What if it Doesn't Walk Like a Duck?


As is often observed, the protection of the law becomes specially important when it is claimed by the unpopular and the despised accused of grave wrong-doing.

Justice Michael Kirby (The Queen v Tang, 28 August 2008).

It is likely that the majority of our fellow Australians will be relieved and pleased to see that Abdul Nacer Benbrika has been convicted and will be sentenced to a lengthy term in prison. They will correctly see him as an extremist who has expressed support for a terrorist assault on this country with the intention, however misguided, of advancing the cause of radical Islam.

This man is an obvious menace to the community. Whether he should be jailed for up to 15 years based on what he has been proved to have done is another question altogether.

After a seven month trial, Benbrika was convicted earlier this week on three charges: intentionally directing the activities of a terrorist organisation; being a member of such an organisation, and possessing a CD containing terrorist information. Six of his associates were convicted of being members of the same organisation, but interestingly, a further four co-accused were not convicted, and the jury remained deadlocked concerning the remaining accused.

So, why should these convicted terrorists not go to jail for a long stretch?

The following is not in dispute:

First, there was no evidence before the Court that the seven convicted men were members of any of the listed terrorist organisations specifically banned in this or any other country, by law.

Second, there was no evidence that any of the seven had committed a terrorist act, had attempted to commit a terrorist act, had taken a step in preparation or planning for a terrorist act or had even agreed to take a step in preparation or planning for a terrorist act.

During the trial, the prosecution called evidence of no less than 482 recorded telephone and other conversations and yet the most serious offences with which the seven individuals were charged involved membership of their own social group which, under our widely drafted anti-terrorism laws, can constitute a terrorist organisation. Under these laws, if a loosely linked social group indirectly fosters the commission of a terrorist act, even unintentionally, and regardless of whether the group itself is involved, the group falls within the definition of a terrorist organisation.

Once that occurs, an informal member of the organisation is guilty of a serious criminal offence punishable by up to 10 years jail. There is no need for any evidence that the accused has intent to engage in terrorist activity or even that he or she has made any agreement to later engage in terrorist activity. If you are proved to have intentionally directed a group, like Benbrika, the maximum penalty, without any further behaviour, is 25 years jail, one of the heaviest penalties applied in our legal system.

It could be argued that the consequences of terrorist activities are so devastating and amount to such an assault on the Australian way of life that extreme laws like this are justified.

That is an entirely respectable opinion and not to be ridiculed.

Nevertheless, one wonders whether Benbrika and his associates are the real problem in this or any other community. They have been convicted because they have been stupid enough to talk about their views. Benbrika has even been crazy enough to give media interviews in which he discussed his extreme position. On one view, he may just be a big talking, big noting, would-be jihadist who, despite many extravagant statements, and months or years of surveillance by ASIO and the federal police, has never planned or taken a single step in preparation for a specific terrorist act or even terrorist acts in general.

The question needs to be asked, what precisely has this man done, except talk?

One may say that some of Benbrika’s talk amounts to incitement of violent acts. If this is so, why was he not charged with such an offence? The answer is that evidence linking him and his friends to specific offences would be necessary, and that evidence does not exist.

It is true that one key prosecution witness did allege that Benbrika and his associates intended to bomb the 2005 AFL Grand Final or alternative events. However, the trial Judge directed the jury to ignore that evidence unless it was corroborated, because the witness was an admitted fraudster and liar.

There is one clear danger in the conviction of these seven men — that they will come to be seen as victims of a legal system biased against Islam and its adherents, given they have been convicted of offences which, when boiled down, amount to little more than guilt by association. Sure, several of the men have also been convicted of possessing CDs containing terrorist material, but that is a long way from the commission of acts of violence.

A key factor involved in the mature assessment of these convictions will be the sentences imposed by the Judge, the respected Bernard Bongiorno.

In the 1990s, Bongiorno QC was Victoria’s Director of Public Prosecutions. He took an independent path in discharging his responsibilities and got right up the nose of then Victorian Premier Jeff Kennett. Kennett’s response was to pass legislation which effectively neutered most of the DPP’s powers and gave them to a deputy. Bongiorno promptly resigned and returned to the Bar, earning the respect of his peers and the public for refusing to surrender the independence of his office.

If that independent attitude results in relatively short sentences for these Melbourne men, it will be a good indication of what Justice Bongiorno thinks of the laws. However, his decision may not be the end of the matter. In addition to being controversial, the legislation grounding these convictions is vague and uncertain. It would therefore be surprising if the convictions are not appealed all the way to the High Court in Canberra.

Now also, it is revealed that further charges are to be brought against four of the men for acts "in preparation of or planning a terrorist act" — a provision heavily criticised for criminalising activity well before the time at which legal theory suggests a crime can be committed. The allegation is that they ordered laboratory equipment. If convicted the penalty is life imprisonment.

Abdul Nacer Benbrika will await the conclusion of the legal process before he knows his fate. But with a conservative High Court unlikely to be troubled by these laws and Justice Kirby retiring next March, even one of Kirby’s celebrated dissenting judgements will be beyond his hopes.

Launched in 2004, New Matilda is one of Australia's oldest online independent publications. It's focus is on investigative journalism and analysis, with occasional smart arsery thrown in for reasons of sanity. New Matilda is owned and edited by Walkley Award and Human Rights Award winning journalist Chris Graham.