Convicted terrorist Benbrika walks free from prison

Convicted terrorist Abdul Nacer Benbrika has been released from prison under more than 30 strict conditions, after a push to keep him behind bars due to community safety risk was abandoned.

Benbrika, who appeared in court via video link, spent nearly two decades behind bars after being convicted over plots to attack the MCG during the 2005 AFL grand final, and Melbourne's Crown Casino.

He was released on Tuesday after Justice Elizabeth Hollingworth ruled in the Victorian Supreme Court he will be subject to strict supervision and a curfew for one year.

Benbrika, aged in his 60s, was spotted being driven out of Barwon prison in the back seat of a dark-coloured ute.

He will have to wear an ankle monitoring bracelet and cannot leave Victoria without approval, with police to be given extensive powers to monitor his electronic communications.

Crown Casino signage (file image)
Melbourne's Crown Casino was one of Benbrika's terrorism targets.

He also cannot contact certain individuals including people in prison, convicted terrorists, those charged with such offences and people on a list prescribed by the court.

Benbrika will continue to receive psychological treatment, must seek permission from the police to start a job and cannot visit numerous public places.

He will be blocked from discussing terrorist activities publicly but can do so in his deradicalisation program.

Breaching conditions of the supervision order is a criminal offence and carries a maximum prison sentence of five years.

Justice Hollingworth agreed Benbrika's "relative risk is still unacceptable at this time" due to the serious nature of his offending.

But she was satisfied "the combined effect of the conditions ... is reasonably necessary and reasonably appropriate and adapted for the purpose of protecting the community from the unacceptable risks that Mr Benbrika presents".

Attorney-General Mark Dreyfus said he had faith in law enforcement agencies to protect the community. 

The supervision order was the strongest course of action as an extended prison sentence could not be ordered by the court given the risk reduction, Mr Dreyfus said.

Attorney-General Mark Dreyfus (file image)
Mark Dreyfus said he had faith in law enforcement agencies to protect the community.

"The court held that these conditions were sufficient to protect the community," he said in a statement.

But acting opposition leader Sussan Ley slammed the government for not fighting to keep Benbrika behind bars.

"Benbrika is the worst of the worst," she said.

"The government has not done everything they could have done to keep Australians safe from this convicted terrorist."

However, part of the reason the Commonwealth opted for a supervision order over continuing detention was a report buried by the home affairs department under the former coalition government.

It found the methods used to assess the future risk a person poses to the community were no better than flipping a coin.

It was "clearly a document that should have been disclosed", Justice Hollingworth said.

She also revealed four other reports critical of the assessment tool had not been disclosed and slammed the Commonwealth for its secrecy.

Sussan Ley (file image)
Sussan Ley said the government has not done everything it could to keep Australians safe.

While an assessment tool isn't legally required to be used, any relied upon needed to be based on evidence and "have some underlying validity", she said.

It was concerning the department didn't disclose any of the reports to the court, Justice Hollingworth said, after previously branding the move "a disgrace".

The Commonwealth decided to apply for a supervision order after Benbrika's lawyers seized on one of the reports once it came to light, to challenge the veracity of the detention order he was under.

The onus remained on the government to keep him behind bars, Ms Ley said when asked if the former coalition government bore any responsibility for a detention order not being imposed after failing to disclose the report.

The non-disclosure of the reports will be referred to the national security legislation watchdog by the judge after her full written reasons are released.

Preventative detention was an exceptional measure but "not the norm" within a legal system, Justice Hollingworth added.

The legal system's role "is not to detain people to prevent a crime that they may or may not commit in the future".

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