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SARAH SORIAL[*]
Since September 11 2001 the Australian Federal Government has introduced a number of new anti-terror laws, including the ASIO Amendment (Terrorism) Act 2003 (Cth), the Criminal Code Amendment (Hamas and Lashkar-e-Tayyiba) Act (Cth), and the comprehensive Anti-Terror Act 2005 (Cth). Together, these laws have broadened the definition of terrorist offences, given intelligence organisations such as ASIO extraordinary coercive powers to detain and question suspects, and introduced harsher penalties for offences such as sedition, supporting a terrorist organisation or preparing for a terrorist attack.
Since the introduction of these laws a number of people have been charged with terrorist related offences, including Faheem Khalid Lodhi. In 2006, Lodhi was found guilty of three of the four terrorism charges on which he was indicted and sentenced to a maximum of 20 years. This is the most severe terrorism sentence ever handed down in Australia. This case deserves careful scrutiny not only because of the severity of the sentence but because of the alarming justifications for it, and because of the legislative, judicial and political shift that it represents in the trial of terror suspects.
This article examines one of the key justifications used to establish proof of intent: the nature of Lodhi’s associations with then terror suspect, Willie Brigitte.
It was contended by the Crown, and accepted by Whealy J, that Lodhi’s association with Willie Brigitte, recently convicted of charges of terrorist activity in France, was sufficient to prove intent on the part of the accused to commit a terrorist act.
I make two arguments in response to this reasoning: firstly, that there were no legal grounds or justifications for this inference and that it constituted an unjustifiable extension of criminal liability beyond the already contentious category of conspiracy, and secondly, that the case has wider implications for the status of civil liberties in Australia, such as freedom of association and freedom of movement. Given the harsh penalties for terrorist offenders, including solitary confinement and constant surveillance, and given the threat to civil liberties already posed by the new legislative regime, criminal liability should not be inferred from a seemingly-innocuous association. Such a slippage between association and intention sets a dangerous precedent.
These concerns have been borne out in the recent charges against Dr Mohamed Haneef. Haneef was charged with providing support to a terrorist organisation on the basis of a remote association with the men responsible for the attempted attack on Glasgow airport. These charges were dropped on 24 July 2007 on account of lack of evidence.
Lodhi was charged with four offences under Part 5.3, Division 101 of the Criminal Code Act 1995 (Cth). The first is that he collected two maps of the Australian electricity supply system, which were connected to the preparation of a terrorist act. The second charge was that on 10 October 2003 Lodhi acted in preparation for a terrorist act by seeking information concerning the availability of materials capable of manufacturing explosives or incendiary devices. The third charge was that on 24 October 2003 he made a set of aerial photographs of Australian defence establishments, which were connected with the preparation of a terrorist act. The fourth charge was that on 26 October 2003, Lodhi possessed a document containing information concerning the ingredients for and the method of manufacture of poisons, explosives, detonators and incendiary devices connected with the preparation of a terrorist act.
The Crown alleged offences under Part 5.5 of the Criminal Code Act 1995. A terrorist offence is defined in the Commonwealth Criminal Code as an action, or threat of action, where the action is done or the threat is made with the intention of advancing a political, religious, or ideological cause, and the action is done or the threat is made with the intention of coercing or influencing by intimidation, the government of the Commonwealth or a state, or intimidating the public or a section of the public.[1] Action is defined as an act that causes serious harm or death to a person, damage to property, endangers a person’s life or creates a serious risk to the health and safety of the public.[2] Action also includes serious interferences or disruptions to electronic systems, including information systems, telecommunication systems, financial systems, or transport and other public utility systems.[3]
The first and third count in the indictment concerned the collection or making of documents likely to facilitate a terrorist act. Section 101.5 (1) states that a person commits an offence if they collect or make documents that are connected with the preparation for, or assistance in a terrorist act, and that they know of the connection between the documents and the act. The second count alleged an offence against s101.6, which makes it an offence to do any act in preparation for a terrorist attack. The fourth count alleged an offence against s 101.4, which concerns the possession of a thing connected with a terrorist offence. All three sections apply in the case of recklessness, and when a terrorist act did not actually occur.
Terrorism is therefore defined widely, such that a criminal offence occurs long before any terrorist act itself is carried out. While these preparatory offences overlap with aspects of the laws of attempt, conspiracy and accessorial liability, they differ as the latter offences require specific, identified acts to be planned or attempted, while criminal acts preparatory to terrorist acts do not.[4] Given that terrorism laws are essentially preventative, it stands to reason that the acts themselves are sufficient to attract criminal liability, irrespective of whether a target has been selected, or a specific attempt has been made. As Whealy J notes, it would ‘hardly be expected that cities would be bombed and scores of people killed before the legislation would have the capacity to bite’.[5]
While there are good reasons for the inclusion of preparatory acts as a category of offence, it is not entirely clear what sort of acts would attract criminal liability. Section 101.4 of the Code for example, makes it an offence to possess a ‘thing’ connected with a terrorist offence. Does this include the mere possession of documents such as maps, or material such as seditious literature and, if so, how is the connection between such material and a terrorist act established?
The fact that this section also applies in the case of recklessness suggests the possession of things such as maps and other documents is sufficient to attract criminal liability, whether a connection between the documents and the act itself can be established or not. A failure to define what these ‘things’ actually are, and to stipulate how such a connection between the ‘things’ in question and an intention to engage in terrorist activity is to be established indicates that ‘preparatory’ acts are a broad category of offence and as such, are open to wide interpretation and possible abuse. This problem of how to establish the necessary connection between preparatory acts and an intention on the part of the accused was made apparent in the case of Regina v Lodhi.
The evidence against the accused included his purchase of two maps of the Australian Electricity Network, his possession of material on how to make explosives, 37 aerial photographs of Holsworthy Army Barracks, and material advocating violent ‘jihad.’ To establish a connection between the accused’s possession of this material and the intent to commit a terrorist act, the Crown case relied on a considerable body of circumstantial evidence. Part of this concerned the offender’s association with terror suspect Willie Brigitte.
In the first of a number of pre-trial hearings,
Whealy J wrote:
the nub of the Crown case is that it will argue that it is to be inferred that the relationship between the accused and Brigitte, and their common association with the telephone service of one ‘Sajid’ in Pakistan, were connected with the preparation of one of a number of possible terrorist acts in Australia.[6]
The use of this association to prove the requisite intention is problematic because there was no substantial evidence to suggest that the association constituted a conspiracy. Instead, the Crown ‘inferred’ that the relationship was connected to the preparation of a terrorist attack.
In accepting this evidence, I suggest that the court is extending the scope of criminal liability in problematic ways. The extension of criminal liability has always been a feature of the criminal law; the crimes of conspiracy, complicity and incitement are all instances where a second or third party is also found guilty on the basis of an association. However, there are identifiable legal elements to each of these crimes. Interestingly, the Crown did not rely on these sections of the Criminal Code, but nevertheless used Lodhi’s associations to establish intent. To extend liability beyond the categories of complicity, conspiracy and incitement to that of mere association creates a new category of offence that lacks legal justification. It also places unnecessary constraints on the implied constitutional right of freedom of association.
In order to prove that the accused had the requisite mens rea, the Crown had to prove three elements: the ‘action’ was carried out with the intention of advancing a political or religious cause; the action was performed with the intention of coercing or influencing, by intimidation, the government or the public; and the action does not fall within subsection 3 which maintains that action does not cover dissent, protest or industrial action, provided is it not intended to inflict harm or threaten the safety of the public. Due to the wide scope of the definition of ‘action,’ the Crown needed to identify characteristics of the action, to establish the essential ingredient of the offence beyond a reasonable doubt. This is also the case where the person carrying out the preparatory act is not precisely aware of the nature of the final target, and where the threat of action, or action itself does not take place.
Given the scope of both ‘terrorism’ and ‘action’ as defined by the Code it is possible to conclude, on the basis of the evidence tendered by the Crown, that the necessary elements existed. For example, it could be shown that the accused did possess documents which could be used in preparation of an act, and that he had the intention to do so. It could be argued that, given the current legislative framework, this much of the accepted evidence seemed both cogent and logical. What was alarming, however, was the emphasis on Lodhi’s associations as part of the Crown’s efforts to prove the requisite intention.
In sentencing Lodhi, Whealy J focused on a number of the offender’s associations, most notably his association with Willie Brigitte.[7] Brigitte, a French citizen, arrived in Australia in May 2003. It was accepted, on the basis of evidence given by Yong Ke Kwon, a trainee at Lashkar-e-Taiba (LET) paramilitary training camp in Pakistan, that Brigitte had also trained there in 2001. Despite this, Whealy J conceded that there was very little detailed evidence about Brigitte’s activities when he was in Australia. Having conceded this, he went on to recount the brief and fleeting association the offender had with Brigitte as part of the offender’s intention to commit a terrorist act. For example, it was noted that Lodhi had set up a mobile phone service using a false name. Two calls were made from Brigitte’s phone in France to this number. Moreover, while Lodhi had never met Brigitte, arrangements had been made for Lodhi to meet and collect him from Sydney airport, and the two men then spent the day together.
The person connecting the two men was described as a ‘somewhat shadowy figure’ in Pakistan who had requested that Lodhi look after Brigitte on his arrival in Sydney. Justice Whealy rejected the defendant’s claim that the relationship between him and ‘Sajid’ was an innocent one, and that he had helped Brigitte as a matter of courtesy to a stranger travelling in a new country, at the behest of a mutual friend. Instead, Whealy J maintained that the evidence established that Sajid was attempting to coordinate a relationship between the two men so that the possibility of terrorist action in Australia could be explored. It should be noted that the ‘evidence’ in question is not specifically addressed in the judgment, so it is not really clear how Whealy J arrived at the conclusion that the association between Brigitte, Lodhi and Sajid establishes any intent to commit the acts in question, or that any plans were being explored on the basis of this association.
Indeed, Whealy J himself conceded this point in the next paragraph when he wrote that:
I should say immediately that there is no evidence to indicate precisely what Brigitte’s role was to be in relation to any terrorist activity. There is no evidence to indicate, for example, that he himself was to be involved in the commission of any of the three offences in respect of which the offender has been found guilty.[8]
If this is the case, then why was so much made of the association between Lodhi and Brigitte, and why was this association used as one of the bases to establish proof of intent? If little is known about Brigitte’s activities in Australia, and if there is no evidence to indicate he was involved in any way, why was the association not only emphasised in the way it was, but more importantly, why was it used to determine the intention of the offender? And what are the implications of this reasoning for both the validity of the judgment itself and the status of civil liberties such as freedom of association?
Further and seemingly irrelevant details of the association were noted: that there were a number of phone calls made by Brigitte to both Lodhi in Sydney and Sajid’s number in Pakistan, and that together with another person who also knew Brigitte, Lodhi visited Brigitte at his flat in Lakemba on at least two occasions. Once again, Whealy J conceded that there is no evidence of what transpired between the two men. Yet Whealy J wrote that he is:
satisfied beyond reasonable doubt that the relationship is not an innocent one. I am also satisfied that the connecting link between the two men was their joint interest in contemplating and discussing the possibility of some type of terrorist activity in Australia.[9]
The question this raises is: on what basis could Whealy J be satisfied beyond a reasonable doubt that the relationship was not an innocent one, and that it was based on the joint venture of plotting an attack on Australia? The basis for this finding seems to lie in the fact that Brigitte was wanted in France for an alleged ‘substantial’ connection with terrorism. Be that as it may, this in itself does not give substance to the claim that his relationship with Lodhi was also for this purpose.
While it was the case that Lodhi’s associations with Brigitte and Sajid were not the only matters relevant to establishing intent, much was made of these associations. This raises a number of questions about the scope of the terrorism provisions in the legislation, the nature of judicial creativity when it comes to the question of association, and the way in which criminal liability can be extended beyond legal categories when it comes to the trial of terror suspects.
The Code makes several provisions for criminalizing certain associations: those involved in conspiracy or those who have an association with a terrorist organisation. The nature of the association with Brigitte does not seem to attract either category of offence. It would therefore appear that one of the implications of this case is the creation of a new category of offence that criminalizes some associations without any legal justification and in the absence of any substantial evidence.
Traditional legal justifications for extending criminal liability include attempt, conspiracy and complicity and are based on the ‘group danger’ rationale. That is, if one of the objectives of the criminal law is the prevention of harm to the community, and since combinations of people with harmful intentions are more dangerous than individuals with those same intentions, conspiracies themselves must be made a crime.[10]
Three legal elements are necessary for a person to be guilty of conspiracy: the person must have entered into an agreement with one or more persons, the person and at least one other party must have intended that an offence would be committed in accordance with the agreement, and one of the parties must have committed an overt act in accordance with the agreement.[11] Central to the crime of complicity is the existence of an agreement. To extend the scope of criminal liability to a second person, the prosecution must prove the agreement and that the defendant actually intended to join the agreement as a party. Nothing has to be done insofar as the plan does not have to be put into action, but the existence of an agreement will be established by evidence of conversations, documents, witness accounts and so forth.[12]
Conspiracy however, has always been a controversial category of criminal offence. As Abbate argues, if conspiracy itself is a crime, then governments should not only seek to prevent the conspiracy from reaching fruition, but are also under pressure to prevent the conspiracy from occurring in the first place.[13]
The category of conspiracy is problematic because of its scope, the surveillance methods used to prove it, and due to the way in which it has been used to punish political groups, trade unions and other ‘unpopular causes’ in cases where no offence has been committed or where a criminal offence may have been committed but proof of that offence would be difficult to prove.[14] The problem with this offence however, lies with the intrusive methods used to prove it, rather than a lack of substantial evidence. As such, there is a tangible legal offence — an agreement — that arguably justifies the legal category of conspiracy.
Lodhi was not charged with conspiracy under Part 2.4 of the Code. An agreement is a necessary element in the crime of conspiracy, and this does not seem to have been met on the basis of the evidence presented by the Crown. While the evidence suggested that Lodhi did commit certain preparatory acts, there is nothing to suggest that the acts were carried out pursuant to an agreement and so a charge of conspiracy was not justified. Yet criminal liability was extended beyond the category of conspiracy, and the Crown focused instead on Brigitte’s association with the terrorist organisation LET to establish proof of intention on Lodhi’s part.
Section 102.8 of the Criminal Code makes it an offence to associate with terrorist organisations. Subsection 1 states that a person commits an offence if, on more than two occasions, they intentionally associate with another person who is a member of an organisation, or with a person who promotes or directs the activities of an organisation. The person must know that the organisation is a terrorist one, and the association provides support to the organisation. It is an offence to associate with a terrorist organisation if the person intends that the support will assist the organisation to expand or continue to exist, and if the person knows that the other person is a member of the organisation. This section does not apply if the association is with a close family member, is in a place being used for religious worship, is for the purpose of providing aid of a humanitarian nature or for the purpose of providing legal advice. At the trial, evidence was given to the effect that Brigitte had trained with a terrorist organisation. On the basis of the evidence however, it is not clear whether the accused was aware of Brigitte’s association with LET, and there was no evidence to suggest that his association would have supported a terrorist organisation in any way, or that he himself was directly associated with a terrorist organisation. Although the evidence suggested nothing more than an ordinary association, the association was nevertheless used to establish intent.
The anti-terror legislative package gives various organisations coercive powers, including the powers to arrest and detain without charge. But it is also framed ambiguously, and is open to broad interpretation. This is apparent in the Lodhi case, where a seemingly innocuous association was made the basis of an intention to commit a terrorist act. Judicial interpretation of these wide-reaching acts has meant that existing boundaries in the criminal law — boundaries such as those between a mere association and a conspiracy — are being blurred in problematic ways. This not only has implications for how terror suspects are tried, but also for the status of civil liberties in Australia.
While it is the case that Australia does not have a Bill of Rights, there has been a willingness on the part of the High Court to find constitutional implications protecting individual freedoms and rights. The two significant cases that establish these rights are Australian Capital Television Pty Ltd v Commonwealth of Australia (No 2)[15] and Nationwide News Pty Ltd v Wills.[16] A majority of judges held that the Constitution entrenches a system of representative democracy and that this in turn implies certain constitutional protection of freedom of speech, freedom of association and freedom of movement. In Nationwide News, Brennan J states that ‘to sustain a representative democracy embodying the principles prescribed by the Constitution, freedom of public discussion of political and economic matters is essential’.[17]
Such freedom of public discussion or political communication requires freedom of speech, association and movement. In Australian Capital Television, for example, Gaudron J argued
the notion of a free society governed in accordance with the principles of representative parliamentary democracy may entail freedom of movement, freedom of association and, perhaps, freedom of speech generally.[18]
In Kruger v Commonwealth, Gaudron J establishes a stronger connection between the freedom of political communication and the freedoms of association and movement by pointing out that political communication depends on human contact and entails a significant measure of freedom to associate with others.[19]
While the freedom to associate is necessary for the purposes of political communication, the activity of association is not confined to political objectives or to political parties. In the same way that freedom of political communication is broad enough to include both political and non-political communication, the latter being as equally relevant to the establishment of this freedom, the freedom of association is also broad enough to include both political and personal associations.[20] Moreover, as Kirk points out, associations are often on an ongoing basis and can be motivated by a number of objectives that may or may not be political in nature.[21]
Despite suggesting that freedom of association may be an implied freedom, based on the freedom of political communication, the High Court also held that such freedom could not be an absolute and unqualified one. In Kruger v Commonwealth, Gaudron J argues that the freedoms of political communication, association and movement identified in Nationwide News and in Australian Capital Television are not absolute. This is because the association must be consistent with the laws of the Commonwealth, and can be circumscribed if these freedoms conflict with sections in the Constitution, such as s 51(vi) which authorises laws with respect to defence, s 51(ix) which authorises laws with respect to quarantine and s 51(xix), which is concerned with aliens.[22] This indicates that such a freedom can be justifiably circumscribed if it threatens the security of the Commonwealth in any way.
Australians enjoy freedoms such as the freedom to associate with whomever they choose so long as the association does not threaten the security of the Commonwealth.The Lodhi case represents a dramatic shift in how we understand and negotiate our civil liberties in an age of so-called ‘terror.’ The case suggests that we are not, in fact, free to associate with whomever we choose. It suggests that our associations could be used to establish criminal intent, irrespective of how innocuous they may be. But most importantly, the case suggests that our civil liberties can be sacrificed all too readily in the fight against terrorism.
In sentencing Lodhi, Whealy J made several references to the incarceration conditions for maximum security and extreme high security inmates that Lodhi was, and will be, subjected to. These include solitary confinement, constant surveillance by a video camera, the recording of all telephone calls, and an exercise period of one and a half to three hours. On occasions where he is to leave his cell, he is required to wear an orange set of overalls, and he is shackled.
Given the scope of laws pertaining to terrorism, and the severity of conditions once offenders have been sentenced, liability should not be extended on the basis of an offender’s associations, unless there is sufficient evidence to attract any one of the offences dealing with associations. The unjustifiable extension of liability potentially threatens civil liberties such as freedom of association, and sets a dangerous precedent for the prosecution of terror suspects.
[*] SARAH SORIAL teaches legal theory in the Faculty of Law at Wollongong University and feminism/ethics in the Faculty of Arts’ philosophy program
© 2007 Sarah Sorial
[1] Criminal Code Act 1995 pt 5.3 100.1, ss (a), (b), (c)(i)(ii).
[2] Criminal Code, ss 2 (a)–(e).
[3] Criminal Code, ss 2 (f)(i)(ii).
[4] Gregory Rose and Diana Nestorovska, ‘Australian counter-terrorism offences: Necessity and clarity in federal criminal law reforms’ (2007) 31 Criminal Law Journal 20, 29.
[5] R v Lodhi [2005] NSWSC 1377 (23 December 2005) 47.
[6] R v Lodhi [2006] NSWSC 571 (7 February 2006) 14.
[7] R v Lodhi [2006] NSWSC 691 (23 August 2006) 8.
[8] Ibid 11.
[9] Ibid 13.
[10] Fred Abbate, ‘The Conspiracy Doctrine: A Critique’ in Michael Gorr & Sterling Harwood (eds), Controversies in Criminal Law: Philosophical Essays on Responsibility and Procedure (1992) 55.
[11] Criminal Code pt 2.4, div 11, s 11.5 (2) (a), (b), (c).
[12] David Brown et.al, Criminal Laws (2001) 1283.
[13] Abbate, above n 10, 64.
[14] See, eg, Alister v Regina [1984] HCA 85; (1984) 58 ALJR 97.
[15] Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992) 177 CLR 106.
[16] Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1.
[17] Nationwide News, 46.
[18] Australian Capital Television, 212.
[19] Kruger v Commonwealth (Stolen Generations Case) [1997] HCA 27; (1997) 190 CLR 1, 115.
[20] Adrienne Stone, ‘Rights, Personal Rights and Freedoms: The Nature of the Freedom of Political Communication’ [2001] MelbULawRw 13; (2001) 25 Melbourne University Law Review 374, 390. See also Adrienne Stone, ‘The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication’ [1999] MelbULawRw 26; (1999) 23 Melbourne University Law Review 668.
[21] Jeremy Kirk, ‘Constitutional Implications (I): Nature, Legitimacy, Classification, Examples’ [2000] MelbULawRw 26; (2000) 24 Melbourne University Law Review 645 and ‘Constitutional Implications from Representative Democracy’ [1995] FedLawRw 2; (1995) 23 Federal Law Review 37, 56.
[22] Kruger v Commonwealth (Stolen Generations Case) [1997] HCA 27; (1997) 190 CLR 1, 121–2.
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