Yesterday, my friend and colleague, Greg Barns wrote an article in Crikey which was headed “Anti-terror laws bring out the thought police“. Crikey described him thus: “Greg Barns is a barrister and appeared for the defence in the Melbourne terrorism trial.” That description is significantly misleading. He did not appear “for the defence” but for one of the accused, Ezzit Raad, who was found guilty on two counts of terrorist offences which fact was not mentioned.

Of course, the fact that Barns has appeared in the trial gives him standing and expertise to make public comment about the issues.

Strangely enough, Barns does not directly discuss the trial or the (now) proven conduct of his client. Nowhere does he suggest that his client did not commit the alleged conduct or that he was wrongly convicted, just that the laws are unfair. This is ingenuous.

The first count against Raad was under section 102.3(1) of the Criminal Code.

This makes it an offence for a person to be (a) … intentionally … a member of an organisation; and (b) the organisation is a terrorist organisation; and (c) the person knows the organisation is a terrorist organisation. The jury were satisfied as to each of these elements.

The charge sheet alleged that “(t)he organisation … was an organisation directly or indirectly fostering or preparing the doing of a terrorist act”, which act was “an action or threat of action involving the detonation of an explosive or incendiary device or the use of weapons” … “with the intention of advancing a political, religious or ideological cause, namely the pursuit of violent jihad.” The jury were satisfied as to these matters as well.

The jury also found Raad guilty of a second offence of attempting to knowingly and intentionally make funds available to a terrorist organisation contrary to section 102.6(1) of the Code.

Raad pleaded not guilty and exercised his right not to give evidence. This means we will never know his explanation.

In his Crikey article, Barns describes the law as involving “the repugnant concept of guilt by association”. The inference from this is that Barns is saying that Raad did nothing more than associate with people and that this was the basis of the conviction. As can readily be seen, the charges were much more than that.

Barns writes: “there is a world of difference between preparing to act and acting, and merely thinking and talking.” Well, yes. The problem is that Raad has acted by deliberately and knowingly joining this terrorist organisation and deliberately and knowingly attempting to raise funds for it (and the jury so found).

Barns and his co-believers seek to categorise these offences as thought crimes. That is just plain wrong. Raad was convicted based upon evidence of acting and speaking (which is a type of act). What he did was found to be both knowing and intentional. Intention is a “thought” that is required to be proved in all serious crime. It is not a crime to think something, and no more. Thus it is not a crime to think “I would like to kill Bill Smith”. Raad and the other convicted men did much more than think. They acted.

The fact remains that Raad has been convicted, after a fair trial, of crimes which shock and horrify nearly every member of the Australian community. The fact that his lawyer, who lost the case, is now bleating that the laws are unfair is not to the point.

Barns concedes that these laws have bi-partisan support. They are laws passed by a democratically elected government (the Howard government) and, after an election, fully supported by a new government (Rudd). Barns might say the laws are unfair but they have been overwhelmingly supported by the voting public. Barns has a right to make a protest but this protest should not be the basis for concluding that his client was unfairly convicted.

It is a necessary corollary of Barns position that he personally considers Raad’s proven conduct as both appropriate and proper behaviour which should never have been criminalised in any democratic country like Australia. Most would disagree.

This will raise considerable difficulties when Barns makes his plea in mitigation to the judge. He can hardly argue that the proven criminal conduct of his client should not be a crime and consequently there should be no punishment. Even more difficult is how he presents Raad’s position. If Raad has the same view as Barns, then there can be no remorse or contrition for a conduct which should not be a crime. Most often where there is remorse then a reduction is sentence is given.

I really do not understand Barn’s position. He has the right to crusade against these laws but it is a brave thing to do when his client has yet to be sentenced.

There is one more important aspect of this issue.

In ordinary criminal matters, the public accepts (with regret) that crime will always occur. But they do expect the police to track down the perpetrators.

Terrorism is different. Here the public does not want the crime to ever occur. They see the role of the police as preventing terrorist crime rather than solving it after it has occurred.

New times require new crimes (on the statute book). Our existing, pre-9/11 criminal structure was inadequate to deal with the new challenge, particularly of home-grown terrorism.

These terrorist laws are preventative laws. That is why they criminalise conduct which has never been criminalised before. Consequently, if the new terrorist laws are to be effective, they must target planning and association, not completed acts. This is exactly what the Criminal Code does and it is exactly what Barns rejects.

If Barns’ view is accepted, Benbrika and his crew could never be charged, let alone convicted and punished.