Spencer Zifcak. The Martin Place Siege

I first came across Man Haron Monis, the Sydney siege gunman, in early 2013. The High Court of Australia had just handed down an important new decision on the breadth of the protection the Australian Constitution provides for freedom of expression. The facts of the case centred upon offensive letters sent to the parents of Australian soldiers killed in Afghanistan. The issue was whether sending offensive letters through the post to the private addresses of parents could properly be regarded as an exercise of constitutionally protected free speech. The person who sent the letters was Monis.

In one letter, he described a soldier son as having murdered civilians. He likened the soldier to a dirty animal. He described the son’s body as the dirty body of a pig. He wrote that the son’s moral culpability was no less reprehensible than Hitler’s. Justice Heydon described the communications as ‘sadistic, wantonly, cruel and deeply wounding blows during the most painful days of parents’ lives’.

He seemed to me to be deranged – not necessarily mentally ill but nevertheless profoundly disturbed, the disturbance having a distinctly paranoid character. I thought to myself that this is a person who should probably be watched.

What we have learnt subsequently confirms that impression. Monis described himself as a sheikh but had no qualifications to be one. It appears that he had engaged in criminal fraud in Iran prior to obtaining refugee status in Australia. He owned a rifle, but no one seems to know in what lawful capacity he was able to obtain one.

He uploaded a photo of the ABC’s religion presenter, Rachel Kohn, under the heading ‘You Will Pay the Price’, after she described him as an Islamic renegade. He described the deaths of people in the Victorian bushfires as Allah’s revenge upon Australians because the Government had not opposed the death penalty for the Bali bombers.

He placed advertisements in local newspapers, holding himself out as a spiritual consultant. This rather brought him undone as he was later charged with forty offences of sexual and indecent assault many of which arose from his ‘consultations’. Early in 2014, he was charged with being an accessory after the fact to the murder of his former wife who had been beaten and set alight. Yet he wasn’t on ASIO’s surveillance list.

 

There has been a lot of discussion since the Sydney siege as to whether Monis was a terrorist or, more prosaically, had committed a murderous crime. This is splitting hairs. The act was terrifying and people died. Whether Monis acted as a ‘lone wolf’ terrorist, or as a deranged criminal, doesn’t seem to count much when weighed against that.

It is relevant, however, in determining how the siege could have happened and what might be done to prevent similar shocking events in the future. It is almost certain that Monis acted alone. It is also clear that he had had several encounters with the law that could reasonably have led one to the view that he was manipulative, religiously extreme, conscienceless and had a propensity towards violence. He should never have got a gun.

Monis was on bail for serious criminal offences. Being charged as an accessory after the fact to murder is not nothing. Nor is the allegation that one may have engaged in multiple instances of sexual and indecent assault. Apparently, one reason that bail was granted in relation to the accessory charge was that the Magistrate decided that the case against Monis was weak. Another was that the prosecution did not oppose bail, even on the murder-related charge. Extraordinarily, Monis’ girlfriend, the person charged with the murder, also obtained bail.

Without being in court to hear the evidence provided, it is difficult to disagree with the Magistrate’s decision. It might have been a reasonable one in the circumstances.  Nevertheless, had it been me in the chair, at the very least I would have put the totality of the charges to the defence and the prosecution and asked them to explain clearly and persuasively how it was that each thought that bail was appropriate. And I would have questioned Monis.

The NSW Attorney-General has asserted that had his proposed reforms to the Bail Act, been in force, Monis would not have been given bail. These reforms provide that any person charged with a serious crime would be required to prove that they were not a danger to the community. Reversing the onus of proof in a criminal matter is hardly ever desirable as it requires the person concerned to demonstrate a negative. How does one prove that one will not be dangerous? Better to leave it to the prosecution to make the case that one is likely to be.

So, what are we to do about ‘lone wolf’ terrorists? The honest answer appears to be that nobody knows. The US Attorney-General, Eric Holder, remarked recently that ‘that is the thing that keeps me up most at night, this concern about the lone wolf who goes undetected.’

Without knowing the details, it seems clear that ASIO has managed to break up a number of terrorist cells that had been in the course of planning terrorist attacks. A small but not insignificant number of individuals have been subsequently tried and convicted. The irony (thankfully) is that it is more likely that terrorist plots will be foiled when they are planned on a large scale and involve several actors, than when all that is involved is a a random plot devised by a psychopathic zealot. The ‘lone wolf’ may communicate with no one and, planning alone, may evade suspicion and detection altogether.

Turning to a present political controversy, the comprehensive retention of metadata, as currently proposed by the Federal Attorney-General, Senator Brandis, may assist in establishing a pattern of activity by an individual or group that alerts law enforcement officials to the possibility of a terrorist attack. That fact, however, does not provide a complete justification for access to every Australian’s data.

Individual privacy is important. It forms a component part of what it is to live in a free and democratic society. We dismiss its significance at great peril.

By all means require ISPs to retain individuals’ metadata for two years. But do not allow law enforcement agencies to access it without prior, independent judicial review. A judge should not agree to the provision of access to an individual’s private internet or telephone activity unless it can be demonstrated that there is a reasonable suspicion that the targeted person may engage in criminal or terrorist activity.

It is unlikely that the examination of metadata would have netted Mon Haron Monis prior to his siege. As a lone wolf, not even his girlfriend may have been aware of his terrible plan. And he wasn’t on a watch list when patently he should have been.

In the end, however, more terror laws aren’t going to cut it. Radicalisation must be tackled from its outset. One place to start is at school.

Every school, primary and secondary, private and state, should be required to teach civics in the context of democracy, political plurality and cultural diversity. The communication of hatred, intolerance and discrimination in schools on racial, religious or ethnic grounds should be prohibited. The study of comparative religions, including secular morality,  should be strongly encouraged. The exposure of children to a wide and balanced diversity of political, social and cultural opinion should form an imperative part of every school’s curriculum.

This won’t stop the spread of terrorism now. But it could make us safer and more respectful of each other in the foreseeable future.

Spencer Zifcak is Professor of International Human Rights Law

This article first appeared in Arena, no 134, 02-2015 – 03-2015.

See www.arena.com.au

 

 

 

 

 

 

 

 

 

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Spencer Zifcak is Allan Myers Professor of Law at the Australian Catholic University and former President of Liberty Victoria.

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