A wicked problem: how to deal with terrorists if they are allegedly still a risk after serving their sentence?

In a prison within a prison, a convicted terrorist who has finished his sentence waits for another day in court.

Benbrika, 62, embodies a wicked problem: what should be done with convicted terrorists who authorities say still pose a risk after serving their time?

Benbrika has been in custody since 2005 and was due for release in 2020.

But instead of freedom, Benbrika became the first person held under a continuing detention order (CDO), and he is believed to be the only person in Australia still detained under such an order.

Others could soon be subject to the same orders, given that earlier this year there were 21 people in Australian prisons with terrorism convictions who were due for release before 2027.

The Independent National Security Legislation Monitor (INSLM), Grant Donaldson SC, is reviewing Division 105A of the commonwealth criminal code which authorises the orders.

Donaldson is essentially grappling with a simple problem involving a complex law: how to protect the rights of an individual while ensuring the safety of the community?

Benbrika would rather be serving a sentence than held under a continuing detention order.

He is unable to work, as he did while serving his sentence, was initially denied access to new religious texts, and is locked in his room from 7pm on weeknights and from 4pm on Fridays and weekends, his lawyers say. Benbrika has also reported alleged mistreatment by guards to prison authorities.The high court has ruled that a CDO should be protective, not punitive.

Benbrika, authorities argue, remains a threat by virtue of his influence over others. He is alleged to have pledged allegiance to Islamic State while in custody after he was accused of following al-Qaida at the time of his arrest. He was accused of having had contact during his sentence with several people linked to extremism, including foreign fighters and those accused of domestic plots.

Benbrika has never been accused of harming anyone. A witness during his trial claimed he had planned a terror attack against a number of Melbourne targets, including the MCG, but that evidence was explicitly rejected by Victorian supreme court judge Bernard Bongiorno, who sentenced Benbrika.

He has had his citizenship cancelled, which means that once his detention finishes he is likely to be moved to immigration detention while he fights deportation to Algeria where he was born and raised.

Skaburskis says the fact there is no need for a court to consider the harm suffered by Benbrika while he is detained under a CDO is particularly concerning.

In Australia, the crisis support service Lifeline is 13 11 14. In the UK and Ireland, Samaritans can be contacted on freephone 116 123, or email jo@samaritans.org or jo@samaritans.ie. In the US, the National Suicide Prevention Lifeline is at 800-273-8255 or chat for support. You can also text HOME to 741741 to connect with a crisis text line counsellor. Other international helplines can be found at befrienders.org