Plaintiff v Plaintiff

1. The Attorney-General proposed that an order be made until 28 November 2025, being a period of approximately 1 year from the expiry of the Lapsed Supervision Order.[157] Benbrika submitted that an extended supervision order should be made for the minimum time possible, with 6 months from the time of the trial proposed.
2. At the time of Ellis' first report in October 2024, he recommended that any further extended supervision order be made for a period of 1 year. He stated that this period would:

... consolidate the factors already managed, and for those where some uncertainty still exists (whether his attitudes to extremism and authority have indeed changed), there would be opportunity to further work with him around them.

3. An extended supervision order must be imposed for a period that the court considers reasonably necessary to prevent the identified risk.[158] In circumstances where Benbrika has made significant progress towards deradicalisation over the course of the Lapsed Supervision Order and during the operation of the 4 interim orders, the date proposed by the Attorney-General is to be preferred. Any shorter period would not properly address the ongoing risk that Benbrika poses or allow the issues identified to be meaningfully and sustainably addressed.

1. In recognition of the exceptionality of post-sentence orders, the powers contemplated under Division 105A of the Criminal Code are subject to a number of "statutory safeguards".[159] These safeguards ensure the protection of individual liberty under "what is very unusual and draconian legislation".[160] Among them are requirements that reasonable enquiries are made of Commonwealth law enforcement, intelligence or security officers to ascertain any facts that would reasonably be regarded as supporting a finding that an order should not be made,[161] and that any application be accompanied by a statement of any such facts[162] as well as any facts weighing against the imposition of any particular proposed condition.[163]
2. As mentioned above,[164] despite these clear obligations, the proceeding relating to the Lapsed Supervision order was marred by serious non-disclosure of critical evidence. Hollingworth J described the conduct of the Minister for Home Affairs in failing to disclose exculpatory material as "a serious interference with the administration of justice",[165] and stated:[166]

What happened in this case should never have happened, and should not be repeated in the case of [Benbrika] or any other person the subject of a post-sentence order application.

3. Despite this history and the stern admonishment it attracted, 2 critical documents were not disclosed to Benbrika or the court until, respectively, immediately prior to[167] and during the trial of this proceeding.[168] The non-disclosure of the Intelligence Report and the 23 October Case Note significantly impacted the shape of the proceeding. It resulted in unnecessary delay and added expense, and has had serious adverse effects on Benbrika's mental and physical health.[169]
4. To explain, the primary basis for the applications for leave to amend made by way of the 5 February Summonses was the Clavell Transcripts, and Ellis' revised opinion of risk in his third and fourth reports on the basis of Benbrika's interactions with Clavell.[170] Among other things, Ellis expressed concern about Benbrika's association with Clavell and stated that Benbrika's failure to disclose these interactions to treating clinicians or supervisors was indicative of either deliberate concealment or a lack of insight on Benbrika's part. It was for these reasons that he considered the imposition of the Further Conditions under any future order to be necessary.[171]
5. Both the Intelligence Report and the 23 October Case Note predate Ellis' further reports. Given that they relate, respectively, to the level of risk posed by Clavell and the advice Benbrika received from his supervisors in relation to the absence of any requirement to disclose such an association, their contents were plainly relevant to Ellis' assessment. Ellis himself accepted as much during cross-examination, and made clear that both documents would have affected his assessment of risk and management opinions.[172]
6. The Attorney-General's senior counsel was initially equivocal as to whether either document would have influenced the submissions made in support of the applications for leave to amend to add the Further Conditions. However, in circumstances where both documents had a direct bearing on the basis on which the applications were made, serious questions must arise as to whether the 5 February Summonses would even have been filed if not for the non-disclosure.
7. Even putting this question to one side, had the Intelligence Report and the 23 October Case Note been before the court at that time, there can be no doubt that leave to amend would not have been granted. In my reasons for granting leave, I made clear my reservations as to the strength of the Attorney-General's case for the Further Conditions on the evidence as it then stood.[173] However, I concluded that Ellis' third and fourth reports in combination with the Clavell Transcripts had satisfied the low threshold of establishing that the amendments had some prospects of success.[174] That would not have been the case had the contents of the Intelligence Report and the 23 October Case Note been in evidence at this time. Both documents effectively undermined the underlying basis upon which Ellis formed his revised opinions. In light of the appropriate evidence he gave at trial, it must follow that his third and fourth reports would have been fundamentally different and would not have supported the Further Conditions.
8. With this in mind, after these issues were aired on the third day of trial, I requested that the Attorney-General obtain evidence in relation to the circumstances surrounding the non-disclosure of both documents.
9. An affidavit sworn by the Commander purported to explain the reasons the Intelligence Report was not disclosed. In short, the Intelligence Report was prepared at the Commander's request in December 2024. On 5 February 2025, he was asked to prepare an affidavit in support of the applications for leave to amend.[175] The Commander deposed that in doing so, he reviewed and considered the Intelligence Report, but "placed minimal weight" on it as it did not change his opinion as to the risk involved in Benbrika's association with Clavell. In circumstances where the Intelligence Report was directly relevant to the issues in dispute on that application, the Commander's decision to not exhibit this document to his affidavit, or at the very least refer to its contents, was ill-informed. As the Commander was not cross-examined on his further affidavit (despite making himself available), it is not possible to form a view as to why he did not appreciate the need for some form of disclosure at the time.
10. The Commander also provided a chronology of the circumstances that ultimately led to the disclosure of the Intelligence Report. Despite the Attorney-General's legal representatives first making a request of the Federal Police for any "relevant contextual information" about Clavell as early as 15 January 2025, it was not until almost 2 months later that the Intelligence Report was provided to the Australian Government Solicitor. The Commander's recounting of the correspondence and discussions that occurred between representatives of the Federal Police, the Australian Government Solicitor and Victoria Police in the intervening period does not provide any justification for the significant delay in providing a document that was incontrovertibly disclosable at a critical juncture in the proceeding.
11. When these matters were raised on the final day of trial, senior counsel for the Commissioner of the Australian Federal Police immediately conveyed the seriousness with which the issue was being treated and rightly accepted that the Intelligence Report should have been disclosed at an earlier time. He stated that "with hindsight it was an oversight" and agreed that a cautionary approach must be taken to obligations of disclosure. This concession was entirely appropriate.
12. Very different circumstances surround the non-disclosure of the 23 October Case Note. They were set out in an affidavit affirmed by a senior lawyer at the Australian Government Solicitor with responsibility for the conduct of this proceeding. That affidavit outlined in detail the process adopted for reviewing material in the Attorney-General's possession to identify information required to be disclosed under section 105A.5(3)(aa) and (d)(iii) of the Criminal Code.
13. To summarise, as information is received from the Federal Police and other agencies it is uploaded to an electronic document review platform and then undergoes a 2-stage review process. The platform employs a coding template with several fields that reviewers must populate, including a mandatory "disclosure" field which can be populated with either a "yes" or a "no". There is also a "disclosure comments" field where reasons can be provided for the response given.
14. In this matter, the 2 stages of review were carried out by a junior lawyer and a senior lawyer, respectively. A third level of review has sometimes been undertaken where particularly difficult disclosure issues have arisen. After a document has undergone the first level of review, it is automatically assigned to a second level reviewer. The second level reviewer has the benefit of the first reviewer's assessment and comments. If the second level reviewer disagrees with the initial assessment, she or he can change the entry in the "disclosure" field from "yes" to "no" (or vice versa). This will override the first level reviewer's entry, however any comments will be retained. Upon completion of the second level review, any documents coded as disclosable are automatically sorted and extracted for disclosure. There is no further re-review process for documents marked as not disclosable at the end of this 2-stage process.
15. Specifically in relation to the 23 October Case Note, it was received from the Federal Police on 13 November 2024 and underwent first level review on 15 November 2024. While the first level reviewer's entry in the "disclosure" field has since been overridden, the disclosure comment that remains, namely "Benbrika seeking to further understand conditions of [extended supervision order] by asking [Federal Police]", is strongly suggestive of an entry of "yes". However, upon second level review some hours later, the 23 October Case Note was coded with a "no" for disclosure, and was therefore not extracted for disclosure. The reason provided for this later assessment was that the disclosable content was duplicated in another document that had already been marked for disclosure, namely a case note prepared by a representative of the Attorney-General's Department on 22 October 2024.
16. As mentioned above,[176] the 23 October Case Note was prepared by a representative of the Federal Police and records the substance and outcome of a discussion in relation to Benbrika's obligations with regard to disclosing his associations and interactions. This discussion came about after Benbrika asked a question on the subject during a case management meeting.
17. The case note dated 22 October 2024 is a record of that case management meeting. It refers to Benbrika asking a question about disclosing his associations to an alternate case manager,[177] who suggested that the Federal Police be invited into the room to address the question. However, in contrast to the 23 October Case Note, there is no record of the substance or outcome of the discussion that ensued. Thus, the fact that Benbrika was told in unequivocal terms that he was not required to disclose associations or interactions with any person not specifically named as a prohibited associate under the Lapsed Supervision Order remained undisclosed because the case note of 22 October 2024 did not touch on this matter at all.
18. It was accepted by the Attorney-General that the marking of the 23 October Case Note as a duplication of this document was erroneous, and that it should instead have been marked as disclosable. However, the Attorney-General maintained that despite this error, the review process adopted was a reasonable one, because the second level review was conducted by a more senior lawyer.
19. It is not the role of the court to tell the executive how to allocate its resources in order to properly perform its functions.[178] However, a 2-stage review process that does not mandate a third level of review in any case where the first 2 reviewers disagree on the issue of disclosure would seem to be of questionable utility. In practice, it has the effect of leaving critical decisions about disclosure in the hands of a single lawyer. In view of the salience of the Attorney-General's disclosure obligations under Division 105A, serious questions must arise as to the sufficiency of the process of review employed.
20. In putting it mildly, the senior lawyer at the Australian Government Solicitor described the delay in disclosing the 23 October Case Note as "regrettable". As outlined above, the late disclosure of both this document and the Intelligence Report has had a significant impact on the course of the proceeding and on Benbrika personally.

1. For the reasons set out above, on 8 April 2025, an extended supervision order including the Therapeutic Conditions was made in respect of Benbrika for a period of 7 months and 18 days, ending on 28 November 2025.
2. In contrast to the position in the proceeding relating to the Lapsed Supervision Order,[179] there was no evidence led on this trial about the appropriateness or necessity of any future post-sentence order in respect of Benbrika after 28 November 2025. As such, no finding or view to this effect is expressed.

[1] Benbrika was found guilty of a further charge (see R v Benbrika [2009] VSC 21; (2009) 222 FLR 433 (Bongiorno J)), but this was the subject of a successful appeal against conviction: Benbrika v The Queen [2010] VSCA 281; (2010) 29 VR 593 (Maxwell P, Nettle and Weinberg JJA).

[2] This is a reference to the offences referred to in s 105A.3(1)(a) of the Criminal Code.

[3] See Benbrika v Attorney-General (Cth) (2024) 74 VR 379, 429 [331] (Hollingworth J).

[4] Attorney-General (Cth) v Benbrika [2025] VSC 83.

[5] As the minister presently administering the Australian Federal Police Act 1979 (Cth): see Criminal Code, s 100.1(1) (definition of "AFP Minister").

[6] Ibid, ss 105A.2 (definition of "terrorist offender"), 105A.3(1).

[7] Defined as an offence against Part 5.3 of the Criminal Code, the maximum penalty for which is 7 or more years' imprisonment: ibid, s 105A.2 (definition of "serious Part 5.3 offence").

[8] Benbrika was convicted of offences contrary to ss 102.3(1) and 102.2(1) of the Criminal Code, both provisions appearing in Part 5.3. The offences carry maximum penalties of 10 and 25 years' imprisonment respectively.

[9] See Criminal Code, ss 105A.7(1) for the making of a continuing detention order and s 105A.7A(1) for the making of an extended supervision order.

[12] Minister for Home Affairs v Benbrika [2020] VSC 888. An appeal against this decision was dismissed: see Benbrika v Minister for Home Affairs (2021) 365 FLR 209 (Beach, McLeish and Kennedy JJA).

[13] Criminal Code, ss 105A.10, 105A.11.

[14] Minister for Home Affairs v Benbrika (2022) 366 FLR 32.

[15] Who was at that time the minister administering the Australian Federal Police Act 1979 (Cth), and therefore had conduct of the proceeding: see Criminal Code, s 100.1(1) (definition of "AFP Minister").

[16] See Benbrika v Attorney-General (Cth) (2024) 74 VR 379, 383-387 [9]-[31].

[17] By operation of s 105A.7A(6) of the Criminal Code, the continuing detention order was revoked upon the imposition of the Lapsed Supervision Order.

[18] Benbrika v Attorney-General (Cth) (2024) 74 VR 379, 400 [129]-[130].

[20] Other conditions related to reasonable directions and information sharing requirements, access and searches, approvals, exemptions and reviews. For the full conditions of the Lapsed Supervision Order, see ibid, 401-416 [133]-[244].

[25] Following an assessment of Benbrika conducted pursuant to s 105A.18D of the Criminal Code.

[26] See pars 28(1)-(4), 29(1) below.

[27] An interim supervision order may only be imposed for a maximum of 28 days: Criminal Code, s 105A.9A(7)(c).

[28] Attorney-General (Cth) v Benbrika [2025] VSC 83, [11], [18]-[20], [34]-[51], [56]-[66].

[29] Pursuant to the Surveillance Devices Act 2004 (Cth) and the Telecommunications (Interception and Access) Act 1979 (Cth).

[30] See Director of Public Prosecutions v Clavell [2020] VCC 1437 (Judge Marich).

[31] Clavell has been named as a prohibited associate in control orders made against another person convicted of terrorism offences: see Booth v Abdirahman-Khalif [2021] FCA 1651 (Besanko J); McCartney v Abdirahman-Khalif (No 2) [2020] FCA 1002 (Charlesworth J).

[32] See pars 41-66 below.

[33] See par 15 above.

[34] See further par 28(5)-(12) below.

[35] There are strict time limits imposed in Division 105A of the Criminal Code, in light of s 105A.3A: see par 9 above. If a third interim supervision order were to be made in respect of Benbrika, it was necessary for the court to make such an order before the second interim supervision order lapsed.

[36] Attorney-General (Cth) v Benbrika [2025] VSC 83, [100]-[115], [122].

[37] A copy of the full revised schedule of conditions attached to the Attorney-General's summons filed on 5 February 2025 is included as annexure A to these reasons.

[38] Under the interim supervision orders, Benbrika was only required to provide information to the Case Manager in relation to case management matters. The 5 February Summons sought to expand the scope of the Information Condition to also require Benbrika to provide any information relating to his associations and use of mobile and other electronic devices to the Federal Police upon request, and to notify the Federal Police of any change to his residential address.

[39] Including persons incarcerated in a correctional facility; persons subject to a control order or post-sentence order under Divs 104 and 105A of the Criminal Code; and persons charged with, convicted of, or on parole or bail for an offence against the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) or a "terrorism offence" within the meaning of s 3(1) of the Crimes Act 1914 (Cth).

[40] Those individuals included Clavell.

[41] When giving evidence at trial, the Commander clarified that he currently holds the rank of acting assistant commissioner.

[42] An explanation for this change in approach was given to the court at a directions hearing on 25 March 2025. However, no evidence was adduced at trial to support this explanation. That said, the Attorney-General did not invite the court to draw an adverse inference from the fact that Speckhard was not called to give evidence, in accordance with the principles in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.

[43] See par 23 above.

[44] Benbrika v The Queen [2010] VSCA 281; (2010) 29 VR 593, 717-719 [568]-[576], 724 [608] (Maxwell P, Nettle and Weinberg JJA).

[45] See Attorney-General (Cth) v Temssah (No 2) [2024] VSC 328 (Moore J).

[46] This proceeding, bearing proceeding number NSD1503/2024, alleges that Haddad contravened s 18C of the Racial Discrimination Act 1975 (Cth) by delivering 5 speeches that were reasonably likely to offend, insult, humiliate or intimidate Jewish members of the Australian community.

[47] That is, those in par 28(6)-(12) above.

[48] If no extended supervision order were in place, an application for a surveillance device or telecommunications warrant could be made if there were reasonable grounds for suspecting that information that would assist in the investigation of a serious offence would be obtained: Surveillance Devices Act 2004 (Cth), s 14(1); Telecommunications (Interception and Access) Act 1979 (Cth), s 46(1). However, if a post-sentence order were imposed, an application for a warrant could be made if there were reasonable grounds for suspecting that information that would assist in connection with achieving the objectives of Part 5.3 of the Criminal Code would be obtained: Surveillance Devices Act 2004 (Cth), s 14(3C); Telecommunications (Interception and Access) Act 1979 (Cth), s 46(4). Further, the Crimes Act 1914 (Cth) makes provision for monitoring warrants in relation to premises and persons where a Part 5.3 supervisory order is in place: ss 3ZZOA, 3ZZOB.

[49] A footnote in Ellis' first report noted that the presence of Benbrika's solicitor was "not usual clinical practice" and "may lead to an inhibition in a person being assessed, altering the nature of usual medical assessment". He also stated that this may indicate that Benbrika's trust of legitimate authority remains limited. However, after being taken to various examples of Benbrika's interactions with his supervisors while under cross-examination, Ellis stated that he no longer held this view.

[50] This meeting was for the purpose of conducting an assessment pursuant to a direction made under s 105A.18D of the Criminal Code. Ellis has not otherwise met with Benbrika.

[51] Including Benbrika v Attorney-General (Cth) (2024) 74 VR 379 (Hollingworth J); Minister for Home Affairs v Benbrika (2022) 366 FLR 32 (Hollingworth J); Minister for Home Affairs v Benbrika [2020] VSC 888 (Tinney J); Benbrika v The Queen [2010] VSCA 281; (2010) 29 VR 593 (Maxwell P, Nettle and Weinberg JJA); R v Benbrika [2009] VSC 21; (2009) 222 FLR 433 (Bongiorno J).

[52] As the Attorney-General's legal representatives made requests to Ellis for further reports, select documents deemed to be of relevance were provided by way of supplementary brief. Ellis received a total of 17 briefs enclosing close to 900 documents between 23 August 2024 and 18 March 2025.

[53] Being an initialism for the Terrorist Radicalisation Assessment Protocol 18.

[54] Being an initialism for the Violent Extremism Risk Assessment 2 Revised.

[55] On 18 December 2023, a delegate of the Chief Commissioner of Victoria Police made a firearm prohibition order against Benbrika under ss 112D and 112E of the Firearms Act 1996 (Vic). The effect of this is to prohibit Benbrika from acquiring, possessing, carrying or using any firearm or firearm-related item and from entering or remaining on certain premises, including those where firearms are stored. The order is in place for a period of 10 years.

[56] See par 24 above.

[57] See par 15 above.

[58] See pars 56-57 above.

[59] See par 82 below.

[60] While the other matters referred to by Ellis were termed "protective factors", Ellis instead considered that this was more appropriately labelled "the absence of a risk factor". However, he accepted that whatever terminology was employed, each matter had the effect of reducing the risk of Benbrika committing a serious Part 5.3 offence.

[61] See Attorney-General (Cth) v Benbrika [2025] VSC 83, [103] in relation to the third and fourth reports specifically.

[62] Specifically, Ellis acknowledged that Benbrika and Clavell's meetings did not amount to a contravention of any condition of the Lapsed Supervision Order (see pars 57, 60 above) and that the word "bullets" was used benignly in their conversations (see par 57 above), among other matters.

[63] Despite the Intelligence Report being prepared in December 2024 upon the request of the Commander, it was not provided to the Attorney-General's legal representatives until 13 March 2025 and was only disclosed to Benbrika's solicitors on 20 March 2025. See further pars 183-185 below.

[64] See par 38 above.

[65] The 23 October Case Note was only disclosed to Benbrika's solicitors on the evening of 1 April 2025, being the second day of trial. The Attorney-General's legal representatives blamed an error in the document review process for the non-disclosure: see further pars 186-192 below.

[66] See par 37 above.

[68] See par 52 above.

[70] See par 70 above.

[71] With the narrower scope of the Information Condition contemplated under the interim orders to be reinstated: see fn 38 above.

[72] Being a period of approximately 8 months from the time of trial.

[73] Benbrika v Attorney-General (Cth) (2024) 74 VR 379, 385 [23] (Hollingworth J).

[74] There are also certain formal requirements that an application for an extended supervision order must meet, in respect of which there was no dispute between the parties: Criminal Code, s 105A.7A(1)(a).

[76] Benbrika v Minister for Home Affairs (2021) 365 FLR 209, 230 [73]-[74], 231 [79] (Beach, McLeish and Kennedy JJA).

[77] Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 41 VR 359, 404 [165] (Redlich, Osborn and Priest JJA).

[79] New South Wales v Ceissman (No 2) [2018] NSWSC 1237, [33] (Rothman J).

[80] New South Wales v Naaman (No 2) [2018] NSWCA 328; (2018) 365 ALR 179, 186 [29(5)] (Basten, Macfarlan and Leeming JJA), cited with approval in Minister for Home Affairs v Benbrika [2020] VSC 888, [405] (Tinney J) and Minister for Home Affairs v Benbrika (2022) 366 FLR 32, 43 [51] (Hollingworth J).

[81] Benbrika v Minister for Home Affairs (2021) 365 FLR 209, 235 [99]-[100] and the cases there cited.

[83] Whether conducted under sections 105A.6 or 105A.18D of the Criminal Code or to otherwise assess the risk of the offender committing a serious Part 5.3 offence.

[84] As defined in the Criminal Code, s 105A.3(1)(a).

[87] Attorney-General (Cth) v Sa'adat Khan (No 2) [2022] VSC 687, [41] (John Dixon J).

[89] Ibid, [43], citing State of New South Wales v BP (No 2) [2019] NSWSC 806, [11] (Wright J).

[91] See par 87 above.

[92] Benbrika v Attorney-General (Cth) (2024) 74 VR 379, 391 [59] (Hollingworth J).

[93] These included providing training connected with terrorist acts (under s 101.2 of the Criminal Code); directing the activities of a terrorist organisation (s 102.2); intentional membership of a terrorist organisation (s 102.3); recruiting for a terrorist organisation (s 102.4); providing or participating in training involving a terrorist organisation (s 102.5); and aiding or abetting a terrorist act: s 101.1.

[94] See pars 86-88 above.

[97] Benbrika v Attorney-General (Cth) (2024) 74 VR 379, 394 [83] (Hollingworth J).

[98] Benbrika v Minister for Home Affairs (2021) 365 FLR 209, 215-216 [16], [20]-[22] (Beach, McLeish and Kennedy JJA).

[99] Benbrika was later resentenced by the Court of Appeal: see Benbrika v The Queen [2010] VSCA 281; (2010) 29 VR 593 (Maxwell P, Nettle and Weinberg JJA).

[100] R v Benbrika [2009] VSC 21; (2009) 222 FLR 433, 446-447 [68].

[101] Ibid, 438-440 [20]-[24], 446-447 [65]-[68], [71]. See also Minister for Home Affairs v Benbrika (2022) 366 FLR 32, 46-47 [77] (Hollingworth J).

[103] Benbrika v Attorney-General (Cth) (2024) 74 VR 379, 395 [93], 400 [129] (Hollingworth J).

[104] See pars 45, 49, 67 above.

[105] It was submitted on behalf of Benbrika that any decisions prior to 2023 must now "have an asterisk" against them due to the serious interference with the administration of justice caused by the failure to disclose exculpatory material to Benbrika: see par 12 above. The Attorney-General submitted - correctly, in my view - that insofar as this submission was made in relation to earlier findings about Benbrika's ideology, it ought to be rejected, as the non-disclosure related to material concerning the validity and predictive capacity of particular risk assessment tools, an issue with no bearing on findings about Benbrika's ideology.

[106] Minister for Home Affairs v Benbrika [2020] VSC 888, [431]-[432].

[107] Minister for Home Affairs v Benbrika (2022) 366 FLR 32, 64 [217].

[108] Benbrika v Attorney-General (Cth) (2024) 74 VR 379, 400 [129]-[130].

[109] Ellis was appointed by the Attorney-General to conduct an assessment of Benbrika pursuant to s 105A.18D of the Criminal Code, and meets the definition of a "relevant expert" in s 105A.2(1). The court is therefore required to take his reports into account in assessing Benbrika's risk: s 105A.6B(1)(b)(ii).

[110] See also par 49 above.

[111] See pars 45, 48 above.

[112] Speckhard likewise meets the definition of "relevant expert" in s 105A.2(1), and as such, the court is required to take into account her assessment of Benbrika's level of risk: Criminal Code, s 105.6B(1)(c).

[113] Being the transnational jihadist terrorist organisation often referred to as "ISIS".

[114] See par 14 above.

[115] See par 112 above.

[116] See pars 13, 112 above.

[117] See par 44 above.

[118] See par 45 above.

[119] See par 80 above.

[120] See also par 44 above.

[121] See par 105 above.

[122] See par 122 above.

[123] See par 118 above.

[124] See par 35 above.

[126] Minister for Home Affairs v Benbrika (2022) 366 FLR 32, 47 [82] (Hollingworth J).

[127] See par 83 above.

[128] For example, minutes of a case management review meeting held on 20 September 2024 record Speckhard's concerns that Benbrika had not sent details to her of materials that he had been reviewing and researching, and his apparent reluctance to do so. In this context, Speckhard expressed some concerns about Benbrika's honesty.

[129] By virtue of s 105A.6B(1)(e) of the Criminal Code.

[130] That is, unless Benbrika were to independently arrange and fund his ongoing participation in mental health treatment and the Disengagement Program. However, with the exception of psychological treatment (see par 76 above), there was no evidence that Benbrika would have the means or capacity to do so.

[131] See par 67(1)-(2), (4) above.

[132] See par 67(7) above.

[134] See par 15 above.

[135] In breach of condition 14.2(a) of the Lapsed Supervision Order. In both instances, Benbrika left his residence for a total of 18 minutes.

[136] In breach of condition 6.1(e)(i) of the Lapsed Supervision Order.

[137] See pars 43, 73, 80 above.

[138] See pars 51(7), 67(8) above.

[139] See par 114(10) above.

[141] See fnn 95, 96, 109, 112, 125, 133.

[142] See pars 87, 100 above.

[143] See par 53 above.

[144] See par 81 above.

[145] See par 67(4) above.

[146] See pars 53, 67(1) above.

[147] See par 74 above.

[148] See par 81 above.

[149] See par 53 above.

[150] See par 67(2) above.

[151] But not about the substance of any mental health assessment or treatment. See Benbrika v Attorney-General (Cth) (2024) 74 VR 379, 406-407 [170]-[173] (Hollingworth J).

[152] See par 53 above.

[153] See par 81 above.

[154] Attorney-General (Cth) v Sa'adat Khan (No 2) [2022] VSC 687, [48] (John Dixon J).

[155] See par 15 above.

[156] See par 82 above.

[157] A slightly earlier end date was proposed in light of difficulties and delays associated with the Lapsed Supervision Order expiring so close to the end of year.

[159] Minister for Home Affairs v Benbrika [2021] HCA 4; (2021) 272 CLR 68, 87 [12] (Kiefel CJ, Bell, Keane and Steward JJ).

[160] See Benbrika v Attorney-General (Cth) (2024) 74 VR 379, 427 [315] (Hollingworth J).

[164] See par 12 above.

[165] Benbrika v Attorney-General (Cth) (2024) 74 VR 379, 427 [317].

[167] See fn 63 above.

[168] See fn 65 above.

[169] See pars 27, 73, 77, 82 above.

[170] See pars 21-25 above.

[171] See pars 58-59 above.

[172] See pars 69-70 above.

[173] Attorney-General (Cth) v Benbrika [2025] VSC 83, [125].

[175] See par 36(1) above.

[176] See par 69(3) above.

[177] The Case Manager was on leave at this time.

[178] Compare Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35.6-38.8, esp at 37.7 (Brennan J).

[179] See par 16 above.