In a decision likely to have implications for future post-sentence order proceedings, the Supreme Court of Victoria has examined the statutory obligations of Commonwealth law enforcement, intelligence or security officers to make reasonable enquiries to ascertain any facts that would reasonably be regarded as supporting a finding that an order should not be made, and that any application for a post-sentence order be accompanied by a statement of any such facts as well as any facts weighing against the imposition of any particular proposed condition. These safeguards ensure the protection of individual liberty under “what is very unusual and draconian legislation”.

Relevantly to the particular application, two critical documents – an Intelligence Report and Case Note – were not disclosed until immediately before and during the trial. Both documents were central to the risk assessments underpinning the application and effectively undermined the evidence of the government’s expert psychiatric witness.

In relation to the non-disclosure of the Intelligence Report, 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 (at [185]).

In relation to the non-disclosure of the Case Note, Justice Elliot observed there must be “serious questions” about the 2-stage review process employed to make decisions in relation to disclosure where that process did not mandate a third level of review in any case where the first 2 reviewers disagreed (at [193]). In practice, that left the question of disclosure to a single lawyer, a process which was of questionable utility.

Trent Glover SC appeared for the Commissioner of the Australian Federal Police and the Director-General of Security in the proceedings (please also see our previous post – https://11stjames.net.au/2025/03/attorney-general-of-the-commonwealth-v-nacer-benbrika-2025-vsc-83/).

Link to judgment: https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2025/223.html