Plaintiff v Defendant

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

4 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]

5 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]

6 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.

7 On 9 November 2021, the Court of Appeal dismissed Mr Benbrika's appeal against the making of the CDO.[5]

8 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.

9 On 21 October 2021, Tinney J acceded to an application by Mr Benbrika that he recuse himself from hearing the review application.[7]

10 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.

11 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.

12 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.

13 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.

14 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:

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:

15 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]

16 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)).

17 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]

18 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:

(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.

(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:

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]

20 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).

21 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.

22 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]

23 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]

24 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.

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

25 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."

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

27 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.

28 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.

29 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."

30 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]

31 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]

32 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]

33 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);

(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]

34 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]

35 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).

36 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.

37 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.

38 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]

39 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.

40 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.

41 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.

42 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.

43 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.

44 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.

45 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.

46 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]

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

48 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]

49 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]

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]

51 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]

52 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.

53 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.

54 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]

55 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.

56 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.

57 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]

58 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.

59 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]

60 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]

61 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).

62 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.

63 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.

64 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))

65 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.

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

67 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.

68 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.

69 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.

70 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]

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

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

72 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.

73 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.

74 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.

75 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.

76 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.

77 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]

78 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]

79 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.

80 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))

81 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.

82 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]

83 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.

84 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.

85 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.

86 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.

87 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.

88 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".

89 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.

90 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.

91 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".

92 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".

93 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.

94 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.

95 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.

96 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.

97 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.

98 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.

99 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.

100 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.

101 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".

102 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".

103 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.

104 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.

105 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.

106 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.

107 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]

108 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.

109 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.

110 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.

111 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.

112 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

113 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]

114 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.

115 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.

116 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]

117 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.

118 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.

119 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.

120 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.

121 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.

122 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.

123 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.

124 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.

125 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.

126 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.

127 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).

128 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.

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

130 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.

131 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.

132 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.

133 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.

134 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.

135 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.

136 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.

137 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.

138 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.

139 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.

140 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.

141 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.

142 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.

143 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]."

144 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.

145 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.

146 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.

147 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).

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

149 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

150 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.

151 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.

152 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.

153 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.

154 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.

155 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.

156 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.

157 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.

158 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.

159 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.

160 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.

161 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.

162 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.

163 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.

164 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.

165 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

166 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.

167 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.

168 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.

169 On 20 September 2017, Mr Benbrika received a letter from the Commonwealth Parole Office ("CPO"), indicating that Corrections and the Joint Counter Terrorism Team had recommended the refusal of his parole, and seeking his response to various questions about his ideology. The CPO letter noted that he had been assessed as being at high risk of reoffending, because he had not participated in any rehabilitation programs, and was believed to hold the same views as he held at the time of offending.

170 On 27 September 2017, in a sentence management unit annual review, Mr Benbrika asked to see an imam and the Muslim chaplain for personal reasons, and to discuss the CPO letter. He was told that there was no imam available to attend the prison to see him. On 2 October 2017, a local plan file note recorded that Mr Benbrika wanted spiritual guidance before responding to the CPO letter.

171 Mr Benbrika did not respond to the CPO letter, and his parole was refused on 1 November 2017. The reasons given for denying parole included that Mr Benbrika had maintained his extremist beliefs.

172 In a clinical session with Dr Mischel on 14 November 2017, Mr Benbrika told her that he had been expecting his parole to be denied, and was therefore not surprised by the announcement. However, he also appeared distressed, and said he had not seen his wife or daughters' faces in 12 years.

173 Dr Mischel noted the following in her case note:

Nacer was fixated on the 5 requests he had made (4 himself and 1 via his lawyer) to see the Sheik. He explained that he could not provide an answer to the Attorney General without seeing a Sheik who spoke fluent English and Arabic.

Nacer explained that in 2014 he had found out some things that he needs help translating and to understand properly. He stated that he learnt that when a Muslim gets a visa or citizenship in another country they are required to protect the people of that country from harm. Therefore the country of his residence would be protected from any violence he would consider part of the ideology to inflict....

He stated that at the time of his arrest he had only "30% understanding of Islam" and now had a much better understanding through the time spent further studying whilst in custody the Arabic Grammar and Jurisprudence that resulted in the laws made by scholars....

Nacer further stated that he could not "denounce violent jihad" as the letter from the attorney general asked him to do, because that would be saying that he is a "disbeliever" and he "can't" do that.

Whilst he cannot denounce violent jihad he would like to speak to the Sheik and provide information to the Attorney General to explain why the people of Australia are safe and he could not harm them.

174 That was the first time that Mr Benbrika mentioned to anyone the concept underlying the Aziz covenant, or the fact that he had discovered something in 2014 that had started to change his views.

175 Mr Benbrika describes his relationship with Corrections staff between 2014 and 2016 as "oppositional", based on his treatment in custody. He also says he was depressed throughout much of that period. He argues that it was not surprising that he had not mentioned the Aziz covenant, or any ideological reinterpretation, before late 2017, as it is not the sort of thing he would have discussed with Corrections staff at the time.

176 I accept that Mr Benbrika may not have wanted to discuss details of Islamic theology with Corrections staff. However, there were plenty of opportunities in counselling sessions, as well as internal Corrections meetings, to indicate that he had started to reconsider the extremist ideological beliefs that led to his offending. His isolation from other prisoners, depression, and attitudes towards Corrections, did not prevent him from participating in counselling or attending various meetings. Mr Benbrika was also well aware that what he said would be assessed by the authorities in determining what was going to happen to him, and that changing his views about a fundamental aspect of his ideology could be to his benefit, including by getting him moved to a less restrictive environment. Yet he said nothing about the Aziz covenant, or about reconsidering his ideology, before the end of 2017.

177 Mr Benbrika argues that the context surrounding his disclosure to Dr Mischel in November 2017 supports the authenticity and plausibility of his claimed change in position. He argues that his distress at being denied parole may explain why he finally made the disclosure he did to Dr Mischel, because he had no access to an imam despite his repeated attempts to speak with one to discuss his changing ideology.

178 I do not accept that argument. Mr Benbrika had been distressed at various times between 2014 and 2016, when he was trying to get out of the high security unit. His distress on those occasions had not caused him to mention that his ideology was changing or beginning to change, even though he was well aware that the fact that he was perceived to be preaching an extremist ideology to other prisoners was the main reason why he was being kept in high security.

179 Mr Benbrika's total silence about the Aziz covenant until the end of 2017 is further support for my findings that he had not discovered the Aziz covenant in 2014, and had not started to rethink his ideology as a result of doing so.

Subsequent statements by Mr Benbrika about the Aziz covenant

180 Since his initial disclosure in November 2017, there is no dispute that Mr Benbrika has told many people, and on numerous occasions, that he has reinterpreted his ideology or theology based upon the Aziz covenant. Those people include his psychologists and other Corrections staff, people involved in later parole applications, CISP imams, and experts appointed to perform risk assessments. Over time, he has given more detailed explanations of how the Aziz covenant has affected him in his attitude to Australia and its people. The CISP imams have also introduced him to other religious scholars who advance the same ideas as the Aziz covenant.

181 The mere fact that Mr Benbrika has repeated such statements on many occasions, or added more detail to them over time, does not establish the underlying truth of the assertion that his ideology has changed as a result of discovering the Aziz covenant in 2014.

182 For the reasons already given, I do not accept Mr Benbrika's claim that he started changing his ideology as a result of discovering the Aziz covenant in 2014. In making that finding, I am not suggesting that Mr Benbrika bears any onus of proof. There is simply no contemporaneous evidence to suggest that his ideology had started to change at all before late 2017; all of the contemporaneous evidence suggests the contrary.

183 Disbelieving Mr Benbrika's claim about when he learned of the Aziz covenant is not the end of the matter. I accept that Mr Benbrika's ideology has started to become less extremist over time, as a result of counselling and his engagement with CISP. The Corrections' clinicians have worked with him to improve his communication style and receptiveness to new ideas. The CISP imams have encouraged him to read more widely, and have challenged his previous religious beliefs.

184 There is a dispute between the parties as to just how far Mr Benbrika's ideology has changed. Even if it is accepted that Mr Benbrika now adheres to the principles contained in the Aziz covenant, there is a dispute as to what that actually means in terms of his overall ideology, particularly in his attitudes towards religiously-inspired violence.

185 In the November 2017 conversation with Dr Mischel, Mr Benbrika did not suggest that he had undergone a complete reversal of his ideology immediately upon reading the Aziz covenant. In that conversation, he also said that he could not denounce "violent jihad", because that would be saying he is a disbeliever, and he could not do that.

186 Since then, there have been many other discussions about whether or not Mr Benbrika is prepared to denounce jihad or violent jihad. On some of those occasions, he has said that he cannot denounce or deny jihad, as it is part of his religion. On other occasions, he has asked for clarification of the meaning of "violent jihad", or refused to answer without being given a formal definition or theological assistance in understanding the term.

187 The parties spent a lot of time arguing about the significance of his refusal to denounce jihad or violent jihad. They argue that it is relevant to the following: the credibility of what he told Dr Mischel about the Aziz covenant; whether or not he engages in impression management; and his current ideology.

188 I have already explained the reasons why I do not accept that Mr Benbrika started changing his ideology as a result of discovering the Aziz covenant in 2014. I do not accept that he was telling the truth to Dr Mischel in November 2017 about having made such a discovery in 2014. The fact that he failed to denounce jihad in that same conversation does nothing to strengthen the credibility of what he said to Dr Mischel about the contents of the Aziz covenant.

189 Mr Benbrika argues that the fact that he has not been willing to denounce jihad, even though that would be likely to benefit him with the authorities, tends to suggest that he has genuinely embraced the contents of the Aziz covenant. He argues that had he been seeking to impression manage, to present a version of his ideology that was most palatable to the authorities, he would have presented a different approach to jihad.

190 The Minister argues that Mr Benbrika's refusal to denounce violent jihad, whilst making, in more recent years, various self-serving statements, reflects a compromise between his desire not to betray his religious beliefs and his understandable desire to avoid high security management and to be released from prison. The Minister argues that where it is possible for Mr Benbrika to impression manage without betraying his beliefs, the evidence shows that he is willing to do so. Where that is not possible, Mr Benbrika's religion is his priority. I agree with the Minister's arguments in this regard.

191 One of the main sources of evidence concerning Mr Benbrika's ideology is CISP documents, including notes of CISP sessions, and annual plans or review documents. They were provided to and considered by the expert witnesses who performed risk assessments, Dr Dewson and Dr Mischel, as well as being tendered in court.

192 I have already explained the process by which the CISP notes were prepared, and the reasons why the parties acknowledge that they should not be construed by focussing too narrowly on individual words or phrases. Notwithstanding that, both sides (particularly Mr Benbrika) frequently descended into a detailed examination of precise words or phrases attributed to Mr Benbrika in the CISP notes, and urged me to come to conclusions as to Mr Benbrika's true ideology based on that detailed examination.

193 I did not find that a helpful way of coming to a proper understanding of Mr Benbrika's current ideology, for several reasons:

(a) The way in which the CISP notes are prepared, and the fact that they are not a verbatim record of Mr Benbrika's words, presents problems when minutely examining individual words or phrases attributed to Mr Benbrika;

(b) Mr Benbrika is well aware that everything he says in counselling and CISP sessions is being noted, will be reported to relevant authorities, and may be used to make decisions that affect him. There have been some occasions when he has been prepared to comment on controversial matters, notwithstanding that fact. However, his awareness has frequently caused him to be cautious, or to be reluctant to discuss matters such as his ideology; and

(c) Absent any evidence from Mr Benbrika, the court has had no opportunity to clarify the many ambiguities and inconsistencies in the CISP notes, or to directly assess his credibility for itself.

194 However, Mr Benbrika's statements about his changing ideology have been discussed and assessed by many others, including the CISP imams, his treating clinicians and Dr Dewson. Unlike the court, those people have had an opportunity to listen to Mr Benbrika, and ask questions of him, often over extended periods of time, in order to assess the credibility and consistency of what he says about his ideology. The CISP imams are also more qualified to assess the theological aspects of Mr Benbrika's ideology than a lay person.

195 The overall impression conveyed by a reading of the CISP notes is that Mr Benbrika's progress towards moving away from his previous extremist beliefs over recent years has been slow, gradual and not always linear. After some initial resistance in 2018 and 2019, he slowly started to open up to an examination of his ideology. However, notes that record him making some progress are often followed by notes suggesting he has regressed, or moved sideways, or stood still. Focussing selectively on individual case notes can be quite misleading, given those movements.

196 As part of the CVEU assessment of Mr Benbrika's suitability to re-engage in CISP in 2018, his CVEU case manager prepared a needs assessment and intervention plan using the RADAR principles.[67] A RADAR score of 1 indicates high needs, and a score of 10 indicates low needs. Of the five needs that were identified, Mr Benbrika was initially assessed as having high needs in relation to social relations (a score of 2), ideology (a score of 3), coping (a score of 3) and identity (a score of 3). Social relations, ideology and identity were identified as intervention targets. His "stubbornness and inflexibility on issues" was also identified as a responsivity issue.

197 The specific goals set for him in relation to ideology were:

(a) To actively accept and promote that violence is not an acceptable form of dialogue or way of progressing an agenda ("the first ideology goal"); and

(b) To denounce violent extremist groups and their supporters ("the second ideology goal").

198 In 2019, there was a review of Mr Benbrika's progress against the initial CISP intervention plan, conducted by representatives of the CVEU, Corrections and the Board of Imams Victoria. Using the RADAR score system, Mr Benbrika had moved from a score of 2 to 3 on social relations, declined to 2 for ideology,[68] and remained at 3 for identity.

199 The summary of progress noted that there had been little change in relation to either the first or the second ideology goals.

200 A third specific ideology goal was added: to accept a more diverse range of scholarly opinions.

201 The review panel's comments included: that CISP believe that there is no way the program can achieve success with Mr Benbrika in the time that is left before his release; that Mr Benbrika had historically been very open with his comments, but was no longer happy to speak freely; and that Mr Benbrika takes issue with the imams' legitimacy when they state things that are contrary to his position.

202 In late 2020, a review panel conducted a further review of Mr Benbrika's progress against the CISP intervention plan. The RADAR assessment showed some progress, in that he had moved from 3 to 4 on social relations, from 2 to 3 on ideology, and from 3 to 5 on identity. However, the panel concluded that he had not met his treatment needs.

203 In relation to the first ideology goal, the summary of progress stated that Mr Benbrika "has shown little change in this area and often appears resistant to change and has even gone so far as reversing his opinion."

204 In relation to the second ideology goal, the summary stated that Mr Benbrika was "unwilling to denounce extremist groups, citing that he cannot because he does not have materials to review and then justify his response. This is not typical of individuals who are mentored by members of the [Board of Imams Victoria]. Client appears to be unwilling to take things at 'face value' from qualified and educated Imams."

205 In relation to the third ideology goal, the summary stated "CISP to provide comments on client's willingness to engage in varying materials and if these have been provided. [Corrections] to provide update on 'permitted materials' entering prison unless protocols have not changed."

206 The review panel comments included that Mr Benbrika "has attempted to persuade CISP and stakeholders in his moderating of beliefs. However, mentor states that he is unsure on client genuineness."

207 The 2021 CISP intervention plan did note some positive change in relation to the first ideology goal, with Mr Benbrika having shown more interest in the teaching materials. In relation to an identified "social relations" need, the summary noted that the mentors were continuing their work in bringing Mr Benbrika "to a point where he admits having moved away from his ideology and are planning to find out the literature that could have constituted his offence so they can explore how to counteract it." The RADAR assessment showed some progress, in so far as Mr Benbrika moved from 4 to 5 for social relations, and from 3 to 5 for ideology, and from 3 to 4 for identity. However, his scores for identity and coping declined.[69]

208 Mr Benbrika rightly points out that the Code does not require him to have completed the CISP program, or to have met all of the identified treatment needs, in order for the court to not affirm the CDO. But the fact that CISP have assessed him as having significant outstanding treatment needs, particularly in relation to his ideology, is still highly relevant to the assessment of his risk.

209 Mr Benbrika takes issue with many of the findings in the annual reviews, by arguing that particular words in individual CISP notes contradict the relevant findings. I accept that Mr Benbrika has, at times, expressed more moderate views in some CISP sessions than in others. But, as previously mentioned, his progress has not been linear, and moderate views have often been followed by more extremist views on the same issue. The individual CISP notes are also subject to the limitations I have previously discussed.

210 Although they are not lengthy, and there was no evidence called from any of their authors, the annual CISP reviews provide a helpful, higher level, view of Mr Benbrika's progress since he re-engaged with CISP in 2018. They reveal slow progress between 2018 and 2020, but some clear improvement in 2021. That is consistent with the CISP notes overall, and with the opinions expressed by Dr Dewson, which I will now consider.

211 Dr Dewson's reports and evidence will be discussed in greater detail when I come to consider the risk assessments she undertook. For present purposes, I will only briefly record some of her conclusions in relation to Mr Benbrika's ideology, which were based on the materials with which she had been briefed, as well as on her own interviews with Mr Benbrika.

212 Dr Dewson concluded that Mr Benbrika was beginning to accept responsibility for his offending actions, and to change his ideology in relation to violent extremism. She described a slow progressive trajectory of change over the last three to five years, with more change in the last twelve months than in the years before that.

213 Dr Dewson said that the changes were relatively new, and it is unclear whether they are "sincere, fixed and internalised beliefs".

214 Although Dr Dewson was sceptical about whether Mr Benbrika had genuinely changed his ideology because he had discovered the Aziz covenant, she did not reach a concluded view in relation to that. Rather, she assessed his risk on the basis that it was possible his statements about the Aziz covenant were genuine.

215 The CISP notes record that Mr Benbrika first raised the Aziz covenant with the CISP imams in [redacted] 2018. Since then, Mr Benbrika has discussed the Aziz covenant, and similar theological works by other religious scholars, with the CISP imams. There is no doubt that he is now aware of its underlying concepts.

216 Mr Benbrika has described the obligations imposed by the Aziz covenant in slightly different terms over the years. Mr Benbrika says that the Aziz covenant imposes a prohibition on him doing violence to Australians on Australian soil, and also an obligation to comply with the Australian law more broadly. He says that stands in stark contrast to the position he took at the time of offending and sentencing, namely, that he was not bound by Australian law, but only by Sharia law.

217 I am unable to come to a concluded view as to whether, and if so, when, Mr Benbrika came to accept the contents of the Aziz covenant. I have explained why I do not accept that he started changing his ideology as a result of discovering it in 2014, which is the only explanation he has ever advanced on the matter. Some of the CISP imams and Dr Dewson have expressed doubts about whether he genuinely accepts the covenant, or whether he is simply engaging in dishonesty or impression management in order to advance his interests. It is difficult for the court to come to any final conclusion on this point, without the benefit of direct evidence from Mr Benbrika.

218 However, even if it is accepted that Mr Benbrika does now genuinely accept some or all of the contents of the Aziz covenant, there is a dispute as to what that means in terms of his current ideology, and his risk of committing a serious Part 5.3 offence.

219 Although Mr Benbrika has expressed it in several ways, at the core of the Aziz covenant is the concept that a Muslim living in Australia has a treaty or covenant with the people of Australia not to harm them, and to abide by their laws. However, he has not described the Aziz covenant as imposing a general prohibition against all violence in the name of Islam. In the appeal against the CDO decision, the Court of Appeal described the covenant as a "carve-out" to a broader ideology or religious obligation.[70]

220 Mr Benbrika referred me to reports from various Islamic scholars, in order to try to demonstrate that the Aziz covenant is not merely a "carve-out" to a broader ideology or religious obligation. It is not necessary for me to consider what the Aziz covenant means to scholars or persons other than Mr Benbrika. It is necessary for me to determine what Mr Benbrika understands the covenant to mean.

221 Even if Mr Benbrika genuinely believes in such a treaty or covenant, it does not mean that he no longer believes that he has a religious obligation to participate in extremist violent acts. I will shortly explain why I am satisfied that Mr Benbrika has not renounced his belief in violent jihad, and why he regards the Aziz covenant as some sort of "carve-out" to his broader religious obligation.

222 There is also a dispute as to whether Mr Benbrika regards the Aziz covenant as prohibiting him or other Muslims living in Australia from encouraging or engaging in jihad overseas.

223 In a letter to the CPO in October 2018, he said that:

The word "jihad" in Arabic language means, "To exert the effort", and can in some cases require someone to fight for the sake of Allah. However, as an Australian citizen, I am not under any obligation in Australia or outside Australia to fight Jihad, nor have any interest in going overseas to fight with another group in another part of the world. There maybe other groups that are more moderate in their belief systems, but I cannot go to fight. I am an old man now. Two years ago, the prison doctor has diagnosed me with (arthritis). I want to look after my family.

224 He did not say that he was prohibited by his religious beliefs from going overseas to fight, only that he had no obligation to do so as an Australian citizen. The rest of the passage is about the fact that he is not interested in going overseas, or is too old or unwell to do so.

225 During his interview with Dr Dewson on 16 December 2021, Mr Benbrika said that Muslims in Australia could not go and engage in hostile activities overseas. He said "They cannot go. That would be foreign incursion." In so far as he was saying that it would be contrary to Australian law for them to go, that was undoubtedly correct. But that brief statement does not establish that he no longer believes in jihad, or that he believes that the Aziz covenant would prevent Muslims in Australia from engaging in jihad overseas.

226 Overall, the evidence clearly demonstrates that Mr Benbrika is still driven by extremely strong and rigid religious views. I accept Mr Benbrika's argument that the Code does not require a terrorist offender to renounce their religious beliefs, or become a model citizen. But, given the extreme and violent nature of his ideology at the time of sentencing, the fact that he still holds many strong and rigid religious beliefs is relevant to an assessment of risk.

227 Mr Benbrika's religious views at the time of offending were undoubtedly extreme. He was unqualified in his support of violence as a means of furthering the cause of his religion. He used the word "jihad" to mean a violent struggle against the enemies of Islam. He claimed that this was the only meaning of jihad authorised by the Koran.

[T]he importance of the CISP notes was not so much in the detail of any particular sentence or paragraph in them, but rather than they showed that at no time in some 100 or so CISP sessions did [Mr Benbrika] renounce his previously held views about violent jihad (save for the potential carve-out or 'change of heart' in respect of any country in which [Mr Benbrika] might reside...).[71]

229 Since the Court of Appeal decision, Mr Benbrika has not renounced his previous views about jihad in CISP sessions or elsewhere.

230 I do not accept Mr Benbrika's argument that to ask him whether he renounces violent jihad is unfair, or "imprecise almost to the point of meaninglessness". I accept that the concept of jihad is a nuanced one, and is capable of having a number of meanings to different people. However, Mr Benbrika had a specific and clear understanding of the concept of jihad at the time of his offending. There is nothing ambiguous about the various questions asked of him by the authorities over the years, including in relation to parole reviews. In essence, they have been asking whether he has renounced his previous extremist views about jihad. He has tried to avoid answering such questions, either by trying to debate the meaning of "jihad" or "violent jihad", or refusing to answer until he is provided with clarification about the meaning of the term.

231 In his October 2018 letter to the CPO, Mr Benbrika claimed that he no longer believed in violence, or condoned it in any form, as a result of what he discovered around 2013/2014 about the Aziz covenant. I have already rejected his claim to having started to change his ideology as a result of having discovered the Aziz covenant around that time. I also do not accept his claim to have renounced all violence by October 2018. The CPO letter represents an understandable attempt to present himself as favourably as possible to the parole authorities. But it is inconsistent with other evidence, including later CISP notes in which he expressed views about taking up arms being preferable to democratic processes, or avoided answering questions about suicide or public bombings.

232 In a June 2019 interview, as part of the following year's parole process, he said he was unable to denounce jihad as part of his religion. If he no longer believed in violence, or condoned it in any form, as he had claimed the previous year, it is not clear why he could not have denounced his personal beliefs about jihad at that time.

233 Dr Dewson also concluded in her fourth report that, although Mr Benbrika denied any intent or desire to engage in violent extremism, he continues to support the use of violence in some contexts.

234 His most recent CISP intervention plan noted that he had ongoing needs in terms of accepting and promoting that violence is not an acceptable form of dialogue or progressing an agenda. CISP reached that assessment despite having the benefit of Mr Benbrika's detailed articulation of his beliefs, including what he says the Aziz covenant means for him.

235 If Mr Benbrika genuinely accepts the Aziz covenant, he does so as a treaty or covenant to the people of Australia, the basis of which is to not harm them. But I am not persuaded that he regards the Aziz covenant as imposing a broader religious obligation, or providing a general prohibition against all violence in the name of Islam. He had a clear and strong understanding of the concept of jihad or violent jihad at the time of offending, and it drove his actions. His repeated failure or refusal to denounce his previous beliefs about jihad, and his verbal gymnastics to avoid answering questions about his beliefs on jihad, speak volumes.

236 Although Mr Benbrika's belief about the Aziz covenant (if it is genuine) may operate to prevent him from harming people in Australia, it does not appear to preclude him from radicalising or influencing others to commit terrorism acts overseas.

237 Finally, I will say something briefly about confidential exhibits 60, 61 and 62.[72] They do provide some support for Mr Benbrika's claim to have genuinely changed his ideology. They do not contain information that was provided by Mr Benbrika to the authorities, so cannot be subject to the criticism of being self-serving. But the details provided in the documents are very brief and vague, and do not assist the court in assessing just how far Mr Benbrika's ideology has genuinely changed.

238 There are several other matters that the Minister says are relevant to whether Mr Benbrika's participation in treatment or rehabilitation programs has resulted in sufficient rehabilitation to reduce the risk to an acceptable level.[73] First, Mr Benbrika continues to have a desire and capacity to influence others as a religious leader. Secondly, his personality structure and attitudes continue to contribute to his risk.

239 Mr Benbrika was the leader of the terrorist group. At the time of offending, he exercised enormous influence over the many young men who followed him. He taught his extremist ideology to the jemaah group members, both formally in classes and informally.

240 Whilst in custody, Mr Benbrika has often spoken of an obligation he feels to share his theological knowledge with others. He has expressed the view that others will seek him out to learn his religious views, because of his knowledge and reputation. There is evidence of some prisoners seeking his guidance on theological matters, and him providing it to them.[74]

241 It is clear that, despite his lack of formal theological training, Mr Benbrika still regards himself as an imam or cleric.

242 Although he has acknowledged in recent years that the CISP imams have challenged his views on some things, Dr Mischel's opinion as at December 2020 was that he still appeared to regard himself as being ideologically, religiously and morally superior to others, with an obligation to guide and influence others to adopt his doctrine.

243 Dr Dewson also referred to Mr Benbrika as having religious grandiosity, and a grandiose sense of self. Mr Benbrika has acknowledged on many occasions that he is driven by his ideology.

244 Similarly, Dr Mischel described him as having a narcissistic personality style, which includes grandiosity, an inflated sense of self-importance, and a need for excessive admiration.

245 Dr Dewson, Dr Mischel, and CISP imams have all referred to the rigidity of Mr Benbrika's thinking, his stubbornness and unwillingness to be swayed by others.

246 His personality structure, together with his preparedness to share his ideological views with others, remain highly relevant to any risk assessment. That is particularly so given my findings that his ideology has only begun to change in relatively recent times, and that it is too early to say whether any new beliefs are "sincere, fixed and internalised" (to use Dr Dewson's expression).

Assessments by relevant experts (s 105A.6B(1)(b) and (c))

247 The court must have regard to any assessment received from a "relevant expert" as to the risk of the offender committing a serious Part 5.3 offence, and the level of the offender's participation in the assessment.

248 A "relevant expert" means any registered doctor, psychologist, psychiatrist or other expert "who is competent to assess the risk of a terrorist offender committing a serious Part 5.3 offence".[75]

249 Mr Benbrika has been assessed by two relevant experts appointed by the Minister, namely, Dr Chelsey Dewson and Dr Kelly Mischel. They are both registered psychologists. In order to assess the risk posed by Mr Benbrika, each of them used a structured professional judgment approach, assisted by guidelines specifying features associated with the risk of violent extremism. Each of them interviewed Mr Benbrika for the purpose of their assessment. Although they are not court-appointed experts, each of them addressed the matters that may be included in the report of a court-appointed expert under s 105A.6(7) of the Code.

250 Dr Dewson used two instruments to support her assessment of Mr Benbrika's risk:

(a) Level of Service/Case Management Inventory ("LS/CMI"). The LS/CMI assesses Mr Benbrika's general recidivism risk. Mr Benbrika's risk rating for general offending was assessed as being within the low range;[76] and

(b) Violent Extremism Risk Assessment - Version 2 Revised ("VERA-2R"). The VERA-2R is specifically directed at addressing the risk of violent extremist offending.

251 Three reports by Dr Dewson were tendered in both the CDO and review proceedings:

(a) The first report, dated 7 August 2020, outlined Dr Dewson's risk assessment findings, in addition to Mr Benbrika's personal history, criminal history, conduct in custody and participation in treatment. Mr Benbrika participated in an interview with Dr Dewson on 30 July 2020, for the purposes of this report;

(b) The second report, dated 31 August 2020, outlined Mr Benbrika's psychometric assessment results, and contained an updated risk assessment incorporating further documentary evidence with which Dr Dewson was briefed; and

(c) The third report, dated 11 November 2020, explained the process that Dr Dewson used to assess Mr Benbrika's risk, including information about the VERA-2R instrument. It also annexed her VERA-2R score sheets.

252 Dr Dewson's first to third reports were summarised at length by Tinney J.[77] Her conclusion at the time of the CDO hearing was that Mr Benbrika posed a "high" risk of violent extremism.

253 For the purposes of the review, Dr Dewson was engaged to conduct a further risk assessment. She produced four additional reports, dated 30 September 2021 (fourth report), 17 November 2021 (fifth report), 13 December 2021 (sixth report) and 17 December 2021 (seventh report), respectively.

254 Dr Dewson's fourth, fifth and sixth reports were mostly based on documentary material, as Mr Benbrika declined to participate in another interview with Dr Dewson when they were prepared. Those reports assessed the risk of Mr Benbrika committing a serious Part 5.3 offence, including (in the case of the sixth report) if Mr Benbrika was subject to an ESO with certain conditions.

255 In her fourth report, Dr Dewson assessed Mr Benbrika as currently posing a "moderate-high" risk of violent extremism. That lower risk assessment reflected some changes that had been observed in Mr Benbrika's behaviour since the CDO was made.

256 Dr Dewson produced her seventh report after interviewing Mr Benbrika on 16 December 2021, pursuant to a direction made by the Minister under s 105A.18D that required Mr Benbrika to attend the assessment.

257 Dr Dewson was cross-examined in the CDO proceeding and before me.

258 The contents of Dr Dewson's reports will be considered in some detail later in these reasons.

259 Dr Mischel was Mr Benbrika's treating psychologist from early 2016 until 2020. At the request of the Minister, Dr Mischel also prepared three reports, dated 2 August 2020 (first report), 27 August 2020 (second report) and 10 November 2020[78] (third report), respectively, which set out her risk assessments.

260 Dr Mischel's reports and oral evidence were relied upon in the CDO proceeding, and were summarised at length by Tinney J.[79]

261 Dr Mischel performed her own VERA-2R assessment. Like Dr Dewson, she concluded that Mr Benbrika's overall risk assessment in 2020 was "high".

262 Dr Mischel has not seen Mr Benbrika since the CDO was made, and did not give further oral or written evidence for the review. Her previous reports were tendered and relied upon in the review only in so far as they went to the question of risk assessment as at December 2020.

263 In the CDO proceeding, Mr Benbrika called expert evidence from Dr Michael Davis, a psychologist, who had carried out a psychological assessment of Mr Benbrika. Dr Davis was highly critical of the VERA-2R risk assessment tool used by both Dr Dewson and Dr Mischel. He also expressed the opinion that there was no valid way of assessing extremist risk. Tinney J dismissed Dr Davis's criticisms of VERA-2R.[80]

264 Mr Benbrika did not tender the evidence of Dr Davis, or any other expert, on the review. Nor does Mr Benbrika attack the underlying validity of the VERA-2R instrument on the review. Instead, Mr Benbrika criticises a number of aspects of the actual risk assessment undertaken by Dr Dewson.

265 It is convenient to begin with a general consideration of the purpose, nature, types and limitations of risk assessments. None of the following matters were in dispute before me.

266 The VERA manual provides the following general description of risk assessments. Risk is defined as the chance that something will go wrong, or that a danger exists. Risk is contextual, and relates to the environment in which a person is located. Assessing the individual risk of violence generally has two purposes. The first objective is to assess the individual's likelihood of committing future violence. The second objective is to identify the needs and motivations of an individual, in order to develop suitable interventions for reducing the risk of violent action.

268 There are three primary methods of undertaking a risk assessment: unstructured professional judgement, an actuarial approach, and structured professional judgement ("SPJ"). VERA-2R uses the SPJ approach to specifically assess the risk of violent extremism.

269 Unstructured professional judgement integrates intuition, experience and available information, and has been criticised as having low reliability and low validity, and providing non-repeatable and inferior judgements. Actuarial approaches are not regarded as suitable for assessing violent extremists, as rigid and inflexible actuarial indicators are not relevant to a small population with complex motivations and nuanced ideologies.

[SPJ] is a combination of empirical knowledge and professional judgement. The assessor identifies a risk level by considering a defined set of relevant risk factors using an evidence base and a pre-established rating system. Different risk scenarios can be considered and risk management planning for each of these scenarios may be undertaken. This approach can be applied at the clinical level by psychologists, psychiatrists and other behavioural scientists... SPJ protocols draw on diverse factors which are generally divided into a number of themes or domains that are important to consider from the scientific knowledge base and from obtained empirical evidence.

...

The development of [SPJ] for risk assessment has resulted in an approach that surpasses the precision of unstructured professional judgement. SPJ has also been considered the most appropriate methodology for violent extremist risk assessment by scientific experts... The development of an SPJ instrument specifically focused on violent extremism was essential due to analyses that revealed that more than 70 percent of the indicators used in other general violence risk-assessment instruments for judging the risk of general violence were not relevant to the characteristics of violent extremists.[81]

271 The VERA manual says that the VERA-2R instrument is not intended as a replacement for clinical or professional judgement, but as a support for such judgement. It claims to provide increased support and defensibility for risk decisions, due to its scientific method, and its extensive, standardised and measurable individual risk indicators.

272 In Nigro, the Court of Appeal noted that predicting the prospect of a person committing a criminal offence in the future is notoriously difficult. The court made the following general observations, which are equally apposite in this case. The prediction of risk is in large part a matter for expert opinion, which obliges the court to take into account any assessment report filed. The making of such a prediction requires expertise which judges do not have. It calls for observation and assessment of those who commit the particular type of offence, and a detailed knowledge of the types of factors, both personal and environmental, which increase or reduce the risk of further offending. The necessary expertise combines the ability to make a qualitative assessment of the individual, and the ability to utilise the available quantitative risk assessment instruments. A risk assessment report would ordinarily be at the centre of any court evaluation of the level of risk.[82]

275 Each core indicator contains specific criteria for three levels of rating for that indicator ("low", "moderate", "high"). [Redacted]

276 The use of a three point scale, with defined meanings, allows a degree of standardisation that is not present with unstructured professional judgement. Although criterion definitions are supplied for "low", "moderate" and "high" ratings, the VERA manual says that it is also possible to score specific indicators as being between two of those three ratings, for example, as being "low-moderate" or "moderate-high". The VERA manual says that such differentiation can help in the ultimate interpretation of all available data, and may influence the final risk assessment.

277 Each indicator also contains suggested lead questions, and a list of qualitative information that may be relevant to the indicator. The VERA manual notes that the lead questions for each indicator are intended to be illustrative examples, to assist the assessor in formulating questions likely to elicit information that is important to each indicator. Additional questions should be considered based on the circumstances of the individual, the context of the assessment, and concerns identified for the assessment.

278 Because the risk assessment is based on professional judgement, rather than an actuarial model, the VERA manual also allows the use of supplementary indicators in the determination of the final risk assessment. [Redacted]

279 The VERA manual instructs users to obtain information from different sources, as is standard practice for all violent risk assessment instruments. After all available information is factored into the VERA-2R indicators, and the qualitative evidence and knowledge is documented in detail, ratings for each indicator are completed using the criterion-referenced information. In considering the overall risk level of an individual, the assessor must consider the relative importance of each of the indicators with regard to the credibility of the available evidence. After a consideration of all the indicators, a final risk judgement is made in terms of the individual likelihood of engagement in violent extremist action. An indicator cannot be assessed for risk without evidence-based data. This information must be documented on the assessment form, to substantiate the risk rating provided by the assessor.

283 In the CDO proceeding, Dr Dewson assessed Mr Benbrika as having a "high" risk of violent extremism. By the time of preparing her reports for the review, she assessed Mr Benbrika as having a "moderate-high" risk of violent extremism.

284 In her fourth report, she gave the following reasons for that reduction in risk assessment:

Since [2020], he has been subject to strict and restrictive conditions under a CDO and has engaged in ongoing CISP and psychological intervention. As a result of these changes in circumstances, Mr Benbrika's risk profile has necessarily changed. He appears to have made some personal changes and is participating adequately within CISP. Despite this, he continues to present with a typically inflexible style of thinking and has rigid religious beliefs. Whilst he denied any intent or desire to engage in any violent extremism, he continues to support the use of violence in some contexts.

Whilst there is no evidence that Mr Benbrika has had any recent contact with violent extremists, it appears that his access to others has been highly restrictive within his current placement. Further, I note that the identities of those in correspondence with Mr Benbrika are unknown to me, and this may impact his current risk profile. Should Mr Benbrika transition into a less secure environment, his ability to refrain from contact with problematic individuals would become clearer. There appear to be ongoing risks associated with Mr Benbrika wanting to mentor others, particularly those who are potentially vulnerable and have limited religious knowledge. Despite the feedback that Mr Benbrika has received in relation to this, it appears that he lacks insight into the influence he has over others.

Over the past year, Mr Benbrika has demonstrated an increase in behavioural and emotional dysregulation, along with grievances for those he holds responsible for his ongoing incarceration. He has demonstrated difficulties managing his behaviour when in distress, having engaged in poor decision making within these heightened emotional states. He tends to personalize issues, generalized his frustration onto groups as representatives of individuals who have slighted him and engaged in a pattern of negative cognitions. This not only relates to Mr Benbrika's coping, but also likely impacts the nature and intensity of grievances he holds towards others. This will likely be an ongoing treatment need for Mr Benbrika to manage his risk in the future.

Despite some notable changes, it is my opinion that Mr Benbrika continues to present a risk of violent extremism should he be released into the community and subsequently I believe that he requires ongoing intervention to address his risks and needs. ...

In the case that Mr Benbrika is released soon, it is likely that he will return to live with his family in circumstances like that he experienced at the time of his offending. ... Mr Benbrika may have the capacity to reconnect with previous associations, which would be considered a considerable risk for reoffending. Given Mr Benbrika's assessed risk, needs and responsibility factors, it may be difficult for Mr Benbrika to consistently and adequately address these within the community.[86]

285 In her fourth report, Dr Dewson gave the following opinion about Mr Benbrika's likely risk scenario:

On the basis of Mr Benbrika's risk profile, the most likely scenario (should he re-offend) would likely relate to him directing or encouraging others to engage in acts of violent extremism in Australia. This scenario has been developed based on his previous offending, his tendency to seek out others to provide religious guidance and his religious ideology. In a less serious scenario, Mr Benbrika may encourage others to participate in religiously inspired combative actions abroad or to provide financial support to those who do. Whilst unlikely that Mr Benbrika would himself engage in physical acts of violence, given his grievances towards the Australian Government, I am unable to rule out the possibility that Mr Benbrika could target an Australian citizen (e.g., Government employee or civilian) as retribution for his perceived mistreatment. Given that he may be under supervision and/or surveillance in the community, it appears less likely that this would constitute a sophisticated attack, however, one which could still prove lethal.[87]

286 After being briefed with additional material, Dr Dewson prepared her fifth report, in which she concluded:

Having reviewed the additional material, in my opinion, there are no significant changes to Mr Benbrika's risk profile since my last assessment. It appears that Mr Benbrika has encountered some challenges over the past few months and continues to have difficulty coping with his environment. In my opinion, he appears to be fixated on perceived grievances towards [Corrections] and the government and has strong emotional reactions when these beliefs are triggered. He has discussed these grievances across various settings and when perceivably mistreated, he engages in what appears to be a cyclic pattern of rumination, avoidance-based coping, and social disengagement. It appears that he has likened his treatment to atrocities across the world (such as Nazism and the Uyghurs in China), which has potentially served to stimulate his underlying grievances. According to the literature, "grievances are generally seen as a risk factor for terrorist acts and form important elements in the assessment of the risk of terrorism". Further, emotional responses to perceived injustices (most notably, anger) are associated with political violence and terrorism. Notably, anger is believed to intensify "when the responsible party is perceived to be unjust and illegitimate". As such, Mr Benbrika's perceived personal grievances and the emotional reactions in response to these, are relevant indicators for his risk of violent extremism.

In terms of his ideology, his CISP reports reflect the positive change as he works towards his goal of denouncing violence as an acceptable dialogue or to progress any agenda. Despite this, there is evidence within his CISP case notes that suggest that he views the United Nations as "devil forces" and was described as showing an interest in the Taliban (in relation to the events unfolding in Afghanistan at the time) in which he indicated that Sharia penal codes needed to be implemented in Afghanistan. Further, his case notes suggest that he "showed sympathy to ISIS" in August 2021. Whilst there is no indication that he has made plans or currently has intent to inflict violence on others, it appears that he acknowledges the use of violence within his religion as a form of sanction...

Mr Benbrika continues to show little insight into his risk factors and continues to externalise responsibility for his actions (i.e., he was reported as saying that "the current judges are punishing him for no reason or sin"). As mentioned in previous reports, his ability to manage his risk factors in less restrictive environments, is therefore unclear.

Mr Benbrika acknowledged that he has difficulty refusing social interactions (i.e., noting that it was "impossible to ignore people") and he continues to diminish the possibility that he could influence others in a negative manner. Notably, Mr Benbrika did disengage from Prisoner 2 when he deemed this to be an unhealthy relationship, although required external supports to assist with this process. Overall, Mr Benbrika doesn't appear to be in contact with known extremists, yet he has facilitated contact with other inmates who appear to have supported Mr Benbrika's grievances about his placement and attitudes towards [Corrections].

Acknowledging the new information, Mr Benbrika is assessed as moderate-high risk of violent extremism... it is my opinion that any offence committed by Mr Benbrika in the future could meet the threshold for a serious Part 5.3 offence.

Given that Mr Benbrika has difficulties regulating his emotions, disengages from supports during times of distress and has ongoing grievances, it is my opinion that managing his risk in the community would be difficult and he would likely encounter barriers to utilizing supports available to him. Whilst his participation in interventions is considered positive, in my opinion, there have been insufficient changes at this stage to ameliorate his risks.[88]

287 In her sixth report, Dr Dewson assessed Mr Benbrika's risk of committing a serious Part 5.3 offence should he be subject to an ESO as remaining "moderate-high." She said that although an ESO would provide Mr Benbrika with "external management" (that is, make offending more difficult by physically controlling his behaviour and restricting his environment), it will not reduce his inherent risk because it does not directly target his internal motivations for offending (such as having a commitment to an ideology that justifies the use of violence).[89] Dr Dewson's sixth report, and Mr Benbrika's argument that Dr Dewson undertook the wrong task by assessing his "inherent risk", will be considered later in these reasons.

288 Following her interview with Mr Benbrika in December 2021, Dr Dewson noted in her seventh report that Mr Benbrika had provided some information in relation to his ideology that was inconsistent with his previous views:

It is possible that these inconsistencies are the result of internalised change to his ideology, which would act as a protective factor and therefore reduce his risk of conducting a serious Part 5.3 offence. It is also possible, however, that these statements are self-serving and act to appease assessor's concerns about Mr Benbrika's risk of engaging in violent extremism. If it is the case that Mr Benbrika has not internalised these ideological changes, his risk score would remain unchanged...

Since I last interviewed Mr Benbrika, his verbal accounts suggest that he has begun to accept responsibility for his offending actions and to change his ideology in relation to violent extremism. Despite this, these changes are relatively new, and it is unclear if they are sincere, fixed, and internalised beliefs. Should he demonstrate consistent change, in which he continues to denounce the use of violence in Australia and denounce Australians travelling abroad as foreign fighters, this would suggest that his risk of engaging in an act of violent extremism is reducing. In my mind, however, there has been insufficient time for Mr Benbrika to consistently demonstrate these changes, in a variety of contexts, in order for them to be considered protective factors and to reduce his risk rating. As such, I remain of the opinion that Mr Benbrika presents as a moderate-high risk of engaging in a serious Part 5.3 offence and no changes have been identified in relation to his hypothetical risk scenarios.[90]

289 Dr Dewson was cross-examined in great detail in relation to a number of aspects of her opinions. Mr Benbrika expressly disavows any suggestion that Dr Dewson was dishonest, or biased. However, Mr Benbrika argues that Dr Dewson made various errors in her reports, the consequence of which is that Mr Benbrika's risk level cannot accurately have been assessed as "moderate-high". He argues that there is no reliable evidence from her, or any other witness, as to what the risk would be if the errors were corrected.

290 Mr Benbrika argues that the court should give no, or very little, weight to Dr Dewson's opinions, as a result of those errors. Dr Dewson's opinions being the centrepiece of the Minister's case, if little or no weight is accorded to her evidence, then the court would have to conclude that the Minister has failed to satisfy the court to the requisite standard of the statutory requirements for a CDO.

291 Mr Benbrika's criticisms of Dr Dewson's evidence fall into the following general categories:

(a) Selectivity: He says that she took a selective approach to the material, and omitted from her reports and her VERA indicator form a large number of documents or information that were relevant and favourable to Mr Benbrika;

(b) Misinterpreting sources: He says that she was unfair and misleading in her characterisation of some source materials;

(c) Lack of expertise: He says that she lacked the training and experience to express an opinion on the critical issue of the content of his ideology;

(d) Mistakenly scoring the VERA-2R indicators: He says that she misunderstood and misapplied the scoring system for individual indicators;

(e) Misinterpreting the VERA-2R indicators: He says that she misinterpreted some of the indicators, leading her to assess his risk too highly; and

(f) Asking the wrong question: He says that she looked (erroneously) at Mr Benbrika's "internal" risk, unadjusted for the lowering of risk that an ESO would provide.

292 In general terms, the Minister says that if there were any errors or omissions in Dr Dewson's reports, they were minor, and do not affect the validity of her opinions. The Minister says that the court can, and should, rely on Dr Dewson's risk assessment in affirming the CDO. The Minister's response to Mr Benbrika's specific criticisms will be considered below.

293 In cross-examination, Dr Dewson agreed that she included in her reports the information and evidence that she regarded as important to her opinions. She also agreed that the VERA-2R indicator form was a summary of the evidence that she regarded as important in forming her opinions. She accepted that she made choices about referring to particular pieces of information, and not to others.

294 She was cross-examined at length about 22 particular exculpatory or favourable matters, to which she had not specifically referred in any of her seven reports or the indicator form.[91] Most of them relate to things Mr Benbrika is noted as having said in CISP sessions. In almost all cases, she accepted that the matter was either relevant, or highly relevant, to one or more of the VERA-2R indicators, and that she had not specifically referred to it in her reports.

295 There is no dispute that Dr Dewson took a selective approach to the substantial amount of material with which she had been briefed. Much of the material in the CISP documents might be regarded as relevant, or highly relevant, to her risk assessment. She conceded that she could have explored some things in greater detail, but said it would not have been practical to refer to all relevant material in her reports. I agree with that observation. Her task was not to itemise, or refer to, every single piece of information put before her; it was to consider all the relevant material in order to come to a professional judgement that she was able to explain and justify. This proceeding is not a judicial review of the adequacy of her written reports.

296 Dr Dewson said that her reports and score sheets are a summary or snapshot of the evidence, and highlight the key points arising from all the material. That approach is consistent with the parties' avowed approach to the CISP notes, which is that they should be looked at for general themes or trends, rather than focussing on individual words or phrases. The selectivity argument is another instance of Mr Benbrika honing in on specific words in CISP notes, rather than sticking to general themes or trends.

297 Dr Dewson repeatedly said that she had reviewed and had regard to all the material briefed to her. She did not agree that the fact that she did not specifically refer to information in her reports meant she had not taken it into account in her assessment. In relation to a number of the 22 specific matters, Dr Dewson said that she had discussed its substance, or canvassed the topic, in her reports, albeit not by reference to the particular CISP note relied upon by Mr Benbrika. Mr Benbrika does not suggest that Dr Dewson was dishonest in any of her evidence. I accept her evidence in this regard.

298 Mr Benbrika specifically disavows any suggestion that Dr Dewson was selective because she was biased against him. Although Mr Benbrika describes these 22 omissions as "telling", it is far from clear what they are supposed to "tell", given that disavowal.

299 For example, Mr Benbrika says that Dr Dewson omitted to mention several specific CISP notes that refer to Mr Benbrika making some progress in relation to his ideology between 2018 and 2020. Instead, her reports referred to his rigidity, and described his progress in that period as being limited. However, in cross-examination, she accepted that he had been on a trajectory of change for several years, although said that most of the change was in the past year or so. Mr Benbrika wants to rely on her evidence of there being a trajectory of change, but criticise her for not referring in her reports to some specific CISP notes about positive change. Furthermore, her comments about his rigidity and the limited change between 2018 and 2020 are entirely consistent with other evidence, including the annual CISP plans and CISP notes, during that period. Read overall, the CISP notes during that period clearly show backwards, forwards and sideways movement on ideology. For Mr Benbrika to focus on some CISP notes that show forward movement in that period is itself selective.

300 Dr Dewson also clearly understood and referred to Mr Benbrika's numerous claims about changing his ideology based on discovering the Aziz covenant, even though she did not specifically refer to every single CISP note in which he mentioned it.

301 In a CISP session on [redacted] 2020, Mr Benbrika was asked if the Muslim world would see ISIS as an example of those who went against what the majority of Muslims said and did, and he answered "of course". He went on to say that ISIS did not know their manhaj (meaning they did not have a proper methodology of ensuring that their religious views were correct), and that is why they made mistakes in their religion. Dr Dewson did not refer to that part of the CISP note in any of her reports. However, she did refer to the very same note, in so far as it said that Mr Benbrika had lost trust in the sheikhs as a result of incarceration and his perceived treatment. She agreed that it was "highly selective" of her to have referred to a negative part of the note, but not a positive part. Once again, it was not suggested that this was anything other than an honest mistake or omission on her part.

302 It is not clear where this argument about selectivity is supposed to take Mr Benbrika. Dr Dewson did not agree that the missing information would have changed her scores on the individual indicators, and gave plausible reasons for taking that position. It was not suggested to Dr Dewson that the contents of any of the 22 matters to which she made no specific reference would have changed her ultimate risk assessment.

303 There is nothing in Mr Benbrika's arguments under this heading that causes me to have concerns about Dr Dewson's risk assessment.

304 Finally, in her oral closing argument, the Minister raised for the first time that there were also inculpatory things not referred to in Dr Dewson's reports. The Minister says this further illustrates that Dr Dewson could not refer to everything in her reports. Given the vagueness with which the Minister identified the alleged missing inculpatory matters, it was not possible to test the veracity of that claim in the limited time before the end of the hearing. Accordingly, I have had no regard to this claim by the Minister, in assessing Mr Benbrika's complaint of selectivity.

305 Mr Benbrika cross-examined Dr Dewson on a handful of documents, which he says she characterised unfairly in her reports.

306 In her first report, Dr Dewson referred to a CISP note of [redacted] 2020. She described it as being "of interest" that Mr Benbrika had expressed a "critical opinion of the United States and their government." In fact, in that case note, Mr Benbrika was critical of Donald Trump's handling of the coronavirus pandemic, and described Mr Trump as an "immature child". In cross-examination, Dr Dewson accepted that the comment in her report was a totally unfair characterisation of the CISP note, and was incorrect and misleading.

307 Dr Dewson undoubtedly mischaracterised what Mr Benbrika said about Donald Trump. His comments about Mr Trump would be regarded by many as politically mainstream; they certainly have no relevance to terrorism or violent extremism. However, it was not suggested that she mischaracterised his words deliberately. Furthermore, the error occurred in a footnote to her first report, and there is no evidence that Mr Benbrika's asserted anti-American sentiments played any particular role in Dr Dewson's risk assessment.

308 Mr Benbrika also complains about the way that Dr Dewson dealt in her fourth report with two of the many notes in which Mr Benbrika discussed jihad.

309 In her fourth report, Dr Dewson referred to a clinical case note in which Mr Benbrika said that jihad was part of his religion, so that if he renounced it he would be a disbeliever. But Dr Dewson did not refer to the very next sentence in that note, in which Mr Benbrika said that "violent jihad did not exist in his religion and/or culture", that he had asked for a definition of the term "violent jihad" and had not received one. Dr Dewson accepted that her reference to the note was "incomplete and selective."

310 In that same report, Dr Dewson said that "The issue of the 'violent jihad' was also discussed on [redacted]/2021, although they did not settle on a definition." The CISP note for that date records that:

[Mr Benbrika] asked about the definition of the term 'violent jihad' that the judge asked him about during his trial. He said that he wants a definition of this term from the CISP. Sheikh H advised that he should be speaking to his lawyer about this. [Mr Benbrika] requested to speak with Sheikh D once again.

311 Mr Benbrika argues that Dr Dewson's description of the case note was inaccurate, because it suggested that there had been a substantive discussion about the meaning of the phrase "violent jihad", with Mr Benbrika and the imams having different views about the meaning. Mr Benbrika says that, in fact, neither he nor the imams had a meaning for "violent jihad", and he was asking for one.

312 In cross-examination, Dr Dewson did not agree that her description of the case note was inaccurate.

313 The note made by Dr Dewson is very brief. It accurately records that "violent jihad" was discussed on the relevant date, but says almost nothing about the duration or substance of the conversation. The phrase "they did not settle on a definition" is ambiguous, and may be capable of conveying several different meanings (including that the imams and Mr Benbrika had different definitions, or had no definitions). Relying on a particular construction of a single sentence in Dr Dewson's report, as the basis for an argument that her source descriptions are unfair or misleading, seems to be clutching at straws.

314 A fair reading of Dr Dewson's seven reports demonstrates that she understood and fairly discussed Mr Benbrika's many statements about jihad or violent jihad.

315 Even though Dr Dewson's seven reports, and the voluminous underlying source materials, have clearly been carefully scrutinised on behalf of Mr Benbrika, only a handful of examples of alleged unfair characterisation were found. Even if all three of these examples could be characterised as unfair or misleading, that would hardly be sufficient to cast doubt on the validity of Dr Dewson's overall opinions.

316 There is nothing in Mr Benbrika's criticisms in relation to these three documents that causes me to have concerns about Dr Dewson's risk assessment.

317 Mr Benbrika did not oppose the admission of Dr Dewson's evidence. However, he argued that it should be given little, if any, weight, because her training, study and experience did not equip her to express an opinion on the most critical question bearing on risk, namely, his ideology.

318 Dr Dewson accepted that understanding a terrorist offender's ideology is a critical part of the VERA-2R process.

319 Dr Dewson is a registered forensic psychologist, having commenced working as a psychologist in 2006. She holds a bachelor's degree in social science, a post-graduate diploma in psychology, a master's degree in forensic psychology, and a PhD in investigative psychology.[92] Dr Dewson has considerable experience working in NSW correctional facilities, including six years in assessment and intervention for high-risk offenders. Since entering private practice in 2016, she has primarily provided expert reports and evidence in relation to high risk offender legislation.

320 I agree with Tinney J's observation that Dr Dewson is a highly qualified and experienced expert in the field of risk assessment for violent extremist offending. She has provided risk assessments in 11 other applications under the Crimes (High-Risk Offenders) Act 2006 (NSW), the Terrorism (High-Risk Offenders) Act 2017 (NSW), or the Code.

321 Dr Dewson has no expertise or formal qualifications in relation to Islamic theology. She readily conceded that it was outside her expertise to opine on theoretical religious or ideological discussions about Islam. Whilst acknowledging that this presented a limitation on her assessment, she believed that she understood Mr Benbrika's ideology sufficiently to perform a risk assessment. However, she accepted that some of the more nuanced religious or ideological discussions were outside her expertise. She also took at face value what other Islamic experts, the CISP imams, said about Mr Benbrika's ideology.

322 Dr Dewson did not seek expert assistance from a further Islamic theology expert, for the purpose of undertaking her risk assessment. Mr Benbrika argues that this means that she did not engage in good professional practice, because she did not seek to fill any gaps in her knowledge with other expert assistance. I reject that argument. Dr Dewson did not believe that she needed such expert assistance, as she regarded the evidence in the CISP notes and the case notes as sufficient to demonstrate his ideology, including its trajectory of change. Her belief was a reasonable one in the circumstances.

323 The Code contemplates that risk assessments will be undertaken by "relevant experts", who include medical practitioners, psychiatrists and psychologists. There is no requirement that the "relevant expert" must have expertise in the specific political, religious or ideological cause of the terrorist offender they are assessing.

324 I do not accept that the limits on Dr Dewson's expertise in relation to Islamic ideology rendered her opinions deficient or unreliable. Although she agreed that the precise meaning or nuance of certain statements about Mr Benbrika's ideology were beyond her expertise, I am satisfied that she had sufficient understanding of the key concepts to assess his risk. She also had the assistance of the CISP imams' expertise and opinions. In respect of non-CISP documents, such as letters from Mr Benbrika to the parole authorities, or things he told her in interviews, Mr Benbrika does not explain how her lack of understanding of some of the more technical theological concepts would have made any real difference to her opinions. I am not persuaded that she needed to have her own detailed knowledge of matters such as the Aziz covenant, the importance of Dr Aziz, the precise meaning of various Arabic terms, or the finer points of Koranic verse or Sharia law, in order to assess Mr Benbrika's beliefs and his risk. In her reports, and through her extensive cross-examination, Dr Dewson demonstrated sufficient understanding of relevant aspects of his ideology, including what he said about the Aziz covenant, to assess his risk.

325 Dr Dewson has appropriate expertise in the field of risk assessment for violent extremist offending. I am not persuaded that her opinions as to risk assessment should be given little, if any, weight because of any lack of relevant expertise in the finer points of Islamic theology.

326 Finally, I note that there seems to be a degree of inconsistency in Mr Benbrika's arguments about Dr Dewson's expertise. On the one hand, he argues that little, if any, weight should be given to her risk assessments, because of her lack of expertise in Islamic theology. On the other hand, in so far as she concludes that Mr Benbrika's ideology has been on a positive trajectory of change, he wants to rely on her evidence.

327 The marking system for each of the VERA-2R indicators has already been explained. Users are permitted to score each indicator as "low", "moderate" or "high", or as falling between two of those three scores.

328 Although Dr Dewson assessed Mr Benbrika as "moderate-high" on overall risk, she only used "low", "moderate" or "high" to score him on individual indicators. Initially, she said it was not an option to score between those three points for individual indicators, only for the final risk assessment. After being taken to the VERA manual, she ultimately agreed that mid-range scoring was in fact allowed for individual indicators.

329 This was undoubtedly a mistake on her part. In itself, her mistake goes nowhere. However, it may be relevant in combination with the next criticism made by Mr Benbrika.

330 Mr Benbrika argues that Dr Dewson misinterpreted 11 of the [redacted] core indicators, leading her to score him incorrectly in respect of them. He puts forward:

(a) Seven indicators that he says Dr Dewson accepted she had scored incorrectly; and

(b) Five indicators that she did not accept she had scored incorrectly, but which he says I should find she had in fact scored incorrectly (one of these five, [redacted] is in fact also one of the seven mentioned in the preceding paragraph, hence the total of 11).

331 Mr Benbrika argues that the combined effect of the concessions Dr Dewson actually made, together with the concessions that she should have made, was such that her overall risk assessment of "moderate-high" was indefensible.

332 The Minister argues that Dr Dewson only accepted that she should change her rating for one of the seven indicators mentioned above. As to the remaining six of those seven indicators, the Minister says that a fair reading of Dr Dewson's evidence shows that her acceptance of a different rating was qualified, either because it was conditional on Mr Benbrika's suggested interpretation of the VERA manual being correct, or because she maintained that her initial view was supported by the evidence.

333 The Minister says that although Dr Dewson ultimately made a number of concessions about the ratings to be given to individual indicators, even accepting all of the assumptions put to her by Mr Benbrika, she did not rate his overall risk as less than "moderate". She repeatedly rejected the suggestion that his risk would be "low" or "low-moderate".

334 As mentioned earlier, the general scoring system for individual indicators is as follows. For the risk indicators, a score of "high" indicates most risk, and "low" indicates least risk. For the protective factors, it is the reverse: "high" indicates high presence of a protective factor, and hence the lowering of risk; "low" indicates the absence of the protective factor.

335 Each indicator also has a description of what "low", "moderate" and "high" mean in the context of that specific indicator, as well as suggesting lead questions to be asked in order to derive information relevant to the indicator.

336 I will begin by considering the seven indicators which Mr Benbrika argues Dr Dewson accepted she had scored too highly.

338 Dr Dewson scored Mr Benbrika as "high" for indicator [redacted]. She accepted in cross-examination that, based on how she herself described Mr Benbrika's current ideology, at worst he should be, or could only have been, scored as "moderate" rather than "high" for this indicator.

339 This is the only indicator that the Minister agrees that Dr Dewson accepted without qualification should be re-scored.

341 Dr Dewson scored Mr Benbrika as "high" for this indicator.

342 Mr Benbrika argues that Dr Dewson accepted that, by the logic of her own reports, he could have only been scored "moderate-high".

343 In cross-examination, Mr Benbrika initially put to Dr Dewson that he could only have been scored as "moderate" for this indicator. Dr Dewson did not agree, but in response to the next question did accept that he could be rated between "moderate" and "high".

344 Dr Dewson subsequently explained that she did not consider her "high" rating to be an error bearing on her overall risk rating, although accepted "perhaps" the rating "could be moderate-high". After being taken through evidence relied upon by Mr Benbrika, Dr Dewson said she believed there was still evidence of a "high" rating which she said had been based on significant risk information, though also acknowledging there had been a shift on some issues. [Redacted].

346 Dr Dewson assessed Mr Benbrika as "moderate" for this indicator in her most recent assessment, having previously assessed him as "high". Mr Benbrika argues that Dr Dewson accepted that Mr Benbrika should have been scored as "low" rather than "moderate" based on an interpretation of the VERA manual that was different from the one she had earlier adopted.

347 Dr Dewson agreed that there was no evidence of Mr Benbrika currently seeking or possessing extremist materials, but said that he had been exposed to extremist material in the past, which she considered was relevant to her scoring of this indicator. That is because past exposure to such materials can have an enduring or ongoing impact on an individual, and hence can still be relevant to the current situation.

348 The dispute about this indicator also applies to indicators [redacted], which will be considered shortly. The dispute concerns whether the particular indicators should be construed and scored only on current material, and without regard to historical matters (such as past access to extremist material or training).

349 The answer to that question cannot be found in the general description of VERA-2R as being a "point-in-time assessment." That description does not mean that the assessor cannot have regard to historical matters; on the contrary, it is clear from the VERA manual that the assessor may consider various past matters in a number of contexts. That description just refers to the time at which the risk is being assessed.

350 Dr Dewson initially maintained that, taking the VERA-2R as a whole, a "moderate" rating was fair, because Mr Benbrika had been exposed to extremist material in the past. She eventually agreed that, on a literal reading of [redacted], it was directed only to the present time and whether the person was now a user, developer, or seeker of extremist materials. She accepted that on that basis Mr Benbrika should have been scored "low", as long as his previous access to extremist materials, and the impact on him, was taken into account in the overall assessment.

351 She also agreed that the [redacted] indicators were directed to the past. Dr Dewson did, in fact, take Mr Benbrika's previous access to extremist material into account in scoring [redacted]. Mr Benbrika argues that taking that matter into account again for [redacted] involved double-counting. There might be some force in a double-counting argument if the VERA-2R process was a mathematical one in which numerical scores are allocated and added up; but it is not a mathematical exercise. VERA-2R requires the assessor to score the core individual indicators for consistency, and to ensure that the assessor has considered all relevant matters, before coming to a professional judgement that is based on all the available material (only one of which is the indicator scores).

354 Dr Dewson gave evidence in re-examination that the lead questions illuminate "what the risk factor is actually seeking" and the information required to answer that particular risk factor. I agree that Dr Dewson's explanation is consistent with the VERA manual, [redacted].

355 The practical consequence of Mr Benbrika's narrow interpretation of [redacted], would mean that a person who had frequently viewed extremist material, but had been stopped recently because of the intervention of law enforcement, would have to be rated "low" [redacted], because they were not currently seeking or possessing such material. That does not seem to be a common-sense application of what this indicator is seeking to determine.

356 Accordingly, Dr Dewson's understanding that she could have regard to historical matters in scoring [redacted] does not appear entirely misconceived, notwithstanding her eventual concessions to the cross-examiner.

357 Although Dr Dewson eventually accepted that, on a literal reading of the indicator description alone, this indicator should be scored as "low", there is no evidence that such re-scoring would lead to any difference in her overall risk assessment.

359 Although she had previously scored him as "high", in her most recent reports Dr Dewson scored Mr Benbrika as "moderate" on this indicator.

360 The arguments and evidence in relation to this indicator are similar to [redacted].

361 In cross-examination, Dr Dewson accepted that she had no current information or evidence that Mr Benbrika was expressing an intention to participate in acts of violent extremism. Reading the indicator description narrowly as looking only at the current situation, she agreed that he should have been assessed as "low".

362 However, Dr Dewson still maintained that a VERA-2R assessment needs to take into account historical considerations and "looking at it in terms of the whole context, I still think there is evidence for moderate".

363 Dr Dewson later accepted in cross-examination that she had earlier agreed that [redacted] should be scored as "low", based on Mr Benbrika's interpretation of the manual.

365 Although she had previously scored him as "high", in her most recent reports Dr Dewson scored Mr Benbrika as "moderate" on this indicator.

366 Dr Dewson accepted that there was no evidence that Mr Benbrika was currently planning any terrorist attacks, or currently showing interest in taking part in the planning or preparation of acts of violent extremism. [Redacted].

367 Dr Dewson said that "because it's in such a highly restricted environment then contextual factors need to be taken into consideration...I've said moderate because of the past behaviours and because it's such a restrictive environment that there's no real scope for that to happen". She stated that she had scored this indicator as "moderate" on the basis of her clinical judgement.

368 I note that [redacted], so her approach does not seem to have been entirely misconceived.

369 Dr Dewson was re-examined as to how a history of planning or preparing for extremist acts may be relevant to risk. She said that "somebody who has demonstrated the willingness, capacity, interest, motivation, all the things that relate to a behaviour kind of actualising, there's an enduring risk for that person compared to a person who hasn't had that background". She also explained that she took into account that a person's ability to plan or prepare for extremist acts while in custody was significantly diminished.

370 Mr Benbrika argues that this does not change the fact that the indicator is expressed in the present tense, and as such this re-examination does not shift Dr Dewson's concessions. Similarly to [redacted], Mr Benbrika argues that Dr Dewson took into account his conduct and ideology at the time of the index offending in relation to other indicators, and as such there can be no question that it was considered in the overall assessment.

372 Mr Benbrika says that Dr Dewson accepted that Mr Benbrika should have been scored "low" rather than "high".

373 Dr Dewson accepted in cross-examination that she had misinterpreted this indicator, to the extent that she had assessed the issue by asking: [redacted]. Dr Dewson accepted that her interpretation was different to the manual.

374 Dr Dewson's understanding was that Mr Benbrika felt religiously bound to participate in extremist violence in Australia, but was prevented from doing so by the Aziz covenant (which she described as a "barrier"). She analogised it to a person who wishes to commit a sexual offence, but was confronted by the "barrier" of laws preventing such things. Mr Benbrika says she misunderstood the Aziz covenant in that regard.

375 Mr Benbrika argues that the difference between the sexual offence example and the present example is that, in the case of the sexual offending example, the inclination and the barrier have different sources: the subject is internally driven to offend, but dissuaded from doing so by law. He says that in his case, there is only one source: his understanding of his religious obligations. If his religious obligation is not to commit extremist violence, that is not a "barrier" to some separately-existing motivation to commit violence; it denies the existence of the motivation in the first place.

376 Based on the interpretation put by Mr Benbrika, Dr Dewson said, "I think that I could still say perhaps moderate, because there is some underlying motivation to engage in acts of violent extremism but the covenant is covering that, so somewhere between a low or a moderate I think would be fitting there." In response to a subsequent question however, she accepted that [redacted] "should have been" rated "low" based on Mr Benbrika's interpretation of the VERA manual.

377 The cross-examination of Dr Dewson was based on the assumption that Mr Benbrika accepts the Aziz covenant as a complete prohibition against religiously-inspired violence. I have already explained why I do not accept that assumption, and agree with the Court of Appeal that Mr Benbrika regards the Aziz covenant as a carve-out to his continuing belief in violent jihad.

378 Dr Dewson was also trying to make the point that, even if he did believe in the treaty or obligation, it did not mean that he had no religious obligation or motivation to participate in extremist violent acts. It would just be that he felt he could not do so in Australia.

379 Dr Dewson took into account Mr Benbrika's claim to have changed his ideology as a result of reading the Aziz covenant in her assessment of his risk. Importantly, Dr Dewson's assessment of Mr Benbrika's risk did not depend on her rejecting his claimed change in ideology. To the contrary, her change of overall assessment from "high" to "moderate-high" demonstrates that she concluded that he has experienced some positive change.

380 Dr Dewson nevertheless questioned whether or not his claims were genuine, given his history of deception, which she said speaks to "a person's character, and their willingness to deceive other people". She explained that risk assessors must exercise a degree of caution in accepting at face value what a violent extremist offender says about their ideology and intentions, because "strategic lying" is well established for that cohort of offenders. She also referred to Mr Benbrika's specific history of deception, at the time of the offending and subsequently.

381 Dr Dewson's evidence was that, in her interviews with Mr Benbrika, he did not display "outright deceit", nor did he appear to be "blatantly dishonest", but that there were "inconsistencies in some of the information". In particular, she said that inconsistencies within his various statements in CISP sessions made her question whether or not there was a genuine and sustained change.

382 Dr Dewson said that in forming her risk assessment she did not reach a concluded view about whether or not Mr Benbrika's statements about the Aziz covenant were genuine. Rather, she proceeded on the basis that "it is possible that it is a genuine change".

383 Dr Dewson said that if she was able to come to a concluded view about the genuineness of Mr Benbrika's claims to have changed his ideology because of the Aziz covenant, she would assess his risk as follows:

(a) If his claim was genuine, his risk would be "moderate";

(b) If his claim was not genuine, his risk would be higher, because it would suggest that he had been deceptive throughout CISP and that would suggest that he had not in fact experienced some positive change.

385 Dr Dewson scored Mr Benbrika in her most recent assessment as "moderate", having previously scored him as "high". Mr Benbrika argues that she accepted that Mr Benbrika should be scored "low".

386 Dr Dewson accepted that, as with [redacted], she had misinterpreted the indicator.

387 This was premised on the same interpretation of the VERA-2R manual and assumption about the genuineness of the "Aziz covenant" as was applicable to [redacted].

Modifications that Dr Dewson did not accept but should have

388 Dr Dewson did not accept, but Mr Benbrika argues that she should have accepted, that:

(a) [redacted] should have been scored "moderate" rather than "moderate-high" (which was as low as her actual concession would go);

(b) [redacted] should have been scored "low" rather than "high";

(c) [redacted] should have been scored "low" rather than "moderate"; and

(d) [redacted] should both have been scored "high" rather than "moderate."

389 It is clear from the VERA manual, and from Dr Dewson's evidence, that there is some complexity to the individual indicators. Dr Dewson frankly conceded that risk assessment is not an exact science, and that reasonable minds could differ on some of the indicators.

390 Mr Benbrika did not put forward an alternative assessment from his own expert, to enable me to evaluate any competing scores and their underlying reasons. Instead, he essentially invited me to re-score these indicators on my own, based on his submissions as to what the VERA manual means; that is something which judges have no training or expertise to do.

391 I will consider the arguments and evidence in relation to these five indicators, to see whether they cause me to have concerns about Dr Dewson's opinions. But it would be inappropriate for me to re-score the indicators.

392 This indicator has already been discussed in the previous section.

393 Mr Benbrika argues that this indicator should in fact have been scored at "moderate", not "moderate-high." That is because Dr Dewson accepted that it was a fair description of the evidence that Mr Benbrika rejects some of the democratic and pluralistic values, norms and laws of the society in which he lives. He says that [redacted], so he should have been scored as "moderate".

394 In cross-examination, Dr Dewson initially rejected that the indicator could be "moderate". Having been taken through evidence that Mr Benbrika sought to rely on, Dr Dewson maintained her view that there was "still evidence of high", taking into account what she considered was evidence of rejection of [redacted]. She then agreed that Mr Benbrika rejects [redacted] in which he lives, but when asked whether he should be scored as moderate, she said "on the balance of information that's available I would still say that there is quite significant evidence to suggest that he rejects...I still think there is significant risk information and that's why I've scored at a high."

395 As stated earlier, in cross-examination, Dr Dewson eventually agreed that, at the lowest, Mr Benbrika should be scored "moderate-high".

397 Mr Benbrika initially suggested in his written closing that Dr Dewson scored Mr Benbrika as "moderate" on this indicator, although he later states, as is reflected in Dr Dewson's final VERA-2R score sheet, that she scored him "high".

398 Dr Dewson explained in cross-examination that it appears that Mr Benbrika's grievances at the time of his offending have decreased, but grievances regarding his own treatment in custody have increased. At the time of the offending, Mr Benbrika's grievances related to his position against the Australian people and Australia concerning how Muslims were being treated overseas. His current grievances relate to his treatment in custody, such as issues concerning family visits, strip searches and COVID.

399 Despite these issues, Dr Dewson acknowledged there has been no physical violence by Mr Benbrika, only some veiled threats, and he has generally been a willing participant in psychological treatment and CISP. Dr Dewson stated that Mr Benbrika has had challenges in his relationship with Corrections, but not to the extent of receiving punishment, though "there have been times where his compliance has been questioned or he's been difficult with staff."

400 It was put to Dr Dewson that Mr Benbrika's emotions were not unreasonable or unexpected. Dr Dewson said that she does not necessarily perceive emotions as ever being unreasonable, and the question is whether the behaviour going along with those emotions is acceptable or unacceptable. Mr Benbrika argues that there are two difficulties with that response. [Redacted]. He says that Dr Dewson did not appear to disagree with the proposition that the emotions Mr Benbrika expressed were not unreasonable. Secondly, even if it is behaviour that is relevant, Dr Dewson's answers in regard to Mr Benbrika's compliance suggest that he is best described as having behaved in a way that showed "some anger," rather than "significant anger". As such, he should have been scored "moderate" rather than "high".

401 When asked if Mr Benbrika should have been scored "moderate", at worst, on the terms of the manual, Dr Dewson disagreed. She said it is her opinion that he should be scored "high", as this is an area where he has quite strong emotions and his behaviour in the past 12 months reflects this.

403 Dr Dewson accepted that in recent years there had been no evidence of Mr Benbrika being hostile to the Australian people. She accepted that Mr Benbrika told her in his December 2021 interview that he wanted to remain in Australia to get a second chance and prove them wrong. She agreed that this was relevant new information that she had not included the VERA indicator form.

404 Mr Benbrika put to her that he should have been scored "low", or "low-moderate", rather than "moderate" as she had scored him.

405 Dr Dewson accepted that someone else might have given Mr Benbrika a "low-moderate" score for this indicator, but she stood by her view that Mr Benbrika meets the criteria for "moderate" [redacted]. She said that at the end of the day it comes down to clinical impression and opinion, and while there has been some positive shift it is not sufficient enough to give him a "low" score.

406 Mr Benbrika dealt with these two protective factors together in his submissions. Dr Dewson scored both of them as "moderate". Mr Benbrika argues they should both have been scored as "high".

409 Mr Benbrika argues that it was plain from the various CISP notes to which Dr Dewson was taken in cross-examination that he was more than willing to participate in discussions about ideology, and was open to reconsidering his concept of the enemy.

410 Mr Benbrika argues that it is clear that he meets the criteria for a "high" rating for [redacted].

411 It was put to Dr Dewson that she should revise her rating on the basis of evidence put to her in cross-examination including CISP notes and Mr Benbrika's statements about the Aziz covenant. Dr Dewson did not agree. She said "we're talking about significant changes in ideology and I think that there are some inconsistencies within his reports and certainly the reflection of CISP staff is that he has made some positive changes, but they still note that he has got quite a way to go in terms of moderating his views".

412 Dr Dewson's comments are a fair reflection of the evidence that I discussed previously.

413 Mr Benbrika starts off by accepting that it is not for the court to apply the VERA-2R instrument itself and produce its own risk score. That is undoubtedly correct. As mentioned before, judges have neither training nor expertise in such matters.

414 However, in paragraph [145] of his closing submissions, Mr Benbrika goes through the process of trying to re-score Dr Dewson's VERA indicator form, as he says it should be scored. He produces a table which he says shows the new scores that Dr Dewson either accepted, or should have accepted, as correct.

415 He then goes on to make a number of submissions based on the assumption that the new scores in his table are correct. Based on his table, he argues that Dr Dewson should have accepted that Mr Benbrika's overall risk was "low", or "low-moderate" at worst, and that Dr Dewson's overall "moderate-high" rating is impossible to defend.

416 For the reasons already given, I do not accept the validity of many of his arguments about what Dr Dewson conceded, or should have conceded, to be the correct scores. That is to say, I dispute the correctness of his table.

417 Dr Dewson was cross-examined extensively about her assessment of Mr Benbrika's risk. Ultimately, even accepting all of the assumptions put to her in cross-examination, including that he would be in the community on an ESO, her evidence was that she would not assess his overall risk as less than "moderate". She repeatedly rejected the proposition put to her that, accepting Mr Benbrika's assumptions, his risk would be "low" or "low-moderate".

418 Quite apart from the question of whether Mr Benbrika's table correctly re-scores the indicators, there is another problem with his approach. Arguments based on his table seem to assume that all indicators are evenly weighted, and that arriving at a final risk score is largely a mathematical exercise. That is an erroneous assumption, for a number of reasons.

419 Dr Dewson said that the risk scores are less important than the description of what the risk is. Further, her overall risk assessment is not based on a score, or summation, of each indicator in the VERA-2R, but rather on her professional consideration of the whole of the available evidence.

(a) She considered the "negative" evidence of risk against the "risk supporting indicators", and the "positive" evidence of risk mitigation against the "risk mitigating factors," and then considered risk and mitigation in tandem;

(b) The purpose of the assessment is to go through each of the indicators, and to consider them all. Ultimately, the particular indicator against which she considered each item of evidence did not matter; and

(c) The benefit of the VERA-2R assessment is that it is highly individualised, in that it allows the assessor to consider all of the evidence and to describe the individual risk posed by offender, and how that risk is likely to manifest in the community.

421 Dr Dewson's approach is consistent with the explanation in the VERA manual to which I referred earlier. The VERA manual explains that the overall risk judgement is determined after the assessor has considered the available evidence, considered the ratings for each of the indicators according to seriousness, and considered the importance of the indicators. There is no fixed weighting for the indicators; rather, the weighting to be given to any indicator is a matter for professional judgment.

422 Dr Dewson frankly conceded that she had interpreted and applied some VERA-2R indicators differently to the way that Mr Benbrika suggests they should be interpreted, and that his interpretation (if correct) would or might lead to a different score for those indicators. She said she had done so based on her training and understanding of the literature as it pertained to each factor, and by reference to the lead questions, not just by taking one or two sentences from the manual.

423 I do not have the benefit of a contrary expert report, such as might persuade me that Dr Dewson's interpretation and approach were substantially inappropriate.

424 The limited concessions extracted by Mr Benbrika do not detract from the force of Dr Dewson's clinical assessment of the nature and severity of his risk.

425 For the purposes of her sixth report, Dr Dewson was briefed with a copy of the proposed ESO conditions that were ultimately in evidence before the court. She was asked to consider each of the 31 proposed conditions, and the combined effect of them, and "considering these proposed conditions, comment on the risk of Mr Benbrika committing a serious Part 5.3 offence." She was also asked to address three specific fact scenarios.

426 Dr Dewson considered the strengths and limitations of each of the proposed conditions, and the three scenarios, in some detail, by referring to both Mr Benbrika's "individual risk constellation" and the Risk-Need-Responsivity Model for Offender Assessment and Rehabilitation.

427 Although I have had regard to the entire contents of Dr Dewson's sixth report, I will not discuss all of her specific comments on the conditions in any great detail, as the parties did not do so in their submissions.

428 Her comments in relation to Mr Benbrika's risk of committing a serious Part 5.3 offence in the three specific scenarios on which she was asked to comment were as follows:

(a) Scenario 1: if the AFP superintendent notifies Mr Benbrika that he is not to be present at a specific mosque or mosques.

Dr Dewson said that could be helpful, in that it would deter him from associating at places or with people who have been identified as posing a risk to him.

But it would not deter him from accessing people whom he could potentially influence to adopt violent extremist views, nor would it prevent him from associating at places or with people who pose a risk to him, but have not yet been identified as such. It is also possible that this condition could increase Mr Benbrika's grievances towards the government, particularly as it may be perceived by him as interfering with him practising his religion.

(b) Scenario 2: if the AFP superintendent notifies Mr Benbrika that he is not to communicate or associate with his sons, Bakr and Oussama.

Dr Dewson repeated what she had summarised in her second report, about the relationship between Bakr and Oussama and various foreign fighters, and her concerns as to whether his relationship with those two sons would act as a protective factor on his release. She then said that she believed it would be important for Mr Benbrika to refrain from having contact with those sons, at least in the initial period after his release. How this could be managed in the long term would depend on Mr Benbrika's progress over time, and would need to consider any relevant intelligence holdings relating to his sons' behaviour and ideologies at the time.

She said that such a condition would have the potential to cause family friction, particularly as it would prohibit his sons from visiting the wider family within the context of the family home in which he would be living. In that regard, it could heighten Mr Benbrika's grievances towards supervisory agencies and the government more generally. Further, such a condition would not prevent him from communicating with those sons through an intermediary.

(c) Scenario 3: if Mr Benbrika was assessed as suitable to participate in psychological treatment or other treatment, rehabilitation or intervention programs, and his participation in those programs was voluntary.

Dr Dewson said that Mr Benbrika has outstanding treatment needs, which require intervention in the future. She described his compliance to date with professionals as generally acceptable, although punctuated by periods of disengagement and a general difficulty adopting feedback or making personalised changes (such as implementing new coping strategies). She said that, given his apparent disengagement from professional staff and intervention during recent periods of distress, it is possible that Mr Benbrika may refuse to attend community-based interventions in the future, particularly during times of adversity. Further, his general rigidity and self-reported stubbornness may make it difficult for him to access community-based intervention on a voluntary basis. In the absence of rehabilitation, not only may he make no further progress, but treatment gains to date could be lost.

In relation to Mr Benbrika's suggestion that his participation in treatment could be a mandatory, not voluntary, part of his ESO, Dr Dewson said that would give her some confidence that he would participate, although his ultimate participation would depend on his motivation to comply with the condition.

429 Dr Dewson made it clear that she was only able to comment on the proposed ESO conditions from a psychological point of view, and was not privy to information regarding the administrative and operational aspects of implementing them.

430 In her overall conclusions, Dr Dewson noted that there are strengths and limitations to all forms of intervention, but the efficacy of community-based regimes with the violent extremist population is largely unknown. She noted that Mr Benbrika's capacity to comply with community-based supervision was also untested. She noted that she had previously assessed Mr Benbrika as being a "moderate-high" risk of committing a violent extremist offence, should he be released into the community without any external controls. She then said:

In my opinion, should Mr Benbrika be subject to an ESO upon release into the community, he would be at lower risk of committing a serious part 5.3 offence, in comparison to him being released with no official supervisory provisions. Should he be compliant with the conditions, these conditions would likely deter Mr Benbrika from having contact with known extremists, from accessing violent extremist material, from making substantial preparations to commit an attack, or from undertaking or facilitating any strategic, paramilitary or explosives training. They cannot, however, directly target internal motivations for offending, such as him having a commitment to an ideology that justifies the use of violence, rejecting democratic society, having a hostile national identity, harbouring feelings of frustration, anger and hate in response to perceived persecution or lacking empathy for those outside his group. Further, these community-based conditions will not target static-like risk factors, such as previous exposure to extremist material, prior training in weapons etc. or possessing the organizational skills to commit an offence.

With the exception of condition 14 (which relates to voluntary participation in intervention, should he be assessed as suitable for such) the proposed conditions will provide Mr Benbrika with external management. That is, they will physically control his behaviour and restrict his environment to an effect that committing an offence is more difficult than it otherwise would have been. It is possible, that as a result of these conditions, Mr Benbrika could make internalized changes, which would reduce his risk of reoffending in the long term (ie at the expiration of an order). Currently, however, it is not possible to determine what impact these conditions will have on Mr Benbrika's risk profile in the long term.

According to the transtheoretical model (stages of change), people do not change in a quick and decisive manner, but rather change occurs through a cyclical and gradual process. Further, when change has been identified, time is needed to consolidate these gains before the associated risk factors can be considered to have been mitigated. Therefore, the implementation of external controls (ie supervision conditions) are not likely to reduce an individual's inherent risk or see them progress to a more advanced stage of change, but rather can 'manage' certain risk factors in the community. Given that the conditions of the ESO that are being sought in relation to Mr Benbrika are primarily based on external management, his overall risk remains moderate-high.[93]

431 She also adopted what she had said in her fourth report, that the most likely risk scenario, should Mr Benbrika re-offend, would relate to him directing or encouraging others to engage in acts of violent extremism, in Australia or overseas. She said it was unlikely that Mr Benbrika would himself engage in physical acts of violence, although she could not rule it out given his grievances towards the Australian government.

432 In cross-examination, Dr Dewson agreed that in her sixth report she was describing Mr Benbrika's internal or inherent risk, in the sense of being a set of characteristics that he possesses, rather than the risk he would pose in the community if he were subject to external controls. She agreed that although an ESO would materially reduce the risk of Mr Benbrika committing a serious Part 5.3 offence, that would not change his "risk score". She said "I don't adjust a risk score on the basis of ESO conditions. So his risk remains his risk. The external management are the things in place to hold that risk."

433 Although in her report she described the risk on an ESO as "lower" than the "moderate-high" risk which he would pose in the community without restrictions, she did not perform a formal risk-assessment on that risk using the VERA-2R instrument. It is not clear whether such a formal assessment would be possible, given the hypothetical nature of the ESO conditions.

434 Mr Benbrika argues that, in doing so, Dr Dewson approached the task incorrectly, and did not address the question which the court must address under s 105A.7(1)(b), namely whether "the offender poses an unacceptable risk of committing a serious Part 5.3 offence". I reject that argument, for the following reasons.

435 Even accepting, for the reasons discussed earlier, that sub-ss 105A.7(1)(b) and (c) are not hermetically sealed, it does not follow that Dr Dewson performed the wrong task. It is the court, not Dr Dewson, who has to apply the legislation, including considering the extent of overlap between matters that fall within both sub-ss 105A.7(1)(b) and (c). Dr Dewson is required to perform a risk assessment that falls within s 105A.6B(1)(b) or (c); she has done so.

436 It is clear that she primarily uses the term "risk" to describe inherent or internal risk, as that is what the VERA-2R assesses. In her sixth report, she nevertheless did consider and assess the extent to which Mr Benbrika's risk might be reduced if he was in the community on the proposed ESO. She did not produce a formal assessment score for that; she merely described it as being "materially lower".

437 I note that the approach to risk assessment that Dr Dewson took in this case was similar to that which she and the other two experts in the Pender case took, a case upon which Mr Benbrika relies before me.

438 I am not persuaded that Dr Dewson asked the wrong question in the way she assessed the effect of the proposed ESO on Mr Benbrika's risk.

Compliance with legal obligations (s 105A.6B(1)(f))

439 The court must have regard to the extent of an offender's compliance with any obligations which applied whilst the offender was on parole, or subject to a CDO or control order.

441 Although the Federal Court made an interim control order under s 104.4 of the Code on 1 December 2020,[94] it was only expressed to come into effect if Mr Benbrika was released from custody.[95] As Mr Benbrika has remained in custody, he has never been subject to the control order conditions.

442 There were no formal obligations imposed on Mr Benbrika under the CDO.

443 The Minister says that, to the extent that compliance with the conditions of detention may be considered compliance with CDO obligations, this is a neutral factor. That is because Mr Benbrika is detained in a highly controlled custodial environment, so there is limited scope for him to engage in problematic behaviour.

444 Mr Benbrika points out, with some justification, that such an argument involves a degree of circular logic: whilst he is held in a highly controlled environment, there is little opportunity for him to demonstrate that he can abstain from problematic behaviour in a less restricted environment.

445 It certainly cannot count against Mr Benbrika that he is in a restricted environment, and therefore unable to show what his behaviour would be outside prison.

446 In any event, I am not persuaded that this specified matter is concerned with an offender's general prison behaviour. Rather, it is directed at the offender's ability and willingness to comply with court-ordered conditions, as demonstrated by their compliance with previously-imposed conditions.

447 For these reasons, I have given this specified matter no weight in this case.

Any other relevant information (s 105A.6(1)(i))

448 At the end of the list of specified matters is a provision that the court must consider "any other information" as to the risk of the offender committing a serious Part 5.3 offence.

449 The Minister raises two matters under this subsection:

(a) Evidence about the recognised risk of members of the community being radicalised into perpetrators of terrorist attacks by influential people with extremist ideologies; and

(b) Mr Benbrika's past and current association with numerous people of national security concern.

450 The Minister relies upon unchallenged evidence from Charles Lister, Director of the Countering Terrorism & Extremism Program in the Middle East Institute in Washington DC. Mr Lister's qualifications and extensive expertise in relation to terrorist issues are set out in his report dated 30 August 2020 ("the Lister report"), and are not challenged.

451 The Lister report describes the important role that influencers have played in terrorism in the modern era. In the case of jihadist operatives and attack plots, such influencers have often assumed the mantle of ideological leadership, either as genuinely qualified sheikhs or clerics, or self-identified ideologues. Influencers of this kind can radicalise and influence a small number of operatives within a single communal or national group, or they can propel themselves into being international influencers capable of fuelling entire movements.

452 Mr Benbrika clearly fits within the category of "self-identified ideologue".

453 Mr Benbrika does not take issue with the Lister report. Rather, he argues that, absent any proof that he desires to influence others in a manner that promotes, urges or teaches extremist views that have the relevant nexus with terrorism, the Lister report cannot bear in any significant way upon the court's assessment of risk.

454 I agree that the Lister report's relevance and weight are tied in with the assessment of Mr Benbrika's current ideology and his desire to influence others. But it makes the important point that one person can have an enormous impact, even if the actual risk of him influencing others is low.

455 In making the CDO, Tinney J found that: Mr Benbrika had a desire and willingness to maintain contact with persons of national security interest for many years after his incarceration;[96] his two eldest sons facilitated and aided persons of national security concern visiting him;[97] and the visits only ceased as a result of the intervention of prison authorities.[98] His Honour concluded that Mr Benbrika had a continuing desire to maintain those associations, and that was an important matter pointing to the risk were he to be released into the community.[99]

456 The Minister argues that I should come to the same conclusions as Tinney J in relation to this issue. Mr Benbrika argues that he has voluntarily ceased associating with persons of national security concern.

457 Both parties rely substantially on their written submissions, and this particular point does not appear to have been argued as vigorously before me as it was before Tinney J.

458 Annexure C to the Minister's opening submissions contains a summary of the evidence upon which she relies in relation to this issue. The first 25 pages refer to matters up to and including November 2020, and the remaining couple of pages refer to matters since then. No issue was taken with the accuracy of any of the evidence in that annexure.

459 There is plenty of evidence that, for many years after his imprisonment, Mr Benbrika kept in contact with his co-accused and/or their family members, and with numerous persons who are known or suspected to have gone overseas to engage in ideological warfare or terrorism ("foreign fighters"). Many of the foreign fighters came to visit him in custody before they left Australia. However, much of the evidence in relation to his contact with the foreign fighters is fairly old, because many of them left Australia around a decade ago and have not returned.

460 Since 2014, Corrections has put restrictions on Mr Benbrika's visitor list, and has not approved visits by people they regard as being of security concern. Furthermore, since September 2015, all prisoners at Barwon Prison, including Mr Benbrika, have had their visitor lists restricted to a maximum of 10 visitors. Until those restrictions were imposed, there had been more than 50 people who had previously visited Mr Benbrika in custody.

461 Up until 2017, when he first became eligible for parole, Mr Benbrika still kept in direct or indirect contact with some of his co-accused.

462 In September 2019, Mr Benbrika told the CPO that he had no contact with any of his co-offenders, and was not in contact with anybody in the community who had been convicted of terrorist offences. Whilst I accept that Mr Benbrika may no longer be in direct contact with such persons, there is some evidence of indirect contact with such people through family members (including through the marriages of some of his children to family members of his co-accused).

463 Mr Benbrika's two eldest sons, Bakr and Oussama Benbrika, are still in regular contact with him. Neither of them has been convicted of any offence. They accompanied many of the foreign fighters on prison visits to see their father. Mr Benbrika said in a CISP session in [redacted] 2018 that his sons had trained with a couple of terrorists, and he was aware that they were persons of interest to Victoria Police. Although both of their Australian passports have been cancelled on national security grounds, I am unaware of the evidence relied upon in support of the cancellations. Both sons have passed messages between Mr Benbrika and some persons of national security concern or their families. On a couple of occasions in early 2020, Mr Benbrika was recorded having an apparently coded telephone conversation with his son, Bakr.

464 In a CISP session in 2018, Mr Benbrika said that he was not allowing anyone with a questionable background to be on his visitor list. There is also evidence of a handful of instances since 2018 where Mr Benbrika has returned, or not answered, mail he received from other terrorist offenders. Both of those matters are to Mr Benbrika's credit.

465 On the other hand, even though his access to violent extremists is highly restricted at present by Corrections, there is some evidence of Mr Benbrika's ongoing desire to maintain contact with persons of national security concern. In April 2020, Mr Benbrika was visited by Nasser Raad (the brother of two of his co-accused), and Abdul Sayadi (a foreign fighter). In 2013, both of those men's Australian passports were cancelled on national security grounds. Then in November 2020, Mr Benbrika sought to have Wessam and Izzet Raad added to his visitors' list; both of those men had previously accompanied foreign fighters on prison visits to Mr Benbrika. Corrections refused to approve them as visitors.

466 In so far as confidential exhibit 63 touches upon some of the issues raised under this heading, it is helpful to Mr Benbrika; but it is even vaguer and briefer than the other confidential exhibits.

467 There is also some evidence of recent attempts by Mr Benbrika to keep in contact with, or pass on messages through others to, convicted terrorist offenders.

468 There is no evidence as to the content of most of Mr Benbrika's communications with the various people identified by the Minister. However, even if the content of many of them was social rather than ideological, the long history of maintaining relationships with persons of national security concern is still relevant to an assessment of the risk if he were to be released into the community.

469 Mr Benbrika's connections with persons of national security concern may not be a strong risk factor in isolation. However, they are of concern when coupled with the following matters:

(a) His current ideology, which is still in the early stages of change;

(b) His view of himself as an important religious figure, who has an obligation and willingness to share his theological knowledge with others; and

(c) The fact that he still seems to maintain status in some parts of the Muslim community.

470 For the reasons set out above, I am satisfied of the following matters.

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

472 His extremist ideology at the time of offending and sentencing included a strong commitment to religiously-motivated violence.

473 Both parties agree that the question of whether Mr Benbrika's ideology has truly changed since then is at the heart of the risk posed by him.

474 I do not accept that Mr Benbrika began to re-examine his ideology, and began to move away from his previous extremist views, as a result of discovering a theological ruling called the Aziz covenant around 2014.

475 Mr Benbrika was initially motivated to participate in counselling and a deradicalisation program in order to improve his position in relation to his custodial placement and his prospects of parole.

476 However, the fact that his participation was initially motivated by self-interest does not mean that he has not started to make some progress towards deradicalisation.

477 Although his initial progress was slow, and not always linear, reports from the last few years suggest that he may be beginning to change his ideology, and make some progress towards deradicalisation. However, his religious grandiosity, self-importance, and rigid personality continue to present some challenges for him in that regard.

478 Any changes in ideology have come about through counsellors working with him on his communication and interpersonal skills, and mentors in the deradicalisation program challenging his ideological beliefs and opening him up to new ways of viewing his religion.

479 Even if Mr Benbrika now genuinely accepts the Aziz covenant, and believes that it would prevent him from harming the people of Australia, it does not mean that he no longer believes that he has a religious obligation to participate in violent extremist acts. His repeated failure or refusal to denounce violent jihad indicates that he regards the Aziz covenant as some sort of "carve-out" to his broader religious obligations.

480 He has maintained some connections with persons of national security concern. Combined with his current ideology, and the status he seeks to maintain in some parts of the Muslim community, that also contributes to his risk.

481 I have had regard to the expert evidence, particularly the evidence of Dr Dewson, who performed a risk assessment using an appropriate SPJ tool. She has modified her overall risk assessment since the CDO was made from "high" to "moderate-high", to reflect some of the changes that have been observed in Mr Benbrika's behaviour since the CDO was made.

482 Dr Dewson concluded that Mr Benbrika was beginning to accept responsibility for his offending actions, and to change his ideology in relation to violent extremism. She described a slow progressive trajectory of change over the last three to five years, with more change in the last twelve months than in the years before that. Dr Dewson said that the changes are relatively new, and it is unclear whether they are "sincere, fixed and internalised beliefs".

483 Mr Benbrika criticised a number of aspects of Dr Dewson's risk assessment and underlying opinions. I am satisfied that any errors or omissions in her evidence were relatively minor, and do not affect the validity of her overall assessment.

484 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 others who are already radicalised to engage in terrorist acts. Given the importance of influencers in modern terrorism, the consequences of his actions, were he to do so, would be very serious.

485 I am satisfied that the risk he poses is a risk of committing one or more of the same serious Part 5.3 offences as Tinney J found he was at risk of committing. The fact that there has been some reduction in his risk rating does not change the nature of the offences which he would be at risk of committing.

486 For these reasons, I am satisfied to a high degree of probability that Mr Benbrika still poses an unacceptable risk of committing a serious Part 5.3 offence.

487 In coming to my conclusions, I have also borne in mind the purpose of this part of the Code, which is the protection of the community, in Australia and overseas.

488 Even if Mr Benbrika's risk were to be reduced below Dr Dewson's current "moderate-high" rating, due to there being any validity in Mr Benbrika's criticisms of her assessment, I would still regard the risk as unacceptable at the current time, given the serious nature of the possible consequences of his actions.

WHETHER THERE IS A LESS RESTRICTIVE MEASURE AVAILABLE

489 Having been satisfied to a high degree of probability of unacceptable risk, the court is then required to consider whether there is a less restrictive measure available under Part 5.3 that would be effective in preventing the unacceptable risk.[100]

490 As mentioned earlier, the Minister bears the onus of proving that there is no less restrictive measure available, on the ordinary civil standard (subject to the Briginshaw principles).

491 The three less restrictive measures that were considered by Tinney J were: a control order; 24 hour police surveillance; and the possible cancellation of Mr Benbrika's non-citizen visa and his placement in immigration detention.

492 At the time of making the CDO, Tinney J was satisfied that there was no less restrictive measure that would be effective in preventing the unacceptable risk posed by Mr Benbrika.[101] The Court of Appeal found no error in that conclusion.[102]

493 Under s 105A.7(1)(c) of the Code as amended, the less restrictive measures to which the court may now have regard are limited to those "available under this Part" - that is, to control orders and ESOs.

494 Unlike control orders (which can only be made by the Federal Court), ESOs may be made by a Supreme Court, and may include any conditions the court is satisfied are "reasonably necessary, and reasonably appropriate and adapted" for the purpose of protecting the community from the unacceptable risk.[103] Without limiting the breadth of that provision, s 105A.7B(3) contains an extensive list of general conditions, and s 105A.7B(5) contains some specific conditions in relation to monitoring and enforcement, that may be included in an ESO. Although there is considerable similarity between many of the types of conditions the court may impose under an ESO and a control order,[104] I accept that an ESO is potentially the more restrictive of the two measures. The conditions that may form part of an ESO are even broader than those that could form part of a control order; the only limitation on the court's power in relation to an ESO is that the court be satisfied that the conditions are reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from unacceptable risk.

495 In determining whether each of the ESO conditions is reasonably necessary, and reasonably appropriate and adapted, the court must take into account "as a paramount consideration in all cases" the object of Division 105A (namely, to protect the community from serious Part 5.3 offences).[105]

496 Mr Benbrika does not suggest (and there is no evidence to support a finding) that a control order would be sufficient to prevent the unacceptable risk. However, Mr Benbrika argues that an appropriately-drafted ESO would be an effective less restrictive measure. Although the Minister's evidence and submissions addressed both ESOs and control orders, given Mr Benbrika's effective concession, I will focus on considering a possible ESO.

497 The relevant question is not whether there is a less restrictive measure that would prevent any risk of Mr Benbrika committing a serious Part 5.3 offence, but whether there is such a measure that would prevent an unacceptable risk of him doing so. This does not require the elimination of all risk, or a guarantee that there will be no risk. It will be sufficient if the less restrictive measure is able to reduce the risk to a level that is not unacceptable to the court.

498 The Minister argues that the evidence of A/C Lee and Dr Dewson establishes that, even having regard to the extensive and far-reaching conditions which could be imposed under an ESO or a control order, they would not be effective in preventing the unacceptable risk posed by him.

499 In considering the less restrictive measure issue, the court must have regard to both of the elements that make the risk of Mr Benbrika committing a serious Part 5.3 offence unacceptable, namely:

(a) The likelihood of him committing such an offence; and

(b) The consequences for the community were he to do so.

500 The parties addressed most of their submissions to the first of those issues, namely, the extent to which an ESO would be effective to reduce the likelihood of Mr Benbrika committing a serious Part 5.3 offence.

501 In the Benbrika constitutional decision, Edelman J observed that, with the extraordinary breadth of possible control order obligations, and assuming the availability of sufficient police resources, it should be possible to reduce to an acceptable level the risk of the commission of many serious Part 5.3 offences. I accept that those observations apply with even more force to an ESO, where a wider range of conditions is available.

An exception may be where the risk concerns an offence where the magnitude of harm to the community is great and the person's determination to commit the offence is strong. The possibility of a great magnitude of harm might mean that the risk would remain unacceptable even if extreme control measures and substantial police resourcing meant that the risk had become extremely small. And even if the risk remained unacceptable, a reduction in the extent of the risk by alternative available orders such as a control order upon the conclusion of the continuing detention might lead a court to impose a period of continuing detention that is shorter than would otherwise be imposed.[106]

503 The Minister argues that Mr Benbrika falls within Edelman J's exception; Mr Benbrika disputes that he does.

504 The Minister argues that the gravity of the potential consequences of Mr Benbrika committing serious Part 5.3 offences is such that even a relatively low risk of that occurring should be characterised as unacceptable. Thus, even if the court concludes that an ESO would be effective to result in a low likelihood of Mr Benbrika committing a serious Part 5.3 offence, the Minister argues that the risk should still be characterised as unacceptable. The Minister points out that Mr Benbrika did not seek to challenge the Lister report, or the evidence of A/C Lee in relation to the consequences of the risk posed by influencers, both domestically and overseas.

505 As previously mentioned, the Minister put some proposed ESO conditions before the court.[107] The AFP were involved in the drafting of the proposed conditions. They were the subject of evidence by A/C Lee and Dr Dewson, and of argument by the parties. However, both sides accept that, were I minded to order an ESO, there would need to be an opportunity for them to advance further argument about the final drafting of the conditions.

506 The proposed conditions are extremely extensive in content and operation. They contain conditions with the following headings: accommodation; supervision, monitoring and reporting; prohibited places; associations; groups, public appearances, education and counselling services; financial transactions; travel; mail correspondence; accessing or possessing prohibited documents; weapons; vehicles; treatment and intervention programs; employment, training and education; communication, internet use and electronic devices; name, identification and appearance; additional notification requirements; reasonable directions; exemption conditions; and the exercise of certain monitoring conditions. There is no challenge to the court's power to impose any of the proposed conditions.

507 As mentioned earlier, the parties did not descend into a detailed analysis of all of the particular conditions, so it is not necessary for me to do that either (although I have had regard to all of them, individually and collectively, in coming to my decision).

508 Mr Benbrika accepts that, in general terms, the proposed conditions are a suitable draft to start with, for the purposes of the review. Mr Benbrika says he would be willing to consent to ESO conditions of the type raised, subject to receipt of their final form and an opportunity to make submissions on their drafting. However, Mr Benbrika objects to part of one specific condition, and suggests two additional ones, which will be considered shortly.

509 I accept that any ESO conditions should be evidence-based, and tailored specifically to Mr Benbrika, so that each condition (and all conditions collectively) are reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk that he poses.

510 I also accept that any ESO conditions should be drafted with as much certainty as possible. Some discretion would need to be given to the "specified authority" (being the AFP superintendent, in the proposed ESO conditions), as not every situation can be known in advance of the next annual review, and there would need to be some flexibility. However, it would be unacceptable and unworkable for the AFP superintendent to be able to unilaterally refashion key aspects of the ESO, without reference to the court.

511 The only aspect of the proposed ESO conditions to which Mr Benbrika objects in principle is the proposal that the AFP superintendent could have the power to make a direction under the proposed association condition,[108] notifying Mr Benbrika that he is not to communicate or associate with his sons, Bakr and Oussama. Mr Benbrika is close to both of those sons, and has had substantial telephone and personal contact with them whilst he has been in custody. Although Dr Dewson was supportive of an initial prohibition on contact with those two sons, she also accepted that such a prohibition would be likely to cause family conflict and friction, and may heighten Mr Benbrika's grievances towards the government. If I were otherwise minded to order an ESO, I agree that such an extraordinary prohibition should be decided by the court, not left as a matter of unfettered discretion for the AFP superintendent to decide.

512 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.

513 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.

514 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.

515 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.

516 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.

517 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.

518 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.

519 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.

520 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.

521 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.

522 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.

523 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.

524 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.

525 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.

526 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."

527 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.

528 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.

529 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).

530 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.

531 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.

532 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.

533 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]

534 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.

535 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.

536 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.

537 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.

538 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.

539 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.

540 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.

541 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.

542 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.

543 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.

544 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.

545 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.

546 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.

547 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.

548 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.

549 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.

550 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.

551 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.

552 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.

553 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.

554 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.

555 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.

556 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.

557 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.

558 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.

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

560 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.

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

562 It was not suggested that I should decline to affirm the CDO on discretionary grounds if the statutory criteria have been satisfied.[111]

563 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.

564 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.

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

566 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).

567 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.

568 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.

569 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.

570 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.

571 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.

[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.

[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.

[3] Minister for Home Affairs v Benbrika [2020] VSC 888 ("the CDO reasons").

[5] Benbrika v Minster for Home Affairs [2021] VSCA 303 ("the CoA reasons").

[7] Minister for Home Affairs v Benbrika (No 2) [2021] VSC 684.

[8] Division 104 was inserted into the Code by Schedule 4 of the Anti-Terrorism Act (No 2) 2005 (Cth).

[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.

[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.

[19] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. Those principles are now contained in s 140(1) of the Evidence Act 2008 (Vic).

[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.

[24] [2021] NSWSC 1644.

[34] Sections 105A.2, 105A.6(4)(a), and 105A.6(7)(a) and (g).

[37] In fact, no such report was tendered on the review.

[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.

[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).

[42] Minister for Home Affairs v Benbrika [2021] HCA 4; (2021) 95 ALJR 166 at [47] (Kiefel CJ, Bell, Keane and Steward JJ).

[44] [2018] NSWCA 328.

[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).

[49] CoA reasons, [73]-[74], [79].

[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.

[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.

[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.

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

[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.

[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.

[61] Any further references in these reasons to Annexure B are a reference to the combined document containing both parties' references.

[63] Which was how the Minister described Annexure B in her opening submissions at [36].

[64] [1959] HCA 9; (1959) 101 CLR 568.

[65] NSW v Donovan [2015] NSWCA 280, [115]-[119].

[66] Hardy v State of New South Wales [2021] NSWCA 338.

1. [67] RADAR was developed in Australia by the Australia government, to be used as a countering violence extremism tool and assist in disengagement. It consists of a risk analysis, a needs analysis, and a case management component. The risk analysis establishes the suitability of a client for an intervention program; the needs analysis provides a more holistic evaluation of an individual's needs; and the case management component is used to track progress throughout intervention. The guidelines step the user through a series of tools to help map a baseline, plan intervention (develop intervention plan and goals) and track progress (map client progress/disengagement). Users require accreditation to implement the tool. The case management component is scored across five domains; ideological, social relations, action orientation, identity and coping, with scores ranging from 1 to 10, which correspond with three levels of intensity (notable, concerning and attention). Higher scores indicate more sustained disengagement and positive societal engagement. Dr Mischel is trained in RADAR, and gave some evidence about it in her report of 27 August 2020, especially at [22]-[23].

[68] In relation to the score of 2, Dr Dewson noted that it was unclear if this was an administrative error or if his needs score relating to ideology changed at an undetermined time from 3 to 2. No evidence was led from anybody involved in performing the RADAR assessments. Para [94] of annexure B says that it "remained" at 2 in the 2019 review, even though para [42] of annexure B said the initial score was 3. Whether it was 2 or 3, it clearly demonstrated substantial treatment needs.

[69] These 2020 scores have been taken from the original 2020 assessment report, as the 2021 report incorrectly transposed the previous year's scores.

[72] I will be brief as they contain information that was disclosed to Mr Benbrika's lawyers, but not to Mr Benbrika, and they were only discussed in closed court. The remaining confidential exhibit, exhibit 63, does not relate to Mr Benbrika's ideology.

[73] These matters might also have been considered separately under s 105A.6(1)(i) as "any other relevant information". However, the minister dealt with them under the rehabilitation heading, so I have done the same.

[74] I am not suggesting that there is evidence that he has provided them with guidance on extremist matters. However, the evidence clearly shows that there are still some offenders who regard him as a leader, and that he will provide religious guidance if it is sought.

[76] I will not refer further to the LS/CMI assessment, as it was not the subject of argument by the parties.

[78] Dr Mischel's third report was amended on 26 November 2020.

[80] CDO reasons, especially at [444]-[446].

[81] VERA manual, p 20. Citations omitted.

[86] Dewson fourth report, [80]-[84].

[88] Dewson fifth report, [44]-[49]. Citations omitted.

[89] Dewson sixth report, [36]-[38].

[90] Dewson seventh report, [24]-[25].

[91] The 22 matters were set out in detail in Mr Benbrika's closing submissions, especially at [53]-[80], and [85].

[92] Her doctorate was obtained in 2021, hence Tinney J's references in to her in the CDO reasons as "Ms Dewson".

[93] Dewson sixth report, [36]-[38]. Citations omitted.

[94] Lee v Benbrika [2020] FCA 1723, Besanko J.

[95] The control order appears to have been obtained as a precaution, in case a final CDO was not made by Tinney J.

[104] The specific obligations, prohibitions and restrictions that the issuing court may impose on the person under a control order are set out in s 104.5(3) of the Code.

[106] The Benbrika constitutional decision, [195].

[107] Exhibit SL-04 to the affidavit of A/C Lee dated 20 December 2021.

[111] Such an argument had been put to, and rejected by, Tinney J.