Minister for Home Affairs v Benbrika (first review)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

GENERAL LIST

S ECI 2021 03214

MINISTER FOR HOME AFFAIRS	Plaintiff
v
ABDUL NACER BENBRIKA	Defendant

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JUDGE:	HOLLINGWORTH J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 December 2021, 31 January, 1, 2, 3, 4, 10 and 11 February 2022
DATE OF JUDGMENT:	21 April 2022 (restricted version) 6 May 2022 (unrestricted version)
CASE MAY BE CITED AS:	Minister for Home Affairs v Benbrika (First review)
MEDIUM NEUTRAL CITATION:	[2022] VSC 169

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PUBLIC LAW – Review of continuing detention order (“CDO”) under Criminal Code Act 1995 (Cth) – Defendant on three year CDO – First 12 month review of CDO – CDO affirmed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Berger QC Mr M Hosking Ms A Lord	Australian Government Solicitor
For the Defendant	Mr D Star QC Ms G Morgan Mr J Hartley	Doogue + George Defence Lawyers

TABLE OF CONTENTS

INTRODUCTION.............................................................................................................................. 1

Background.................................................................................................................................... 1
The general statutory framework............................................................................................... 3
The relationship between sub-ss 105A.7(1)(b) and (c) of the Code....................................... 6
The nature of the review............................................................................................................ 10

GENERAL MATTERS RELATING TO UNACCEPTABLE RISK......................................... 11

The meaning of unacceptable risk............................................................................................ 11
The nature of the asserted risk.................................................................................................. 13

THE SPECIFIED MATTERS.......................................................................................................... 14

The object of Division 105A (s 105A.6B(1)(a))......................................................................... 14
Mr Benbrika’s prior terrorist offending (s 105A.6B(1)(g))..................................................... 15
The views of the sentencing court (s 105A.6B(1)(h)).............................................................. 16
Participation in treatment or rehabilitation programs (s 105A.6B(1)(e))............................ 19
The nature and extent of participation........................................................................... 19
Change in ideology – introduction................................................................................. 23
Sources of evidence in relation to Mr Benbrika’s ideology......................................... 25
The Aziz covenant............................................................................................................. 28
Contemporaneous evidence............................................................................... 28
Motivation to participate in counselling and rehabilitation.......................... 32
Mr Benbrika’s initial disclosure of the Aziz covenant.................................... 34
Subsequent statements by Mr Benbrika about the Aziz covenant................ 37

Current ideology................................................................................................................ 38
The scope of the dispute...................................................................................... 38
CISP documents relevant to his current ideology........................................... 39
Expert assessments............................................................................................... 44
Conclusions on current ideology....................................................................... 45

Other relevant matters...................................................................................................... 49

Assessments by relevant experts (s 105A.6B(1)(b) and (c)).................................................. 51
Introduction to the expert evidence................................................................................ 51
Dr Dewson’s evidence......................................................................................... 51
Dr Mischel’s evidence.......................................................................................... 53
No defence expert evidence................................................................................ 53

Introduction to risk assessment....................................................................................... 54
Using the VERA-2R........................................................................................................... 56
Dr Dewson’s conclusions................................................................................................. 57
Criticisms of Dr Dewson’s opinions............................................................................... 61
The nature of the criticisms................................................................................. 61
Selectivity............................................................................................................... 62
Misinterpreting source material......................................................................... 65
Lack of expertise................................................................................................... 67
Mistakenly scoring the VERA-2R indicators.................................................... 69
Misinterpreting the VERA-2R indicators.......................................................... 70
Asking the wrong question................................................................................. 84

Compliance with legal obligations (s 105A.6B(1)(f))............................................................. 89
Any other relevant information (s 105A.6(1)(i))..................................................................... 90
The role of influencers...................................................................................................... 91
Undesirable associations.................................................................................................. 92

SUMMARY OF CONCLUSIONS ON UNACCEPTABLE RISK........................................... 95

WHETHER THERE IS A LESS RESTRICTIVE MEASURE AVAILABLE........................... 97

The scope of the dispute............................................................................................................. 97
Proposed ESO conditions........................................................................................................ 100
The evidence in relation to an ESO......................................................................................... 103
Dr Dewson’s evidence in relation to an ESO............................................................... 103
A/C Lee’s evidence......................................................................................................... 104
The nature of Mr Benbrika’s risk..................................................................... 107
Mr Benbrika’s knowledge of police techniques............................................. 109

Conclusions on less restrictive measures.............................................................................. 109

DURATION OF THE CDO.......................................................................................................... 110

CONCLUSIONS............................................................................................................................. 111

POSTSCRIPT.................................................................................................................................. 112

HER HONOUR:

INTRODUCTION
Background

Between mid-2004 and late 2005, the defendant, Abdul Nacer Benbrika, was the leader of a terrorist organisation, whose members were preparing to commit a violent terrorist act, in order to advance Islamic ideology through the pursuit of violent jihad.

In September 2008, Mr Benbrika was found guilty by a jury of intentionally being a member of, and directing the activities of, a terrorist organisation. Six of his co-offenders were found guilty of belonging to the same terrorist organisation. In February 2009, Mr Benbrika received a total effective sentence of 15 years’ imprisonment, with a non-parole period of 12 years.[1]
[1]R v Benbrika & Ors [2009] VSC 21, Bongiorno J (“the sentencing remarks”). Mr Benbrika succeeded in appealing against one of the convictions in 2010, although his total effective sentence and non-parole period remained the same: Benbrika v The Queen [2010] VSCA 281; (2010) 29 VR 593.

Mr Benbrika was not granted parole. His sentence expired on 5 November 2020. Since then, he has remained in prison in the following circumstances.

Shortly before the expiry of his sentence, the Minister for Home Affairs applied to this court for a continuing detention order (“CDO”) under s 105A.7(1) of the Criminal Code (Cth) (“Code”).[2]
[2]The Code is the Schedule to the Criminal Code Act 1995 (Cth). Division 105A of the Code permits CDOs to be sought on application by the “AFP Minister”, who is defined in s 100.1 as the minister administering the Australian Federal Police Act 1979 (Cth). Under Administrative Arrangements Orders, that person is the Minister for Home Affairs.

On 27 October 2020, Tinney J made an interim detention order (“IDO”), which began on 5 November 2020, on the expiry of the sentence. On 25 November 2020, his Honour made a further IDO, with effect from 3 to 30 December 2020. On 24 December 2020, following an 8 day hearing, Tinney J made a CDO for a period of 3 years, beginning that day and ending on 23 December 2023.[3] The effect of the IDOs and CDO was to commit Mr Benbrika to detention in a prison, for the period of the respective order.[4]
[3]Minister for Home Affairs v Benbrika [2020] VSC 888 (“the CDO reasons”).
[4]Code ss 105A.3(2) and 105A.9(3).

Tinney J made the CDO because he was satisfied to a high degree of probability that Mr Benbrika posed an unacceptable risk of committing a relevant offence, and there was no less restrictive measure available that would be effective in preventing that risk.

On 9 November 2021, the Court of Appeal dismissed Mr Benbrika’s appeal against the making of the CDO.[5]
[5]Benbrika v Minster for Home Affairs [2021] VSCA 303 (“the CoA reasons”).

The Minister is required to apply to this court for a review of the CDO every 12 months.[6] This is the first such review. The Minister began the review process by filing the originating motion on 3 September 2021.
[6]Code s 105A.10(1A) and (1B).

On 21 October 2021, Tinney J acceded to an application by Mr Benbrika that he recuse himself from hearing the review application.[7]
[7]Minister for Home Affairs v Benbrika (No 2) [2021] VSC 684.

The review hearing was listed to begin on 8 December 2021. In the lead up to the listed date, it became apparent that the Code was about to be amended, to introduce extended supervision orders (“ESOs”) as a less restrictive measure than CDOs. Accordingly, I formally began hearing the review on 9 December 2021, in order to ensure that it began within the required 12 month period. I then adjourned it off part-heard, to enable the parties to file further evidence and submissions addressing the possibility of an ESO being ordered instead of the CDO. Substantive argument on the review took place over 7 days, beginning at the end of January 2022.

In this review, the Minister seeks to have the CDO affirmed on its current terms. Although the Minister accepts that, in some respects, Mr Benbrika has made some recent progress, she argues that it is not sufficient to reduce the risk he poses to an acceptable level. The Minister also argues that any progress that Mr Benbrika has made has occurred in a strictly-controlled custodial environment, and there is a very real risk that, if released into the community, he could return to his previous behaviour. The Minister argues that replacing the CDO with an ESO would not be sufficient to reduce Mr Benbrika’s risk to an acceptable level.

Mr Benbrika does not concede that there is any unacceptable risk of him committing a relevant offence. He says that he has for some years been on a trajectory of positive change, moving away from the violent, extremist views he held at the time of his offending and sentencing. However, if the court is satisfied that such a risk exists, Mr Benbrika argues that it can be adequately managed by the imposition of an ESO in place of the CDO. Alternatively, he seeks to have the CDO reduced in duration by one year.

The general statutory framework

Since 2005, the Federal Court has had the power to make control orders, which prohibit, restrict and monitor the movement, association and other activities of terrorist offenders.[8] However, persons under control orders are not detained in custody.
[8]Division 104 was inserted into the Code by Schedule 4 of the Anti-Terrorism Act (No 2) 2005 (Cth).

The power to make a CDO is contained in Division 105A of the Code, which came into operation on 7 June 2017.[9] Since the recent amendments,[10] the object of the Division is stated as being:
[9]Division 105A was inserted into the Code by Schedule 1 of the Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 (Cth).
[10]The amendments introduced by the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Act 2021 (Cth) came into effect on 9 December 2021.

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:

(a) a continuing detention order; or

(b) an extended supervision order.[11]

[11]Code s 105A.1.

A “terrorist offender” includes a person who has been convicted of a serious Part 5.3 offence.[12] A “serious Part 5.3 offence” means an offence against that Part of the Code, for which the maximum penalty is 7 or more years’ imprisonment.[13] Mr Benbrika falls within the definition of a terrorist offender, because both of the offences of which he was convicted were serious Part 5.3 offences.[14]
[12]Code s 105A.3(1)(a)(ii).
[13]Code s 105A.2.
[14]Intentionally being a member of a terrorist organisation contrary to s 102.3(1) of the Code has a maximum sentence of 10 years’ imprisonment. Intentionally directing the activities of a terrorist organisation contrary to s 102.2(1) of the Code has a maximum sentence of 25 years’ imprisonment.

The power to make a CDO is contained in s 105A.7, sub-s (1) of which provides:

A Supreme Court of a State or Territory may make a written order under this subsection if:

(a) an application is made in accordance with s 105A.5 for a continuing detention order in relation to a terrorist offender; and

(b) after having regard to matters in accordance with section 105A.6B, the Court is satisfied to a high degree of probability, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious Part 5.3 offence; and

(c) the Court is satisfied that there is no less restrictive measure available under this Part that would be effective in preventing the unacceptable risk.

Note 1: The rules of evidence and procedure for civil matters apply when the Court has regard to matters in accordance with s 105A.6B, as referred to in paragraph (1)(b) of this section (see subsection 105A.6B(3) and section 105A.13).

Note 2: For paragraph (1)(c), an example of a less restrictive measure that is available under this Part is an extended supervision order. A court can make an extended supervision order under section 105A.7A even if a continuing detention order was applied for (see subsection 105A.6A(1)).

If the court is not satisfied as to one or both of the matters set out in sub-ss 105A.7(1)(b) and (c), it must seek certain material from the Minister, and consider whether to make an ESO under s 105A.7A instead.[15]
[15]Code s 105A.7(2).

The power to make an ESO is contained in s 105A.7A, which enables a Supreme Court to make an ESO in any of the following situations:

(a) If an application is made for an ESO;

(b) If an application is made for a CDO, but the court is not satisfied as to one or both of the matters set out in sub-ss 105A.7(1)(b) or (c); or

(c) If, on reviewing a CDO, the court is not satisfied that it could have made a CDO.

A court can make an ESO if:

(b) after having regard to matters in accordance with section 105A.6B, the Court is satisfied on the balance of probabilities, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious Part 5.3 offence; and

(c) the Court is satisfied on the balance of probabilities that:

(i) each of the conditions; and

(ii) the combined effect of all of the conditions;

to be imposed on the offender by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from that unacceptable risk.[16]

[16]Code ss 105A.7A(1)(b) and (c).

The Minister bears the onus of satisfying the court of the existence of an unacceptable risk, before either a CDO or an ESO can be made.[17] However, the Minister must establish such a risk to a higher standard of proof for a CDO (to a high degree of probability) than an ESO (on the balance of probabilities).
[17]Code ss 105A.7(3) and 105A.7A(3).

The Minister also bears the onus of proving that there is no less restrictive measure available under the Part.[18] The standard of proof for that is not to a high degree of probability; it is the civil standard of the balance of probabilities. However, given the nature of the case, the subject matter of the proceeding, and the gravity of the consequences flowing from any court order, the parties agree that what used to be referred to as the Briginshaw[19] principles apply when considering this limb.
[18]Code s 105A.7(3).
[19]Briginshaw v Briginshaw (1938) 60 CLR 336. Those principles are now contained in s 140(1) of the Evidence Act 2008 (Vic).

Section 105A.12 deals with the court’s power on a review. The court may affirm the CDO if, after having regard to the matters in s 105A.6B, the court is satisfied that it could have made the CDO.[20] If the reviewing court does not affirm the CDO, it must seek certain material from the Minister, and consider whether to make an ESO under s 105A.7A instead.[21]
[20]Code s 105A.12(4)(a).
[21]Code s 105A.12(5).

If the reviewing court affirms the CDO, but is not satisfied that the remaining period during which the CDO is in force is reasonably necessary to prevent the unacceptable risk, then s 105A.12A(1) requires the court to vary the CDO to specify a shorter period that is reasonably necessary to prevent the unacceptable risk.[22]
[22]Code s 105A.12A(1).

The High Court has described the power to make a CDO as “an extraordinary power to detain a terrorist offender in prison notwithstanding that the purposes of punishment have been vindicated and the sentence served.”[23] The review provisions are one of the statutory safeguards or limits on this extraordinary power.
[23]Minister for Home Affairs v Benbrika [2021] HCA 4; (2021) 95 ALJR 166 at [38] (Kiefel CJ, Bell, Keane and Steward JJ) (“the Benbrika constitutional decision”). In that case, the High Court upheld the constitutional validity of Division 105A.

The relationship between sub-ss 105A.7(1)(b) and (c) of the Code

As previously mentioned, before it can make a CDO, sub-s 105A.7(1)(b) requires the court to be relevantly satisfied that “the offender poses an unacceptable risk of committing a serious Part 5.3 offence”. Subsection (c) requires the court to be relevantly satisfied that “there is no less restrictive measure available under this Part that would be effective in preventing the unacceptable risk.”

There is a dispute between the parties as to whether there is any overlap between matters that may be considered under the two subsections.

The Minister argues that the structure and text of s 105A.7(1)(b) and (c) require a two-step analysis. The first step is to identify whether Mr Benbrika poses an unacceptable risk of committing a serious Part 5.3 offence in the absence of continued detention in prison or any less restrictive measure. The second step is to consider whether a less restrictive measure, such as an ESO or control order, would be effective in preventing the unacceptable risk identified at the first step.

Mr Benbrika argues that, while the criteria that define when the power to make a CDO may be exercised are set out in two separate subsections, they are not hermetically sealed from one another.

Both sides seek support for their arguments in the case of Minister for Home Affairs v Pender (“Pender”),[24] in which the NSW Supreme Court considered an application for a CDO under s 105A.7(1) of the Code, as it was prior to the December 2021 amendments. At that time, sub-s (b) required the court to be satisfied that the offender posed “an unacceptable risk of committing a serious Part 5.3 offence if the offender is released into the community.”
[24][2021] NSWSC 1644.

In Pender, Walton J held that the proper construction of sub-s (b) required the court to consider the circumstances that would actually prevail if the offender was released into the community, in determining whether he posed an unacceptable risk.[25] That required the court to consider, as best it could on the available evidence, the circumstances into which the offender would, in fact, be released, including any external measures that might be directed at reducing the risk of re-offending.[26]
[25]Pender, [53].
[26]Pender, [55]-[56].

Walton J noted that the concept of “measures” was a broad one, and the Division offered no workable boundary between those “measures” that would form part of the risk assessment in sub-s (b), and those which could only be considered at the sub-s (c) stage of the analysis.[27] His Honour said that such a construction of sub-s (b) did not leave sub-s (c) without any work to do, because “less restrictive measure” for the purposes of sub-s (c) are measures which the evidence does not establish will be in place if the offender were to be released, but rather, which the court would be satisfied realistically could be in place.[28]
[27]Pender, [57].
[28]Pender, [58].

Applying that analysis to the particular facts in Pender, Walton J said that the inquiry under sub-s (c) was a largely arid one, because the evidence established that all of the measures reasonably available to minimise the offender’s risk would in fact be in place.[29]
[29]Pender, [59].

It was common ground on the evidence in that case that there were seven measures that should be taken into account in assessing whether there was an unacceptable risk for the purposes of s 105A.7(1)(b):

(a) An interim control order, which had already been made by the Federal Court;

(b) A firearms prohibition order, including a search power;

(c) Psychiatric case management and medication under a community treatment order under the Mental Health Act 2007 (NSW);

(d) Stable accommodation;

(e) NDIS support;

(f) Mr Pender’s participation with the Proactive Integrated Support Model; and

(g) Mr Pender’s involvement with the NSW Engagement and Support Program.[30]

[30]Pender, [63].

Walton J did not consider sub-s (c) in any detail, because he had considered all the existing or available less restrictive measures under sub-s (b).[31]
[31]Pender, [61].

His Honour said that the position would be different in a case where there are measures that might otherwise be imposed in the proceedings themselves.[32] In relation to the Crimes (High Risk Offenders) Act 2006 (NSW), where in a single set of proceedings either an ESO or CDO can be made, his Honour said “it would make little sense for a court, in evaluating the unacceptable risk, to presuppose that an extended supervision order had been made.”[33] Given that the Code now includes the power to make an ESO, Walton J’s observations tend to suggest that the ESO should be primarily considered under subs-s (c).
[32]Pender, [61].
[33]Pender, [61].

Since the December 2021 amendments to the Code, the words “if the offender is released into the community” have been removed from sub-s (b), so that the court is simply required to consider whether the offender poses “an unacceptable risk of committing a serious Part 5.3 offence.” The Minister submits that the removal of the words supports her argument that sub-ss (b) and (c) impose a separate, two-stage approach, with no overlap between the two subsections, and with sub-s (b) being concerned only with internal risk.

The parties did not address me concerning any extrinsic materials in relation to this legislative change. In fact, the Explanatory Memorandum says that the words were removed from s 105A.7(1)(b), and from several other provisions,[34] to reflect the introduction of ESOs.[35] An offender subject to an ESO may be released into the community, and then remain in the community on an ESO. An application may later be made for a CDO in relation to that offender. Accordingly, relevant experts may be asked to assess the risk of an offender who is already in the community. That seems to be the reason for removing the words “if the offender is released into the community”. It seems that the amendment was not intended to remove any overlap between sub-ss (b) and (c), as suggested by the Minister.
[34]Sections 105A.2, 105A.6(4)(a), and 105A.6(7)(a) and (g).
[35]Especially at pp 52, 64 and 65.

Further support for the conclusion that there is not a clear line of separation between sub-ss (b) and (c) may be found in the fact that one of the specified matters to which the court must have regard when deciding whether there is an “unacceptable risk” is “any report, relating to the extent to which the offender can reasonably and practicably be managed in the community”.[36] That is not limiting the court to a consideration of the offender’s “internal risk”; it would clearly require a consideration of the effect of external management on the offender’s internal risk.[37]
[36]Code s 105A.6B(1)(d).
[37]In fact, no such report was tendered on the review.

Walton J referred to the lack of a workable boundary between those “measures” that would form part of the risk assessment in sub-s (b), and those which could only be considered at the sub-s (c) stage of the analysis. The blurred boundary was reflected to some degree in the way the parties dealt with some of the evidence.

The only witnesses who were cross-examined on the review were Dr Chelsey Dewson, a forensic psychologist, and Assistant Commissioner Scott Lee of the Australian Federal Police (“AFP”), both of whom were called by the Minister. Dr Dewson conducted risk assessments of Mr Benbrika. In the sixth of her seven reports, she considered the effect of a proposed ESO on Mr Benbrika’s risk. A/C Lee did not perform his own risk assessment; he relied upon Dr Dewson’s risk assessment. A/C Lee considered the proposed ESO in the context of the “less restrictive measures” issue. I have dealt with Dr Dewson’s evidence in my consideration of sub-s (b), and A/C Lee’s evidence under sub-s (c), as that is how the parties essentially dealt with that evidence.

The nature of the review

At the time of making the CDO, Tinney J was satisfied to a high degree of probability that, as at 24 December 2020: Mr Benbrika posed an unacceptable risk of committing a serious Part 5.3 offence if released into the community; there was no less restrictive measure that would be effective in preventing that risk; and it was reasonably necessary for the CDO to be in force for 3 years. The Court of Appeal found no error in those ultimate conclusions.

The task for the court on a review is to determine whether, at the time of its decision, on the basis of admissible evidence adduced on the review, the court is satisfied of the matters in s 105A.12(4)(a). If it is satisfied of those matters, it may affirm the CDO. The court also needs to determine whether the remaining period during which the CDO is in force is reasonably necessary to prevent the unacceptable risk.

The legislation has not been drafted so as to limit a reviewing court to a consideration of matters that have arisen since the CDO was made, or the matter was last reviewed. Rather, it has been drafted in a way that enables the parties to seek to revisit all the intermediate evidentiary findings of previous judges.

The parties agree that I am not bound by the intermediate findings of fact that led to Tinney J’s ultimate conclusions. Accordingly, the correct approach is not to start by accepting all the intermediate findings and asking “What has changed about those facts since December 2020?” Rather, the court’s task on this review is to undertake the necessary risk assessment at the later point in time, unfettered by Tinney J’s intermediate fact findings.

In fact, no issue was taken with many of Tinney J’s intermediate findings. However, Mr Benbrika urges me to come to very different conclusions regarding the following critical issues: whether, and to what extent, Mr Benbrika has changed his ideology since the time of his offending; and what weight should be given to the Minister’s expert evidence about risk assessment.

The evidence tendered on the review consisted of more than 30 of the reports or affidavits that were tendered before Tinney J, together with more than 20 new affidavits or reports dealing with matters that have arisen since the CDO was imposed. The parties’ written submissions for the review exceeded 350 pages.[38]
[38]The judge who hears the next review may have to consider even more material than this. The legislation imposes an enormous resource burden on the parties, as well as the courts, for every annual review.

GENERAL MATTERS RELATING TO UNACCEPTABLE RISK
The meaning of unacceptable risk

The concept of “unacceptable risk” is relevant to a number of provisions in the Code. However, it is not defined in the Code.

In Nigro v Secretary to the Department of Justice (“Nigro”),[39] the Court of Appeal described the concept of unacceptable risk as a flexible one, which is calibrated to the nature and degree of the risk, so it can be adapted to the particular case.[40]
[39][2013] VSCA 213; (2013) 41 VR 359. The legislation under consideration in Nigro was the Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic).
[40]Nigro, [165].

Whether a risk is unacceptable requires consideration of both the degree of likelihood of the risk eventuating, and the seriousness of the consequences if it does.[41] The risk of offending must carry a threat of harm to members of the community that is sufficiently serious as to make the risk of the commission of the offence unacceptable to the court.[42]
[41]Nigro, [6], [167].
[42]Minister for Home Affairs v Benbrika [2021] HCA 4; (2021) 95 ALJR 166 at [47] (Kiefel CJ, Bell, Keane and Steward JJ).

The Court of Appeal in Nigro stated:

It is the gravity of the consequences of the offence which the offender is at risk of committing which will ordinarily be the critical factor in the assessment of whether that risk is ‘unacceptable’. That gravity will depend upon the offender’s likely conduct, which in turn depends upon an evaluation of the particular circumstances which pertain to that offender and not upon generalisations about the general character of the offence or sentences which are attracted by the relevant offence.[43]

[43]Nigro, [130].

In NSW v Naaman(No 2) (“Naaman”),[44] the NSW Court of Appeal said of relevantly similar legislation that, even if there is a slim probability of the offender committing a terrorist act, the risk may be unacceptable having regard to the consequences of such an act.[45]
[44][2018] NSWCA 328.
[45]Naaman, [29].

In the CDO reasons,[46] Tinney J discussed a number of first instance cases in Victoria and NSW which applied the principles in Nigro and Naaman. However, the principles are not disputed, so there is no need for me to consider those cases further.
[46]CDO reasons, [404]-[407].

In deciding whether Mr Benbrika poses an unacceptable risk, the court must have regard to the matters listed in s 105A.6B of the Code (“the specified matters”). Each of the specified matters will be considered in detail shortly.

The case against Mr Benbrika is primarily a circumstantial one. In considering the specified matters, the court is required to examine and consider the effect of all of the evidence as a whole, rather than take a piecemeal approach. It does not matter whether or not one piece of circumstantial evidence is sufficient to establish to the requisite standard that Mr Benbrika poses an unacceptable risk; it is the effect of the whole of the evidence that is important.[47]
[47]CoA reasons, [99]-[100].

The nature of the asserted risk

The Minister does not suggest that Mr Benbrika would, if released into the community, commit a so-called “lone wolf” terrorist attack. Rather, the Minister argues that the general nature of the risk posed by Mr Benbrika is that he would, if released into the community, again radicalise others, or guide or encourage people who are already radicalised to engage in terrorist acts.

The Minister argues that the risk would be of committing one or more of the following serious Part 5.3 offences: providing training connected with terrorist acts (s 101.2); directing the activities of a terrorist organisation (s 102.2); membership of a terrorist organisation (s 102.3); recruiting for a terrorist organisation (s 102.4); or providing or participating in training involving a terrorist organisation (s 102.5). In making the CDO, Tinney J was satisfied that, if released into the community, Mr Benbrika posed an unacceptable risk of committing one or more of those offences. The Court of Appeal found no error in that finding.

On the review, the Minister seeks to add the following to the list of possible serious Part 5.3 offences that Mr Benbrika was at risk of committing, including by attempt, incitement and conspiracy: engaging in a terrorist act (s 101.1); possessing things connected with terrorist acts (s 101.4); collecting or making documents likely to facilitate terrorist acts (s 101.5); doing an act in preparation for, or planning, a terrorist act (s 101.6); getting funds to, from, or for a terrorist organisation (s 102.6); providing support to a terrorist organisation (s 102.7); and financing terrorism or a terrorist (ss103.1 and 103.2).[48]
[48]Excluding those offences for which the sentence for incitement is less than 7 years’ imprisonment, namely incitement to commit an offence against ss 101.4(2), 101.5(2) and 102.3(1).

Mr Benbrika complains, with some justification, that the Minister is now seeking to rely on every conceivable serious Part 5.3 offence in the Code. Adding the additional offences seems to complicate things unnecessarily, given that they are less directly related to Mr Benbrika’s previous offending and alleged risk. Given that the Minister’s own expert, Dr Dewson, conceded in her reports that Mr Benbrika’s relevant risk level had dropped from “high” to “moderate-high” since the CDO was made, it is difficult to understand why the Minister seeks to expand so significantly the range of offences which it is said that Mr Benbrika is at risk of committing.

As the Court of Appeal made clear in the appeal against the CDO, whichever serious Part 5.3 offences are being considered, it is sufficient for the court to consider and identify the risk that Mr Benbrika poses, without linking the risk to a specific offence, as long as the risk identified is a risk of committing one or more of those offences. It is not necessary to identify with precision the specific offences that Mr Benbrika might commit; nor is it necessary to say with respect to each such offence, considered in isolation, that there is an unacceptable risk of him committing that offence. Such an analysis would be unrealistic.[49]
[49]CoA reasons, [73]-[74], [79].

THE SPECIFIED MATTERS

Some of the specified matters to which the court must have regard in assessing whether there is an unacceptable risk are not disputed, others are highly contested.[50]
[50]Two of the specified matters were not raised by the parties in this review. First, as mentioned earlier, no report relating to the extent to which Mr Benbrika can reasonably and practicably be managed in the community was filed under s 105A.6B(d). Secondly, s 105A.6B(ha) does not apply, as Mr Benbrika is not the subject of any other order that is equivalent to a post-sentence order.

The object of Division 105A (s 105A.6B(1)(a))

The only stated object of the Division is 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 a CDO or ESO (s 105A.1).

Mr Benbrika argues that the word “community” refers only to the Australian community, as that is the community into which he would be released if an ESO was made in place of the CDO.

There is no doubt that the Australian community is included within the concept of “the community”. However, I agree with the Minister that there is no basis for imposing such a geographical limitation on the concept of “the community”. Part 5.3 of the Code is plainly intended to operate both inside and outside Australia, and the terrorism offences in that Part can involve conduct or results which occur, partly or wholly, outside Australia.[51] No doubt that reflects the nature of modern terrorism, which often has an international dimension.
[51]Section 15.4, which applies to all Part 5.3 offences, extends geographical jurisdiction to anywhere outside Australia. Section 100.4(1) provides that Part 5.3 applies to all terrorist acts and preliminary acts no matter where they occur, and no matter where the terrorist acts to which they relate occur or would occur.

If, for example, Mr Benbrika was relevantly involved in the commission of an overseas terrorist act, whilst he was in Australia, that could constitute the commission of a serious Part 5.3 offence.

Mr Benbrika’s prior terrorist offending (s 105A.6B(1)(g))

The court must have regard to Mr Benbrika’s convictions for, and findings of guilt made in relation to, any serious Part 5.3 offences.

Mr Benbrika was originally convicted in September 2008 of three serious Part 5.3 offences, which occurred in 2004 and 2005.

In October 2010, the Court of Appeal allowed Mr Benbrika’s appeal against one of the three convictions, namely for being in possession of a thing connected with a terrorist act knowing of that connection.[52] Although a re-trial on that charge was ordered, it never occurred. That means there is no relevant conviction on the possession charge for the purpose of this specified matter.
[52]Benbrika v The Queen [2010] VSCA 281; (2010) 29 VR 593. On 10 June 2011, the High Court refused special leave to appeal against conviction and sentence: Benbrika v The Queen [2011] HCA Trans 160.

Mr Benbrika’s convictions for intentionally being a member of, and intentionally directing the activities of, a terrorist organisation, are the only relevant convictions for the purpose of this subsection.

The details of Mr Benbrika’s offending were summarised at length by Tinney J in the CDO reasons;[53] no objection was taken before me to the accuracy of that summary, to which I have had regard.
[53]Especially at [17]-[33].

The Court of Appeal summarised the offending even more succinctly in the following terms:

The Crown case against [Mr Benbrika] at his criminal trial was that he was a member of a Melbourne-based terrorist organisation that was fostering or preparing the doing of a terrorist act in Australia or overseas, with the intention of causing death or serious physical harm in order to advance a political, religious or ideological cause. The proposed terrorist act was alleged to be the intentional detonation of one or more explosive or incendiary devices, or the use of weapons. The cause to be advanced by terrorist action was said to be the belief – taught by [Mr Benbrika] and accepted by members of the organisation – that they were under a religious obligation to pursue violent jihad against the kuffar (non-believers).

…

[Mr Benbrika] taught at various mosques and Islamic organisations for a period until his attitudes to Islam and its practice brought him into conflict with other Muslims to such an extent that he was either excluded from or voluntarily desisted from those activities. [Tinney J] described [Mr Benbrika] giving classes to young men and then, outside classes, associating and forming a group with those who were to become his co-accused. The group (referred to as a ‘jemaah’), of which [Mr Benbrika] was the leader, existed under [Mr Benbrika’s] direction for the purpose of engaging in violent jihad – something which [Mr Benbrika] and the members of the jemaah regarded as an integral part of their religious obligations.

Financial contributions were made by members of the group to finance the activities of the jemaah, including those activities which made it a terrorist organisation. Funds were used for various purposes of the jemaah, although there was no evidence that any purchases of weapons or the like were made.

Hard and electronic copies of various extremist jihadi literature and media were viewed and circulated amongst members of the jemaah. This material included combat manuals, publications which contained recipes for making explosives, and diagrams showing how to make a timer for a bomb. Much of the material originated from extremist Islamic websites, upon which could also be viewed graphic footage showing the beheading of hostages.[54]

[54]CoA reasons, [16], [20]-[22].

The views of the sentencing court (s 105A.6B(1)(h))

The court must have regard to the views of the sentencing court at the time of imposing sentence.

It is clear from the sentencing remarks that Bongiorno J regarded Mr Benbrika’s offending as very serious. The following is a summary of some of the key findings made by Bongiorno J.

The most serious part of Mr Benbrika’s criminality was in his directing a terrorist organisation which, by its existence, its nature and its activities, fostered and encouraged its members to engage in violent jihad by performing a terrorist act.

Mr Benbrika was in his mid-40s at the time of the offending. He exercised enormous influence over the many young men who followed him, and he imbued or sought to imbue in them a fanatical hatred of both non-Muslims and the vast majority of Muslims who abhor violence. The offending occurred over an 18 month period.

The jemaah had taken steps (including training) towards performing a terrorist act or acts in the future, although no target had been selected and no material obtained to carry out an attack, at the time of their arrest.

His criminality in respect of both offences must be judged in light of the fact that the existence of the organisation, and his leadership of it, created a significant risk that a terrorist act would be committed in Australia.

Mr Benbrika’s ideology at the time of offending included the following:

(a) He referred to Australia as a “land of war”, thus justifying the promotion of a violent Islamic response as being self-defence;

(b) He regarded the destruction of the “kuffar” [Arabic for unbelievers] as an essential aspect of the Islamic religion. He justified fraud and violence against the kuffar because, according to him, both “the money and the blood of the kuffar are lawful”;

(c) He had a zealous or fanatical belief in an ideology which sought to promote itself by the use of violence, and imparted it to his younger associates;

(d) He was aware, at the time of offending, that ASIO was very interested in him and probably also in those around him. He expressed antipathy to ASIO and proudly asserted he would never co-operate with ASIO;

(e) He used the term “jihad” in many of the 482 intercepted conversations that were before the jury. The meaning that he attributed to “jihad” was a violent struggle against the enemies of Islam, the kuffar. He claimed that this was the only meaning of jihad authorised by the Koran;

(f) He not only asserted that the only meaning of jihad was fighting the kuffar, but also that it equated to what the kuffar called terrorism;

(g) He explained the concept of jihad in the Islamic cause as involving violence towards those, including governments, who were considered to be resisting the expansion of Islam and the adoption of Sharia law (which he referred to as “Allah’s law”) in Australia. He said he didn’t believe in Australia or Australian law; and

(h) He expressed admiration for the terrorist leader, Osama bin Laden, and criticised a Melbourne imam who expressed an uncomplimentary view about bin Laden.[55]

[55]This summary of Mr Benbrika’s ideology at that time is taken from the statement of agreed facts (Ex 3), the relevant parts of which summarise the sentencing remarks.

Bongiorno J found that, at the time of sentencing, there was no evidence that Mr Benbrika had in any way renounced his commitment to violent jihad; on the contrary, the evidence all “points inexorably to a conclusion that he maintains his position with respect to violent jihad which was demonstrated over and over in his own words in the intercepted conversations.”[56]
[56]Sentencing remarks, [77].

Mr Benbrika points out that the sentencing remarks are now 12 years old, and relate to offending that took place some 17 years ago. He is now 62 years old. But the mere passage of time is a neutral factor: a person’s beliefs may become stronger or weaker, or remain unchanged, over time. Furthermore, Mr Benbrika himself does not suggest that he started changing his ideological beliefs before 2014.

For the purpose of the review, I must focus on Mr Benbrika’s current ideology. But the legislation specifically requires the court to have regard to past offending, and the remarks of the sentencing judge, as part of the overall risk assessment. How much weight should be given to such historical matters will no doubt vary from case to case.

Participation in treatment or rehabilitation programs (s 105A.6B(1)(e))

The court must have regard to any treatment or rehabilitation programs in which Mr Benbrika has had an opportunity to participate, and the “level of his participation” in any such programs.

Both parties proceeded on the basis that the “level of participation” in programs included not only the nature and extent of Mr Benbrika’s participation, but also the outcome or result of his participation. That is to say, in considering this specified matter, the court should consider the extent to which participation in treatment and rehabilitation programs has resulted in Mr Benbrika’s deradicalisation, or otherwise reduced his risk of re-offending.[57]
[57]If the outcome or result of his participation did not fall within a strict construction of s 105A.6B(1)(e), it could be considered under “any other relevant information” in s 105A.6B(1)(i). I have dealt with this matter here, as that is how the parties dealt with it.

The nature and extent of participation

The Community Integration Support Program (“CISP”) was launched in 2010, and is Australia’s first prison-based terrorist disengagement program. It was specifically designed to address Islamic extremism.

Within a correctional environment, CISP is delivered by the Countering Violent Extremism Unit (“CVEU”) of Victoria Police, in partnership with Corrections Victoria (“Corrections”) and religious leaders. Between 2010 and 2017, the religious partner was the Islamic Council of Victoria. Since October 2017, the partner has been the Board of Imams Victoria.

Participation in CISP is voluntary, but terrorist offenders will not be considered for parole unless they have participated in CISP. Offenders can only participate if they have been assessed by the CVEU as being suitable for inclusion in the program.

Participants have regular individual mentoring sessions with one or more imams, who are also referred to as “mentors” within the CISP program. Some sessions are also attended by a member of the offender’s treating team at Corrections. CISP aims to provide offenders with an opportunity to expand their religious knowledge and explore their faith in a safe and controlled environment.

Mr Benbrika was first referred to CISP in February 2012. Over the next 18 months, he participated in 16 counselling sessions with three CISP imams. Mr Benbrika was not aware that the sessions were part of a deradicalisation program, until he came across a newspaper article about his involvement in the program. In mid-2013, Mr Benbrika stopped participating in CISP sessions, claiming he had been engaged dishonestly.

In July 2015, Mr Benbrika’s lawyers informed Corrections that Mr Benbrika was suffering from clinical depression, and was open to engaging in any “rehabilitation and/or education program”.

Between July 2015 and February 2016, Mr Benbrika participated in counselling sessions with Nicole Sakellaridis, a senior clinician in the major offenders’ unit at Corrections. The initial purpose of the sessions was to address his personal and treatment needs.

In August 2015, Mr Benbrika told Ms Sakellaridis that he was open to re-engaging in CISP, as long as others were “truthful” regarding their intentions. He was referred to CISP, but attempts to find a suitable imam were unsuccessful, due to Mr Benbrika’s notoriety and his previous engagement with CISP imams.

In February 2016, Mr Benbrika began counselling sessions with Dr Kelly Mischel, a senior psychologist in the major offenders’ unit at Corrections. In his first counselling session with her, he said he wanted to participate in CISP. When asked what he thought he would get out of it, he answered “deradicalisation”. In February 2016, Mr Benbrika met with a CISP imam and “presented enthusiastically about his potential re-engagement in the program”.

In March 2016, Mr Benbrika was assessed as unsuitable for the CISP program. The assessment outcome stated that, before a re-referral would be considered, Mr Benbrika would need to continue to engage with Corrections’ clinical services “in an attempt to improve his engagement style and increase his preparedness to submit to a mutually respectful religious mentoring regime”.

On 12 April 2016, Dr Mischel recorded in a case note that they discussed Mr Benbrika’s motivation for engaging in clinical sessions. Mr Benbrika said that if he refused to attend, he believed that Corrections would make a big issue out of it. He also said that he believed that attending the sessions would be beneficial for him in his parole application.

On 1 June 2016, Dr Mischel recorded that Mr Benbrika remained sceptical regarding the genuine nature of the counselling sessions, and continued to present as high on treatment rejection.

As treatment with Dr Mischel continued, Mr Benbrika’s engagement style improved, and in August 2017, Dr Mischel described Mr Benbrika as being engaged and open.

Mr Benbrika was re-referred to CISP after his parole was refused in November 2017. In May 2018, Mr Benbrika engaged in two initial CISP sessions. Since then, he has participated in CISP on a regular basis, usually weekly.

Mr Benbrika’s last session with Dr Mischel took place on 28 September 2020, in the context of her having provided reports for the Minister in the CDO proceeding. Mr Benbrika indicated that he would like to continue seeing a counsellor after his court matter was finalised, and Dr Mischel noted that she would refer him to another clinician.

Mr Benbrika has continued participating in regular clinical sessions since the CDO was made, engaging in more than 26 sessions with a new Corrections psychologist. Mr Benbrika has made some progress in these sessions, including acknowledging that improving his coping capacity could be beneficial. Mr Benbrika has also made comments about how helpful the sessions have been for him.

Mr Benbrika argues that, although his initial motivation to participate in psychological treatment was to assist with his parole application, over time, and particularly in 2021, he has become increasingly able to recognise the benefits of engagement with psychological counselling.

The CISP notes include comments about Mr Benbrika’s participation in CISP sessions. Overall, Mr Benbrika’s engagement has fluctuated over time. Sometimes, he seems to be making progress and engaging well, with his behaviour described as respectful, civil, and improved. Other times, his engagement with the imams is described as unpredictable, difficult or confrontational. It seems to have very much been a case of some steps forward, and some steps backwards or sidewards, in terms of his level of engagement with, and his attitude towards, CISP.

In 2019, Mr Benbrika’s progress in CISP was reviewed and the review panel commented that Mr Benbrika “has been [historically] very open with his comments but is no longer happy to speak freely” and “believes that there is no reason for him to answer questions because of the reports that have been released to new agencies”. In his 2020 review, it was noted that Mr Benbrika “has improved with his participation, however there are declines that occur from month-to-month”.

Dr Mischel occasionally participated in the CISP sessions with Mr Benbrika as his treating clinician. Her notes indicate similar fluctuations in Mr Benbrika’s engagement with CISP. Her report in August 2020 identified that Mr Benbrika’s interactions with the imams appeared to have significantly improved, and that this “demonstrates a willingness for him to comply and change his behaviour”.

Overall, Mr Benbrika has now voluntarily attended CISP sessions for more than three years. His engagement with the imams has been mixed, but has improved overall.

Mr Benbrika says that he intends to continue to participate in psychological treatment and a deradicalisation program, if released on an ESO, and would consent to their inclusion as conditions of any ESO.

Change in ideology – introduction

As mentioned earlier, at the time of his offending, Mr Benbrika had a zealous or fanatical belief in an extremist ideology, which sought to promote itself by the use of violence, and he imparted that ideology to his younger associates. He had not, at the time of sentencing, renounced his commitment to violent jihad and hence to terrorism. Nor does Mr Benbrika suggest that his ideology began to change in the first five years after he was sentenced.

Both parties agreed for the purposes of the CDO application and this review that the question of whether Mr Benbrika’s ideology has truly changed is at the heart of the risk posed by him.

In making the CDO, Tinney J was satisfied that Mr Benbrika’s ideology had not changed. His Honour found that, at least until 2014, Mr Benbrika had taken no significant steps towards deradicalisation,[58] and his claim to have changed his ideology after that point was a fabrication by him.[59] His Honour reached that conclusion based on the factual findings referred to in [424]-[429] of the CDO reasons. The Court of Appeal found that those conclusions were open on the evidence before Tinney J.[60]
[58]CDO reasons, [422].
[59]CDO reasons, [432].
[60]CoA reasons, [101]-[102].

The Minister invites me to come to the following conclusions in relation to current ideology. Even though Mr Benbrika has made some positive progress in recent years in reviewing and modifying some of his beliefs, he has not renounced his core belief in ideologically-motivated violence. There is no convincing evidence of any significant, internalised, lasting change in ideology since the time of sentencing. Such progress as he has made has come about through Mr Benbrika’s participation in CISP and counselling, rather than as a result of him learning of the Aziz covenant (a matter which I will discuss shortly). Mr Benbrika’s ideology may be in the process of changing, but it has not changed sufficiently to reduce his risk to an acceptable level.

Mr Benbrika invites me to come to very different conclusions as to his current ideology. This is not because he says he has changed his ideology since the CDO was made; rather, Mr Benbrika invites me to come to very different conclusions on essentially the same evidence and arguments as were before Tinney J and the Court of Appeal. This involved the parties and the court engaging in a lengthy and detailed reconsideration of a substantial amount of evidence that has been considered by four other judges in the past sixteen months.

Mr Benbrika says that the evidence shows that he has for some years been on a trajectory of positive change, moving away from the violent extremist views he held at the time of his offending and sentencing. That positive change is said to have come about because he has embraced a theologically-based reinterpretation of his religion, which includes a positive obligation to Australia in the nature of a covenant. He says that around 2014 he read something called the Aziz covenant, which provided a catalyst for him to commence a deeper examination of his theological and ideological views.

Mr Benbrika does not suggest that reading the Aziz covenant resulted in an immediate epiphany; rather, he says it was the start of a positive trajectory of change on many fronts. In particular, through participation in the CISP program, and psychological treatment, he says he has demonstrated increasing flexibility in his thinking and, over time, undergone a process of reinterpretation of his ideological and theological views.

Mr Benbrika says he has a firm and resilient theological understanding that he is positively bound by a covenant to abide by Australian law, which prohibits him from causing harm to the Australian community. This is in stark contrast to the views still held at the time of sentencing, namely, that despite living in Australia he was bound by Sharia law, and that he was positively obliged to engage in violent jihad against the Australian people.

Sources of evidence in relation to Mr Benbrika’s ideology

Annexure B to the Minister’s opening submissions summarises the evidence which the Minister says is relevant to the issue of ideology. Mr Benbrika added to Annexure B some additional evidence, which he says is also relevant to his ideology.[61]
[61]Any further references in these reasons to Annexure B are a reference to the combined document containing both parties’ references.

Mr Benbrika criticises the Minister’s selection of materials for Annexure B, describing it as unfair, selective and tendentious. The Minister undoubtedly left out some evidence that is favourable to Mr Benbrika, which the Minister does not regard as true or correct.

However, the Minister is not in a position analogous to the prosecutor in a criminal proceeding, and subject to some overarching prosecutorial duty of disclosure or fairness. The Minister does have a specific obligation under s 105A.12(6A) to present to the court what might broadly be described as exculpatory material of which she is aware; she has done that by giving formal notice of various matters under that provision. But she is otherwise the plaintiff in an adversarial proceeding, to which the rules of civil evidence and procedure apply.[62] She is entitled to put forward and emphasise the evidence upon which she relies.
[62]Code s 105A.13.

That said, the Minister’s submissions would have been more accurate had they described Annexure B as the “evidence relating to ideology upon which the Minister relies”, rather than as “the evidence of the defendant’s ideology” or “the evidence relevant to this point”.[63]
[63]Which was how the Minister described Annexure B in her opening submissions at [36].

Some of the documents referred to in Annexure B are letters written by Mr Benbrika himself. However, most of the documents record things that Mr Benbrika has said to other people, including CISP imams, counsellors, Corrections staff, and parole authorities; in some cases, the author of the document has also recorded their own assessment of what Mr Benbrika said to them.

Both parties rely heavily on notes of Mr Benbrika’s CISP sessions. Therefore, it is necessary to understand how the notes are prepared, and their possible limitations.

The CISP notes relating to Mr Benbrika were put before the court through the affidavits of Inspector Michael Cruse from the CVEU. None of the CISP imams were witnesses in the initial CDO hearing, or in this review, and the original notes of the sessions have not been requested or produced.

Notes from CISP sessions are prepared in the following way. At the end of a session, the CISP imams provide their notes to another imam, sometimes as a single set of conjoined notes, sometimes as multiple sets. The latter imam, who does not always attend the sessions himself, puts those notes into a template and exercises at least some editorial control, before giving them to Victoria Police.

The CISP notes do not contain a verbatim transcript of anything said in the sessions. Given the way in which they have been prepared, the parties agree that the notes should not be construed by focussing too narrowly on individual words or phrases. Rather, both sides encourage me to look for high level themes or trends.

Mr Benbrika did not give evidence at the CDO hearing or before me, so there has been no testing in court of any of the many things that he has said to other people over the years.

The Minister does not ask me to draw any adverse inference against Mr Benbrika from the fact that he did not give evidence. Although there is no direct authority on the question of whether the rules in Jones v Dunkel[64] apply to proceedings of this nature, the NSW Court of Appeal has held that the rules do not apply in the context of a similar application for a continuing detention order under the Crimes (High Risk Offenders) Act 2006 (NSW).[65] However, the Minister has foreshadowed that, if my decision is appealed, she will seek to argue that the NSW authority is wrong, and that adverse inferences can and should be drawn from Mr Benbrika’s failure to give evidence.
[64](1959) 101 CLR 568.
[65]NSW v Donovan [2015] NSWCA 280, [115]-[119].

Nevertheless, it remains the fact that, because Mr Benbrika did not give evidence, the court does not have the benefit of a direct explanation from Mr Benbrika on his oath, which can be tested by the Minister and observed by the court, in relation to important matters such as his ideology.[66] That fact cannot be held against Mr Benbrika. It is nevertheless a limitation on the available evidence, in so far as there are gaps or ambiguities in the evidence. It also presents some practical problems in assessing Mr Benbrika’s credibility.
[66]Hardy v State of New South Wales [2021] NSWCA 338.

There is ample evidence that, around the time of his offending, Mr Benbrika was prepared to lie or mislead, and to encourage others to do so, in order to advance his cause. For example, he told his associates that it was okay to lie to ASIO. He advocated the use of double entendres, of saying one thing but intending that his words would be perceived differently by the listener. He told his associates that he had been evasive, or used innuendos, in a television interview.

Just because Mr Benbrika was prepared to be dishonest around the time of his offending does not prove that he was being dishonest about things he said at later times. Nor does it mean that he is prepared to be dishonest about everything, or in all circumstances. But it is nevertheless a relevant consideration in assessing the credibility of some of the things he has said to people in more recent times.

Similarly, in assessing some of Mr Benbrika’s actions and words, it is necessary to consider the extent to which he engages in a degree of impression management. Unsurprisingly, over time Mr Benbrika has become well aware that statements he makes to people in authority may be monitored or recorded, and used to make various decisions about him (including decisions about prison placements and parole, and in the CDO and review proceedings).

There are numerous references by CISP imams, and clinicians who have treated or assessed Mr Benbrika, to the ways in which he tries to manage the impression he creates. Sometimes, he refuses to discuss a matter altogether, if he thinks that doing so might harm him. Other times, he is cautious about what he says, fearing that if he gives an honest answer he might face adverse consequences.

These issues of dishonesty and impression management will be considered further, later in these reasons.

The Aziz covenant
Contemporaneous evidence

There is no dispute that the Minister bears the onus of establishing that Mr Benbrika poses an unacceptable risk. Mr Benbrika does not have to prove that his beliefs have changed from the extremist views he held at the time of sentencing. However, in so far as he puts forward an explanation for why he says his beliefs have changed, based on his discovering the Aziz covenant, it is convenient to consider those matters first.

Abdul Qadir Ibn Abdul Aziz is the nom de plume for Sayyid Imam Sharif, who is also known as Dr Fadl. He was the founder of an Egyptian Islamic jihad group, which was active in the 1980s and 1990s.

Dr Aziz later changed from being a radical extremist to someone who renounced violence. I accept that Dr Aziz’s own fundamental change of position may make him a credible figure to a terrorist offender who was open to being deradicalised.

In 1988, Dr Aziz published his first major work, the English title to which is “The Essential Guide to Preparing for Jihad in Allah’s Way” (“the Aziz jihad guide”). This was an extremist work, which provided a theological justification for committing jihad against the enemies of Islam, being the disbelievers.

Dr Aziz subsequently published his second major work, the English title to which is variously translated as “The Comprehensive of Honourable Knowledge Volume II” or “The Compendium on Pursuing Glorious Knowledge” (“the Compendium”). There were two editions of the Compendium, which was also classified by scholars as a core jihadist text, and was apparently widely used by jihadists for about a decade. Dr Aziz said that the first edition was altered by Egyptian extremists, without his permission, which led him to later publish a second, more moderate, edition.

The Compendium contained a theological ruling regarding a so-called covenant or treaty, which imposes an obligation on Muslims who are citizens, or on visas, in another country, to protect the people of that country from harm (“the Aziz covenant”). The Aziz covenant is consistent with views held by many in mainstream Islam; it is not a radical or novel concept.

Dr Aziz articulated, through the Salafi approach to legal reasoning, the evidence for his position within the authoritative texts. The Compendium is regarded by academics as sound and reliable scholarship, from someone who is an important and influential figure in Islamic theology.

The evidence is unclear as to precisely when either edition of the Compendium was first published. However, there is no dispute that both editions were in existence well before Mr Benbrika’s offending.

Mr Benbrika admitted to Dr Mischel in a 2019 counselling session that he had the text containing the Aziz covenant in his possession before he was arrested. However, he told her he only read and understood it many years after he was imprisoned, saying that he was “shocked" when he read it.

There is some contemporaneous evidence that suggests that Mr Benbrika was aware of the contents of the Aziz covenant at the time of his offending.

On 22 December 2004, Mr Benbrika spoke with his co-offenders, Aimen Joud and Fadal Sayadi, and others. They discussed various texts that the group had on a compact disc. Mr Joud said “We’ve got the, the book by ah, Sheikh Abdul Aziz Abdul Qader, his book just about the basics of jihad.” Mr Benbrika replied “Which, oh yeah.” This part of the recorded conversation may well be a reference to the Aziz jihad guide.

However, later in the same conversation, Mr Joud referred to a “treaty”. Mr Benbrika replied “Who”? Mr Joud responded “Sheikh Nasser Al-Fahed”. Then Mr Sayadi said something inaudible, before saying “their country, no visa.” Mr Joud said “You know how he said when you accept the visa, you’re accepting the treaty, that, so, once, once you read that point Sheikh half way through, that means like ah if, if you did that then the whole fatwa [Islamic religious decree] is, it’s”, and Mr Benbrika finished the sentence by saying “gone”. It is not clear from the inaudible parts of the conversation who is said to have been the author of the treaty which was under discussion. But the fundamental concept underlying the treaty that Mr Benbrika was discussing seems to be relevantly similar to the Aziz covenant.

On 19 March 2005, Mr Benbrika spoke with one of his associates, Adel Backdache. During that conversation, a treaty was discussed many times. While the recording of the conversation is not always clear, Mr Backdache said that some people “They say that don’t you get a passport when you come in to this country, or citizen? That’s your treaty.” They then went on to discuss ways in which the treaty could be broken. Once again, without specifically mentioning the Aziz covenant, that seems to be consistent with the core principle of the Aziz covenant.

On 29 December 2004, Mr Benbrika told his associates that somebody (who was in fact an undercover operative) had asked him “What do you think about this, we did something here?” Mr Benbrika had replied “You know I don't agree because we've got a treaty…. You can't do this, it's haram [Arabic for forbidden].”

I accept that those three discussions about a treaty are rather imprecise, and do not demonstrate a deep understanding of the Aziz covenant, or a theological belief based on Koranic verse or scholarship. But they are fundamentally consistent with the basic concepts underlying the Aziz covenant, which are themselves part of mainstream Islamic theology. They are inconsistent with Mr Benbrika’s suggestion that it was not until 2014 that he first learned of the theological obligation of a Muslim living in a non-Muslim country not to harm its citizens. Mr Benbrika’s later statement to Dr Mischel that he was shocked when he read the Aziz covenant also seems totally implausible, given those discussions.

Although he has often described himself as a cleric, a sheikh or an imam, Mr Benbrika is largely self-taught in relation to religious matters, and has had no formal theological training. Mr Benbrika has frequently boasted about his theological knowledge, claiming it to be superior to others. The CISP imams have noted on various occasions his lack of knowledge or understanding of Islamic principles. It is clear that Mr Benbrika has a higher opinion of his theological knowledge and expertise than the imams do; that has undoubtedly presented some problems over the years in terms of his engagement with CISP.

Mr Benbrika argues that his lack of formal theological training makes it entirely plausible that he was not aware of the Aziz covenant before 2014. Conversely, the Minister argues that Mr Benbrika is so confident about his theological knowledge that it is inconceivable that he did not know of the Aziz covenant before 2014. I do not find either of those arguments particularly persuasive in themselves.

As to Mr Benbrika’s argument, the Aziz covenant reflects a relatively mainstream Islamic concept, and was published by a well-known and influential Islamic scholar; there is no evidence to suggest that one needs to have formal theological training to be aware of the existence or contents of the covenant. Furthermore, Mr Benbrika admitted to Dr Mischel that he had the Aziz covenant in his possession at the time of offending (albeit that he claimed not to have read it then).

As to the Minister’s argument, Mr Benbrika’s self-confidence about how much he knows does not necessarily equate to actual knowledge.

It is possible that Mr Benbrika did not actually read the Aziz covenant itself until 2014; but that does not mean he was not aware of it, or of its fundamental concept. The contemporaneous evidence clearly suggests that, around the time of the offending, he was well aware of the existence of a theological covenant or treaty that obliged Muslims living in a non-Muslim country not to harm the people of that country. He clearly believed at the time of offending that he was justified in breaking the treaty or covenant, but he was not unaware of its contents.

Motivation to participate in counselling and rehabilitation

As mentioned earlier, Mr Benbrika was first referred to CISP in February 2012. In mid-2013, he stopped participating in CISP sessions, after discovering that CISP was part of a deradicalisation program.

The chronology of his requests to re-engage with any rehabilitation or deradicalisation program has already been outlined, beginning with the request made by his lawyers in July 2015. Mr Benbrika made numerous requests over the following months to re-join CISP, and expressed frustration at the delays in re-joining.

I accept that, after his initial reluctance to engage in a deradicalisation program such as CISP, by mid-2015, Mr Benbrika was keen to participate in the program. But there is a dispute between the parties as to his motivation for wanting to participate.

Mr Benbrika argues that his primary motivation for wanting to re-engage with CISP was to assist him in the process of reinterpreting his ideological and theological views, in light of the Aziz covenant that he had discovered in 2014.

The Minister argues that Mr Benbrika’s efforts to re-engage with CISP were motivated by a desire to be moved to a less restrictive prison environment, and to be granted parole.

Mr Benbrika has had a maximum security classification throughout his sentence. In September 2014, he was transferred from the Hoya protection unit to a high security unit (first Acacia, then Olearia). He was told that he had been moved because his extremist preaching and political views had escalated to a point where they were considered to be disruptive and problematic in terms of the management of the Hoya unit. In October 2014, Corrections decided that Mr Benbrika would remain in a high security unit as a long-term management prisoner.

Mr Benbrika told Ms Sakellaridis that he was finding his placement in high security harsh, and it was difficult for him to manage the isolation.

It was in this context, following his move to high security, that Mr Benbrika first began expressing a willingness or desire to re-engage in CISP. In their correspondence, his lawyers directly linked his willingness to participate in a deradicalisation program to address Corrections’ concerns about Mr Benbrika’s “expression of his faith”, which had led to his transfer to a high security unit.

Mr Benbrika’s requests to participate in CISP often arose in the context of discussions about his placement in high security. On one of the first occasions when Mr Benbrika discussed his placement with Ms Sakellaridis, he said "you tell me what I need to do then". She told him that, in order to address systemic concerns, he would need to be open to engaging in discussions around his ideological views.

Mr Benbrika was also aware that terrorism offenders needed to participate in CISP in order to be eligible for parole. He discussed participating in a deradicalisation program in various meetings concerning his suitability for parole.

Mr Benbrika concedes that he potentially stood to gain from his participation in CISP and counselling, in relation to his placement within custody, on his applications for parole, and (more recently) in the CDO and review proceedings. That was a sensible concession to make, in light of the very strong evidence, including Mr Benbrika’s own statements to the authorities, about his motivation.

I accept that a person may have mixed motives for acting. The fact that Mr Benbrika was undoubtedly motivated by self-interest to participate in such programs does not in itself exclude the possibility that he might have had an additional motive for wanting to participate in CISP.

However, there is nothing in any of the contemporaneous documents before the end of 2017 that supports Mr Benbrika’s explanation that he wanted to participate in CISP in order to discuss with the CISP imams a religious text that had fundamentally challenged his beliefs. On the contrary, throughout this period, there are frequent references to Mr Benbrika asserting that he was more learned than any of the imams, and that his interpretation of Islam was the true interpretation.

Dr Mischel’s file note of 13 June 2017 is a good example of the evidence that he had not begun to question his ideology at this time. In the course of a discussion about the role that religion played in Mr Benbrika’s life, Dr Mischel asked him when was the last time that someone had offered him a view of his religion that had changed his own. Mr Benbrika unequivocally answered “Never”. Had he truly learned of the Aziz covenant in 2014, this would have been a perfect opportunity for Mr Benbrika to reply that he had discovered something in 2014 that challenged his beliefs, and he had been trying for several years to discuss it with the CISP imams in order to understand it better.

The fact that somebody is motivated to participate by self-interest does not prevent them from making genuine progress through that participation. As I will discuss shortly, there is evidence that Mr Benbrika has started to moderate his ideology, as a result of his participation in CISP and counselling.

However, I am not persuaded that he was motivated in any way to re-engage with CISP because he had discovered the Aziz covenant around 2014, and wanted to discuss it with the CISP imams. On the contrary, I am satisfied that (as was the case with his participation in counselling) he was motivated to re-engage with CISP in order to improve his custodial placement, and then to advance his parole prospects.

Mr Benbrika’s initial disclosure of the Aziz covenant

Despite claiming to have been "shocked" to discover the Aziz covenant in 2014, there is no evidence that Mr Benbrika mentioned his discovery to anyone for three years. In those three years, he had ample opportunity and reason to disclose that he was beginning to question his previous ideology. However, he did not do so until November 2017, after he was refused parole for the first time.

In November 2016, Mr Benbrika was transferred back from high security to the Hoya unit, after signing a behaviour management plan. The purpose of the behaviour management plan was to ensure that Mr Benbrika was not engaging in any activity seen to encourage violent extremism.

Mr Benbrika attended several sentence management meetings after his return to the Hoya unit. His first parole interview took place on 22 June 2017. Mr Benbrika saw Dr Mischel several times in 2017, in the lead up to the first parole decision. On none of those occasions did he mention the Aziz covenant, either by name or by reference to its contents.

The proposed ESO conditions do not require Mr Benbrika to continue with CISP or counselling whilst on an ESO, even though there is specific power for the court to so order.[109] Instead, proposed condition 14 provides “You must undergo assessment as directed by the [Specified Authority] to determine whether you are suitable for psychological treatment or other treatment, rehabilitation or intervention programs.” Mr Benbrika is willing to submit to something more onerous than mere assessment; he says he would consent to it being a condition of an ESO that he continue to attend counselling and any countering violent extremism (“CVE”) program that the AFP may specify.
[109]Code s 105A.7B(3)(n).

A/C Lee agreed that the compellability of participation in a CVE program would have a two-fold benefit. First, it would assist with reintegration and managing a person’s risk. Secondly, it would be an important tool for authorities to understand in an ongoing way the person's ideology and the risk they may pose to the community.

As previously discussed, Dr Dewson agreed that participation in a CVE program would be an important factor in further reducing Mr Benbrika’s risk in the community. However, she also noted that a condition compelling him to attend a CVE program or counselling does not compel him to remain motivated to continue to change.

For the purposes of considering whether an ESO would be a suitable less restrictive measure, I have assumed that the proposed conditions would include specific conditions of the type offered by Mr Benbrika.

The evidence in relation to an ESO
Dr Dewson’s evidence in relation to an ESO

I have already considered Dr Dewson’s evidence in relation to the difference that an ESO might make to Mr Benbrika’s risk assessment. Accordingly, I will only briefly summarise some of the key aspects here.

Dr Dewson said that the conditions imposed under an ESO cannot directly target internal motivations for offending, and cannot target static-like risk factors, such as previous exposure to extremist material or prior training. Until Mr Benbrika demonstrates that he has internalised changes in his behaviour and ideology, she believes that measures such as control orders and ESOs, that rely on external management, will be limited in their effectiveness to prevent the unacceptable risk presented by him.

Dr Dewson noted that even if Mr Benbrika’s claims are genuine, any ideological change he has made, and positive progress he has shown, has been relatively recent and made under highly restrictive conditions. He has not demonstrated that he can consistently sustain that change over time in a less restrictive environment.

Dr Dewson believes it is important that he demonstrate progress in a lower security detention environment; that is, progress through the prison classification system where he could be supervised in less restrictive environments; participate in graduated day release (subject to approval and suitability) in order to gradually expose him to “at risk” situations.

Although Dr Dewson agreed that Mr Benbrika would be at a materially lower risk of committing a serious Part 5.3 offence if he were on an ESO, than if he was in the community without any supervision, she did not regard that as reducing her overall internal risk-assessment of ”moderate-high”, for the reasons discussed earlier.

A/C Lee’s evidence

A/C Lee is the Assistant Commissioner, Counter Terrorism and Special Investigations Command within the AFP. Apart from the Deputy Commissioner Investigations, and the Commissioner of the AFP, A/C Lee is the most senior officer in the AFP with responsibility for counter-terrorism. He has more than 35 years of policing experience, and around 20 years of experience in counter-terrorism investigations.

There is no challenge to A/C Lee’s experience in relation to counter-terrorism matters. Mr Benbrika also accepts that A/C Lee’s evidence was balanced, and directed towards the matters to which the court is required to have regard.

A/C Lee made two affidavits in the original CDO proceeding dated 3 September 2020 (first affidavit) and 27 November 2020 (second affidavit), respectively, which were also tendered in the review proceeding. He made three further affidavits in the review proceeding dated 15 October 2021 (third affidavit), 25 November 2021 (fourth affidavit), and 20 December 2021 (fifth affidavit), respectively. He also gave oral evidence at the hearing of the review.

His third and fourth affidavits provided updates on matters considered in his first and second affidavits, in the context of considering a control order as a possible less restrictive measure. His fifth affidavit was the only one made since the ESO regime was introduced; it addressed the possibility of an ESO and exhibited the proposed ESO conditions. All of his third, fourth and fifth affidavits were based on an acceptance of Dr Dewson’s reduction of Mr Benbrika’s risk rating from “high” to “moderate-high” since the CDO was made.

A/C Lee had some knowledge of the original investigations into Mr Benbrika’s offending activities. He also had regard to the following material when preparing his affidavits: the sentencing remarks; Dr Mischel’s reports of 2 and 31 August 2020; a document titled “Abdul Nacer Benbrika – Associates” and transcripts of 22 phone calls involving Mr Benbrika; the Lister report; and all seven of Dr Dewson’s reports. He had not seen the source materials (such as CISP and counselling notes) that Dr Dewson relied upon for the purposes of her reports.

A/C Lee said that in forming his opinion as to the effectiveness of an ESO in preventing the risk posed by Mr Benbrika, he had assumed that:

(a) Mr Benbrika continues to pose a “moderate-high” risk of violent extremism if released into the community;

(b) There have been no significant changes to Mr Benbrika’s risk profile since Dr Dewson’s fourth report; and

(c) Given the ESO conditions sought in relation to Mr Benbrika are primarily based on external management, his overall risk remains “moderate-high.”

A/C Lee accepted that if Dr Dewson’s risk rating of Mr Benbrika was reduced, then his assessment of Mr Benbrika’s risk may also change, depending on the reason for her reduction.

A/C Lee’s written and oral evidence addressed the resources, capabilities and powers of the AFP to monitor people on a control order or an ESO, through the extensive framework that exists to assist in detecting, assessing and managing the risk of high risk terrorist offenders (“HRTOs”). A/C Lee agreed that the framework is rigorous and effective, and continues to evolve to ensure that it is fit for purpose.

The police infrastructure available to mitigate the risk posed by HRTOs is extremely rigorous. The HRTO teams have specialised counter-terrorism policing knowledge and resources, and there is now more than one HRTO team in Victoria (where Mr Benbrika would be living).

The AFP actively monitor HRTOs who are on control orders, and would do the same for somebody on an ESO. There is no dispute that a number of individuals have been arrested and charged for breaches of control orders, as a result of the AFP successfully monitoring their actions.

The AFP have an extensive range of statutory monitoring powers available to assist in ensuring compliance with an ESO. They include rigorous surveillance, search and seizure powers under the Crimes Act 1914 (Cth), the Surveillance Devices Act 2004 (Cth) and the Telecommunications (Interception and Access) Act 1979 (Cth), which would allow police to monitor a person’s physical movements and activities, verbal conversations and online activities.

A/C Lee did not dispute that, if the court made an ESO in relation to Mr Benbrika, the AFP would work hard to ensure that the conditions of the order were complied with, and that any breaches of those conditions were detected. However, he said that the capabilities of the AFP are subject to limitations.

Mr Benbrika argues that the extensive conditions that are available as part of an ESO would permit intervention well before a person on the ESO could take any significant steps towards the commission of a serious Part 5.3 offence. He says those conditions operate separately and together to minimise, to the greatest extent possible, the risk of harm to the community. He argues that this would permit intervention as soon as, for example, a person searches for or views something on the internet that is prohibited under the ESO, contacts an individual with whom they are not permitted to associate, or is seen (via electronic monitoring) at a location they should not be at. Any such breach of an ESO is punishable by 5 years’ imprisonment.[110]
[110]Code ss 105A.18A and 105A.18B.

Mr Benbrika argues that the proposed ESO conditions in this case, and A/C Lee’s rationale for them, demonstrate the capacity of the AFP to address any unacceptable risk he poses by intervening as soon as possible.

The fact that a breach of an ESO might be punishable as a separate offence is not particularly persuasive. If a terrorist offender was motivated to commit a serious Part 5.3 offence, the possibility of them also being punished for breach of the ESO does not seem likely to have much deterrent effect.

At one stage in his evidence, A/C Lee said that the AFP can use its capabilities to prevent the risk “to a degree, but there is obviously no guarantee”. Mr Benbrika seized upon that phrase, to argue that it shows that A/C Lee misunderstands the legal test. As already discussed, I accept that the law does not require an ESO to eliminate all risk, only to reduce it to a level that the court regards as acceptable. I did not understand A/C Lee to be purporting to describe the legal test, merely to be commenting, as a matter of fact, on what an ESO can and cannot do.

A/C Lee pointed out that one major limitation of a control order or ESO is that it will only be effective if the person subject to it does not breach it, so the person’s willingness to breach the order will be relevant to considering the possible effectiveness of the order.

I agree that how effectively Mr Benbrika can be managed in the community depends in part on his motivation to commit any serious Part 5.3 offences. That is a matter that has already been considered in discussing his ideology and the expert evidence.

A/C Lee identified two particular aspects of the risk posed by Mr Benbrika which he said were significant in limiting the AFP’s ability to reduce that risk, even with an ESO in place. The first relates to the particular nature of Mr Benbrika’s risk. The second relates to the extent of Mr Benbrika’s awareness of police methodology that may be used to detect contraventions of an ESO.

The nature of Mr Benbrika’s risk

A/C Lee’s opinion is that if Mr Benbrika was released from prison, there is a risk he will seek, or be sought by, people who are either radicalised or vulnerable to radicalisation, and his influence on them will result in acts of violent extremism. That is the same risk as was identified by Dr Dewson. It is a risk that arises from Mr Benbrika’s ability to influence, inspire and direct others, in circumstances where any changes to his ideology are still limited and relatively recent.

Because that risk arises from Mr Benbrika’s associations and communications with others, the most relevant condition to address that risk is a prohibition or restriction on his ability to associate and communicate with people who are likely to be susceptible to being influenced, inspired or directed to commit serious Part 5.3 offences. A/C Lee identified several limitations on the ability of an ESO to effectively limit Mr Benbrika’s ability to associate and communicate with such people.

I accept A/C Lee’s evidence in re-examination that the following opinions in his affidavits would not be affected even if Mr Benbrika’s risk of committing a serious Part 5.3 offence was assessed as “moderate”, or even “low-moderate” or “low”:

(a) That it is not possible to identify or list all the prospective individuals who might seek out or be susceptible to the influence of Mr Benbrika, and prohibit Mr Benbrika from associating with those people;

(b) That it would be difficult to control Mr Benbrika’s contact with people, including people of national security concern, at mosques and other places;

(c) That it would be extremely difficult, if not impossible, to effectively frame a non-association condition that would prevent Mr Benbrika from radicalising, inciting, directing, urging or influencing others to commit serious terrorist offences, if he were inclined to do so; and

(d) That it would be difficult to detect many of the possible breaches of such conditions.

If the particular risk presented by Mr Benbrika was a risk that he would himself commit a terrorist act, it would be easier to draw ESO conditions in a way that could address that risk; for example, by restricting his movements, and his ability to access weapons and vehicles. But where, as here, the risk arises from his ability to communicate with people, including people susceptible to influence who are not presently known to the AFP, effectively crafting conditions that can reduce that risk to an acceptable level is considerably more difficult.

Mr Benbrika’s knowledge of police techniques

The second particular matter which A/C Lee identified as significant, in relation to the limitations on the AFP’s ability to limit risk, is the extent of Mr Benbrika’s awareness of methods the AFP may use to detect contraventions of an ESO, as demonstrated by Mr Benbrika’s behaviour in connection with his original offending.

There was no challenge to A/C Lee’s general evidence that where there is a level of operational security or covertness to the conduct, that can impact the AFP’s ability to identify breaches of ESOs or control orders. The dispute is as to whether Mr Benbrika has current knowledge that might be relevant to this matter.

I accept that, in the course of his original offending, Mr Benbrika demonstrated knowledge of various aspects of police methodology, and a willingness and ability to behave covertly and with some degree of sophistication in an effort to avoid surveillance.

The Minister argues that Mr Benbrika’s knowledge of the surveillance capabilities of the AFP has increased over time, including as a result of his exposure to the evidence adduced in his trial. The Minister says that if Mr Benbrika wished to behave covertly, in an attempt to contravene ESO conditions without being detected, he has knowledge that would assist him to do so.

This argument rests on the unproven, and highly unlikely, assumption that police methodology and technology have remained static over the past 17 years. There is simply no evidence to support the Minister’s argument that Mr Benbrika has any knowledge of current police methodology and technology. I would give little weight to this matter.

Conclusions on less restrictive measures

The unacceptable risk of Mr Benbrika committing a serious Part 5.3 offence arises from his ability and willingness to influence others to engage in acts of extreme, religiously-motivated violence.

Until Mr Benbrika demonstrates that he has internalised changes in his behaviour and ideology, measures such as control orders and ESOs, which rely on external management, will be limited in their effectiveness in controlling the unacceptable risk that he poses.

Dr Dewson’s opinion is that an ESO would materially reduce the risk of Mr Benbrika committing a serious Part 5.3 offence, but would not change his inherent “risk score”. She did not quantify or put a label on that reduction.

However, I accept A/C Lee’s opinion that even if the risk was reduced substantially by an ESO, that would not be sufficient to address the particular risks that Mr Benbrika presents.

Even if the risk was only “low”, that does not alter the limitations of an ESO in seeking to constrain or prevent that risk from materialising. Given the very serious consequences of a possible breach of an ESO by Mr Benbrika, even a “low” risk would not be an acceptable one.

I am satisfied that the unacceptable risk of Mr Benbrika committing a serious Part 5.3 offence arises from his ability and willingness to influence others to commit serious terrorism offences. In light of the limitations on the ability of an ESO to prevent Mr Benbrika from engaging in that conduct, the degree of risk of him engaging in that conduct, and the very serious potential consequences of that conduct, I am satisfied that an ESO would not be effective to prevent the unacceptable risk.

Coming to that conclusion does not, as Mr Benbrika suggests, involve the court concluding that the recently-enacted ESO provisions are unfit for purpose. It just involves the application of the new provisions on the evidence before me.

DURATION OF THE CDO

If the CDO is to continue, Mr Benbrika argues that its duration should be reduced from 3 years to 2 years, meaning that it would expire in December 2022, rather than 2023.

Since the CDO was ordered, Dr Dewson has reduced her assessment of the risk posed by Mr Benbrika from “high” to “moderate-high”. If Mr Benbrika continues to progress, it is possible that Dr Dewson may reduce that assessment in the future. In any event, it is possible she may revisit some of her findings in any future risk assessment, in light of some of the matters raised in cross-examination. Although a reduction in risk rating is a possibility, there is no evidentiary basis for predicting that the risk will become acceptable at any particular time between now and December 2023, so as to justify reducing the length of the CDO by a year. Indeed, given that Dr Dewson has described the changes as relatively new, and has said that change takes some time, it may reasonably be doubted that the risk will become acceptable at any time in the near future.

There will need to be a review of the CDO within 12 months from the completion of this review. If Mr Benbrika’s risk has reduced sufficiently by then, Mr Benbrika can seek to have the CDO replaced by an ESO at that time.

I am satisfied that the period for which the CDO is in force is reasonably necessary to prevent the unacceptable risk.

CONCLUSIONS

I am satisfied that I could have made a CDO under s 105A.7, because:

(a) I am satisfied to a high degree of probability that Mr Benbrika poses an unacceptable risk of committing a serious Part 5.3 offence; and

(b) I am satisfied that there is no less restrictive measure than a CDO available that would be effective in preventing the unacceptable risk posed by Mr Benbrika.

I am also satisfied that the period for which the CDO is in force is reasonably necessary to prevent the unacceptable risk.

It was not suggested that I should decline to affirm the CDO on discretionary grounds if the statutory criteria have been satisfied.[111]
[111]Such an argument had been put to, and rejected by, Tinney J.

I propose to order that the CDO made on 24 December 2020 for a period of 3 years is affirmed. I will hear from the parties as to the precise form of order.

POSTSCRIPT

Section 105A.12(6A) requires the Minister to “present to the court” a copy of any material in the possession of the Minister, and a statement of any facts of which the Minister is aware, “that would reasonably be regarded as supporting a finding that the order should not be affirmed, or should not be affirmed in the terms in which the order was made.” In principle, this provision provides an important safeguard against a Minister withholding exculpatory material of which an offender may not be aware.

However, the legislation does not specify a process, or a time, by which the Minister must present the material to the court.

In his affidavit dated 19 November 2021, and filed with the court on 22 November 2021, Richard Feakes, First Assistant Secretary, Deputy Counter-Terrorism Coordinator, of the Department of Home Affairs, stated that ASIO was in possession of three documents disclosing exculpatory facts. Mr Feakes deposed that ASIO intended to make a claim for public interest immunity over two of the documents, and it was consulting with other agencies about the third document (which turned out to be an AFP document).

Given that more than 20 new reports or affidavits were filed and served in the review proceeding, over a relatively short period of time, it is unsurprising that this disclosure was not noticed by Mr Benbrika’s lawyers or the court until very close to the trial date.

Mr Benbrika issued a subpoena dated 1 December 2021 to ASIO, seeking production of the three exculpatory documents identified by Mr Feakes. The subpoena was made returnable on 9 December 2021, being the first day of the substantive hearing. On that occasion, ASIO and AFP both objected to producing their respective documents, on the basis of public interest immunity.

After multiple hearings and extensive argument, I ordered the disclosure to Mr Benbrika’s lawyers of summaries of exculpatory material contained within the three documents. Those summaries were ultimately referred to during the trial in closed court.

This process was much longer and more complicated than it should have been, especially in respect of the two ASIO documents, and caused significant cost, inconvenience and delay over a number of days. Mr Benbrika’s lawyers did not learn of the contents of the documents until some days into the substantive hearing.

Were the legislation to provide for the production to the court of exculpatory material in a specific manner, and by a date well in advance of the trial date, such cost, inconvenience and delay could be minimised in future cases.

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21 April 2022 (restricted version) 6 May 2022 (unrestricted version)