Yesterday, Justice Bongiorno sentenced convicted terrorist Benbrika to an effective eight years and nine months more in jail. The rest of the convicted men received lower sentences and some of them will be out of jail in less than three years.

All of this deals a crippling blow to these sort of prosecutions and is a major set back to the perception and reality of Howard’s anti-terrorist laws. Those laws were bitterly opposed by all the progressive elements in our community including the Left, the Labor Left, the Labor lawyers and the progressive lawyers such as Stary and Barns. Despite the fact that they could not win the trial, the sentences are a major victory.

The main criticism of the Howard laws was that they criminalised loose discussions, which is exactly what happened here. The Judge chose to himself reject the evidence of an informer as to specific planning and this led to very low sentences. Millions of dollars of taxpayers’ money has now been spent on a long investigation and trial (they were all Legally Aided).

But that is not the end of it: they will all appeal and I think they will probably succeed. The principal informer witness (who had already pleaded guilty) gave extremely damaging evidence. During the trial, the Judge severely criticised the reliability of the witness to the jury. Now, in his sentencing, the Judge has rejected that evidence.

All of this raises the question: given the Judge’s view that the evidence was so unreliable that it could not be accepted, how was it that the trial could continue and the evidence, which was extremely prejudicial to the accused, be permitted to be considered by the jury? For all we know, some of the jury may have convicted on the evidence of the informer. This is obviously a miscarriage of justice and I would expect the Court of Appeal to throw the convictions out.

It will then remain to be seen whether the Labor Government wishes to proceed with a costly re-trial (now without the evidence of the informer). The accused would have a far greater chance of acquittals at a retrial. Whilst all this is happening, most of them will have served their sentences anyway.

Further, in my view, eventually the pressure to repeal Howard’s anti-terror laws will become so great as to be irresistible. In that event, they will probably not be replaced: the argument is that the existing conventional criminal law is sufficient to deal with this sort of criminality (such as conspiracy) and that no special anti-terror laws are needed.

Finally, when there is a terrorist attack inside Australia and a few thousand citizens are killed, the pendulum will swing back to more severe laws.

But, of course, I could be wrong.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey