What does Australian law say about possessing terrorist instructional material?
ANDREW ZAMMIT • November 26, 2018
In mid-October, the NSW Department of Public Prosecutions withdrew a terrorism charge against a 25-year old Sri Lankan student. The charge, "collecting or making a document which is connected with preparation for, the engagement of a person in, or assistance in a terrorist act", centred on writing found in a notebook reportedly listing targets for a potential terror attack. The charge was dropped after a forensic examination failed to conclude that the student had written these notes. The NSW Joint Counter Terrorism Team's investigation "shifted to focus on the possibility that the content of the notebook [was] created by other people".
The affair raises questions: where does this sort of material sit legally? Is it necessarily a crime, in Australia, to possess or produce written material that provides instructions for terrorism?
There isn't an immediately clear answer. This is not because of any lack of laws, but because of disagreement over how to interpret them. It has been one of the lower-profile legal controversies in Australian counter-terrorism.
In this post, I want to unpack the legal position of terrorist instructional material in Australia. I will outline how the courts have dealt with it so far, by looking back at past prosecutions and what they tell us about where such material sits legally.
Background
Following 9/11, and the subsequent waves of attacks inspired by al-Qaeda and later Islamic State, governments across the world worried about the spread of online material advocating for terrorism. This concern heightened after al-Qaeda in the Arabian Peninsula began producing Inspire magazine, an English-language publication which gave explicit instructions on how to carry out acts of terrorism. Al-Qaeda sympathisers attempted attacks based on such instructions, and more recently Islamic State sympathisers have attempted attacks based on methods outlined in its magazine Rumiyah. Controversies developed over how to deal with this, as criminalising written material can be in tension with liberal democratic principles.
Different countries have taken different approaches.
In the United States the law is relatively clear; possessing and producing such material is protected by the First Amendment, with possible exceptions if the individual is communicating and co-ordinating with a designated Foreign Terrorist Organisation.
In the United Kingdom the law is also clear, but in the opposite manner; possessing such material is a crime. Section 58 of the UK Terrorism Act 2000 imposes [pages 124-125] up to 10 years imprisonment for possessing information “of a kind likely to be useful to a person committing or preparing an act of terrorism”. While an accused will have the chance to demonstrate some lawful exceptions (such as journalistic research), there is no requirement for the state to prove that the possession was related to any terrorist purpose.
For example, in late 2012, a woman in London was imprisoned after she downloaded extremist material in order to find out what had motivated her brothers, who had been involved in terrorist activity. When sentencing, the judge said that "… I accept on the evidence before me that this defendant gathered together the contents of the SD card in order to explore and understand the charges which her brothers faced. There is no evidence that she was motivated by their ideology or was preparing to follow them."
Similarly, in November 2012 a UK dentist was jailed on “14 counts of possessing material likely to be useful in terrorism”, including copies of Inspire. Detective Superintendent Mark Smith stated afterwards that “we did not discover any evidence of genuine attack-planning… there was no threat to any of our communities” but that “anyone who is found to be accessing bomb-making manuals, whether they plan to build them or just out of morbid curiosity, faces a prison sentence.”
Australia’s approach has so far fallen somewhere between the UK and US positions. Currently, no one in Australia has been jailed solely for possessing terrorist instructional material, but there are two provisions in Part 5.3 (Terrorism) of the Criminal Code which have raised the possibility. These are section 101.4, which outlaws "possessing things connected with terrorist acts", and section 101.5, which outlaws "collecting or making documents likely to facilitate terrorist acts".
The phrasing is ambiguous. Is it the law's intention that possessing such material should be a crime in itself, or only if the material is possessed as part of a planned terrorist attack?
While I am not a legal expert, as someone who follows Australian counter-terrorism prosecutions closely I can give a broad overview of how the courts have addressed this so far. It's the role of the courts to interpret the law, and the phrasing of the legislation has led to contested results. This can be seen in four key cases: the Melbourne Pendennis prosecution, the Sydney Pendennis prosecution, the Khazaal prosecution and the Karabegovic prosecution.
The Melbourne Pendennis prosecution – convictions for "possessing things" overturned
In late 2005, counter-terrorism raids were launched across Melbourne and Sydney as part of a joint Victoria Police, New South Wales Police, Australian Federal Police (AFP) and Australian Security Intelligence Organisation (ASIO) investigation called Operation Pendennis. The raids disrupted a terrorist plot involving two closely-linked cells planning to carry out violence against the Australian government and the public. They were inspired by al-Qaeda’s global call to arms, with the cells’ leader Abdul Nacer Brenbika citing [para 17] “terrorist acts committed by mujahideen around the world, including the bombings in New York and Washington, Bali, Madrid, Jakarta, London and Iraq, as exemplars to be admired and emulated”. Of the 22 people arrested, 18 were convicted, nine in each city.
The nine men in Melbourne were convicted of being members of a self-formed terrorist group and several were convicted of additional offences, such as leading the cell or providing funds. Two of them, Abdul Nacer Benbrika and Amien Joud, were also convicted [paras 247-248] under section 101.4: “being in possession of a thing connected with a terrorist act knowing of that connection.”
The “thing” in question was a CD containing [para 301] “a vast library of articles and literature designed to inspire people to follow violent jihad, ... and a collection of violent images and videos of conflict, violence and executions designed to incite pursuit of violent jihad”.
Before the jury found Benbrika and Joud guilty of this offence, the judge gave instructions on what “connected with preparation for a terrorist act” meant. He stated that [para 335], “‘connected with’ is a very wide phrase. It does not mean connected with in any particular way. There just has to be some connection between the thing and a terrorist act.” This reasoning suggested that Australia was heading towards the UK approach where possessing such instructional material was a crime in itself.
However, these two convictions were overturned by the Victorian Supreme Court of Appeal in 2010.
The appeal judges ruled that the provision had been interpreted too broadly by the trial judge. They instead set out new criteria for how section 101.4 should be interpreted, stating that [para 315]:
a thing cannot be said to be ‘connected with preparation for a terrorist act’ unless:
(a) a terrorist act is proposed or contemplated (whether or not a decision has been made as to what kind of terrorist act it will be);
(b) some activity in preparation for that terrorist act is under way, or is proposed, or contemplated (whether or not a decision has been made as to what kind of activity that will be) (‘preparatory activity’); and
(c) the thing is being used, or is intended to be used, in aid of that preparatory activity.
This ruling narrowed the scope of the law, indicating that Australia had not followed the UK approach in practice and that possessing terrorist instructional material was not considered a crime in itself. Instead, prosecutions would need to prove that the suspects possessed that material to aid preparatory activity for a terrorist attack.
The Sydney Pendennis prosecution – convictions for "possessing things" unchallenged
In Sydney, nine men were also convicted as a result of Operation Pendennis. When they were arrested in 2005 they were far more advanced in their preparations than the Melbourne cell. The Sydney cell had amassed firearms, ammunition, detonators, chemicals, laboratory equipment, and bomb-making instructions. As the judge stated [para 68] when sentencing them, "the plan might well have come to fruition in early 2006 or thereabouts. The materials were to hand and recipes for the construction of explosives were available."
Five of these men were found guilty at trial of "conspiracy to do acts in preparation for a terrorist act". The other four, Khaled Sharrouf, Mazen Touma, Mirsad Mulahalilovic and “B” pleaded guilty to lesser offences, involving several counts of “possessing things connected with terrorist acts” under section 101.4.
The “things” included documents but also practical materials such as firearm ammunition, copper pipes, railway detonators, batteries and clocks. As these four pleaded guilty, there was no attempt to challenge their convictions and consequently, unlike Melbourne, no appeal hearing discussing exactly how to interpret the law against “possessing things connected with terrorist acts”.
Nonetheless, it very much appears that the law was used in a way consistent with the principles that the Victorian Supreme Court of Appeal laid out in 2010. The prosecution clearly did not contend that possessing these things was inherently a crime (there was no suggestion that possessing a clock made someone a terrorist); rather the charge was based on the argument that they knowingly possessed these items to assist the other plotters with their preparations for a terrorist attack.
This made it a straightforward and largely uncontroversial use of these laws, and one that happened to be consistent with the Victorian Supreme Court of Appeal’s 2010 interpretation.
The Khazaal prosecution – conviction for "making a document" offence upheld
Around the same time, a far less straightforward prosecution had been underway in Sydney.
In 2004 a man named Belal Khazaal was arrested for having compiled a terrorist manual and distributing it online. He created the manual out of existing documents, made edits and added commentary, and posted it on an online jihadist forum stating that he was sharing it urgently at the request of “the brothers”. Like Inspire magazine, the manual explicitly called for its readers to murder people, and provided specific instructions [paras 54-59] on how to do so. Khazaal was charged with “making a document connected with assistance in a terrorist act” under section 101.5, and found guilty. He was sentenced to 12 years’ imprisonment.
However, he successfully appealed his conviction.
At the risk of oversimplifying the complex proceedings, the NSW Supreme Court of Criminal Appeal ruled that the judge should have stated to the jury that the prosecution needed to prove that Khazaal intended to facilitate assistance in a terrorist act. They overturned his conviction and ordered a retrial.
The Crown disputed this, and appealed to the High Court. The Crown argued that they were not required to prove Khazaal’s intentions beyond reasonable doubt. They argued that the contents of the document Khazaal made, along with his failure to demonstrate a reasonable possibility that it was not intended to facilitate assistance in a terrorist act, were enough to prove the crime. The High Court judges agreed, and unanimously ruled in the Crown’s favour. Khazaal was quickly arrested and returned to prison.
This is not the only case where section 101.5 has been used. In 2006 Faheem Lodhi was convicted, in part, for collecting documents under 101.5, and some people arrested in recent years under Operation Appleby were charged for making documents. However, these charges did not result in the legal dilemmas that the Khazaal case did, as these charges related to terrorist plots and were therefore, like the Sydney Pendennis case, more straightforward.
Karabegovic “possessing things” offences – a troubled trial
The examples above show quite different outcomes. The Melbourne Pendennis example showed one set of convictions for possession offences overturned because the judge did not state to the jury that the law required an intention to use the specific instructional material to assist preparations for a terrorist act. The Sydney Pendennis example showed a set of convictions for possession offences, where there were intentions that the specific materials be used in a terrorist plot, go unchallenged as they resulted from guilty pleas. The Khazaal example showed a conviction for making terrorist instructional material, which was overturned by the NSW Supreme Court of Criminal Appeal, but then upheld by the High Court.
These different outcomes would end up clashing in the trial of a Melbourne man named Adnan Karabegovic.
Karabegovic was arrested in September 2012 and charged with six counts of “possession of a thing connected with assistance in a terrorist act” under section 101.4. The “things” were six copies of Inspire magazine. Before the trial began, the prosecution and defence argued over how to interpret the phrase “connected with assistance in a terrorist act”.
The prosecution pointed to the High Court’s decision in the Belal Khazaal case, arguing that this meant there was no requirement to prove that Karabegovic’s copies of Inspire were intended to be used to assist an attack.
The judge rejected this argument.
Based on the 2010 decision by the Victorian Supreme Court of Criminal Appeal for the Melbourne Pendennis case, referred to as the Benbrika decision, the judge decided that he would instruct the Karabegovic jury that [para 24] if “the Crown has done no more than identify the magazine as the kind of magazine that a terrorist might read, that is insufficient”. He instructed [para 82] that to convict Karabegovic the prosecution would need to prove that:
(a) a terrorist act was proposed or contemplated;
(b) some activity by way of assistance or help was underway, in respect of that proposed or contemplated terrorist act; and
(c) that the magazine was used, or intended to be used, in that activity;
The prosecution instead made an interlocutory appeal in 2014, and again argued that the Khazaal decision overruled the Benbrika decision.
The three Victorian Supreme Court of Appeal judges unanimously rejected the prosecution’s arguments.
They stated that the Khazaal and Benbrika cases had a crucial difference that [para 28] “the document the subject of consideration in Khazaal was, because of its content, capable by itself of establishing the requisite connection with assistance in a terrorist act. It was, of course, a document which the accused himself had made.” They further stated that [para 26] “plainly enough, Khazaal did not overrule Benbrika”. They concluded that [para 40] “it must be shown either that the thing is being used in the activity of assisting in a terrorist act or that some person (whether or not the accused) intends that it be so used”.
In short, the Court of Appeal rejected the prosecution’s argument and ruled that the law required evidence of an intended terrorist attack involving the specific instructional material.
The Victorian Department of Public Prosecutions then sought leave to appeal to the High Court, but was rejected in 2014. Eventually the prosecution dropped five of the charges, sticking to just one: the possession of a specific issue of Inspire magazine that provided instructions on lighting bushfires. Karabegovic was brought to trial on this charge, and found not guilty in May 2016.
The tumultuous process, lasting nearly four years, shows the unintended consequences of ambiguously-phrased legislation.
What Australian law says about possessing terrorist instructional material
So, what do all these cases tell us about the legal position of terrorist instructional material in Australia?
They demonstrate how the legal position of terrorist instructional material is not straightforward, and the ambiguous phrasing of the legislation has resulted in years of judicial dispute over its interpretation.
They also tell us that Australia has not currently adopted the approach taken in the UK, where possessing such material is clearly deemed a crime in itself even when someone is motivated “just out of morbid curiosity”.
Australian courts have stopped short of interpreting the law in that way. When it comes to the offence of "possessing things connected with terrorist acts" under section 101.4, the courts have required proof of an intended terrorist act and an intention to use the “thing” in that act. It is less clear when it comes to the offence of "collecting or making documents likely to facilitate terrorist acts" under section 101.5. In the Khazaal case, his act of making the terrorist manual was deemed sufficient evidence of his intentions, without requiring proof of a terrorist plot. We have not had a test case where someone has been charged under 101.5 solely for collecting a terrorist manual without evidence of a terrorist plot, so it is not clear where the courts would land on that and if they would require the same evidential burden they maintain for section 101.4.
None of this of course addresses what the legal position of terrorist instructional material should be, which is a separate discussion. I personally disagree with the UK’s approach and prefer the position of the appeal judges in the Melbourne Pendennis case, and the trial judge in the Karabegovic case, who insisted on proof that the material was to be used in a terrorist plot.
However, Australia could well head towards the UK’s approach. An October 2017 Council of Australian Governments (COAG) communique declared that “the Commonwealth will develop a new Commonwealth offence that will allow law enforcement agencies to intervene when an individual is in possession of instructional terrorist material, with appropriate safeguards”. The inherent difficulties authorities face when trying to remove such content from the internet may have prompted them to look for the easier option of prosecuting people who download it. Victoria’s recent Expert Panel on Terrorism and Violent Extremism Prevention and Response Powers similarly recommended “creating an offence for the possession of terrorism related material”.
If this goes ahead, it will remove the ambiguity discussed throughout this post. It will also mean that the contested issue of how well the criminalisation of possessing written material fits with liberal democratic principles will no longer just be a matter for the courts, but also for the Parliament and the public.