Terror sentences: criminalising talk

February 7, 2009

On February 3, Abdul Nacer Benbrika, the alleged leader of a "terrorist organisation", was sentenced to 15 years' imprisonment. His six "followers" were sentenced to between four and seven-and-a-half years for being members of a terrorist organisation.

The sad charade of the sentencing of these seven men in Melbourne highlights two very dangerous consequences of their conviction on terrorism charges.

The first is the principle of criminalisation of expressions of opinion and radical or extremist views.

The second is criminalisation on the basis of possible future actions.

Both dangerous principles follow from the interpretation of an anti-terrorism law during the trial — an interpretation that now sets a precedent.

Thirteen Muslim men, arrested in late 2005 and early 2006, went on trial after spending three years in Barwon Prison in the most severe conditions possible in Australia's prison system.

One of them, Izzydeen Attik, did a deal with police. He pleaded guilty in return for a reduced sentence and made allegations that specific targets were mentioned to him by Benbrika in private.

These allegations were totally discredited at the trial and Attik was shown to be a habitual liar and fraudster. Justice Bernard Bongiorno drew the conclusion that Attik had made up the allegations to help himself get a reduced sentence. Bongiorno as good as directed the jury to ignore the allegations.

Nevertheless, the media still repeats these allegations about supposed Melbourne targets (the Melbourne Cricket Ground, the Crown Casino, etc.) regardless, giving the impression to the public that a disastrous attack had been prevented.

The other 12 men maintained their innocence.

The principal charge against them was membership of a terrorist organisation — that is, the men themselves were alleged to have constituted a terrorist organisation.

Benbrika was also charged with directing a terrorist organisation and others with providing resources (their own services) to the organisation.

The law hinged on the definition of a terrorist organisation. The definition was unclear and ambiguous. It specified an organisation that "directly or indirectly fostered a terrorist act".

It was firstly unclear whether the group of men constituted an organisation at all, but it was decided at the trial that the meaning of "organisation" could be made to fit.

Then it was up to the jury to interpret the meaning of "fostering a terrorist act". After an eight month trial they convicted seven of the men in September 2008.

Inexplicably they decided that four of the men were not members of this "terrorist organisation", acquitting and releasing them, after they had in effect been punished before trial for three years in Barwon Prison.

The fact is that no plans were laid for any terrorist attack and no weapons or materials were acquired by the men for any attack. This was recognised by Bongiorno in his sentencing remarks. What was left was talk — talk that was not translated into action.

The jury decided that talk and expressions of opinion could constitute "fostering" a terrorist act.

True, some of what the men said was abhorrent — Benbrika expressed support for sharia law and killing women and children. But our society is supposed to allow free expression of opinion — as long as this is not translated into illegal action.

Now we have an anti-terrorism law that criminalises talk. With their bluster and radical talk the seven convicted men were "fostering" a terrorist act among themselves.

But would the men have ever committed a future terrorist act? There was no evidence that they took any steps to translate their rhetoric into action. So this can only be supposition. We have moved into the Orwellian world of criminalising possible future action.

At the same time, the public has been led to believe that they have been protected against dangerous terrorist attacks by Australia's anti-terror laws. This was not the case with Doctor Mohamed Haneef, it was not the case with Jack Thomas, and I don't believe it was the case with the seven men sentenced last week.

Certainly there was no imminent or planned attack prevented by the arrest and conviction of the seven. Instead of protecting our society the anti-terror laws are endangering it. They should be repealed.

[Colin Mitchell is an activist with Civil Rights Defence.]

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