This was published 8 months ago
Opinion
A terrorist threat? Possibly, but Benbrika was rightly freed
Rodger Shanahan
Middle East and security analystThe release of Australia’s most high-profile terrorist prisoner, Abdul Nacer Benbrika, has re-ignited debate about the relative worth of civil liberties and community safety when addressing the threat from convicted terrorists.
At the height of the terrorism threat from Islamic State, governments sought to strengthen legislation to safeguard Australians. But in doing so, there were concerns that liberal democratic principles were being cast aside in an effort to double down on the new security threat.
Abdul Nacer Benbrika leaves Barwon prison on Tuesday.Credit: Justin McManus
With the demise of Islamic State, some of these measures are now being considered in a new light. Citizenship-stripping legislation has already been struck down by the High Court, and Benbrika’s release has highlighted another controversial measure – continuing detention after the end of an offender’s sentence. Benbrika served an additional three years on top of his 15-year sentence, thanks to the imposition of a continuing detention order sought by the then government on the basis that he still represented a threat to the community.
Acting opposition leader Sussan Ley has described him as the “worst of the worst” and argued that allowing him to be released compromised the safety of Australians. So how much of a danger is Benbrika and what should be done with him?
To begin with, it is difficult to assess the likelihood of terrorist recidivism. While there is great publicity regarding convicted terrorists who conduct attacks on release – such as the 2019 knife murders at Fishmonger’s Hall in London or the 2020 gun attack in Vienna – much less is known about those who retain their jihadist belief system but do not, or have yet to, reoffend. There is little data on recidivism rates for Islamist terrorists, and less still for those in Australia.
In some cases, one’s radical ideology can remain latent and is re-energised when conditions permit. Kalid Sharrouf and Ezzit Raad had both served time for terrorism offences in Australia and went on to join Islamic State in Syria and Iraq once that became an option.
Sentencing remarks by courts certainly provide cause for concern about the particular challenge posed by Islamist terrorists in Australia, with about 60 per cent judged to lack contrition for their actions and fewer than a quarter believed by the court to have prospects for rehabilitation that are classed as good or better.
Even if the dramatic demise of al-Qaeda and Islamic State has meant that the radical Islamist terrorism threat has reduced significantly, there is no doubt that Benbrika will likely remain influential within radical Islamist circles. Many radical Islamists have spent time imprisoned by their “oppressors”, as did some notable figures in early Islamic history. Imprisonment adds to one’s status within such circles. The notion of sabr – or patience/endurance, including in waiting out one’s sentence – is seen as a test by God and is frequently referred to as a key attribute of those seeking Islam’s eventual victory.
Benbrika is a key influencer within radical Islamist circles in Australia. Not only has he spent nearly 20 years behind bars; his son was stopped at Melbourne airport in 2015 and his passport was cancelled after he allegedly tried to travel to Syria, and his then son-in-law, Shayden Thorne, was sentenced as part of the so-called “tinnie terrorist” group led by Musa Cerantonio, who launched a poorly thought-out plan to travel to the Philippines to wage jihad.
Benbrika was also visited in prison by a number of individuals who subsequently joined Islamic State. There is nothing in the past two decades that would indicate he accepts secular liberalism or retains any loyalty to the country that conferred citizenship on him.
And yet Liberal democracies need to be very careful not to overturn fundamental elements of our legal tradition simply to deal with terrorists. There is something deeply flawed in believing that the solution for the type of threat posed by the likes of Benbrika is to detain them in custody after their sentences have expired. Why believe that a committed ideologue who has not resiled from his radical beliefs after 15 years in prison will do so if he is incarcerated for another three years?
The very premise on which the punishment of a continued detention order is based appears flawed. The outgoing Independent National Security Legislation Monitor, Grant Donaldson SC, expressed his disquiet at the imperfect nature of risk prediction that courts are asked to make as part of the process in determining whether to issue these orders, and about the disproportionate nature of the punishment relative to the risk of recidivism. In his 2023 report into Division 105A of the Criminal Code Act, Donaldson recommended the power to make continuing detention orders be deleted from the act.
If the threat posed by Benbrika is believed to extend past the expiration of his sentence, there is already a control order regime to monitor his activities and place restrictions on him after he has been released from prison. This, of course, is a resource-intensive way to protect the community and there is no guarantee it will eliminate the threat, but it certainly gives another layer of security that is generally not provided to the community with other criminal behaviour.
And if there is a belief that convicted terrorists released from prison have not resiled from their radical jihadist belief systems, it is likely they will find it difficult to avoid breaching the control order and will end up back in prison as a result. To date, at least 11 individuals have been charged with breaching a terrorism control order; one has done so twice. One of those people, Belal Khazaal, was found not guilty of the charge but the others were either given prison sentences or are awaiting trial.
Benbrika has been awarded a one-year extended supervision order with 30 conditions attached to it, including electronic monitoring, limits on travel and association with particular people, and publicly speaking on certain subjects. It is less than the three-year ESO sought by the government, which has said it will review the decision before taking any further steps.
While being seen to be tough on terrorism may play well to a domestic audience, it is essential in an advanced liberal democracy such as Australia not to lose sight of the principles on which we operate as a mature society, and part of that is an acceptance that it is the job of the legal system to determine guilt and to apply the punishment appropriate to the crime committed. This applies to terrorism offences as much as it does to normal criminal offences.
Continuing detention orders not only threaten that principle, they simply kick the problem down the road and do nothing to assist in the rehabilitation of allegedly committed ideologues. Indeed, one could argue that in the jihadist milieu, continuing detention enhances offenders’ reputations and makes them potentially more influential.
Supervision after release provides strict safety guarantees for the population while denying terrorists the opportunity to burnish their credentials as the “oppressed”.
Benbrika may have rejected Australia’s liberal democratic society, but if governments want to guarantee the public’s safety from him and his ilk, they must do so without compromising the principles of justice that are fundamental to liberal democracies. At stake is our greater liberty, not only Benbrika’s.
Dr Rodger Shanahan has appeared as an expert witness in Australian terrorism cases and is the author of Islamic State in Australia. He is a former army officer with operational experience in Lebanon, Syria, Afghanistan and East Timor, and had diplomatic postings to Saudi Arabia and the United Arab Emirates.