Terror trial: criminalising speech

September 27, 2008

A dangerous precedent for an ambiguous anti-terrorism law has been set by the conviction of a majority of the 12 Melbourne Muslim men accused of constituting a terrorist cell. Almost all the charges were based on a law that turned on the definition of a "terrorist organisation".

Vaguely worded, the definition covers "indirectly fostering" a terrorist act. The jury apparently decided that just talking could be "indirectly fostering", even though they were only talking to each other and no actual terrorist act had been planned.

Seven of the men were convicted of being members of a terrorist organisation and four were acquitted when the jury decided they were not members of the organisation. The jury were unable to agree whether the remaining man, Shane Kent, was a member or not, and he will be retried.

Following the convictions, dramatic allegations about intended targets in Melbourne were continually repeated in the media, even though these allegations had been discredited at the trial itself. Justice Bernard Bongiorno had as good as instructed the jury to ignore the unsupported allegations, which came from a discredited witness.

The facts are there was no terrorist cell and no planned attack. The young men had gathered around a self-styled preacher, Abdul Nacer Benbrika, who instructed them in his interpretation of the Muslim religion.

It is doubtful whether the group could be described as an organisation. They could be better described as a religious discussion group with a fundamentalist bent. The impression conveyed in the media that an immanent attack had been averted is a fantasy.

In Britain, the 2006 airline bombing plot has disappeared. A jury there failed to convict anyone of plotting to blow up airliners, though men who "confessed" were found guilty under anti-terror laws of other charges. Yet there was world-wide sensationalism when the plot was "uncovered" and airport security was ramped up around the world, costing millions.

Similarly, there were sensational allegations about immanent attacks here when the Melbourne men were arrested at the end of 2005. It is irresponsible of the media to perpetuate this fantasy after a trial has dismissed those allegations.

The outcome of the Melbourne trial endangers freedom of speech because the precedent criminalises talk rather than action. Meanwhile, in Sydney Bilal Khazal has been convicted under anti-terror laws for compiling a "book" of radical jihadist ideology and publishing it on the internet. This criminalises written 'speech'.

Both trials highlight the danger of so-called anti-terrorism laws which define terrorism so broadly that they can infringe upon our basic freedoms. The danger is that they could be widened even further in the future.

Yet the Rudd Labor government seems little inclined to protect our freedoms. The Attorney-General has said that he is open to a review of anti-terrorism laws. However, all he has been prepared to do so far is announce that he wants to extend the powers of the ASIO watchdog, Ian Carnell, to monitor the operation of the terror laws as well. Carnell himself does not want the job and says an independent officer should be appointed.

Liberal MP Petro Georgiou has introduced a bill to appoint such an independent reviewer. This would be a tiny step forward but what is really needed is a whole committee of independent people, not one person, to review anti-terror laws. Ultimately, the laws should be repealed altogether.

We are seeing a strong imperative around the world for governments to prove their security credentials by appearing to be "tough on terror" and introduce ever-more draconian anti-terrorism laws. At the same time there is a strong imperative for security agencies to justify these laws and their own existence and increased resources by obtaining convictions under the new laws.

The Australian Federal Police and ASIO desperately need convictions to boost their credibility, especially after the Dr Mohamed Haneef debacle. To obtain these convictions they have used entrapment tactics, previously against Zacky Mallah and now against the 12 in Melbourne.

An undercover agent, SIO 39, infiltrated the Melbourne group to try to encourage Benbrika to organise a terrorist act. He persuaded Benbrika to accompany him to witness the explosion of a police-manufactured bomb, though Benbrika was impatient and more concerned to get back and pick up his children from school.

A camera hidden in a tree filmed Benbrika in the vicinity as the undercover agent let off the bomb. Such crude tactics and incitement to commit a crime reveal the desperation to obtain convictions that grips the security agencies.

This self-serving drive results in injustices against the individuals targeted, but it also endangers freedoms for all of us. So far the Muslim community has been targeted but this could spread to include activist groups in the future if people are unwilling to defend their civil liberties.

The anti-terrorism laws are dangerous and should be repealed. Previously existing criminal law is more than adequate to guard us against any genuine criminal conspiracy.

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

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