The Department of Home Affairs and the Department of Justice have launched an independent “preliminary investigation” into Peter Dutton, who oversaw the failure to release a key report during a terrorism trial.
A judge of the Supreme Court of Victoria has referred the failure of department officials to disclose evidence during Dutton’s tenure as home affairs minister to the national security law watchdog for investigation.
However, the matter has now been referred to the ministries, as the supervisory authority is only responsible for legislation.
Former federal judge Alan Robertson was appointed to conduct the investigation.
Mr Dutton’s office has been contacted for comment.
His department oversaw the Australian Federal Police in 2020 when convicted terrorist Abdul Nacer Benbrika’s prison sentence was coming to an end and the Commonwealth requested an extension on the grounds that he was a danger to the community.
Benbrika’s legal team did not have access to the report, which revealed holes in a key counterterrorism tool underlying the risk assessment the court relied on to keep the terrorist behind bars.
This report concluded that the assessment tool was as effective as a coin toss.
The move drew contempt from Victorian Supreme Court Justice Elizabeth Hollingworth when the report came to light after the national security law regulator launched an investigation.
“What happened in this case should never have happened and must not be repeated,” Judge Hollingworth said in her reasons for referring Mr Dutton.
The judge described the failure to release various expert reports as a “serious interference with the administration of justice”.
According to an internal Interior Ministry document, the classified report was withheld from the Supreme Court to protect secret information that criminals could exploit.
The Home Office said the report had not been published because it contained sensitive information in talking points prepared for a later minister and released under the Freedom of Information Act.
“The report contains sensitive information that needs to be protected to ensure that terrorist offenders cannot use this information to manipulate the results of risk assessments relating to violent extremism,” it said.
When asked why the report had not been disclosed in court, the minister was told to explain that the ministry had examined its legal obligations under the penal code.
“After this consideration, the report was not published,” the discussion points state.
If pressed, the Minister should say: “Any legal advice obtained in this regard is subject to attorney-client privilege.”
The talking points were first created on 19 July 2021 – after Mr Dutton left office – and were last updated on 22 November 2022, according to the document obtained.
The updated talking points came a day after the national security law watchdog said at a public hearing that the report should have been disclosed during the court proceedings.
“He will likely recommend changing the criminal law provisions on exculpatory facts to ensure that such reports are made public in the future,” the discussion points say.
The supervisory authority then recommended that such reports be published.
Benbrika spent nearly 20 years behind bars after being convicted of planning attacks on the MCG during the 2005 AFL finals and on the Crown Casino in Melbourne.
He was released in December 2023 under strict supervision conditions after his three-year arrest warrant ended.
Ministry officials confirmed in February that the government was still using the same tool criticized in the report, called VERA-2R.