Stephen Blanks [Secretary, NSW Council for Civil Liberties]: "Last week, Abdul Nacer Benbrika and 6 followers were sentenced in the Victorian Supreme Court, Melbourne, to terms of imprisonment ranging from 6 years to 15 years, for terrorism related offenses committed in 2004-2005. The offenses included belonging to and financially supporting a terrorist organization, and possessing material in preparation for a terrorist act.

No act of violence or terrorism was in fact committed, nor was one even planned. The organization to which those convicted belonged was an unincorporated group of persons led by Benbrika, and comprising members of his mosque. It had no apparent affiliation with any outside organization. The group engaged in detailed discussion about violent jihad and members expressed support for acts of terrorism. The materials to which the possession charge related were a CD.

Aspects of these convictions raise serious concerns about the operation of Australia's anti-terrorism laws.

The convictions are under laws about which the Courts have noted:

Preparatory acts are not often made into criminal offenses. The particular nature of terrorism has resulted in a special, and in many ways unique, legislative regime…A policy judgment has been made that the prevention of terrorism requires criminal responsibility to arise at an earlier stage than is usually the case for other kinds of criminal conduct, e.g. well before an agreement has been reached for a conspiracy charge.

Indeed, in the present case, the convictions are based in part on a version of the laws which had been amended with retrospective effect to ensure that a conviction could be obtained for acts done in preparation for a terrorist act, without the need to identify any particular terrorist act that was being prepared. These amendments were reported in JURIST in November 2005.

Inchoate offenses such as those in this case are inherently susceptible to discrimination and abuse. This is especially the case where the political environment creates an environment of fear for which the natural response is "tough action." The jury in this case found 4 of the accused not guilty of any offense. They had spent nearly 3 years in maximum security jail conditions while on remand.

Some commentators have described the convictions as being based primarily on "loose talk" by the group. Unlike the US, Australia has no constitutional protection for free speech. Given that there was no planned or imminent act of terrorism, it is doubtful that convictions could have been obtained if this conduct had occurred in the US.

It appears that the only occasion in which Benbrika was involved in any sort of overt act was an incident where a Victorian police officer who had infiltrated the group demonstrated to him how to make an explosion using commonly available chemicals. There is plenty of room for debate on whether this style of police infiltration goes too far.

There is also room for debating whether application of criminal sanctions for these type of offenses is the best method for defeating the threat of terrorism. More effective counter-terrorism strategies in this case may have been to engage with Benbrika and his associates, to undermine any support for violence and to take measures to integrate them more with the mainstream Muslim community and wider Australian community. Criminalizing their conduct risks further alienating their community, rather than being a deterrence.

Although lengthy, the sentences are perceived to be a disappointment to the prosecutors and the proponents of tough anti-terrorism laws, who like to take a "throw away the key" approach.

There will no doubt be appeals against conviction and sentence. The final outcome of this case is definitely one to watch."