Bernadette McSherry1
1Melbourne Law School, 185 Pelham Street, Carlton Vic 3053
Abstract
Risk assessment is an important component of judicial decision-making in many areas of the law. In Australia, those convicted of terrorist offences may be the subject of continued detention in prison or extended supervision in the community if there is an “unacceptable risk” of them committing future terrorism offences.a
This presentation will focus on criticisms of risk assessment tools in determining the risk of future terrorist acts. It will outline Justice Hollingworth’s decision in Benbrika v Attorney-General Cth) [2024] VSC 265 and her remarks concerning the Department of Home Affairs’s non-disclosure of a reportb critical of the Violent Extremist Risk Assessment-2R. Describing the non-disclosure as a “serious interference with the administration of justice”, Justice Hollingworth referred the matter for further investigation. After the Independent National Security Legislation Monitor found that an investigation was beyond his powers, the matter has been referred to Federal Court Judge Alan Robertson.
The Benbrika case raises several issues as to how judges should navigate expert evidence in relation to the risk of future harm. It will be argued that any deprivation of liberty entailed by preventive measures must be proportional and reasonable. This necessitates examining both the gravity of the risked harm and the likelihood of it occurring. Where there is doubt about the validity of risk-assessment tools or the accuracy of their findings continuing detention will be difficult to justify and care must be taken by both judicial decision-makers and expert witnesses to comply with their ethical obligations in such cases.
a B McSherry, “Predictive Algorithms, Risk and Preventive Justice: Back to the Future?” in John Pratt and Jordan Anderson (eds) Criminal Justice, Risk and the Revolt against Uncertainty (London: Palgrave Macmillan, 2020) 17-42.
b E Corner and H Taylor, Testing the Reliability, Validity and Equity of Terrorism Risk Assessment Instruments (Canberra: ANU Centre for Social Research and Methods, 2020).