restricted way as, it was contended, to do so would undermine the claim made.
In addition to the 5 matters referred to above, there has been a substantial number of other issues concerning matters relating to secrecy or protection of confidential information more generally. Very helpfully, the parties and other government agencies involved have worked constructively to resolve these issues.[16]
[16]See further Criminal Code, ss 105A.14B(2)(b), 105A.14C(2), 105A.14D(2) and (3).
Any outstanding issues concerning any claims with respect to confidentiality were set down for pre-trial hearing on 7 and 11 February 2025.
Having read the documents filed in support of a range of protective orders, on 7 February 2025 I was satisfied that the orders sought should be made substantially in the terms agreed.[17] In short, the parties and all government agencies involved accepted that the issues raised in this proceeding concerned, in part, matters of state in relation to which protective orders or arrangements were appropriate.
[17]Annexures A and B to these reasons are the orders made substantially as sought by the Director-General and the chief commissioner of Victoria Police respectively, noting that if was foreshadowed that there would be some variations sought in due course. Agreement was also reached between the commissioner of the Australian Federal Police and Benbrika concerning public interest immunity, but no orders were sought from the court in this regard.

B.2 A change in the Attorney-General’s position

On 5 February 2025, the Attorney-General filed a summons returnable on 11 February 2025 seeking leave to amend the originating motion to include further proposed conditions of any extended supervision order. On the same day, a further summons was filed (also returnable on 11 February 2025) seeking leave to amend the schedule of conditions annexed to the summons filed on 31 January 2025 by which a third interim supervision order was sought.
In addition to the Therapeutic Conditions being augmented to increase Benbrika’s obligations to share information,[18] both summonses sought leave to add a substantial number of further conditions. These related to prohibited communications or associations with certain persons or classes of persons, together with conditions restricting access or use of mobile phones, other telephone and communication services, internet services, email accounts, computers and devices and electronic programs and platforms, as well as facilitating police access to and searches of devices, data and platforms (“the Further Conditions”).[19] The Further Conditions effectively sought to reintroduce a number (though not all)[20] of the categories of condition that were the subject of the Lapsed Supervision Order.
[18]There were some other minor changes to the existing conditions.
[19]The summons seeking leave to amend the originating motion, which set out the proposed amended conditions, is Annexure C to these reasons. The Further Conditions are underlined, while the conditions that are not underlined comprise the Therapeutic Conditions.
[20]The Further Conditions did not include conditions concerning a curfew, education and employment, financial transactions, prohibited activities, the requirement to wear an electronic device or certain restrictions on travel, among several other conditions that had previously been imposed under the Lapsed Supervision Order.
As a result of this development, it was agreed on 7 February 2025 that any ruling in relation to public interest immunity should be deferred until the Attorney-General’s application to amend the originating motion had been heard and determined.

B.3 Timing and urgency of the applications

At the time these applications were heard, the trial was scheduled to commence in exactly 3 weeks. Any leave granted necessarily would amplify the issues in dispute and make general preparation more onerous and time-consuming. Benbrika indicated that he did not want any delay, including because of the physical and mental health issues he was experiencing. This was a legitimate stance to take. It formed part of the reason rulings were given immediately after submissions were completed.
In any event, there are strict time limits imposed in Part 5.3 of the Criminal Code. As would be apparent, at the time of these applications the Previous Interim Orders were largely spent. If a third interim supervision order were to be made, it was necessary for the court to make an order before the second interim supervision order lapsed. If that order had been allowed to lapse without another order being in place, that would have prevented the Attorney-General from taking any further steps in this proceeding in seeking to obtain an extended supervision order.[21]
[21]Criminal Code, ss 105A.3A(6), 105A.9A(4)(b)(ii), 105A.18(1)(b)(ii).
Were a third interim supervision order to be made, upon the operation of that order ceasing, 84 days would have lapsed since the expiry of the Lapsed Supervision Order.
The Criminal Code only permits interim supervision orders to be made for a total period of 3 months in respect of an offender, unless the court is satisfied there are exceptional circumstances.[22] Self-evidently, this time constraint is in recognition of the onerous position under which a person is placed if that person is the subject of supervision orders without having the benefit of a final determination of any issues in dispute.
[22]Ibid, s 105A.9A(8).
Thus, this was another important reason for the rulings to be given promptly. By doing so, this precluded the additional issue axiomatically causing Benbrika to be the subject of interim supervision orders for a period beyond what the legislature generally considers acceptable.

B.4 Benbrika’s background, detention and supervision history

Benbrika is 64 years of age. He was convicted and sentenced in 2009 to 15 years’ imprisonment for his role in leading a terrorist organisation that was preparing to commit a terrorist act.[23] Benbrika’s prior convictions make him a “terrorist offender” in respect of whom post-sentence detention or supervision orders may be made,[24] as he has been convicted of a serious Part 5.3 offence.[25]
[23]See Benbrika v The Queen (2010) 29 VR 593 (Maxwell P, Nettle and Weinberg JJA); R v Benbrika (2009) 222 FLR 433 (Bongiorno J).
[24]Criminal Code, ss 105A.2 (definition of “terrorist offender”), 105A.3(1).
[25]A serious Part 5.3 offence is an offence against Part 5.3, the maximum penalty for which is 7 or more years of imprisonment: ibid, s 105A.2 (definition of “serious Part 5.3 offence”). Benbrika was convicted of membership of a terrorist organisation and of directing the activities of a terrorist organisation. These offences were committed contrary to ss 102.3(1) and 102.2(1) respectively (both provisions appear in Part 5.3 of the Criminal Code) and carry maximum penalties of 10 and 25 years’ imprisonment respectively: see Minister for Home Affairs v Benbrika (2022) 366 FLR 32, 37 [15] (Hollingworth J).
Upon the expiration of his term of imprisonment in 2020, Benbrika was detained pursuant to successive interim detention orders.[26] On 24 December 2020, a 3-year continuing detention order was made.[27]
[26]Criminal Code, s 105A.9.
[27]Minister for Home Affairs v Benbrika [2020] VSC 888 (Tinney J).
After reviews in late 2021 and early 2022, on 6 May 2022 the continuing detention order was affirmed.[28] Following a further review, an application was made for an extended supervision order. On 19 December 2023, the Lapsed Supervision Order was made.
[28]Minister for Home Affairs v Benbrika (2022) 366 FLR 32.
In her extensive reasons for making the Lapsed Supervision Order,[29] Hollingworth J made a number of observations relevant to the current applications. On a general level, her Honour observed that post-sentence orders are exceptional and run contrary to the usual position that under our legal system people are punished for crimes they have committed, not crimes they may or may not commit in the future.[30]
[29]Benbrika v Attorney-General (Cth) (2024) 74 VR 379.
[30]Ibid, 385 [23].
It was also acknowledged that Benbrika had made substantial progress in deradicalisation since the first review of his continuing detention order.[31] Her Honour found that if Benbrika continued to participate in further deradicalisation work, the risk of him committing a serious Part 5.3 offence would be minimal.[32] Until very recently, there has been no dispute that Benbrika has continued to participate appropriately. Indeed, even taking into account the further evidence adduced on these applications, there has been no suggestion that Benbrika has committed any material breach of any condition of the Lapsed Supervision Order.
[31]Ibid, 400 [129].
[32]Ibid, 400 [130].
When the Lapsed Supervision Order was sought, most of the conditions were not in dispute or were only the subject of minor dispute.[33] However, Hollingworth J did not impose some of the conditions sought by the Attorney-General.[34] This was reflective of the fact that the court itself must be satisfied as to the reasonableness of any proposed conditions, and her Honour was not convinced that such conditions were reasonably necessary or appropriate.
[33]Ibid, 416 [243].
[34]Ibid, 416 [244].

For example, the Attorney-General sought an extended supervision order for a period of 3 years, but the Lapsed Supervision Order was only imposed for a period of 12 months.[35] In arriving at this conclusion, her Honour observed that any assessment of how Benbrika would behave was necessarily based on predictions. There was expert evidence before her 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.[36]
[35]Ibid, 428 [323]-[324].
[36]Ibid, 428 [325].
In summary, since the completion of his term of imprisonment, Benbrika has remained subject to detention and then supervision orders. He has continued to actively engage in mandated mental health treatment and deradicalisation programs and has substantially complied with the conditions of these orders.

B.5 Expert reports

Ellis’ most substantial report was his first report dated 13 October 2024. That report was based upon Ellis’ interview with Benbrika,[37] together with Ellis’ assessment of a number of documents including earlier judicial decisions concerning Benbrika.[38]
[37]See fn 7 above.
[38]Benbrika v Attorney-General (Cth) (2024) 74 VR 379; Minister for Home Affairs v Benbrika (2022) 366 FLR 32; Minister for Home Affairs v Benbrika [2020] VSC 888; Benbrika v The Queen (2010) 29 VR 593; R v Benbrika (2009) 222 FLR 433.
Ellis expressed the opinion that Benbrika met the criteria for a diagnosis of post-traumatic stress disorder, arising from spending a number of years in solitary confinement. An additional diagnosis of major depression was also warranted in his view. Ellis noted that Benbrika’s cognitive function appeared intact, despite mild lapses in memory and concentration. He stated that Benbrika’s interpersonal function, emotional regulation, impulse control and self-identity were likely to have contributed to his offending behaviour. However, in Ellis’ assessment, a diagnosis of personality disorder was not warranted. That said, the problems with personality function Benbrika displayed were still a matter of clinical concern.
After setting out various matters relating to methods used in assessing a risk of violence, Ellis stated that Benbrika’s risk of general personal violent offending was lower in frequency to most prisoners released from custody. Ellis concluded that Benbrika was unlikely to personally engage in any violence, and that ongoing professional support would likely provide effective management of any latent and historical potential for violence.
In specifically dealing with Benbrika’s risk of committing extremist-terrorist offences, Ellis identified several features of persons who have completed terror attacks and associated risk factors that he noted Benbrika did not currently display. He observed that Benbrika had significant notoriety and might be in a position to seek out others or have others seek him out. Ellis considered Benbrika was more likely to influence others, but also might be encouraged by others, and noted that this factor remained relevant to any risk assessment. In this context, it was noted that it was not apparent that Benbrika had any current personal plan or motive to use terror-related activities to advance any political goal. Ellis also identified a number of protective factors, including several significant changes made by Benbrika to his life and circumstances said to reduce the risk factors that were present at the time of the index offending.
In concluding his first report, Ellis stated his opinion that the risks Benbrika presented could be managed by a firearms prohibition order, ordinary surveillance and intelligence measures, and clinical management by his treating psychologist and psychiatrist. In essence, this opinion supported the imposition of the Therapeutic Conditions. To be clear, it was not contended this report contained any views which could be said to provide a reasonable basis for supporting any of the Further Conditions.
In Ellis’ second report, he responded to some further questions. Suffice to say, that report elaborated on why Ellis expressed his earlier opinion. In so doing, Ellis recorded that an important and necessary aspect of Benbrika’s risk management was his continuing engagement with clinical management. He recommended that a deradicalisation program delivered by Benbrika’s psychologist, Dr Anne Speckhard (“Speckhard”), and a nominated sheikh remain in place, to address any erroneous beliefs about the nature of extremist groups and to encourage Benbrika to explore and consolidate prosocial attitudes.
There was also discussion about the desirability of conditions requiring Benbrika and his clinicians to share certain information with “law enforcement supervisors”. Ellis expressed the view that these conditions were reasonable and would assist in managing risk. To date, there was no suggestion that Benbrika or his providers have done anything other than willingly comply with information sharing conditions.
As noted above, these 2 reports were the primary foundation for the form of the original application for an extended supervision order. However, more recently the Attorney-General provided additional information to Ellis, including transcripts of telephone calls and other recordings, screenshots of phone and computer internet use and case notes and communications between service providers, and sought a further supplementary opinion.[39]
[39]See pars 57-65 below.
On 28 January 2025, Ellis issued a third report in which he stated that he had reconsidered his earlier opinions in light of the supplementary information provided. Ellis recommended that conditions beyond the Therapeutic Conditions be imposed. Indeed, as clarified in a later supplementary report, Ellis’ recommendation was that the conditions of the Lapsed Supervision Order be reimposed in their entirety.
Ellis’ third report confirmed that overall, Benbrika had achieved good compliance with restrictions and actively engaged with his treatment providers. Accordingly, there was no information to suggest any change to Ellis’ previous psychiatric diagnosis. After referring to an episode of Benbrika’s “significant non-adherence” with the conditions of a supervision order by staying an extra night on a trip away and therefore missing 3 appointments, Ellis recorded this was readily detected and rectified by follow-up attendances by Benbrika. Thus, it was stated to have had a minor impact on his supervision recommendations. The Attorney-General accepted this incident did not support the imposition of any of the Further Conditions.
The report continued:
In some phone calls [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. … These phone calls are in Arabic. This may indicate intent to subvert surveillance.
Arabic is Benbrika’s native tongue. The Attorney-General accepted that Benbrika speaking Arabic in itself did not indicate any intent to subvert surveillance. However, it was submitted this was not an essential part of Ellis’ reasoning, as the report made clear Ellis would have reached the same conclusion about the possibility of subverting surveillance in any event.
Ellis then noted that relatively recent communications between Benbrika and an individual, Joshua Clavell (“Clavell”), were of concern.[40] Clavell has a criminal record, and has been imprisoned for aggravated intentional exposure of a police officer to risk by driving, and assaulting a police officer on duty by brandishing a knife.[41] Further, Clavell is connected with Islamic extremism, and has been named as a prohibited associate in control orders made against another person convicted of terrorism offences.[42]
[40]Ellis gave the wrong date in erroneously referring to a single communication. In his fourth report, Ellis corrected these errors, stating that he should have referred to 2 conversations on 2 separate days in November 2024.
[41]Director of Public Prosecutions v Clavell [2020] VCC 1437 (Judge Marich).
[42]See Booth v Abdirahman-Khalif [2021] FCA 1651 (Besanko J); McCartney v Abdirahman-Khalif (No 2) [2020] FCA 1002 (Charlesworth J). There was no evidence of any direct connection between this individual and Benbrika.
Ellis stated that Benbrika knew Clavell had a criminal record, held Islamic beliefs and was seeking life guidance. Ellis then asserted, incorrectly, that the recording he had listened to indicated Benbrika and Clavell were in prison together. The third report continued:
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).
Ellis said the context of the meeting was not clear, but it appeared to have occurred in a coffee shop in part and also while driving in a motor vehicle.
Ellis then stated it did not appear that Benbrika had discussed meeting with Clavell with his case manager or treating clinicians. He stated that the absence of such a discussion indicated either “deliberate deception about the meeting, or that [Benbrika] has not thought the interaction to be important”. Ellis expressed the view that either explanation indicated a difficulty “following directions” and that Benbrika had “a need to interact and give advice to others who have a risk of extremist violence”.
Ellis stated that the new information reinforced and rendered more certain his concern about Benbrika being in a position to “seek out others, or have others seek him out”.[43] He also stated that Benbrika’s contact with Clavell appeared to have been “secretive”, which altered his management recommendations.
[43]See par 37 above.
In light of this, Ellis stated that his earlier assessment that Benbrika’s “personality needs for connection and excitement” were being met by his family and social activity required revision. He observed that Benbrika had been excluded from some mosque activities and his social network now included a person with prior relevant convictions and an interest in seeking advice from Benbrika. Accordingly, Ellis recommended in substance that the conditions of the Lapsed Supervision Order be reinstated. Ellis considered that this would allow for further covert surveillance to manage contact risks and for coordination by a justice case manager to enable earlier detection of inappropriate contact. Ellis also considered these conditions would allow more focus from Benbrika’s treating clinicians to work on his motivations and authentic engagement with supervision. Finally, he concluded that the areas of problem behaviour identified were likely to stem from Benbrika’s personality function.
Ellis provided further clarification in a fourth report dated 3 February 2025. In that report, he explained, amongst other things, what he meant by the use of the word “secretive”. Ellis said that was a reference to the fact that Benbrika’s meeting with Clavell had not been mentioned in any reports by his treating clinicians or supervisors. He continued:
This raises the possibility that [Benbrika] did not mention this contact to others. 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 … where 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.

C. Issues for determination

C.1 Issue 1: Should leave be granted to amend the originating motion so that the Attorney-General may seek an extended supervision order that includes the Further Conditions?

C.1.1 Legal principles

The court may at any stage grant leave to a party to amend any document in a proceeding for the purpose of determining the real question in controversy between the parties.[44] The court must determine whether it is in the interests of justice for leave to be granted. This will depend upon a number of factors,[45] which may include delay, prejudice, case management concerns, whether there is a satisfactory explanation for the timing of the application and the prospects of success in the event that leave were to be granted.[46]
[44]Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 36.01. See also Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 185 [13]-[14] (French CJ). The rules of civil procedure of this court apply during a post-sentence order proceeding: Criminal Code, s 105A.13(1).
[45]There is no issue of costs, as all of Benbrika’s costs are being met by the Commonwealth. Further, there was no suggestion that the public’s confidence in the judicial system would be lessened by any decision to grant leave.
[46]Carroll v Goff [2021] VSCA 267, [75]-[76] (Maxwell P, Kennedy and Walker JJA).
As to the last of these factors, if the court considers that a proposed amendment has no real prospects of success, then leave to amend should be refused.[47] No real prospects of success in this context equates to the claims or allegations the subject of a proposed amendment being fanciful or futile.[48]
[47]Ibid, [76].
[48]Mandie v Memart Nominees Pty Ltd [2016] VSC 4, [47] (Kyrou, Ferguson and McLeish JJA).
Although caution must be exercised when referring to particular legislative regimes in this context,[49] a long line of authorities dealing with the prospects of success of a summary judgment application is of assistance.[50] Those cases demonstrate that a claim may have some prospects of success even where the evidence at the time of the application to amend is incapable of establishing a successful claim. Broadly speaking, even if presently lacking, if there is a real prospect that evidence may be ultimately available and adduced to establish a proposed claim, then it may be appropriate for the court to exercise its discretion to grant leave (after due consideration of this and other relevant factors).[51]
[49]See, in particular, s 64 of the Civil Procedure Act 2010 (Vic).
[50]In relation to the underlying provisions relating to summary judgment in this jurisdiction, see ibid, ss 61-63, together with the Supreme Court (General Civil Procedure) Rules, rr 22.03, 22.16, 23.01.
[51]See, for example, Gull Lexington Group Pty Ltd v Laguna Bay (Banongill) Agricultural Pty Ltd (2018) 55 VR 273, 305 [123]-[124] (Santamaria JA and McDonald AJA); Bodycorp Repairers Pty Ltd v Holding Redlich [2018] VSCA 17, [127] (Whelan and Santamaria JJA and T Forrest AJA); CA & CA Ballan Pty Ltd v Oliver Hume (Australia) Pty Ltd (2017) 55 VR 62, 73 [27] (Redlich, Tate and Ferguson JJA); D’Aquino v Trovatello (2015) 47 VR 31, 42 [49] (McLeish JA, with whom Warren CJ and Ashley JA agreed); Mutton v Baker [2014] VSCA 43, [18]-[19] (Santamaria JA, with whom Whelan JA agreed), [55] (Whelan JA).
Also with respect to prospects of success, the Attorney-General bears the onus of satisfying the court, on the basis of admissible evidence, that an extended supervision order should ultimately be made, including with respect to each of the conditions sought.[52]
[52]Criminal Code, s 105A.7A(3), in conjunction with subs (1)(b) and (c).

C.1.2 Steps giving rise to Ellis’ further reports and the applications for leave

Benbrika contended there had been undue delay in making the applications for leave. Accordingly, it is necessary to refer to the events leading up to 5 February 2025.
As information is obtained by the Australian Federal Police (“the Federal Police”) in relation to Benbrika, it is collated and provided to the Attorney-General on an approximately monthly basis. That information is then scanned, which may take between several hours and several days depending on the volume and size of the material. The information is then reviewed. To the extent that audio recordings are provided, transcripts are obtained. If audio recordings are in Arabic, they must be translated. This may involve delay. The time to carefully listen to the recordings (including those of poor quality), some of which are wholly or partly in Arabic, the need to understand context, and cross-referencing and the use of session numbers are amongst the matters that may cause unavoidable delay.[53]
[53]Summaries of some audio recordings are provided by the Federal Police at or around the same time as the recordings. Those summaries bear “session numbers” that correspond to the “session numbers” of the audio recordings.
On 12 December 2024, the Australian Government Solicitor (“the Government Solicitor”) received an 11^th tranche of material from the Federal Police, comprising 1,103 files. After scanning, the documents and audio recordings became available for review on 17 December 2024. The Attorney-General’s Department (“the Department”) and the Government Solicitor commenced the review that day.
On 23 December 2024, the Department informed the Government Solicitor that audio recordings dated 20 and 25 November 2024 contained potentially relevant interactions. There were no summaries provided of these recordings, and clarification was sought from the Federal Police as to the identity of the individual with whom Benbrika was engaging. A response identifying that individual as Clavell was received on 8 January 2025.[54]
[54]Obviously, the holiday shutdown period intervened.
On 9 January 2025, a translation and transcription service provider was retained, with the relevant recordings provided the following day. A request was made for the recordings of Benbrika and Clavell’s conversation to be prioritised.
On 13 January 2025, officers of the Department identified audio recordings of interactions predominantly in English between Benbrika and Clavell within a 12^th tranche of material that had been provided to the Government Solicitor on 6 January 2025. Five days later, the Department requested that 1 of these further recordings be translated and transcribed.
Between 20 and 23 January 2025, initial versions of the translations and transcriptions of these audio recordings were provided to the Government Solicitor.
On 21 January 2025, the Government Solicitor received instructions to brief Ellis with further material and request a supplementary report. In supplementary briefs forwarded that day and on 23 January 2025, translations and transcriptions of audio recordings from the 11^th tranche of material were provided, as well as some other material relating to case management.
On 28 January 2025, Ellis provided his third report.[55] It was served on Benbrika the same day.
[55]See par 42 above.
On 30 January 2025, Ellis was briefed to prepare a further supplementary report based on 6 further documents and a single transcription from an audio recording contained in the 12^th tranche of material. On 3 February 2025, he provided his fourth report.[56] Two days later, the applications for leave to amend were filed.[57]
[56]See par 51 above.
[57]Further translations and transcriptions were obtained by the Government Solicitor following further instructions on 6 February 2025.
All recordings containing the segments of conversations between Benbrika and Clavell have been provided to Benbrika. However, at the time the applications were heard, the full translations and transcriptions of the conversations between Benbrika and Clavell had not been completed.

C.1.3 Submissions

On the question of delay, the Attorney-General submitted the applications for leave to amend could not have reasonably been made any earlier. The translations and transcriptions were provided to Ellis as soon as they were made available to the Government Solicitor. In summary, it was submitted that the chronology recounted above demonstrated the applications were filed within 2 days of their necessary foundation being in place. Although some of the information could have been provided to Ellis earlier, nothing turned on this in circumstances where it would not have been appropriate to obtain Ellis’ opinions until he had been provided with all the relevant information. Accordingly, it was submitted this factor should not weigh against leave being granted.

It was submitted the prejudice to Benbrika arising from the timing of the applications needed to be understood in light of, and weighed against, the important purpose of the statutory scheme, namely protecting the community from serious Part 5.3 offences. It was submitted the object of the statute was to ensure that any conditions of an extended supervision order were calibrated to the particular risk the terrorist offender posed. In circumstances where the Attorney-General’s expert had recently revised his opinion and concluded the risk posed by Benbrika required greater management by the imposition of more restrictive conditions than previously thought, it was submitted the statutory purpose weighed heavily in favour of granting leave to amend so that conditions may be sought to reflect the most up-to-date assessment of risk available.
It was acknowledged granting leave would cause prejudice to Benbrika, and that that ought not be discounted. However, it was submitted if leave were not granted, the Attorney-General would need to wait until the court made an extended supervision order before an application could be made to vary the conditions to accurately reflect the level of risk posed.[58] Such a scenario would, it was contended, result in conditions being imposed which are less restrictive than reasonably necessary to protect the community from the unacceptable risk Benbrika posed. Indeed, this was identified as a species of prejudice itself, which the court was required to balance against any prejudice Benbrika may face.
[58]See Criminal Code, ss 105A.9B-105A.9E.
Further, the Attorney-General submitted that any prejudice suffered by Benbrika could be ameliorated by extending the trial timetable. Allowing for the completion of interlocutory steps, it was submitted the trial date could be vacated and relisted at the earliest available time thereafter. The Attorney-General identified the limited further evidence to be filed, which could be provided very promptly.
In response to a question from the court, the Attorney-General’s senior counsel stated there was no intention to instruct Ellis to prepare a further expert report. It was acknowledged that Ellis’ third and fourth reports were not as fulsomely explained as might be desirable. Further, it was accepted that, if the third and fourth reports were read alone, there would be obvious problems with the admissibility of some aspects of those reports. However, it was submitted that when read in conjunction with the first and second reports, the later reports were admissible for the purposes of trial. There was no substantive elaboration of this submission to demonstrate how reference to the first and second reports might be said to remedy any inadequacies existing in the third and fourth reports.
It was accepted that if the trial were adjourned, the resulting delay would require the Attorney-General to apply for a fourth interim supervision order. It was submitted it was likely the court would be satisfied exceptional circumstances existed if the total period of all interim supervision orders were to exceed 3 months.[59] The Attorney-General foreshadowed a submission to this effect in light of the recently changed position concerning the magnitude of risk Benbrika posed. This approach was fortified by the effect of a fourth interim supervision order not being made. If that were to occur, it would bring the proceeding to an end because an extended supervision order may only be made if there is a post-sentence order in force at the time of its making.[60]
[59]Ibid, s 105A.9A(8).
[60]Ibid, s 105A.3A(6).
Furthermore, the Attorney-General submitted it could not be concluded that the amendments lacked a real prospect of success. Without undertaking a “fine-grained assessment”, it was contended that as a matter of logic and consistency Ellis’ third and fourth reports provided a cogent basis for the expansion of the conditions under the Previous Interim Orders in any extended supervision order. As Ellis was put forward as a highly experienced expert, it was submitted his opinions were based on a “careful analysis of Benbrika’s personality” and “well-grounded in the material”, and therefore should be given significant weight.
In anticipating the Further Conditions would be forcefully opposed, it was submitted that consideration of such opposition was properly a matter for trial in due course.
Benbrika submitted any prejudice arising from the sudden, unexpected and late amendments sought by the Attorney-General should not fall on Benbrika. Including the element of surprise at this late stage, a number of other matters were referred to in identifying Benbrika’s prejudice.
First, in circumstances where Benbrika had complied with court orders to ensure that the trial may proceed as scheduled, it was submitted any amendment would seriously interfere with the existing trial timetable. Benbrika resisted any adjournment of the trial date.
Secondly, it was submitted there was a deficiency in the evidence as it had not been explained when the Federal Police first had possession of the recordings of the conversations between Benbrika and Clavell that formed the basis of Ellis’ third and fourth reports. It was submitted that there was no reason those recordings would not have been available shortly after 20 and 25 November 2024, when the relevant discussions took place. Relevantly, a police commander swore an affidavit on 4 December 2024 for the purposes of this proceeding in which he made no reference to the conversations now forming the basis for the amendment sought. It was submitted that the Federal Police was either unconcerned or failed to pass on any concern to the Attorney-General. It was contended either scenario did not assist the Attorney-General’s application.
Thirdly, Benbrika relied upon uncontested expert evidence that this proceeding was having serious adverse impacts on Benbrika’s mental health. Although Benbrika felt some relief that only the Therapeutic Conditions had been imposed as part of the Previous Interim Orders, he was suspicious that the delay had been a “trick” to keep him on a supervision order. As a result, he was extremely anxious about breaching any conditions of his supervision order. In relation to the current application, there was evidence that Benbrika was highly distressed and felt a sense of helplessness and hopelessness in relation to the prospect of the Further Conditions being imposed.
Benbrika’s position was explained by the expert as being comparable to 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.
It was noted that Benbrika’s mental state was already fragile because of his depression, post-traumatic stress disorder and anxiety. The expert considered the proposed conditions would have a significantly damaging impact on Benbrika’s mental health by serving to reinforce his sense of hopelessness, increasing his fear of being returned to prison and his levels of stress. It was also expected that the severity of Benbrika’s existing symptoms would be increased.
Fourthly, Benbrika emphasised that it was not only the imposition of the Further Conditions in themselves that made any supervision order more burdensome, but also the fact that if they were to be included in any order, the range of conduct for which Benbrika would be exposed to criminal liability would be far broader.[61]
[61]It is a criminal offence to contravene a condition of an extended supervision order, the maximum penalty for which is 5 years’ imprisonment: ibid, ss 105A.3(3), 105A.18A.
Fifthly, Benbrika relied upon the fact that the recordings were predominantly in English, with only some words spoken in Arabic, many of which were said to “cross linguistic barriers” and be widely understood. In these circumstances, it was submitted that Ellis could have been briefed a lot earlier and provided with a supplementary brief when the translations were available.
Sixthly, it was contended the 2-week delay between 23 December 2024, when the Government Solicitor enquired about the identity of the individual with whom Benbrika was conversing in the recordings, and 8 January 2025, when Clavell was identified,[62] could not be explained by reference to the end of year break. In short, the reference to the holiday shutdown period relied upon by the Attorney-General only explained 1 of the 2 weeks of delay. Similar to the submission about the translations, Benbrika also contended that Ellis could have been briefed before the identity of Clavell was known.
[62]See par 59 above.
Finally on the question of delay, it was submitted that a proceeding of this nature needed to be treated with the utmost urgency. Reference was made to earlier observations to this effect.[63]
[63]Benbrika v Attorney-General (Cth) (2024) 74 VR 379, 385 [23] (Hollingworth J).
In summary, it was submitted the Attorney-General could and should have filed the applications to amend earlier and this should be a factor weighing against leave being granted.
Referring to the Attorney-General’s reliance on the purpose of the statutory scheme, it was submitted to be erroneous to elevate such a purpose so as to effectively outweigh any prejudice to Benbrika. If such an approach were adopted, it could improperly provide a basis to justify Benbrika being put in an unfair position.
Benbrika also attacked the evidence contained in Ellis’ third and fourth reports. It was submitted that the reports were not admissible because of their obvious errors and lack of reasoning. Without going through the matters referred to individually,[64] it was submitted these reports were riddled with errors, contained unsafe assumptions and contradicted the evidence of the “best-placed expert”, Speckhard.
[64]Some of these matters are addressed below: see par 103 below. See also par 47, fn 40 above.
In a further attack on this evidence, Benbrika criticised the fact that Ellis had made no attempt to address the Further Conditions individually. Benbrika submitted it followed that there was no substantive basis upon which it could be said that the Further Conditions, either individually or in combination, were reasonably necessary and reasonably appropriate and adapted so as to justify them being included in any supervision order.[65]
[65]Criminal Code, s 105A.7A(1)(c)(i) and (ii).
In relation to Speckhard, Benbrika referred to observations made by Hollingworth J to the effect that Speckhard was an internationally-recognised expert in terrorism studies who had extensive experience in the field of around 40 years.[66] It was noted that Hollingworth J accepted Speckhard’s strong belief that Benbrika had made considerable progress in deradicalisation.[67]
[66]Benbrika v Attorney-General (Cth) (2024) 74 VR 379, 399 [116]-[118].
[67]Ibid, 399-400 [119]-[122].
Further, Benbrika contrasted the extensive amount of time that Speckhard had spent working with Benbrika with the very limited time Ellis spent with him.[68] In this context, Benbrika relied upon Speckhard’s reports dated 30 December 2024 and 28 January 2025 in which it was stated that Benbrika continued to benefit from the support he was receiving from Speckhard and the sheikh. Reliance was placed upon Speckhard’s opinion that she did not consider Benbrika dangerous for a number of important reasons, including that “he now clearly knows that plotting to harm Australia is un-Islamic” and that Benbrika “could not face returning to prison”. Speckhard also considered Benbrika was becoming much more nuanced and open in his views, which was said to be a sign of significant success.
[68]See fn 7 above.
Benbrika criticised the Attorney-General for not having provided transcripts of the discussions between Benbrika and Clavell to Speckhard. It was submitted to be unsatisfactory that the person best placed to assess Benbrika’s risk profile had not been approached. Indeed, it was submitted there was a core inconsistency between the Federal Police’s failure to provide this information to Speckhard and Ellis’ opinion that these conversations should have been reported to Benbrika’s treating clinicians.[69]
[69]See par 51 above.
In any event, Benbrika submitted that Ellis’ opinions could not be relied upon when he had not been informed of the extra surveillance of Benbrika that has been undertaken by the Federal Police since 19 December 2024.[70] In that regard, it was submitted that the extra surveillance having been in place without Benbrika’s knowledge for a period of almost 2 months demonstrated there was no need for the Further Conditions.
[70]See par 129 below.
In response to the Attorney-General’s stated position that it was not intended to file any further expert evidence beyond the third and fourth Ellis reports, Benbrika submitted a ruling should be given in accordance with section 79 of the Evidence Act 2008 (Vic) to the effect that the Attorney-General had not established that Ellis’ evidence consisted of opinions that were wholly or substantially based on Ellis’ expertise. In short, it was submitted the court was capable of ruling now that the evidence would not be admissible at trial and, in circumstances where no further evidence was to be relied upon, it must follow that an adverse ruling on admissibility would result in leave being refused.
Benbrika also relied upon the fact that the Attorney-General had not made any allegation that Benbrika had breached any condition of the Lapsed Supervision Order by talking to Clavell in November 2024. The conditions of the Lapsed Supervision Order expressly listed persons with whom Benbrika was prohibited from associating, and Clavell was not such a person. In these circumstances, it was submitted it was without merit to suggest Benbrika was under any obligation or duty to discuss his encounters with Clavell with any case manager or treater.
Benbrika contended a number of important concessions had been made by the Attorney-General.
It was submitted the concession that Ellis’ third and fourth reports needed to be read in conjunction with Ellis’ earlier reports in order to be admissible was important, because there was nothing in the earlier reports that could possibly justify the Further Conditions.
Further, it was submitted the fact that the transcripts of the conversations between Benbrika and Clavell were incomplete was material, because the evidence of what had been said could not be viewed in its proper context. Furthermore, it was submitted the Attorney-General had effectively submitted that it was not necessary to make sense of the recordings, the criticism only being confined to the topics raised in circumstances where the discussions were not a breach of any of the conditions of the Lapsed Supervision Order. It was submitted that this amounted to a concession that nothing problematic was actually said during these conversations, exposing the application as being, in substance, devoid of merit.
In addition, the Attorney-General accepted Benbrika’s medical condition was relevant to the outcome of the application. It was submitted this unchallenged medical evidence weighed heavily against leave being granted.
In reply submissions, the Attorney-General’s position changed. It was submitted that on reflection, a further report would be provided by Ellis. It was acknowledged that the third and fourth reports had been prepared in haste and that it would be necessary for a more fulsome report to be prepared. It was further submitted that the somewhat unsatisfactory state of the third and fourth reports should not result in leave being refused as the underlying evidence upon which Ellis had relied was before the court, as were the conclusions he had reached based on that underlying evidence.

C.1.4 Analysis

A critical aspect of this application was the Attorney-General’s belated change of position with respect to the filing of further expert evidence. If the Attorney-General had maintained the position that no further expert evidence would be led at trial beyond what was already filed, the application for leave would have been refused. Ellis’ third and fourth reports are in a form that could not have satisfied the requirements of section 79 of the Evidence Act. In a nutshell, on numerous occasions there is an absence of reasoning underlying the opinions expressed. Accordingly, if I had been pressed to give a final ruling on the matter, I would have found that that evidence did not fall within an exception to the opinion rule and necessarily would have been ruled inadmissible at trial.
However, when the Attorney-General’s ultimate position on this issue is coupled with the underlying evidence of the transcripts tendered on these applications, it is appropriate that the opinions expressed by Ellis be taken into account for the limited purpose of assessing whether or not to grant leave to amend the originating motion. In light of a suitably qualified expert having professionally expressed those opinions, on balance I have formed the view that it is appropriate that the Attorney-General be permitted to rely on those opinions and to seek supervision orders which include the Further Conditions.
To be clear, this conclusion has been reached on the basis that the low threshold of establishing that the amendments sought have some prospects of success has been met. By granting leave, the court expresses no view on whether the opinions expressed by Ellis provide any proper basis ultimately to justify an extended supervision order (with or without the Further Conditions).
The numerous flaws with the third and fourth reports should not pass without comment. Without being exhaustive:
(1)Except in the vaguest of terms, the evidence on which Ellis relied in forming his views was not identified. This was reflected in the Attorney-General’s submission that “presumably” particular evidence had been relied upon by Ellis in drawing a particular inference (which in fact was incorrect).
(2)The reference to Benbrika speaking in Arabic possibly indicating an intention to subvert was misconceived.
(3)Ellis showed a willingness to form conclusions that did not reflect the evidence (such as concluding that Benbrika and Clavell had been in prison together).[71]
(4)Ellis formed a view that Benbrika had difficulty with following directions on the supposition that there were certain directions in place, without any apparent basis (and when it was conceded by the Attorney-General’s senior counsel that no such directions existed).[72]
(5)Ellis made other basic factual errors.[73]
[71]See par 47 above.
[72]See par 48 above.
[73]See fn 40 above.
Benbrika’s submission that the weight attached to the statutory purpose of Part 5.3 of the Criminal Code should not be elevated above any other factor was plainly correct. However, it is clearly an important matter to take into account. Further, while Benbrika raised numerous countervailing factors which weighed against leave being granted, none of them outweigh the appropriateness of granting leave to achieve the objective of ensuring all real questions of controversy may be addressed at trial (and also possibly avoiding multiplicity of proceedings).[74]
[74]As to the matter in parenthesis, see par 69 above.
It was conceded that Benbrika would suffer prejudice upon leave being granted. This is undoubtedly so for the reasons submitted on his behalf.[75] However, the prejudice is not of the kind that ought to prevent the real issues being enlivened at trial.
[75]See pars 76-85 above.
While not in any way diminishing the oppressive nature of this proceeding upon Benbrika and the increased strain caused by leave being granted, the practical consequences of leave are relatively minor. Only a short adjournment of the commencement of the trial will be required. Further, although undoubtedly burdensome, the anguish and stresses that arise from a proceeding of this nature are almost inevitable given the intrusive and ongoing nature of the relief that might be obtained.

Equally, the fact that there may be criminal penalties imposed in the event that Benbrika were to breach any conditions of a supervision order is simply a necessary byproduct of the statutory regime. Although the imposition of any further conditions would likely amplify the possibility of contravening the conditions of any order and the associated degree of anxiety for Benbrika, generally speaking, such a factor should not prevent any further conditions being imposed if the court were to find that the relevant condition or conditions were reasonably necessary and reasonably appropriate and adapted for the purpose of protecting the community from an unacceptable risk.
On the question of delay and the extent to which that has caused Benbrika prejudice, when the facts are objectively considered there is no substantive basis for contending that the Attorney-General improperly caused the inconvenient timing of the applications. In essence, efforts were made by the Government Solicitor to prioritise the transcription and translation of the relevant recordings, and to provide Ellis with copies almost immediately upon receipt.[76] The Attorney-General was justified in not providing Ellis with a brief until all of the material information was available. In relation to the timing of the Attorney-General obtaining the recordings, the Federal Police’s provision of information in monthly tranches has been an established practice for some time, and is a sensible means by which information can be provided to the Attorney-General and managed on a proper basis.
[76]See pars 59-63 above.
Further, there was nothing to suggest that the Federal Police at some earlier point in time withheld information knowing it to be relevant or that the information had been considered and dismissed as irrelevant. The affidavit of the Federal Police commander filed at the commencement of the proceeding made no reference to recordings of conversations between Benbrika and Clavell. Further, no evidence was identified which might have suggested that he was or would have been aware of these recordings. Nor was there anything to indicate other members of the Federal Police knew of both the existence and contents of the recordings, as well as their potential significance.
Furthermore, criticism of the Federal Police (and the Attorney-General) based upon an alleged failure to provide the recordings to Speckhard was misplaced. The Attorney-General’s explanation that he considered it inappropriate to unilaterally supply this information in circumstances where Benbrika was being treated by Speckhard on an ongoing basis was not only plausible, but an entirely legitimate approach.
Moreover, this criticism was more a matter of form than of substance. If Benbrika was or becomes of the view that it is appropriate to provide the further materials to Speckhard to obtain her opinion, there is nothing stopping him from doing so. In this regard, it is instructive to refer to exchanges that occurred at hearings held on 11 and 18 December 2024. At the first directions hearing, Benbrika’s counsel stated that there was no need for an expert to be appointed.[77] The court was told that the history of this litigation was that when there was a dispute of substance, the parties each retained their own experts. Thus, it was said to be premature for the court to appoint an expert. A week later, Benbrika repeated his submission that the court should not appoint an expert as the parties were able to engage their own experts.
[77]See Criminal Code, s 105A.6.
On the issue of Speckhard’s current position, her recent opinions naturally do not take into account the matters upon which the Attorney-General now relies. In short, the reports tendered by Benbrika were of limited probative value on this application in circumstances where the court has no basis for drawing any inference about what Speckhard’s opinions might be in light of the further materials.
In reaching this conclusion, I have not ignored the observations made by Hollingworth J about Speckhard’s experience and expertise. In any event, any consideration of the levels of expertise, competence or probative value of the experts’ evidence will be a matter for trial.
Another document tendered by Benbrika, being the letter from the Director-General containing information about the level of risk posed by Benbrika,[78] was also of limited probative value. Given the letter was dated 18 October 2024, it obviously predated the discussions between Benbrika and Clavell in November 2024. Further, the letter was concerned with known facts that reasonably would support a finding that an extended supervision order ought not be made. The existence of facts of this nature could not be determinative of any finding to be made by the court if there was other compelling evidence which indicated such an order should be made. In any event, and again, competing facts on the appropriateness of an extended supervision order are matters for trial and not an interlocutory application of this kind.
[78]See pars 13 above and 137 below.
In summary, the Attorney-General has established there are some prospects of success in seeking an extended supervision order which includes the Further Conditions, such that leave ought to be granted to amend the originating motion accordingly.

C.2 Issues 2 and 3: Should leave be granted to amend the summons seeking a third interim supervision order so that the Attorney-General may seek to include the Further Conditions? If so, should any interim order include the Further Conditions?

C.2.1 Basis of application for interim orders

If an application for an extended supervision order has been made, the Attorney-General may apply for an interim supervision order.[79] The court may only make an interim order if it is satisfied of certain matters (otherwise it must be dismissed).[80]
[79]Criminal Code, s 105A.9A(1).
[80]Ibid, s 105A.9A(3).
These matters include the court being satisfied there are reasonable grounds for considering that an extended supervision order will be made in relation to the offender[81] and, separately, that there are reasonable grounds for considering that each of the conditions to be imposed under the interim order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from an unacceptable risk of the offender committing a serious Part 5.3 offence.[82] In determining whether each of the conditions meets this criteria, the court must take into account as a paramount consideration the object of Division 105A of the Criminal Code, namely to protect the community from serious Part 5.3 offences by providing that terrorist offenders who pose an unacceptable risk of committing such offences are subject to, relevantly, an extended supervision order.[83]
[81]Ibid, s 105A.9A(4)(c).
[82]Ibid, s 105A.9A(4)(d).
[83]Ibid, ss 105A.1, 105A.9A(5).

C.2.2 Attorney-General’s submissions

In addition to the submissions relating to amendments to the originating motion, the Attorney-General submitted 2 further matters in support of the Further Conditions being included in a third interim supervision order.
First, it was submitted there could be no doubt that there were reasonable grounds for considering that an extended supervision order would be made. It was submitted the precondition in section 105A.9A(4)(c) of the Criminal Code could be met without considering all of the specific proposed conditions of any extended supervision order.[84]
[84]Benbrika made a contrary submission. It is unnecessary to decide this issue.
Secondly, it was submitted Ellis’ third and fourth reports in themselves provided reasonable grounds for imposing the Further Conditions immediately upon the expiry of the second interim supervision order. Even if this were not the position, the Attorney-General again relied upon the underlying evidence as a sufficient basis to justify the Further Conditions being ordered on an interim basis.
As to the specific conditions,[85] it was submitted conditions 6 to 11 were reasonably necessary as Ellis no longer considered that monitoring by Benbrika’s case managers and treating practitioners was sufficient. This matter needed to be coupled with Ellis’ opinion that Benbrika’s electronic communications now required monitoring. Equally, condition 5 (prohibiting certain associations) was said to be reasonably necessary in light of Benbrika’s interactions with Clavell. Finally, it was submitted that amendments to conditions 4 and 13 and the addition of condition 15 were appropriate to facilitate the inclusion of other conditions.
[85]As to which, see Annexure C to these reasons.

C.2.3 Analysis

For the reasons stated above, leave should also be granted to amend the summons filed 31 January 2025 to expand the conditions sought to be included in a third interim supervision order. As the Attorney-General will be entitled to argue at trial that the Further Conditions ought to be imposed, it must follow that it is appropriate that the Further Conditions be considered on an interim basis.
However, although leave will be granted to amend the summons, there are a number of factors weighing against the making of an interim supervision order imposing the Further Conditions at present.
First, the lateness of the application is of materially greater significance. Although it has been found that the delay was largely not caused by any fault on the part of the Attorney-General, the fact remains that Benbrika has not had an opportunity to obtain his own expert evidence to respond to Ellis’ third and fourth reports, and there was no ability to adjourn the hearing of this application to afford this opportunity.[86] This was in circumstances where there were material shortcomings with those reports and the weight to be afforded to them was commensurately reduced. If Benbrika had had time to produce cogent expert evidence that contradicted the views expressed by Ellis, the outcome of the applications for leave may well have been different.[87]
[86]See further par 126 below.
[87]Of course, I say nothing about the likelihood or otherwise of the content of any expert evidence Benbrika might have adduced with respect to the further events the subject of Ellis’ third and fourth reports or whether any such evidence, if adduced, ought to be accepted.
Secondly, and relatedly, the basis upon which the Attorney-General presently seeks to impose the Further Conditions could not properly be categorised as strong. Although the position may be different at trial, based on the evidence as it now stands, it would appear highly unlikely that the Attorney-General would succeed in obtaining an extended supervision order with the Further Conditions. Although in making the third interim supervision order, I have been satisfied there are reasonable grounds for considering that an extended supervision order will be made, it does not follow that an interim supervision order should include the Further Conditions.
Thirdly, the Attorney-General (properly) acknowledged the actual prejudice caused by the timing of the application. Unlike the application to amend the originating motion, the Attorney-General was unable to offer Benbrika further time in order to ameliorate the prejudice.[88] The extent of the prejudice must be understood in the realm of the onerous task already facing Benbrika in preparing his case for trial. In addition to a relatively tight timetable, Benbrika’s legal representatives have also been faced with disclosure material being provided on a rolling basis.[89] The fact that this disclosure is ongoing is unavoidable as relevant information continuously comes into existence (and incrementally comes to the Attorney-General’s attention), but the simple fact is that a large volume of documentation has been and continues to be the subject of careful review by Benbrika’s representatives. Self-evidently, the Further Conditions would impose additional strictures on Benbrika which may impact his ability to prepare for trial.
[88]See par 70 above.
[89]At the time of the hearings, disclosure material had been provided on 5, 9 and 24 December 2024, 9 and 17 January 2025, 6 and 11 February 2025. For completeness, this factor was not relied upon by Benbrika as a basis to adjourn the trial if leave were granted to amend the originating motion.
Fourthly, Benbrika’s physical and mental health needs to be considered from a different perspective in relation to the interim regime. On a without prejudice basis, until recently Benbrika had agreed to the Therapeutic Conditions being imposed as part of the Previous Interim Orders in circumstances where the Attorney-General had indicated no conditions would be sought on a final basis beyond the Therapeutic Conditions. Further, only a week before the applications were heard, that remained the Attorney-General’s position. The undisputed evidence was that Benbrika’s health has been adversely affected by the prospect of the Further Conditions being imposed on an interim basis.
Generally, it might be expected that the physical and mental health of an offender would be adversely affected by any interim or extended supervision order imposing conditions like the Further Conditions. Usually the impact of an order on an offender’s physical or mental health would not be a determinative factor in any consideration of the appropriate conditions to be imposed. However, in circumstances where the final contested hearing is imminent and the appropriateness of imposing the Further Conditions will be determined shortly, the weight to be attributed to Benbrika’s health in determining whether the Further Conditions should be imposed on an interim basis is not insignificant.
Fifthly, the Attorney-General provided information at 10.21pm the night before the hearing of this application to the effect that the Federal Police already has Benbrika under surveillance on an ongoing basis. Specifically, Benbrika has been monitored from 19 December 2024 (being the last day the Lapsed Supervision Order was operational) by physical surveillance, and from 23 December 2024 by telecommunication interception and electronic surveillance. Also on 23 December 2024, warrants were issued under the Surveillance Devices Act 2004 (Cth) and the Telecommunications (Interception and Access) 1979 (Cth). The precise terms of the warrants were not disclosed by the Attorney-General. The Attorney-General’s senior counsel had no instructions to provide any further information to the court. In such circumstances, it may be inferred that the whereabouts of Benbrika, together with at least some of his conversations, are being closely monitored by the Federal Police.
Sixthly, although not the subject of any order, Benbrika is now aware that police are monitoring him on an ongoing basis. Given the expert evidence about Benbrika’s progress and his desire not to give authorities any basis to incarcerate him, this makes it less likely that he will engage in any inappropriate conduct (or, in the unlikely event that he did, that it would be promptly detected independently of the regime established by the third interim supervision order).
Seventhly, Benbrika has been subject to the Previous Interim Orders for approximately 2 months without incident in circumstances where, for most of that time, he has also been the subject of close monitoring. Although far from conclusive, on the available evidence there was nothing to suggest the Therapeutic Conditions have not provided an adequate safeguard. While the Attorney-General’s submission is irrefutable that, if Ellis’ opinions are correct, failing to include the Further Conditions in the third interim order would have the effect that Benbrika will be in the community for a period of time on conditions less restrictive than is reasonably necessary,[90] on the present state of the evidence I am not satisfied that the Further Conditions meet that threshold.[91]
[90]See also par 69 above.
[91]Without being exhaustive, see par 103 above.
In these circumstances, having considered each of the Further Conditions, I cannot be satisfied that there are reasonable grounds for considering that any of them ought to be imposed on Benbrika on an interim basis.

C.3 Issue 4: Should the Director-General’s objection to the Attorney-General giving information to Benbrika pursuant to a disclosure requirement be upheld?

C.3.1 Further background

The Director-General applied by summons for orders to protect certain information contained in the letter dated 18 October 2024 (“the Secret Information”).[92] He contended it was in the interests of Australia’s national security not to disclose the Secret Information. In the summons, the Director-General objected to the production of this single document, which was described as “document 67, titled ‘20241018 Benbrika – ASIO intelligence brief – redacted’ identified in the [Attorney-General]’s list of public interest immunity and legal professional privilege claims, revised and filed on 24 December 2024” (“Document 67”). The objection was said to be made on the basis that the information that document contained was subject to public interest immunity.
[92]See par 13 above.
The application was made under section 93.2 of the Criminal Code, which gives power to a court exercising federal jurisdiction to make certain orders if it is satisfied that it is in the interests of Australia’s national security to do so. This includes such orders or directions as a judge thinks necessary for ensuring that no person, without approval, has access to any affidavit, exhibit, information or other document used in an application or in a proceeding before the court.[93]
[93]See Criminal Code, s 93.2(2)(c).
If necessary, the Attorney-General also seeks protective orders pursuant to the court’s inherent jurisdiction, including its power to make a suppression order.
The Director-General provided the court with a copy of Document 67 in an unredacted form so that it could be inspected for the purpose of determining whether protective orders should be made.[94]
[94]If a question arises under Part 3.10 of the Evidence Act (relating to privileges), the court may order that a document be produced and inspect it for the purpose of determining the question: s 133. See also Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667, 672D (Hunt CJ at CL, with whom Smart and Studdert JJ agreed); Alister v The Queen (1984) 154 CLR 404, 416.2 (Gibbs CJ), 453.9-454.3 (Brennan J).
Document 67 consists of 3 pages, the first of which is entirely introductory. On the second page, the letter states that 5 documents had been identified as documents that might contain information that would reasonably be regarded as supporting a finding that a post-sentence order should not be made in respect of Benbrika. It was stated that the documents were drawn from a body of intelligence and reporting concerning Benbrika and that the information the documents contained was judged to be accurate.
The court’s copy of Document 67 was partially unshaded, partially shaded in green (to show the information provided to Benbrika’s counsel on a confidential basis),[95] and partially shaded in yellow. The yellow shading denoted the Secret Information. It is significant that most of the information contained in Document 67 (that is, the information that was either unshaded or shaded in green) has been disclosed to Benbrika’s counsel.
[95]See par 14 above.

C.3.2 Legal principles

When applying for a post-sentence order under Part 5.3 of the Criminal Code, the Attorney-General is subject to a disclosure requirement.[96] Both the obligation of the Attorney-General to make reasonable inquiries to ascertain any facts that would reasonably be regarded as supporting a finding that a post-sentence order should not be made and the disclosure requirement are “statutory safeguards” on the exercise of the court’s power to make post-sentence orders under Part 5.3 of the Criminal Code.[97] As this issue concerned an objection to giving information the subject of a disclosure requirement, the court must determine the objection (with the necessary modifications) as if it were an objection to the giving or adducing of evidence.[98]
[96]See Criminal Code, s 105A.5(3). “Disclosure requirement” is defined to mean a court process or court order that requires disclosure of information or a document: Evidence Act, s 131A(2). See also fn 6 and par 12 above.
[97]Minister for Home Affairs v Benbrika (2021) 272 CLR 68, 87-88 [12] (Kiefel CJ, Bell, Keane and Steward JJ).
[98]Evidence Act, s 131A(1).

Accordingly, the provisions of section 130 of the Evidence Act apply.[99] That section relevantly provides:
[99]Each of Benbrika, the Director-General and the chief commissioner of Victoria Police agreed that by virtue of s 131A, s 130 of the Evidence Act applied.
130 Exclusion of evidence of matters of state
(1)If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.
…
(4)Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would—
(a)prejudice the security, defence or international relations of Australia; or
(b)damage relations between the Commonwealth and a State or between 2 or more States; or
(c)prejudice the prevention, investigation or prosecution of an offence; or
(d)prejudice the prevention or investigation of, or the conduct of proceedings for recovery of civil penalties brought with respect to, other contraventions of the law; or
(e)disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State; or
(f)prejudice the proper functioning of the government of the Commonwealth or a State.
(5)Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters—
(a)the importance of the information or the document in the proceeding;
(b)if the proceeding is a criminal proceeding—whether the party seeking to adduce evidence of the information or document is an accused or the prosecutor;
(c)the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding;
(d)the likely effect of adducing evidence of the information or document, and the means available to limit its publication;
(e)whether the substance of the information or document has already been published;
(f)if the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is an accused—whether the direction is to be made subject to the condition that the prosecution be stayed.
…
Similar to the position at common law,[100] considering an application under section 130 involves a 3-stage process:
(1)Determining whether there is a public interest in non-disclosure.
(2)Determining whether there is a public interest in disclosure.
(3)If both public interests are present, weighing them against each other to determine whether the latter is outweighed by the former, taking into account relevant matters including those listed in section 130(5).
[100]Alister v The Queen (1984) 154 CLR 404, 412.4 (Gibbs CJ), referring to Sankey v Whitlam (1978) 142 CLR 1, 38.6-39.2 (Gibbs ACJ).
First, in considering whether there is a public interest in non-disclosure, it is not necessary to find on the balance of probabilities that disclosure will harm the public interest. It is sufficient to demonstrate there is a real possibility that non-disclosure will result in harm to the public interest.[101]
[101]See, for example, Sankey v Whitlam (1978) 142 CLR 1, 39.2 (Gibbs ACJ), citing Conway v Rimmer [1968] AC 910, 940D (Lord Reid).
The following passage describes how the gravity of a security risk is to be evaluated by a court:[102]
It may be necessary to evaluate Australia’s relationships with foreign countries, the stability of international affairs, the passion inspired by a particular cause or the likelihood of adherents to the cause taking violent steps in support of it; it may be necessary to evaluate rumour or suspicion as well as proof. It may be reasonable, even necessary, to determine the gravity of a risk by intuition rather than deduction. It may be truly said that the skills and procedures of a court do not fit it to find the point on the scale of gravity of every risk which may be thought to pose a threat to the Commonwealth, the States and Territories and the people thereof, and it may be accepted that a court will not necessarily have or be able to obtain all the evidence needed to allow it to quantify a risk precisely.
[102]Church of Scientology Inc v Woodward (1982) 154 CLR 25, 74.5 (Brennan J); see also Thomas v Mowbray (2007) 233 CLR 307, 477 [510] (Hayne J).
As to the second stage, although there is no real issue that the Secret Information is relevant,[103] there is still a need to assess whether the information sought to be protected would be of “substantial assistance” to Benbrika in meeting the case against him.[104]
[103]See pars 12-14 above.
[104]R v Peters [2018] VSCA 115, [53] (Osborn, Kaye and Niall JJA), and the cases there cited.
In the balancing exercise of weighing the competing public interests, the court must consider the nature and gravity of injury or harm against the evidentiary value and importance of the relevant information with respect to the real issues in the proceeding. In relation to certain types of information or classes of document, the balance is weighed heavily in favour of non-disclosure.[105]
[105]Commonwealth v Northern Land Council (1993) 176 CLR 604, 618.1 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ).
With respect to the court’s inherent jurisdiction, it has power to make suppression orders independent of any statutory powers.[106] Before orders can be made on this basis, it must be established that they are reasonably necessary for the administration of justice.[107] Suppression orders have been held to be appropriate to secure the proper administration of justice in respect of various types of information; the categories are not closed.[108]
[106]PQR v Secretary, Department of Justice and Regulation (No 1) (2017) 53 VR 45, 53 [22] (Bell J), referring to the Open Courts Act 2013 (Vic), s 5(1).
[107]HT v The Queen (2019) 269 CLR 403, 435-436 [82] (Gordon J) and the cases there cited.
[108]Hogan v Hinch (2011) 243 CLR 506, 531-532 [21] (French CJ).

C.3.3 Submissions

In seeking to have his objection upheld, the Director-General made open submissions in writing and orally together with confidential written submissions.[109]
[109]The Director-General’s submissions will be referred to only to such an extent as is consistent with the maintenance of the claim for public interest immunity. A version of the confidential submissions was provided to Benbrika’s legal representatives with only some parts of those submissions redacted.
The Director-General submitted the court should be satisfied the orders sought were in the interests of Australia’s national security and are necessary to protect the administration of justice.
In assessing the Secret Information, it was submitted the evidence of the Deputy Director-General of Security, Intelligence Service Delivery of the Australian Security Intelligence Organisation (“the Deputy Director-General”) should be given significant weight. Referring to the observations of Brennan J in Church of Scientology Inc v Woodward,[110] it was submitted the Deputy Director-General’s seniority and career intelligence experience of more than 20 years meant that his detailed, cogent and well-reasoned evidence weighed heavily in favour of the objection being upheld. In addition, the Director-General referred to long-standing authority affirming the importance of, and public interest in, protecting national security.[111] By a note of caution, it was submitted the court must be alive to the fact that it may not be in a position to fully appreciate the significance of a particular piece of evidence which might form part of a mosaic, the details of which the court is unaware or not fully aware.
[110](1982) 154 CLR 25, 74.5: see par 143 above.
[111]See, for example, Alister v The Queen (1984) 154 CLR 404, 436.5 (Wilson and Dawson JJ), citing D v National Society for the Prevention of Cruelty to Children [1978] AC 171, 233C (Lord Simon).
With respect to the extent to which the information might be of “substantial assistance” to Benbrika, it was submitted the volume of the Secret Information was very limited. Further, the Director-General relied upon the amount of protected information that had been made available to Benbrika’s legal representatives, and the fact that they will be able to use such information in the substantive proceeding. In short, it was submitted all but the most sensitive of the evidence had been made available.
The Director-General referred to the concise statement of case filed on 5 December 2024.[112] It was submitted the court should have regard to whether there was an overlap between the information contained in that document and the Secret Information. It was submitted that if this was so, it would reduce, if not entirely deprive, the information of probative value, such that it could not be considered to be of “substantial assistance” to Benbrika.
[112]See par 5 above. The court was told that, as the Director-General is not a party to the proceeding, neither he nor his legal representatives have had access to the Attorney-General’s statement of disclosable facts.
In relation to the position of Benbrika’s legal representatives that the information should be disclosed on a confidential basis to them, it was submitted such a regime was no substitute for non-disclosure on an absolute basis. In light of the possibility of inadvertent disclosure by counsel or solicitors, it was submitted the information was of a sufficiently sensitive nature that this risk could not be countenanced.[113] In this regard, the Deputy Director-General’s evidence that any disclosure would be catastrophic to national security was relied upon.
[113]Referring to Imad v Director-General of Security [2024] FCA 1115, [100]-[111] (Rofe J) (upheld on appeal in Imad v Director-General of Security (2024) 305 FCR 523 (Bromwich, Thawley and Shariff JJ)); Australian Statistician v Leighton Contractors Pty Ltd (2008) 36 WAR 83, 93-94 [49]-[52] (Steytler P, McLure JA and Newnes AJA).
In summary, it was submitted there was a clear public interest in non-disclosure and no public interest in disclosure. Accordingly, it was submitted that the remaining information the subject of the objection should be protected and the objection upheld.[114]
[114]For completeness, the Director-General made submissions based on the premise that the Attorney-General would only be seeking the Therapeutic Conditions. Self-evidently, these submissions have become superseded by more recent events.
Benbrika submitted that the court was required to keep in mind that Benbrika does not have access to all the information before the court when weighing up the public interest in maintaining confidentiality. A necessary consequence of this is that Benbrika is also placed at a disadvantage because he is unable to meaningfully respond to broad propositions in the Director-General’s submissions. It was contended such a situation compelled a vigorous approach to determining the outcome of the objection.
It was submitted the Attorney-General has, presumably correctly, assessed the Secret Information as information that would materially assist Benbrika at trial.
Turning to the factors set out in section 130(5) of the Evidence Act, a number of matters were referred to regarding paragraph (a) and the importance of the Secret Information in the proceeding.
It was noted that the Attorney-General expressly conceded that Benbrika had made positive progress since being released into the community on 19 December 2023. Benbrika’s position was that his attitude to the authorities administering the Lapsed Supervision Order, and his careful and proactive compliance with that order more generally, supported the proposition that the risk he posed was minimal, if present at all. In light of the evidence, Benbrika will maintain at trial that he has displayed obvious concern about engaging in any conduct that might lead to his reincarceration. It was submitted this was an important protective factor which demonstrated that specific deterrence had been achieved.
With respect to the alleged risk, namely radicalising others or encouraging them to engage in acts of religious-inspired violence, it will be submitted at trial that Benbrika’s conduct since 19 December 2023 would not provide any support for a finding that he presents an unacceptable risk of committing a serious Part 5.3 offence. To the extent the Secret Information touched on this, it was contended that it would be material.
With respect to Ellis’ opinion that there remained some uncertainty as to whether Benbrika has truly adopted moderate Islamic beliefs (because such an assessment relies on Benbrika’s self-reporting), Benbrika anticipated some of the Secret Information may go directly towards this issue. Material gathered during the operation of the Lapsed Supervision Order included extensive monitoring of Benbrika’s conduct in circumstances where he might not have expected to be under surveillance or to have his communications reported back to authorities. It was submitted any information gathered in this context which reflected positively on Benbrika might attract significant weight and contradict any view that the only way to verify Benbrika’s statements regarding his ideology and religious views was through his self-reporting.
To the extent the Attorney-General argued there is material available suggesting that Benbrika continues to hold concerning or extremist ideologies, it was submitted any information that would assist in understanding the nature of his supposed ideology (and therefore the degree of any risk of him committing a serious Part 5.3 offence) was important.
With respect to Benbrika’s public profile and his level of influence and notoriety in the Islamic community, it was accepted that on occasion Benbrika has been approached by members of his community and asked about religious matters. It was submitted that such approaches were beyond Benbrika’s control, and in any event, his responses to such approaches were of greater relevance. Thus, it was contended that if the Secret Information shed any light upon his responses, it was likely to be of significance to the assessment of risk and whether it could be described as unacceptable.
More generally, it was submitted that if the court considered that any of the Secret Information might assist Benbrika in challenging propositions for which the Attorney-General contends, it necessarily had significance for Benbrika’s case. Further, it was submitted the court should be alive to the potential significance of any information which was relevant to an assessment of the current state of Benbrika’s ideology, his attitude to authority (including the courts), his own view of the role he intends to play in the community, his willingness to accept the treatment provided by his psychological, psychiatric and disengagement providers and his concern to avoid doing anything which might put him at risk of incarceration.
With respect to paragraphs (b) and (c) of section 130(5), broadly concerning the nature of the proceeding and the offence and subject matter of such, it was submitted that Benbrika’s position was analogous to that of “an accused”, especially in light of the recent applications to impose the Further Conditions.
Whatever the correct characterisation of the nature of this proceeding,[115] it was submitted a more liberal approach to the production of documents should be taken than that employed in a standard civil case, because Benbrika’s personal liberty and freedoms are at stake.[116] Further, a previous observation to the effect that a full examination of documents by defence lawyers may sometimes produce relevant material for cross-examination, which others (including the presiding judge) may not fully appreciate as being important, was submitted to be relevant to the context of this application.[117]
[115]See fn 44 above. Benbrika did not contend that s 130(5)(b) had any direct application to this proceeding.
[116]As to the more “liberal” approach to be adopted in a case involving serious criminal charges, see R v Debono (2012) 225 A Crim R 585, 590 [23] (Kyrou J) and the cases there cited.
[117]R v Mokbel (Ruling No 1) [2005] VSC 410, [71] (Gillard J).
It was submitted that the court should be open to adopting a more nuanced approach than the binary question of whether or not the Secret Information should be disclosed. By reference to approaches taken in other cases,[118] it was submitted the court should consider excising or summarising the substance of the Secret Information, so that it may be disclosed without destroying the subject of the public interest immunity claim itself. On the assumption that a possible concern was disclosure of the identity of the person who provided the Secret Information,[119] it was submitted that the substance could (and should) be provided in a manner that would not disclose this detail. The court was invited to explore this option in a closed court with the Director-General (as had been done previously in an earlier proceeding involving Benbrika).
[118]See, for example, R v Peters [2018] VSCA 115, [59] (Osborn, Kaye and Niall JJA).
[119]It was acknowledged that there are good reasons for protecting the identity of human sources.
It was acknowledged that the Secret Information has not been published.[120] Further, it was accepted there was no basis to stay the proceeding if the Secret Information were not forthcoming, as this is not a criminal proceeding.[121] However, it was submitted to be instructive that the Evidence Act provides for the stay of a criminal proceeding in circumstances where public interest immunity claims are upheld. It was submitted that the absence of an ability to stay the proceeding meant the court should be more open to the provision of the Secret Information by a “non-binary” means.
[120]See Evidence Act, s 130(5)(e).
[121]See ibid, s 130(5)(f).
It was further submitted that the nature of the case Benbrika is required to meet is such that it can only be combatted by evidence of the absence of inappropriate conduct. Thus, it is important for Benbrika’s defence to be able to know not only what the Secret Information contains, but also what it does not contain. In this regard, reference was made to evidence of what has been said in settings where it would be expected that Benbrika would speak truthfully.
Although significant parts of Document 67 have been disclosed on a confidential basis, including the ultimate conclusion reached about Benbrika, it was submitted evidence concerning the basis of that conclusion would be of great assistance to him. In addition, it was submitted that without the underlying information, Benbrika was unable to assess whether the conclusion accurately captured the weight of the information.
As a general proposition, it was submitted that the Director-General is likely to have information that would be very different from that obtained by the Federal Police as part of administering a supervision order. Further, in circumstances where it was likely that some parts of the trial would be heard in a closed court, it was submitted that the court should be more willing to allow Benbrika’s counsel to have access to the Secret Information on a confidential basis.[122]
[122]The court was told Benbrika had no issue with being personally denied the information and that his senior counsel holds a security clearance.

C.3.4 Analysis

Without disclosing specifically the basis upon which the public interest immunity claim has been made, it is plain the very limited information still the subject of objection is highly sensitive and that the consequences of its disclosure would likely be very grave.
Contrastingly, the probative value of the Secret Information is not high, and could not be categorised as being likely to be of substantial assistance to Benbrika. In light of the extensive information that has already been provided to Benbrika, either on a confidential basis to his legal representatives or more broadly, the non-disclosure of this limited quantity of information would appear to be largely inconsequential. While it must be accepted that withholding the Secret Information prevents Benbrika’s lawyers from fully assessing what has already been disclosed to them, given the favourable information that has been made available, the significance of this suggested predicament is marginal.
In addition, although the Secret Information is relevant, I accept the Director-General’s submission that some of it is outdated or, although strictly relevant, peripheral to the real issues in dispute in this proceeding.
Finally, given the very confined amount of information the subject of the objection, it could not be disclosed in some other form on a confidential basis to Benbrika’s counsel in a manner consistent with the public interest immunity claim being upheld.
Accordingly, the objection as ultimately made will be upheld in its entirety. The non-disclosure of the Secret Information is both in the interests of Australia’s national security and necessary to protect the due administration of justice.

D. Conclusion

For the reasons stated, the Attorney-General was granted leave to amend his originating motion to agitate for the Further Conditions at trial and to amend the summons seeking a third interim supervision order. However, the Further Conditions were not included in the third interim supervision order made on 11 February 2025. Further, the Director-General’s objection in relation to the disclosure of the Secret Information relating to matters of state has been upheld.

[2025] VSC 83

11 March 2025