An 18-year-old young man from the western Sydney suburb of Guildford was arrested last week and charged with three counts of “collecting documents connected with preparation for a terrorist act.”
No specific terrorist act or plan was alleged, however. Nor was the teenager accused of being knowingly involved in any possible terrorist activity. Instead, he was charged with being “reckless” about a connection to terrorism. That means, in the vague language of the federal Criminal Code, he is accused of being “aware of a substantial risk” of a connection.
The charges underscore the increasingly repressive sweep of Australia’s “anti-terrorism” laws, initially introduced in 2002, as well as the federal government’s ongoing reliance on terrorist scare campaigns to justify draconian police measures at home and involvement in US-led wars abroad.
According to the Australian, police initially raided Sameh Bayda’s home on January 13, just hours after he used an encrypted messaging app, Telegram, on his mobile phone. Twelve days later, the young man was arrested because of three documents allegedly found on his phone.
The operations were conducted by police counter-terrorism units, as part of what has become a series of frequent police raids in working class areas in Sydney, Melbourne and Brisbane over the past year and a half.
The charge of being “reckless” indicates that the police have no evidence to produce in court that the teenager was intentionally involved in preparing any terrorist act, or terrorist activities in general.
The corporate media, fed prejudicial leaks by the police, declared that Bayda had downloaded documents on how to carry out a stabbing and how to make a bomb. Court records, however, indicated that the documents were general, not specific, in character. One document was a copy of an Al Qaeda online propaganda magazine.
Telegram is a publicly available encryption app, but the police allege that Islamic State of Iraq and Syria (ISIS) has used it to send terrorist instructions. By this logic, anyone using an encryption service for email or other communications is liable to be placed under police or intelligence surveillance.
The Australian said the teenager is “not thought to be directly connected to any known extremist group in Sydney,” despite being under police scrutiny for months. Neighbours told the newspaper that detectives visited Bayda’s home last year, around the time of large police raids across the city, codenamed Operation Appleby.
During the January 13 raid, Bayda was also served with a firearms prohibition order, allowing police to search him and his home without first obtaining a judicial warrant.
Section 101.4(2) of the federal Criminal Code illustrates the far-reaching implications of the terrorism laws. It created an offence, punishable by up to 10 years imprisonment, to make or collect a document “connected with preparation for, the engagement of a person in, or assistance in a terrorist act,” even if the document is not connected to a specific terrorist act, and the accused person is merely “reckless as to the existence of the connection.”
An accused person can raise a defence that the document “was not intended to facilitate” a terrorist act, but he or she must prove that lack of intention. In the words of the law, the defendant “bears an evidential burden.” This means that people can face lengthy imprisonment for having allegedly downloaded a general document about terrorism, unless they can positively prove that they had an innocent purpose.
This provision effectively reverses the centuries-old rule that the prosecution must prove a guilty mind. This burden of proof on the prosecution is a critical protection against the kind of Star Chamber-era frame-ups conducted by the absolute monarchies up until the 17th century.
This overturning of the presumption of innocence is just one of the violations of fundamental legal and democratic rights contained in the more than 60 pieces of federal terrorism legislation imposed since the 9/11 attacks in the US. These measures have also established precedents, such as detention without trial, that have begun to be applied throughout the criminal law, opening the way for arbitrary state power.
The on-line magazine and other documents reported to be on Bayda’s phone may reflect the reactionary perspective of Al Qaeda, which justifies the mass murder of innocent people on the basis of religious fundamentalism. His arrest, however, amounts to the criminalisation of access to information and viewpoints. Once the capitalist state has the authority to outlaw particular ideas, this power can be used against any dissent.
Australia’s supreme court, the High Court, paved the way for the broad exploitation of the “make or collect documents” provisions in 2012, when it overturned a successful state court appeal by Belal Khazaal, a former Qantas worker, against his conviction and 12-year sentence for “making a document connected with a terrorist act.” Khazaal had posted on a jihadist web site a compilation of previously published documents that offered general support for an Islamic fundamentalist “holy war.”
Relying on the “evidentiary burden” imposed on Khazaal to prove his innocence, the judges rejected his argument that he had no intention of facilitating a terrorist act, because he was functioning as a scholar or journalist who researched and published material relating to Islam.
For the past decade and a half, successive Liberal-National Coalition and Labor governments have exploited the bogus “war on terrorism” to introduce ever-wider, and previously unthinkable, police-intelligence powers and criminal laws. Far from protecting the public from terrorists, these measures have created the framework for authoritarian rule amid deteriorating economic and social conditions.
In the past 18 months, on the pretext of combatting ISIS, the current Coalition government, has already brought forward five “tranches” of legislation, including to strip dual nationals of their Australian citizenship by executive order. Now it is going further, seizing upon November’s Paris attacks to propose laws to imprison anyone convicted of a terrorist-related offence indefinitely, until they prove they are “reformed” or no longer “a threat.”
At the same time, the “war” has provided a pretext for equally bipartisan commitments to escalating US-led militarism in the Middle East and globally. Domestic reaction and war are inseparably connected. As popular hostility increases to this war drive, those opposing it could be accused of making statements, or possessing documents, construed as offering support for terrorism.