Readers of tabloid newspapers in Sydney and Melbourne are currently being entertained by florid reporting of two terrorism trials. The trials arise out of the arrest of separate groups in the two cities on 8 November 2005.
The trial of the Melbourne group began earlier this month. The 12 defendants face a number of charges, the first of which is Membership of a Terrorist Organisation, referring to their Melbourne-based social group, rather than to any of the well known proscribed terror outfits. The nine Sydney defendants, whose trial began on Monday, are facing a charge of Conspiracy to do Acts in Preparation for, or Planning, a Terrorist Act.
None of the defendants in either city is charged with committing a terrorist act or even attempting to commit a terrorist act.
There are a number of concerning aspects of the charges that both groups are facing. It is not being alleged that the charges relate to a particular proposed terrorist act. In fact, there is no evidence of preparation for or planning a particular terrorist act. That is why shortly before the arrests, the Federal parliament amended the legislation in an emergency sitting to allow charges to be brought even when there is no specific act being prepared for or planned.
It is not even contended by the prosecution that the nine Sydney defendants have done acts in preparation for, or planning terrorist acts at all. The allegation is that they have entered into a conspiracy (ie simply an agreement) to do so.
Leading Sydney barrister Phillip Boulten SC has criticised S101.6(1) of the federal Criminal Code, which contains the offence of Doing Acts in Preparation for, or Planning a Terrorist Act. Boulten says: "Usually, the law only criminalises substantive offences and attempts to commit them. Mere acts of preparation are not traditionally considered to be sufficiently proximate to a criminal act to justify criminal sanctions."
In other words, criminal liability is usually confined to the offensive behaviour itself. For example, you do not arrest a bank robber for driving to the bank or even crossing the road to enter it wearing a balaclava.
Police argue that terrorism is different – it may lead to the deaths of dozens or even hundreds of people and drastic extensions of criminal liability are therefore justified to prevent it.
To criminalise acts that are not normally defined as criminal activity means that you ignore the possibility that people may change their minds about participating before anything happens. Six of the nine Sydney men were in their 20s at the time of being charged. Being young is no excuse, but when you are charged with simply agreeing to do something, there is the possibility that you may have agreed to do what you actually had no intention of doing. Think about it: is it not possible that a young man, out to impress his mates and having no intention of becoming a terrorist, agrees to participate in some vague future plan, oblivious to his conversation being taped?
Perhaps if we are to have such laws they could be justified by imposing a lighter penalty than for more substantive crime. The problem is that the Federal parliament has not done this. The penalty that the Sydney defendants are facing is life imprisonment.
The other problem with these charges is the nature of conspiracy trials themselves. Where alleged co-conspirators face trial together, evidence of one co-conspirator’s statements may be evidence against the others. This makes the prosecutor’s job a lot easier because a lot of hearsay evidence prejudicial to individual conspirators may be admitted into evidence.
The Melbourne group face a different problem. Although the defendants are charged with further offences, none of those allegations actually relates to a terrorist act or an attempt at a terrorist act, either. The first charge is simply belonging to an organisation formed by the group concerned, membership of which may be very informal.
Some may think this a desirable law because of the need to confine terrorist tendencies wherever found. The problem is that the maximum penalty for being a member of such an organisation, without having made any agreement or having any intent to engage in terrorist activity, is ten years imprisonment.
What is the basis for this offence? Guilt by association? Incidentally, the other charges that the Melbourne defendants face concern acts related to membership of the organisation or allegations of preparatory steps, only.
Both groups will be legally represented at great cost to the taxpayer because they will receive legal aid for the immensely long trials which will likely stretch into next year. What will the jurors make of it? Even if there is clear evidence requiring punishment, will the jurors do what jurors often do when they become aware that very heavy penalties must be imposed on the guilty – let them off?
What a wonderful legacy the Howard Government has left us with in these laws.
The defendants in both trials are Muslims. If convictions are obtained and heavy penalties imposed, it would be understandable if the Muslim community thought that double standards were being applied. Alan Bond stole several thousand million dollars from Bell Resources, the maximum penalty was five years jail and he served less. Visy Chairman Richard Pratt was even luckier and remains free, but a person agreeing to take a step in preparation for a terrorist act but who has not yet taken it, is liable to a maximum of life.
It is not only the heavy penalties imposed by some of these offences that need review. The new Attorney-General, Robert McClelland, might also review other anti-terror laws, including:
In 2002 the Howard Government "updated" the law of Treason. In 2006 the Australian Law Reform Commission (including for this purpose Justice Susan Kiefel, now a High Court Justice) said that Treason can now be committed by a strong dissenting statement and should be amended.
In 2003, ASIO, alone among law enforcement agencies in the Western world, was given a power to detain non-suspects for up to a week for compulsory questioning in secret. Five-year jail sentences can be imposed for refusing to answer a question.
In 2004, amendments were passed to allow a magistrate or Justice of the Peace, neither sitting as a Court, to extend the period between arrest and charge indefinitely. This resulted in Dr Mohamed Haneef being held for 12 days without charge.
In 2005, the Howard Government introduced new Sedition laws which, like the Treason laws above, were strongly criticised by the Law Reform Commission for criminalising strong dissenting opinions. At the same time, the Federal parliament allowed control orders to be imposed on people which, when they are limited to curfews like those imposed on Joseph Thomas and David Hicks, may be just a nuisance. However, such orders can extend to house arrest for up to a year, of people not even suspected of criminal offences.
If the Rudd Government is nervous about amending these laws, it should take a look at the 2006 report of the Security Legislation Review Committee (commonly known as the Sheller Committee) which was commissioned by the Howard Government to review some of its terror laws. That Committee, which was mostly composed of lawyers appointed to senior statutory positions by the Howard Government, and therefore meant to be conservative, came up with 20 serious criticisms of the anti-terror laws – even suggesting that some of them were unconstitutional. Howard’s Attorney-General Philip Ruddock implemented none of the Sheller proposals even after the Coalition-dominated Joint Committee on Intelligence and Security endorsed the report last year.
McClelland’s announcement that he would appoint a public inquiry to gauge the need for a Charter of Rights would be an important step forward. A national Charter would at least set proper legislative benchmarks for the future and guard against a replication of the Howard Government’s disregard for fundamental rights.
The tabloid media in Melbourne and Sydney, which will
cover the evidence in the current trials in lurid detail, would support such a
rational step – wouldn’t they?
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