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Not entirely innocent

Inside Australia’s Anti-Terrorism Laws and Trials
by Andrew Lynch, Nicola McGarrity and George Williams
NewSouth
200pp
$24.99 AU
Published March, 2015
ISBN 9781742231310

In its initial response to 9/11, the Australian parliament passed the Security Legislation Amendment (Terrorism) Act 2002, creating the offence of ‘engag[ing] in a terrorist attack, a crime punishable by life imprisonment’. It is easy to forget that, at the time, the deeds most commonly associated with the word ‘terrorism’ were already illegal. Bombing, hostage taking, beheadings and the rest of it: prior to 2002, these were all, of course, crimes. But the Terrorism Act 2002 did more than rebrand old offences with the post 9/11 lexicon. As Andrew Lynch, Nicola McGarrity and George Williams explain in Inside Australia’s Anti-Terrorism Laws and Trials, the legislation brought into being a raft of so-called ‘preparatory offences’, so that it became a crime to provide or receive training, to possess a ‘thing’, or to collect or make a document, if (in each case) that conduct was ‘connected with preparation for, the engagement of a person in, or assistance in a terrorist act’.

At first glance, those reforms might seem unexceptional: much better, we all agree, to catch terrorists prior to a massacre than in its aftermath. Again, though, Australian law already enabled prosecution for ‘intent’ and for ‘conspiracy’, concepts explicitly intended to foster prevention. If you were preparing a bombing, you could be arrested and punished as severely as if you had actually pressed the detonator; if you discussed your murderous scheme with others, your co-conspirators could be jailed alongside you.

The new terrorism offences are different – radically so. Lynch, McGarrity and Williams describe the laws as creating ‘pre-inchoate liability’. That is, they criminalise the formative stages of an act, mandating extraordinarily severe penalties for actions that have not only not taken place, but may never even have been intended, in the usual sense of that word. Take the case of Faheem Lodhi, a man charged in 2004 with terrorism offences: specifically, an alleged bombing plot. At trial, the judge found that Lodhi’s schemes ‘had not reached the stage where the identity of a bomber, the precise area to be bombed or the manner in which the bombing would take place, had been worked out’. That, however, did not matter. As the appeal judge explained, preparatory offences apply to ‘conduct where an offender has not decided precisely what he or she intends to do’.

Since that case, the law has been amended further. As Inside Australia’s Anti-Terrorism Laws and Trials explains, the Criminal Code now explicitly mandates that terrorism offences have been committed

even if a terrorist act does not occur and the training / thing / document / act is not connected to a specific plan for a future terrorist act. It is sufficient that the latter be just generally conceived at this stage. As a result, in almost all of the subsequent terrorism trials, the prosecution has regarded it as unnecessary to specify what the precise target of any attack would be.

Faheem Lodhi did not have a bomb. He did not even have a target. He had hurt no one; he had damaged no property. Nevertheless, he was sentenced to twenty years in jail, with a parole period of fifteen years. By way of comparison, the maximum sentence a rapist might receive in New South Wales is fourteen years.

Now, Lodhi is not a nice guy. He had, it seems, met with the French jihadi Willie Brigitte and the two had talked, in general terms, about the prospect of terrorist acts in Australia. Lodhi had purchased maps of the electricity grid, investigated getting chemicals, downloaded aerial photos of various military installations and ‘acquir[ed] a large quantity of toilet paper’ (apparently a component in the production of nitrocellulose).

But contemplating a deed is not the same as committing it – or, at least, it didn’t used to be. The vagueness of the terror legislation – it offers no definitions for its key terms – provides authorities with remarkable leeway in such prosecutions. What, for instance, is a ‘thing’ and how do you know if your ‘thing’ might be ‘connected with’ a terrorist act? The answer is that it doesn’t matter whether you know or not. All that is necessary for a conviction is that you are shown to be ‘reckless’ as to a connection between your ‘thing’ and terrorism. Many of the Australian trials have accordingly centred on generic items (toilet paper!) – objects that could, in theory, be used for criminal purposes.

The new pre-inchoate laws do not replace the traditional crimes relating to intent and conspiracy, despite covering the same conceptual ground. On the contrary, prosecutors have successfully welded the old notions to the new ones, with the most recent Australian terror trials involving offences of ‘conspiring to do an act in preparation for, or planning, a terrorist act’, a charge that piles contingency upon contingency. In 2010, three men were convicted on that basis – essentially, of ‘preparing to prepare’ – in a case about an alleged attack upon Holsworthy Army Barracks. One of the defendants was said to be part of a ‘conspiracy’ because he telephoned a Somali sheik to ask about the religious permissibility of targeting the army in Australia. Lynch, McGarrity and Williams explain:

The answer to this religious question was eventually returned in the negative and no further action was taken by the group. However, this call was nevertheless said by the prosecution – and ultimately found by the jury – to represent an overt act done in furtherance of the conspiracy to do an act in preparation for a terrorist act. They were sentenced to 18 years’ imprisonment each. [Emphasis added.]

Again, these men were no angels. They may well have sympathised with terrorism; they may well have yearned to blow up something. But sending them to prison on the basis not of what they had done, or even what they planned to do, but rather for what they may have wanted to plan sometime in the future, represents a model of legal liability quite alien to liberal democratic jurisprudence, one in which you are judged by your character rather than your deeds. You haven’t bombed anyone, but you seem the kind of person who might.

The bipartisan support for security legislation, and the corresponding tendency for pundits to accept enthusiasm for terror laws as a necessary component of ‘serious’ politics, has fostered a strange culture of political double-speak in respect of rights and freedoms. ‘We are the freedom party,’ Tony Abbott explained in 2012 at an Institute for Public Affairs event:

We stand for the freedoms which Australians have a right to expect and which governments have a duty to uphold. We stand for freedom and will be freedom’s bulwark against the encroachments of an unworthy and dishonourable government.

Since that speech, Abbott’s ‘freedom party’ has introduced legislation that guarantees ASIO officers civil and criminal immunity for actions they undertake as part of a Special Intelligence Operation (SIO), which is any operation that the Attorney General labels thus. The legislative exceptions to that immunity – we are assured that agents cannot commit torture, murder, serious injury or sexual assault – only highlight the extraordinary nature of these changes. It is difficult to imagine a greater encroachment upon the freedom of Australians than allowing secret agents the legal right to commit common crimes against them.

It was not so very long ago that Australian politicians embraced the #jesuischarlie campaign. ‘I believe in free speech,’ said Tony Abbott then, ‘I absolutely believe in free speech.’ Except, it seems, with respect to ASIO. Under the new laws, anyone – journalist or not – who discloses information relating to the organisation’s activities in a SIO can be jailed for up to a decade. In other words, not only can agents break the law, it is illegal to report that they have done so.

If you are a reporter, of course, you won’t necessarily know whether a particular piece of information relates to a SIO, since that too is secret. Nevertheless, ignorance is no protection – you can still be jailed if you are ‘reckless’ about whether your report describes an operation that the Attorney General declares special. As the authors of Inside Australia’s Anti-Terrorism Laws and Trials note in their understated style, ‘all this can create doubt in the mind of a journalist about whether they can publish a story’.

In 2014, the parliament introduced another law, this time prohibiting the advocacy of terrorism. Unlike traditional incitement offences, the advocacy laws do not require that the defendant intended another person to carry out a terrorist offence – again, it is sufficient that they are reckless as to how their speech might be interpreted. The new advocacy offence also relates to the government’s extensive powers against organisations, which can be listed as terrorist groups if they ‘advocate the doing of a terrorist act (whether or not a terrorist act has occurred or will occur)’. An organisation can be listed if it

directly praises the doing of a terrorist act in circumstances where there is a substantial risk that such a praise might have the effect of leading a person (regardless of his or her age or any mental impairment that the person might suffer) to engage in a terrorist act. [Emphais added.]

In other words, if someone speaks highly of, say, Fretilin’s armed resistance in Timor, it is possible that the group to which they belong could be deemed a terrorist organisation on the basis of how a mentally ill person might respond to their comments. All members of the speaker’s group would potentially be exposed to criminal liability. It is a crime punishable of up to ten years imprisonment to belong to a terrorist organisation; it is a crime punishable by three years jail merely to associate with one.

For most of us, this can all seem quite hypothetical, disturbing largely in terms of the precedents being established. But for some the risks are already real. If the law shifts emphasis from actions to pre-inchoate liability, the consequences will be felt most by the kinds of people judged innately dangerous. And there are no surprises as to who they might be.

Consider the case of Mohamed Haneef, an Indian doctor practising in Queensland. In 2007, the Australian Federal Police suspected Haneef of involvement in terrorism on the basis of his relationship with his second cousin, who was killed in an attack on an airport in Glasgow. The accusations were entirely unfounded – a subsequent inquiry found ‘no evidence that [Haneef] was associated with or had foreknowledge of the terrorist events’. Nevertheless, he became the first person to be detained under the 2005 Australian Anti-Terrorism Act, meaning that he was kept in custody for twelve days without charge. During that time, Haneef was, according to the Queensland government, dealt with ‘as a terrorist’ – that is, during his incarceration, he was subjected to special conditions, including prolonged solitary confinement. Details about the case, many of which were incorrect, were leaked to the media. Eventually, Haneef was charged with intentionally providing resources to a terrorist organisation. But when he was brought before the Brisbane Magistrates Court, he was released on bail – whereupon Kevin Andrews, the then Immigration Minister, cancelled his visa on ‘character grounds’ and locked him up in Villawood detention centre.

The seriousness of terrorism offences, as indicated by the long sentences attached to them, mean that suspects are invariably refused bail. If you are accused of terrorism, you will, in other words, be remanded in custody, usually in a maximum-security prison. When twelve men were arrested on terrorism charges in late 2005 and early 2006, they were detained in the Acacia Unit in Barwon Prison, where they were classified as A1 prisoners, the highest security level possible. In their first year in detention, the men, who had not yet been tried, were kept in their cells for 23 hours a day, denied visitors, repeatedly stripped and prevented from praying. During the pre-trial hearings, they were strip-searched each morning, shackled and housed in the steel compartment of a jail van for a trip into court that took at least an hour. On the way back, they were strip-searched again. In the courtroom, huge Perspex screens separated the defendants from each other and the rest of the court.

Eight of these men were eventually convicted, a result that some might say retrospectively justifies their treatment. But the remainder were not, meaning that four innocent men spent over a year in Australia’s harshest prison, enduring treatment normally reserved for hardened gangsters. That is an experience from which many people never recover.

As the authors of Inside Australia’s Anti-Terrorism Laws and Trials note, it is relatively common for those accused of terrorism to plead guilty, partly to obtain a reduction on the huge sentences that such charges carry, but also because a guilty plea will lead to an improvement of the conditions they are already enduring, in the context of a trial that could stretch out for years. But the vast majority of those charged with terrorism offences are young Muslim men, usually from working class families, so there is no political interest in investigating how they are treated.

In 2003, a 21-year-old university student named Izhar Ul-Haque alighted from a train at Blacktown Railway Station in the early evening. He was confronted by two ASIO agents, who led him into a nearby park, where they questioned him in the dark. He was driven to his parents’ house, which was in the process of being raided by twenty agents, and then questioned again in a bedroom until nearly four am. At no point was he informed of his rights. In the subsequent case in the New South Wales Supreme Court, Justice Adams noted:

The officers were dealing with a young man of twenty-one years. It is obvious that any citizen of ordinary fortitude would find a peremptory confrontation of the kind described by the ASIO officers frightening and intimidating. Furthermore, the fact that he was being taken to a park rather than any official place would have added an additional unsettling factor. I do not think it can be doubted that this was precisely the effect that was intended.

The judge went on to describe ASIO’s behaviour as ‘grossly improper’, ‘reminiscent of Kafka’, and said that the two officers ‘committed the criminal offences of false imprisonment and kidnapping at common law’.

The charges against Ul-Haque were dropped. But as far as we know, no action was taken against his kidnappers – in 2009, ASIO head David Irvine confirmed that the men responsible remained in the agency’s employ. And why wouldn’t they? Ul-Haque might not have been guilty. But he belonged to the category that haunts the anti-terror infrastructure: the kind of people who, even if they haven’t actually done anything, can’t be considered entirely innocent either.

This brings us to the strengths and the weaknesses of Inside Australia’s Anti-Terrorism Laws and Trials, both of which derive from the same source. This is by no means a radical book, but rather a measured and methodical account of the anti-terror regime in theory and practice, written by legal academics. That gives it a certain rhetorical power as an authoritative summation of where we are now. The authors move slowly and cautiously from the laws on financing terrorism to the use of control orders, and at almost every stop on the journey they uncover legislation that gives authorities sweeping and ill-defined powers. For instance, we learn that ASIO can now detain and coercively question not only those suspected of terrorism but people who are not suspected, if ASIO believes they might possess information related to terrorism. As the authors point out, ‘no other democratic nation has vested such an agency with a power like that which the Australian government has conferred upon ASIO’.

What is most frightening about Inside Australia’s Anti-Terrorism Laws and Trials is not any specific measure so much as the emerging legal totality, the collective implications of the 64 separate pieces of anti-terror legislation that had been introduced by the end of 2014:

it is undeniable that Australian governments have found it much more palatable to increase rather than limit or review national security measures, tending to ignore reviews which recommend the latter course. The result has been a steady ratcheting up of the power of the state when it comes to the prevention of terrorism.

It is the cumulative effect of what one legal expert calls ‘hyper legislation’ that produces a transformation of quantity into quality, a fundamental shift in Australia’s treatment of civil liberties. On that basis alone, Inside Australia’s Anti-Terrorism Laws and Trials needs to be read. It will be the definitive popular guide to our new legal landscape, particularly as the principles established in the anti-terror code gradually bleed into legislation more generally. The remarkable anti-bikie laws are a good example of what happens to unpopular minorities when traditional checks and balances are eroded.

At the same time, the book’s analytic framework as a piece of legal scholarship prevents it from addressing the deeper questions it inevitably raises. The authors accept the basic assumptions of the anti-terror legislators, even as they challenge aspects of the legislation. They acknowledge, for instance, that 9/11 was a watershed and necessitated a new legal paradigm of some sort. ‘Australian governments and parliaments,’ they argue,

deserve credit for recognizing that a new body of law directed to protecting the community from the threat of terrorism was required. These institutions were also correct in their assessment that such laws ought to be directed primarily to the prevention of such acts. In hindsight our legal system prior to September 11 reflected complacency about the potential for political violence in Australia and the region.

The point probably seems self-evident, but it’s not. Throughout most of the industrialised world, political violence has been steadily declining for many decades. Australia does not provide a good example since the numbers of domestic terrorist incidents are so low that it is hard to produce statistically significant representations. But a graph of terrorist incidents within the United States illustrates the point clearly. According to the Global Terrorism Database, terrorist incidents peaked around 1970 and have been falling ever since – and similar charts can be produced for most developed nations.

Graph 1Terrorist incidents in the United States, 1970-2013. Source: Global Terrorist Database.

There are countries where deaths from terrorism have skyrocketed since 9/11. The most spectacular examples are those nations invaded by the US during the War on Terror – in particular, Iraq (see below) and Afghanistan.

graph 2Deaths from terrorism in Iraq, 1970-2013. source: Global Terrorist Database.

This is not to say that terrorism does not occur in Western countries. Obviously, it does. But it did in the past, too. Between 1968 and 1972, commercial aircraft in the US were skyjacked at an astonishing rate of nearly one plane per week, a phenomenon that is almost entirely unimaginable today.

Why, then, do we accept without question the notion that the threat of terrorism now necessitates a fundamental shift in the powers we allow the state, in a way that would never have been politically palatable during eras in which political violence was far more common? Part of the answer relates to the fluidity of the term ‘terrorism’. As Inside Australia’s Anti-Terrorism Laws and Trials notes, on 28 September 2001, the United Nations Security Council issued Resolution 1373, requiring nations to report back in 90 days on their progress in implementing new legislation to tackle terrorism. But what is terrorism? A 1988 study identified 109 different academic definitions – and that, of course, was before the extraordinary expansion of ‘terrorism studies’ spurred by 9/11.

The South African response illustrates the difficulty. In 2004, the anti-terror laws enacted in that country included an exemption for acts ‘waged by peoples … in furtherance of their legitimate right to national liberation [and] self-determination’ – a notable omission in the legislation of most other countries. But South Africa is governed by the African National Congress (ANC), an organisation that, during the resistance to apartheid, engaged in acts of armed struggle, including bombings, sabotage and assassinations. For that reason, Nelson Mandela remained on the White House’s terror watch list until 2008. Given that past, the ANC government had to tread a lot more warily than other administrations.

The point is not merely to rehearse the old saw about one person’s terrorist being another person’s freedom fighter; it is to acknowledge terrorism as a political term that takes on its meaning and power in a particular context – and to point out that the legal code plays an important role in creating that context. On 21 March 2002, the Commonwealth Attorney General, Daryl Williams, introduced the new terrorism laws into the Parliament. Terrorism, he said, was ‘quite unlike ordinary crime, necessitating a response quite unlike the accepted responses to criminal activity’. That rhetoric was ubiquitous at the time and was accepted largely without question. But the argument is by no means obvious.

It is impossible to analyse the legal regime that has developed since 2002 without looking at the geopolitical context in which it has taken shape. The UN Security Council might have been unable to define terrorism with any rigour, but everyone knew the connection between the new laws and the situation in Afghanistan and then Iraq, which is why it is so casually accepted that political violence intensified (or even began) after 9/11. Though Lynch, McGarrity and Williams argue that the new laws go too far, they accept the necessity of some legislative reform enabling the prevention of terrorism. Yet within mainstream Australian politics, it is almost impossible to discuss the single most obvious preventative measure in relation to terror: namely, withdrawal from the ongoing military adventures in the Middle East and elsewhere. In other words, the new legal code takes for granted a political perspective in which the War on Terror will continue or even intensify, requiring a more and more coercive state to keep the lid on the fallout at home.

That is one of the reasons why the reaction to these extraordinary laws has been so muted. And that will probably continue, at least in the short term. We are unlikely to see a Melbourne University student sentenced to twenty years jail for a too enthusiastic embrace of anti-corporate rhetoric, at least not until the political climate shifts somewhat. Nonetheless, the scaffolding for broader repression has now been created. If that seems hyperbolic, read Inside Australia’s Anti-Terrorism Laws and Trials and ask yourself what new laws a hypothetical authoritarian regime of the future might require to manage dissent. No doubt there are some – but they don’t readily come to mind.

References

Caitlin Dewey, ‘Why Nelson Mandela was on a terrorism watch list in 2008,’ Washington Post (7 December 2013).
Global Terrorism Database
Brendan I. Koerner, The Skies Belong to Us (Crown, 2013).