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Statement – Referral in Benbrika matter

Benbrika v Attorney-General of the Commonwealth [2024] VSC 265

On 5 June 2025 Justice Hollingworth handed down her reasons in the matter of Benbrika v Attorney-General of the Commonwealth [2024] VSC 265. One of the key issues in that judgment was the non-disclosure of an expert report known as the ‘Corner report’. Her Honour found that the non-disclosure was a serious breach of the obligation to disclose certain material under s 105A.5 of the Criminal Code Act 1995. Her Honour concluded that ‘the non-disclosure of various expert reports amounts to a serious interference with the administration of justice’ [317]. In its submissions the Commonwealth suggested that the failure to disclose the report was due to ‘error and inadvertence’. Justice Hollingworth did not agree but stopped short of making any findings of wrongdoing in relation to specific officials given the incomplete evidence before her and the nature of the proceedings [322]. Instead, her Honour said in the judgment that she was ‘referring the non-disclosure of the Corner report and 4 other expert reports to the INSLM’ [319].

The non-disclosure of the Corner report was identified by the former Monitor, Grant Donaldson SC, in the course of his review of the law relating to post-sentence orders in Division 105A of the Criminal Code. That review, like all INSLM reviews, concerned the operation, effectiveness and implications of the law itself, as well as whether the law remained necessary and proportionate, contained appropriate safeguards and was consistent with Australia’s international obligations. In his March 2023 report of that review Mr Donaldson made a number of recommendations for amendments to Division 105A. In relation to the statutory obligation to disclose certain material he proposed amendments to expand the searches that must be done to identify potentially relevant material. Mr Donaldson also suggested that the disclosure obligation be amended to expressly include reference to expert opinions and reports which cast doubt on the evidence the Minister intends to rely on (the Corner report would be in this category). Mr Donaldson also proposed new procedural requirements involving the filing of affidavits about steps taken to comply with the disclosure obligation (see pages 113-116 of the report). The government has not yet responded to these recommendations.

Following the final decision by Justice Hollingworth in this case I received the relevant materials from the court. I reviewed the judgment and these materials in order to establish whether there were any matters within my jurisdiction as INSLM. The INSLM is essentially a specialised law-reform body and it is not part of the statutory functions of the INSLM to review the conduct of individuals. The only aspect of this matter that is within the ‘own motion’ jurisdiction of the INSLM is the operation of s 105A.5 of the Criminal Code itself (the disclosure obligation). It is clear from the judgment that Her Honour was not concerned with s 105A.5 as a law, rather with the way certain material was not disclosed in accordance with the requirements of that law. As noted above, my predecessor recently reviewed Division 105A, including reviewing and making recommendations about the disclosure obligation. Taking all of this into account I have come to the view that there is no reason for me to initiate another INSLM review into s 105A of the Criminal Code at this stage.

However, the statements made by Justice Hollingworth are serious and a mechanism is needed to review the conduct of those involved. Following consultation between the Department of Home Affairs, the Attorney-General’s Department and the Public Service Commissioner it has been agreed that the Department of Home Affairs and the Attorney-General’s Department will appoint an eminent person (such as a former judge) to undertake a preliminary inquiry to determine whether there should be a code of conduct or other process in relation to the non-disclosure of material by any officer in the Benbrika proceedings. The proposed approach to reviewing the conduct of those involved is more appropriate than a review by the INSLM given my statutory functions. If the preliminary inquiry or any subsequent process identifies any issue with s 105A.5 itself, I will be advised so that I can reconsider the exercise of my legislative review functions under the INSLM Act.

When the independent reviewer has been appointed I will arrange to transfer the court documents I received to them.

Jake Blight 

Independent National Security
Legislation Monitor