Peter Dutton and the home affairs department have been cleared of wrongdoing over what a judge described as “a serious interference with the administration of justice” in a court case involving Melbourne terrorist Abdul Nacer Benbrika.
But the independent review clearing Dutton and his former department will not be released publicly, Guardian Australia has confirmed.
Victorian supreme court justice Elizabeth Hollingworth delivered a judgment last June that was scathing of Dutton’s failure to disclose a crucial report that could have undermined efforts to impose post-sentence controls on Benbrika, who was convicted of directing a terrorist organisation and other offences and sentenced in 2009 to a minimum of 12 years in prison.
In 2020, the Coalition government sought to impose an extended supervision order on Benbrika, subjecting him to restrictions after the end of his sentence.
It relied significantly on a tool designed to predict future risk of terror offending, known as the Vera-2R, to underline the threat it said was posed by Benbrika.
But the Department of Home Affairs deliberately withheld information, including a critical report that cast doubt on the reliability of the tool, from Benbrika’s legal team. The failure to disclose the report was uncovered in 2022.
Hollingworth described the handling of the undisclosed report while Dutton was minister for the Australian federal police under the former Coalition government as “a serious interference with the administration of justice”.
She said he had a statutory requirement to disclose material such as the report as it was a “fundamental safeguard to ensure the protection of individual liberty under what is very unusual and draconian legislation”.
“What happened in this case should never have happened and should not be repeated in the case of Mr Benbrika or any other person the subject of a post-sentence order application,” Hollingworth said.
The judge referred the non-disclosure to the independent national security legislation monitor (INSLM) for possible further investigation.
The INSLM referred the matter back to the attorney general’s and home affairs departments, and former federal court judge Alan Robertson SC was tasked with completing an “independent preliminary inquiry” into the matter.
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The attorney general’s department said that Robertson reviewed relevant materials and interviewed employees named in Hollingworth’s judgment but found “there is no conduct that should be investigated as giving rise to a potential breach or breaches of the Australian Public Service (APS) code of conduct, and no breaches of legal obligations or professional or ethical duties of the employees involved”.
“Mr Robertson noted the complexity of the legislation that created the disclosure obligation and the circumstances in which the non-disclosure had occurred,” the department said in a statement provided to Guardian Australia last month.
“Substantial measures have been put in place by both departments to prevent any recurrence. These steps include comprehensive guidance for officers involved in such matters, the establishment of a disclosure database and specific training for staff.”
The department also confirmed that Robertson’s review, which it has had since last August, would not be released publicly.
“The report will not be made public as it was a preliminary inquiry into the conduct of staff and contains information that is subject to privacy obligations and legal privilege.”
Dutton, Benbrika’s legal team and the home affairs department were contacted for comment.
