‘Disgrace’: Judge chastises ASIO’s ‘unacceptable’ conduct over Benbrika trial

A Victorian Supreme Court judge has labelled the conduct of Australia’s national security agency a “disgrace” for missing deadlines and disregarding court orders over the ongoing detention of terror cell leader Abdul Nacer Benbrika.

Supreme Court Justice Elizabeth Hollingworth chided lawyers acting for the Australian Security Intelligence Organisation during a February hearing over evidence they had been instructed to provide to Benbrika’s legal team.

Jailed terror cell leader Abdul Nacer Benbrika.

The comments were made during an annual review of Benbrika’s detention order, which keeps him in prison despite the fact he completed his 15-year sentence in November 2020 over a plot to bomb Crown casino and the MCG.

Government lawyer Justin Davidson apologised to Justice Hollingworth during the hearing for ASIO’s failure to meet deadlines in the case.

“I do apologise. I need to apologise for some delays that have arisen in the course of this matter,” Mr Davidson told Justice Hollingworth.

“It’s been unsatisfactory, and [government solicitors] takes responsibility for some delays last week. The issues we’re dealing with are very complex. The information is very sensitive.”

In response, Justice Hollingworth said: “Mr Davidson, ‘unsatisfactory’ does not go far enough. It has been utterly unacceptable from start to finish.

“We had problems with ASIO back in December. We had problems with them even delivering documents to the court, not keeping appointments with the court when required to deliver them. This is utterly unacceptable.

“This really is a disgrace that ASIO is behaving like this.

“I understand there is sensitivity attached to this, but to be perfectly frank, Mr Davidson, I’ve seen a lot of terrorist documents and these are not amongst the most sensitive I’ve ever seen. And the way ASIO is behaving in relation to this is not a fair reflection of the documents.

“I am doing what I can to protect what are legitimate concerns, but there is a degree of paranoia in ASIO’s camp which is unwarranted by the process we’re going through.”

After Justice Hollingworth’s comments, ASIO complied with the wishes of the court.

The federal government was granted an order on the eve of the Algerian-born cleric’s release date in late 2020 to keep him imprisoned for three additional years.

Benbrika, the first Australian convicted of leading a terrorist group, argues he is reformed, has adopted a new ideology and no longer poses a risk to the community.

The order, granted by a Supreme Court judge, allows governments to keep prisoners in prison for three years beyond the length of their sentence.

Benbrika also faces deportation after finishing his sentence. Former home affairs minister Peter Dutton, who labelled the operation that led to Benbrika’s arrest as the largest counter-terrorism investigation in Australian history, cancelled his Australian citizenship in November 2020.

The laws that enable Benbrika to be deported, introduced in 2015, mean extremists who join terrorist organisations or who are convicted of terrorism offences can be stripped of Australian citizenship.

ASIO is relying on confidential evidence that it claims demonstrates that Benbrika continues to pose a risk to the community. During the hearing, Justice Hollingworth said the intelligence agency had failed to understand its role in seeking the order from the court.

“This is just a complete misunderstanding of the role ASIO plays,” Justice Hollingworth said. ″⁣ASIO is not in charge of this litigation. ASIO is subject to the court’s ruling, and the sooner that message gets through, the better.

“I am genuinely trying to protect what are some legitimate ASIO concerns, but ASIO is burning up, if it hasn’t already done so, substantial goodwill by its utterly unacceptable and disrespectful way of behaving.

“The amount of time and money that has been wasted by ASIO not acting reasonably in relation to this is unacceptable.

“Now, you’ll appreciate, Mr Davidson, you’re the messenger. But you are going to get fired at, I’m afraid, as the messenger.”

Justice Hollingworth ordered that Benbrika’s lawyer Dan Star, QC, and his legal team, agree to keep the documents safe.

“Mr Star will give an oral undertaking now on behalf of he and the team present with him that they will keep the documents safely, and that they will return them when I tell them to return them.

“But this handling [of] these documents as if they’re kryptonite … [is] grossly inconvenient and insulting to the court to suggest that the court doesn’t have secure storage facilities. Similarly, insulting to Mr Star and his juniors to suggest that they will not keep safe these documents.”

Lawyers for Benbrika declined to comment. An ASIO spokesperson also declined to comment on the case but said the agency would “always seek to be as open and transparent as possible, however must balance the public interest with protecting our people and sensitive capabilities”.

A decision in the case is due to be handed down by Justice Hollingworth in coming weeks.

The Morning Edition newsletter is our guide to the day’s most important and interesting stories, analysis and insights. Sign up here.

Most Viewed in National

From our partners

Source: Read Full Article

Posted in Uncategorized