Lawyers for four men targeted using extraordinary terrorism powers are outraged at the failure to disclose serious problems with a tool being used to predict their clients’ likelihood of future offending.
The lawyers say the conduct should be subject to urgent judicial review.
Guardian Australia revealed earlier this month that the Morrison government was warned of problems with the tool before using it on 14 occasions over three years, including to justify the use of detention powers for terrorist offenders who had finished their sentences.
But it can also be revealed that the federal government did not tell the NSW government for more than two years that it had received an independent report which was highly critical of the assessment tool, meaning that it continued to be used in NSW court cases to justify the ongoing detention or monitoring of offenders after they had finished their sentences.
Hayley Le, who represented four men assessed using the VERA-2R tool as part of post-sentence order cases in NSW, said that the NSW government then failed to disclose it had the independent report in relation to one of her clients in February.
None of her four clients had been convicted of a terrorism offence, but the state government moved to place them on post-sentence orders alleging that they were at risk of committing further offences because of extreme Islamic, far right, or sovereign citizen beliefs.
Le, a partner at Ryan Payten Le, called for an immediate review headed by a specialist judge of all applications filed by the state since December 2022. This was when it was notified by the federal government about the independent report by Dr Emily Corner and Dr Helen Taylor into VERA-2R, known as the Corner report.
Both the federal and NSW governments operate separate post-sentence schemes for offenders, who must be found by a court to be at high risk of committing an offence for an order to be granted.
To prove this, governments rely on risk assessment tools including VERA-2R, which can be used by experts to evaluate offenders, even if they do not interview them.
Le said that in all four cases her clients had possible mental health issues, had not committed a terrorist act, and been subject to significant media attention which was “counterproductive” to their reintegration into the community.
“It is difficult to distil the impact of these proceedings upon the defendants,” Le said.
“I am not sure how the state could compensate for this but the immediate concern is that there are still people who are subject to orders, or at least certain conditions, intervention strategies [or] case plans, which have been founded on these unreliable risk assessment tools.”
Le said those who had been placed on an order after the state received the report could file a “misconduct in a public office” claim against the NSW government.
She said the state government’s failure to disclose the report was “really confronting”.
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“It’s a great surprise because these orders are so onerous for every defendant and the state has that obligation to be the model litigant. It is surprising that this has only come to light because of things like us issuing a subpoena and us calling for disclosure; it was never something that they brought forward.
“It’s very disappointing [and] a bit scary that they had this information and it wasn’t disclosed.”
The NSW government failed to answer detailed questions from Guardian Australia about VERA-2R, including whether it had suspended the use of the tool, saying that it was “currently considering the Corner report”.
“All risk assessment reports completed by CSNSW [Corrective Services NSW] focus on a comprehensive psychological assessment and do not depend on any single tool.”
After Le received the Corner report from the NSW government in February, the state offered to discontinue its case for an extended supervision order in relation to her client, Christopher Bruce Hardy.
Hardy was subject to dozens of conditions, including not being able to leave the state or start any job, volunteer work or educational course without the approval of the state.
Le said that the failure to disclose the Corner report was particularly troubling given the extraordinary powers granted to the government under the regime.
“The expectation, one would think, from the community is that they take those obligations very seriously anyway, but especially for matters where they are asking for someone to be detained beyond their sentence or supervised beyond their sentence.
“This just flies in the face of that.”
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