A convicted terrorist who once espoused the virtues of Osama Bin Laden will stay in an Australian prison after Victoria’s Supreme Court deemed him too risky to release.
Even though Abdul Nacer Benbrika has completed his 15-year jail term, he will remain behind bars until 2023 after the Federal Government convinced Justice Andrew Tinney to impose what is known as a continuing detention order.
The order allows Australian supreme courts to keep convicted terrorists in custody for up to three years after they finish their sentences, in order to protect the public.
The order can also be extended. It will start today.
Benbrika was jailed after authorities uncovered that he was the “guiding light” for a terrorist cell that was planning attacks on high-profile targets and discussing the assassination of then-prime minister John Howard.
The 60-year-old was arrested in 2005 and was convicted four years later by the Supreme Court, which ordered him to spend 15 years in prison.
With time served prior to sentencing, he has now completed that sentence.
No other way to prevent risk to public, judge says
Justice Tinney said he was “satisfied to a high degree of probability, on the basis of admissible evidence, that the defendant poses an unacceptable risk … if released into the community”.
“I am satisfied that there is no other less restrictive measure that would be effective in preventing the risk posed by the defendant in this case,” the judge said.
He rejected arguments from Benbrika’s legal team that he was less of a risk because he had not physically hurt anyone through his offending.
“I do not believe that fortunate fact to be an appropriate measure by which to assess the risk that the defendant would pose,” he said.
“At the time of his offending, it is clear that the defendant represented a very clear danger to the safety of the community. It was only the intervention of law enforcement authorities which prevented potential mayhem and tragedy.”
Whether Benbrika still held extremist beliefs was a “live issue”, the judge said.
“His crimes were not the product of some moments of carelessness or lack of judgement,” he said.
“His was well-organised and executed conduct, driven by very powerful feelings and beliefs, which had him perfectly willing to perpetrate extreme and outrageous crimes in the name of his faith.”
Benbrika and his legal team will now consider appealing against the order.
Constitutional question mark over case
In November, Benbrika — who migrated to Australia from Algeria in 1989 — had his citizenship stripped by Home Affairs Minister Peter Dutton.
He was the first person to lose his citizenship while still onshore under terrorism provisions of the Australian Citizenship Act.
The father of seven now holds an ex-citizen visa, which allows him to remain in Australia but not re-enter if he were deported.
Today’s decision comes as Australia’s High Court grapples with a constitutional question that has come out of the legal action against Benbrika — whether the Commonwealth can give a state court the power to lock someone up for what they might do in the future.
Benbrika’s legal team has argued that the law is unconstitutional, a position Commonwealth lawyers disagree with.
Benbrika previously held Algerian citizenship and if the African nation is unwilling to take him back, he could face indefinite immigration detention in Australia.