October 2, 2022
Cameron Stewart
The Australian
Saturday 1 October 2022
If there is one story that haunts Australia's intelligence chiefs it is that of Usman Khan, who at the age of 28 strapped on a fake suicide vest, armed himself with large kitchen knives and went on a killing spree on London Bridge. Khan stabbed two to death that day in November 2019 before being shot dead by British police, but this is not the sole reason he caught the eye of Australian agencies. Khan had already served eight years in jail for a plot to bomb the London Stock Exchange; he went on his murderous rampage on London Bridge a year after his release. He is one of the world's first two-time terrorists.
In the eyes of ASIO, Australian Federal Police and the Department of Home Affairs, the Khan case is at the centre of a growing debate about how Australia should deal with its own jailed terrorists as they approach the end of their sentences. "It's a really fraught issue because there are some experts who believe that a predisposition to commit violent acts of terrorism is incurable, and no matter how long they are detained and what rehabilitation they go through in prison, they will always pose a risk to the community," says Senator James Paterson, te former head of Parliament's powerful Joint Committee on Intelligence and Security Committee. But as he points out, for a democratic country that puts a high premium on individual rights, "it is not a comfortable thing to continue to detain someone after they have served their sentence."
The question of whether to extend jail sentences for convicted terrorists is precisely what authorities are now grappling with as many of Australia's original Islamic extremists approach the end of their prison terms. The debate comes as the spectre of Islamic terrorism is again raising its head with the killing of al-Qa'ida leader Ayman al-Zawahiri in a drone strike in Afghanistan on July 31, the attempted assassination of author Salman Rushdie by Hadi Matar (a dual citizen of the US and Lebanon), and the early release of Bali bombmaker Umar Patek.
Since the 9/11 terrorist attacks in the US in 2001, 96 people have been convicted of terror offences in Australia and, as of January this year, 55 remain in jail. Of these, 21 are due for release between now and 2027. They include some of Australia’s most notorious terrorists including Faheem Lodhi, sentenced to 20 years’ jail in 2006 for plotting to bomb the electricity grid and defence facilities in Sydney; Robert Cerantonio, one of the so-called “tinnie terrorists” who in 2016 planned to sail a boat to the southern Philippines to overthrow the local government; and Wissam Fattal, Saney Aweys and Nayef El-Sayed, who were jailed for plotting a mass murder attack on Sydney’s Holsworthy Army Base in 2009.
This large posse of extremists presents a dilemma for authorities trying to work out if they still pose a genuine threat to the public and, if so, what to do about it. In 2016, at the height of the Islamic State-inspired terror attacks, the Turnbull government introduced an unprecedented law that allows terrorists to be kept in prison even after they have served their sentence. Known as a continuing detention order (CDO), the measure can keep a convicted terrorist in jail after their sentence for up to three years at a time, subject to annual review, if they are deemed to pose an “unacceptable risk” of committing another terrorism offence. It is the only post-sentence detention scheme for terrorists in the western world. But such was the fear of terrorist attacks in Australia in 2016 that the unprecedented measure passed through parliament with little public debate.
Six years on, with so many convicted terrorists due to be released soon, that law is under fresh scrutiny. A formal government review is underway by the Independent National Security Legislation Monitor (INSLM), a position currently held by Grant Donaldson SC, who says he hopes to hand down his report by the end of the year.
In its submission to the INSLM, the Department of Home Affairs argued that the powers granted by the 2016 law should be retained, while acknowledging that no other “like-minded country” – including the UK, US, New Zealand or Canada – has post-sentence detention laws. Donaldson, for his part, has offered some insightful comments while carrying out his review. “It is a very unusual thing and in my view a very new phenomenon that people can be kept in detention after they have served their sentence,” he says. “That is not something that has traditionally happened in the law, and in this country it wasn’t really until the dangerous sexual offender legislation in Queensland [in 2003] that these sorts of regimes existed at all.”
The rights and wrongs of keeping convicted terrorists in jail after their sentence has ended looms as a major challenge for the Albanese Government, which must balance public safety against civil liberties. ASIO has weighed in heavily, with a strongly worded submission to the INSLM review in which it warns that these jailed terrorists pose an ongoing threat. ASIO invokes the case of Usman Khan, noting that he “was released approximately one year before the attack and had already completed two rehabilitation schemes”. It adds: “The experiences of our United Kingdom partners demonstrate that released terrorist offenders can be a serious threat to the community.”
The spy agency also highlights the case of convicted British terrorist Sudesh Amman, who had been released from prison for only a week when he stabbed two people in Streatham, south London, before he was killed by police officers who were following him at the time. ASIO says: “Many of the individuals due to be released [in Australia] represent a latent threat in terms of their continued adherence to a violent extremist ideology”, adding: “The enduring attraction of extremist ideologies means some may re-engage in extremist activities.”
The AFP offers an even more blunt assessment. “The AFP has no reason to conclude any of the numerous offenders in Australian jail imprisoned for politically, religiously or ideologically motivated offences de-radicalise at any time during often lengthy prison sentences,” it says in its submission to the INSLM review.
In Australia, no one has been convicted of terrorism offences twice. Convicted terrorists Khaled Sharrouf, Amer Haddara and Ezzit Raad each spent time in jail before leaving Australia to join Islamic State. Many convicted terrorists who have been released into the community on control orders – which restrict their movements and social interaction – have come up against the law. The AFP says that since July 2020, around 70 per cent of those released after serving sentences for terror offences have been re-arrested for breaking the restrictions placed on them.
Of the 21 others convicted of terror offences since 2001, two were due to walk free last month; six are due for release in 2023, five in 2024, one in 2025, four in 2026 and three in 2027. But the biggest test case of this issue so far has been that of the notorious terrorist Abdul Nacer Benbrika.
Algerian-born Benbrika, who believed Osama bin Laden was a “great man”, was the leader of Australia’s first terror cell. Under his spiritual guidance his group of 11 men discussed launching terror attacks during a footy game at the MCG, at train stations and at Crown casino. The investigation that led to his arrest in 2005 was “the most significant counter-terrorism investigation in Australian history”, and saved “countless lives”, says former Home Affairs minister Peter Dutton.
After serving his 15 years in prison Benbrika was due to be released in November 2020, but a month before his scheduled release date the Morrison government successfully argued to keep him in jail until 2023. It was the first time the government had used its 2016 detention law. (It was exercised again last year when the NSW Supreme Court ordered Blake Nicholas Pender, a terror offender who suffers from mental illness, to remain in custody for a further 12 months.)
Benbrika went to the High Court claiming that the power to keep him in jail was unconstitutional but the claim was dismissed and his ongoing detention deemed legal. Early this year Justice Elizabeth Hollingworth reviewed the Benbrika detention, as was required under the legislation, and in April she reaffirmed the need for the terrorist to remain in jail.
But her written judgment also shows how difficult and subjective such assessments are for judges and for the justice system when it comes to predicting the future behaviour of an extremist. The court’s review of Benbrika’s continuing detention order examined his progress in jail in forensic detail for clues about the level of risk he might pose to the public if he was released. The court noted that Benbrika admitted he only altered his hard-line ideological views after 2014, almost a decade after his offences. That year he was moved from Port Phillip Prison to Barwon Prison because of fears he was spreading jihadist ideology within the prison system and influencing visitors to travel to Syria to fight with Islamic State.
In 2016 Benbrika agreed to participate in a prison-based program to address Islamic extremism (the Community Integration Support Program, or CISP), telling a prison psychologist that he believed it would help his parole application. However, in 2017 he told a prison psychologist he could not “denounce violent jihad” because that would mean he is a “disbeliever”. That same year, when asked if someone had ever offered him a view of his religion that had changed his own, he answered, “Never.”
Justice Hollingworth said: “There have been many other discussions about whether or not Mr Benbrika is prepared to denounce jihad or violent jihad. On some of those occasions he has said that he cannot denounce or deny jihad, as it is part of his religion. On other occasions, he has asked for clarification of the meaning of ‘violent jihad’.
“[His] progress towards moving away from his previous extremist beliefs over recent years has been slow, gradual and not always linear. After some initial resistance in 2018 and 2019, he slowly started to open up to an examination of his ideology. However, notes that record him making some progress are often followed by notes suggesting he has regressed, or moved sideways, or stood still.”
It was not until last year that government-appointed psychologists stated that they saw a more marked shift in Benbrika’s ideological beliefs, although they could not say with confidence how genuine they were. One of these experts reduced her assessment of the threat posed by Benbrika from a “high” risk of violent extremism to a “moderate-high” risk.
A psychologist’s report in November last year stated: “In terms of his ideology, his CISP reports reflect the positive change as he works towards his goal of denouncing violence as an acceptable dialogue or to progress any agenda.” It added: “Despite this, there is evidence within his CISP case notes that suggest that he views the United Nations as ‘devil forces’ and was described as showing an interest in the Taliban [in relation to the events unfolding in Afghanistan at the time].” Benbrika apparently also indicated that Sharia penal codes needed to be implemented in Afghanistan. Further, his case notes suggest that he “showed sympathy to ISIS” in August 2021. “Whilst there is no indication that he has made plans or currently has intent to inflict violence on others, it appears that he acknowledges the use of violence within his religion as a form of sanction.”
Justice Hollingworth concluded that Benbrika needed to stay behind bars. “His religious grandiosity, self-importance, and rigid personality continue to present some challenges,” she said. “The general nature of the risk posed by Mr Benbrika is that he would, if released into the community, again radicalise others, or guide or encourage others who are already radicalised to engage in terrorist acts.” Central to the dilemma faced by judges in determining whether to keep terrorists behind bars is that it is notoriously difficult to predict future human behaviour.
In Australia, the only comparable regime for keeping offenders in prison after their sentence has expired are state-based laws for dangerous sexual offenders. However, there is a far greater body of research on the future behaviour of sexual offenders and recidivism rates than there is on terrorists. “With dangerous sexual offenders there is now a fairly substantial weight of research and evidence that allows fairly accurate risk assessments to be made as to the risk of them doing a dangerous sex offence if they are released,” says Donaldson, the Independent National Security Legislation Monitor. “But it is clear that nothing like that body of research of knowledge or understanding exists in relation to violent extremism. It is very much a new field.”
The problem is compounded by a bitter division among experts about the reliability of the key tool used to assess the risks of extremists. Known as the Violent Extremism Risk Assessment (VERA-2R), the tool – developed in the Netherlands in 2009 – has been criticised by some experts as having little use in predicting the future behaviour of jailed terrorists. One of the three psychologists who assessed Benbrika as part of his review was highly critical of the use of VERA-2R, saying that it had no predictive value at all.
The Australian Human Rights Commission and the Islamic Council of Victoria also say VERA-2R is too unreliable. Even Donaldson, who is tasked with reviewing the 2016 law, has expressed concern that the Department of Home Affairs holds the licence for VERA-2R and therefore trains and accredits those who use it. “Now some people think that that’s playing with a pretty loaded dice… where the Minister puts on a relevant expert who says VERA-2R is an appropriate tool and the Department of Home Affairs in a sense administers that tool,” he says.
Even the official VERA-2R website says there are limits to the reliability of the test. “Predictive validity is problematic due to the low base rate of terrorists and violent extremists. Moreover, [they] may change their strategies, make unexpected decisions and use unpredictable triggers. For each evaluation, limitations in the assessment must be clearly identified,” it says.
“The idea that a court can assess where someone is along the radicalisation scale is, I think, fairly problematic,” says Greg Barns of the Australian Lawyers’ Alliance. “I mean, how do we know? We can apply some sort of psychometric testing, but we know the limitations of such testing. It is essentially asking the law to assess thought crimes. Where is the line to say it’s OK to hold that belief but not that belief? Predictive psychology notoriously over-predicts.”
Donaldson agrees the whole concept is fraught. “What is required is for relevant experts to assist the court by assessing the risk of a defendant committing an offence in the future. That is an unusual and difficult thing, and it is inevitably problematic. The task presupposes that relevant experts can assess the risk of a defendant committing a serious [terrorism] offence,” he says.
Barns believes the idea of keeping convicted terrorists in jail after their sentence ends is contrary to the basic principle of justice. He believes it’s more appropriate to release them when due, under strict parole conditions if necessary. “If you are going to be pragmatic then some form of monitoring is surely a much more desirable outcome than simply keeping a person locked away.”
Terror expert Rodger Shanahan from the Lowy Institute also believes strict control orders are a better way to handle terrorists when their sentence ends. He questions the benefit of three years more in prison for Benbrika, even if he still retains a radical ideology. “If he remains an unreconstructed jihadist after 15 years in prison then it is likely he will remain so in three years’ time and the threat he poses will remain,” says Shanahan. “Indeed, if it is believed that he retains such influence amongst others, then there is an argument that extending his detention may even increase his credibility as a jihadist ideologue.”
Senator Paterson’s intelligence committee last year recognised the need to find a middle ground between extending jail terms and existing control orders. It backed the introduction of a tough new scheme of so-called “extended supervision orders” (ESOs), which can tailor restrictive measures such as electronic monitoring and travel and communication limits to a particular high-risk offender. But even with an ESO, a convicted terrorist is still out of jail and back on the street.
Although Paterson is uncomfortable with the notion of keeping terrorists in jail after their sentence has ended, he says terrorism cannot be treated in the same way as other offences. “I do think terrorism is a unique kind of crime… it is designed to not just harm people who are directly involved but society at large,” he says. “I do accept that there are some people who pose an unacceptably high risk. Any government that allows someone to go back onto the streets when there is doubt about whether they have been rehabilitated, and that person went on to commit a serious mass attack… will rightly be punished by the public, which expects it will protect them.”
But given the difficulty of trying to predict future extremist behaviour, and the lack of data on the recidivism rates for terrorists, courts will necessarily have to make these decisions based on imperfect evidence. “All we can do is make the best, most informed guess about human behaviour,” says Paterson. “We can’t be certain because we just don’t know how people respond to the environment they encounter when they’re out in the community. And people have an incentive, obviously, to tell us they have been rehabilitated even if they haven’t been.”
