The long sentences given to Abdul Nacer Benbrika and his six associates last week by Justice Bernard Bongiorno highlight the questionable nature of the anti-terror laws used to convict them.
After a seven-month trial in Melbourne last year, seven of 12 accused were convicted in September of various charges centred around their membership of an alleged terrorist organisation. All seven were charged with being members of that organisation, a charge which carries a maximum penalty of 10 years jail. Benbrika, their leader, was additionally charged with directing the activities of the organisation (maximum penalty 25 years), and also with possessing a "thing" connected with preparation for a terrorist act (15 years) — the thing being a CD containing terrorist "how-to" information.
Three other accused were charged with providing resources to a terrorist organisation (maximum penalty 25 years), that resource being, remarkably, themselves. Finally, three of the men were charged with attempting to make funds available to a terrorist organisation, the charges arising from the theft of two cars with the aim of giving the proceeds to the group (25 years).
All of these offences were created by the Howard government earlier this decade in an atmosphere of fear and paranoia in response to the World Trade Center attack. No laws similar to the membership offences existed in Australian law in the 18th, 19th or 20th centuries.
One difficulty with the laws is that the definition of "terrorist organisation" is so wide that an informal social group can be caught up by them if it indirectly fosters the doing of a terrorist act, by itself or even by some other group or person. This could arise simply out of a theoretical debate, within the group or involving others as well. The offences do not require the group to have a formal membership or a structure, or to have formed an intention to commit a terrorist act, or even to have agreed to actually perform a terrorist act.
During the trial of Benbrika and his associates it became clear that all of the accused supported violent jihad against non-believers in Islam. They said as much in many of their 482 conversations recorded by the police and ASIO in 2004 and 2005, but the judge said there was no credible evidence that they had any plan, intention or agreement to commit a terrorist act.
In his sentencing, Justice Bongiorno refers in detail to the repeated expressions of enthusiasm by the seven for violent solutions to the supposed infidel problem in this country. The Judge concluded that these men constitute a dangerous threat to public safety, and many readers of his decision will agree, and feel that while their lengthy sentences may be rough, they are fairly just.
Nevertheless, the offences remain a problem. Why should anyone go to jail for being part of a social group whose members express extreme views? How can the expression of such views — in private — justify the lengthy jail sentences these men face?
These laws are directed at the very early stages of terrorist activity, and attempt to nip in the bud any potential terrorist operation. However, if you charge people with offences based only upon what they have said, you are inevitably going to catch people who talk big, brag and big-note themselves, but have no intention of involving themselves in actual terrorism. It is possible that some of the seven — six of whom were in their early to mid 20s at the time of arrest — fall into this category.
There is a further problem, also. Because Benbrika and his friends were arrested and charged before they had formed any specific plan to do anything, charging them at that stage prevented any determination of whether these men would indeed progress towards planning real acts of terrorism.
Suppose, had their arrests been deferred, they had later agreed to perform a specific terrorist act, then they could have been charged with conspiracy to murder. The maximum penalty for that is life imprisonment — a much heavier sentence than those which they currently face — and it would have been clearly justifyied to protect the community from attack. Their early charging means we do not know the extent of the danger — if any — constituted by this group.
Charging later rather than sooner would also have reduced the possibility that these seven will be regarded as victims by sections within the Islamic community who may feel that the seven have done little to justify such lengthy imprisonment.
Benbrika himself will now serve non-parole jail time of 12 years on top of the three years he has already spent in custody, and the others will serve lesser periods, the minimum non-parole sentence for any of them being four and a half years plus the three years in custody.
It is fair to ask why such relatively heavy sentences were imposed. One reason was the heavy maximum penalties decreed by Parliament for these offences. A second reason was that during the sentence hearing, not one of the seven men renounced his support of violent jihad. Their lawyers would certainly have advised them that expressed contrition would be their best chance of obtaining a degree of leniency, but they were unmoved.
Another striking aspect of the sentencing was that two senior Islamic clerics, the Mufti of Australia no less, and the Imam of the Islamic Society of Victoria, submitted character references to the court for some of the men (although not for Benbrika).
That does not mean that the Imams support the extreme jihadist positions maintained by the individuals concerned, who they apparently knew personally before the events. Both have at different times publicly condemned religious violence, and called for Muslims to reject jihadist tactics. However, given the wide publicity the case has received in Victoria, one wonders how the two clerics reconciled their support for the men with the views those men continue to hold. Even if those clerics were unaware of the men’s views when they wrote their references, surely they must know by now.
It is worth noting too that not one of the seven has departed from his support of violent jihad in the three years since they were arrested, yet they have continued to receive significant support from family, friends and some Islamic leaders. If those supporters have tried to dissuade them from their extreme convictions, they have so far failed.
The result is that while the laws under which these men have been convicted are certainly questionable, it seems unlikely that there will be much public protest against them arising from this instance of the application of those laws.
Mainstream Australia will not lose much sleep over the situation these men find themselves in while they maintain their indefensibly murderous views on the best way to achieve social change. Perhaps the biggest effect their arguably premature trial has had is that they now express those views in public.
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