Was there really a plot to behead a member of the public? And if so, why haven’t more charges been laid?
The largest counter-terrorism raids in Australian history last week have left many questions unanswered. Serious allegations have been made that suspects were planning an attack that would “shock, horrify and terrify” the community.
In response, on Thursday, 18 September, NSW police, Australian federal police and Asio officers took part in a major counter-terrorism operation across NSW and Queensland. There was a series of raids conducted by NSW police on properties in Beecroft, Bellavista, Guildford, Merrylands, Northmead, Wentworthville, Marsfield, Westmead, Castle Hill, Revesby, Bass Hill and Regents Park.
As a result 15 people were detained. Two were charged and two others received court attendance notices. A number of those detained were held without charge under preventative detention orders, but released on Friday, 19 September.
A brief court appearance was made in Sydney’s central local court on Thursday by Omarjan Azari, who has been charged with conspiring to commit an act of terrorism.
But what do we actually know about Azari and his alleged plans, or the involvement of the other people detained? Less than you would think. Here’s five key questions that need to be answered from last week.
1. Was there a plan to behead a random member of the public in Martin Place?
On what is currently before the court, there is no evidence to suggest such a plot exists. In fact, if we are going from what has been provided in court, we don’t even know whether there was actually a plan to behead anyone.
The commonwealth prosecutor, Michael Allnutt, told the central local criminal court of the allegations against Azari: “There was a clear imperative to commit an act to shock, horrify and terrify the community as a whole.” The imminence is drawn from a very recent phone call that was intercepted, although we don’t know the precise date of this communication.
The suggestion that there was an attack planned in Martin Place specifically, and that it to be a public beheading, is pure conjecture from media reports. The allegation that there was a plot to behead a member of the public at a non-specific location has been given more weight because of the prime minister’s response to the following question on 18 September:
Journalist: “People have been asked to remain calm, but how can they when there is news that there are people willing to conduct public beheadings in Australia?”
Prime minister: “That’s the intelligence we received. The exhortations, quite direct exhortations, were coming from an Australian who is apparently quite senior in Isil [Islamic State] to networks of support back in Australia to conduct demonstration killings here in this country. So, this is not just suspicion, this is intent, and that’s why the police and security agencies decided to act in the way they have.”
The prime minister did not, of course, sign an affidavit and tender this in court. What is key to remember is that it remains to be seen what the strength of this evidence is in court and what form it takes. A future hearing for Azari will not occur until 13 November.
2. How many people have been charged with terrorism offences as a result of the raids?
Just one. Omarjan Azari is the only person charged with a terrorism offence. One other person has been charged with an offence relating to possession of an unauthorised firearm. Two women have been issued with court attendance notices resulting from the raids, but the Australian federal police have refused to provide any details about those two notices.
3. Were 800 police officers really needed for an operation that saw just one person charged with a terrorism offence?
It’s an enormous operation for just one prosecution. The attorney general, George Brandis, suggested there was a “large body of evidence” being considered since the raids, and that whether or not further charges would be laid “is a matter about which the police and prosecutors will make a professional judgement later today or in coming days”.
It’s now been four days since that initial operation, and there are yet to be any further charges laid. So was this overreach? The attorney general was asked this very question last week and said:
“I don’t think that’s right at all, it wasn’t an overreach. This was a very complex operation because it involves accessing and disrupting networks that had a presence in Sydney and in Brisbane, and the suggestion it was overreach is nonsense, nor the fact that so far there has been one charge. That’s hardly the point. The fact is that the person who was charged had been tasked by a senior operative in Isil, an Australian man now resident is Syria, to carry out a murderous attack on random Australian citizens. So I don’t think the public would regard even disrupting that man’s murderous plan to be overreach.”
As Richard Ackland pointed out last week, it would certainly seem possible that Azari could have alternatively been charged with conspiracy or solicit to murder, under section 26 of the Crimes Act. It would certainly be unusual to have an 800 strong raid for one murder charge, so why is it any different for a terrorism charge?
4. What is a preventative detention order and why is it significant?
Preventative detention orders are extraordinary police powers that were created by the Howard government and used for the first time last week. They are exceptional powers because they allow the police to apply to detain somebody without charge for up to 14 days, and in circumstances where the nature and reason of their detention is also a secret.
A judge can grant the order and also rule that any evidence of reasons surrounding it are to be kept secret. These orders have been the subject of intense scrutiny by legal scholars and human rights organisations, who have voiced concern that they pose serious challenges to the rule of law in Australia.
What is perhaps most concerning about the orders is the veil of secrecy that surrounds them. The acting AFP Commissioner, Andrew Colvin, was questioned repeatedly about how many people were still being detained the day after the raids occurred on 18 September:
Journalist: “Prime minister, how many people are still being detained without charge and are they being held under a preventative detention order or an Asio detention?”
Prime minister: “I’ll get the commissioner to respond.”
Acting commissioner Colvin: “Thank you for the question. There are certain things that we can’t talk about for operational reasons. A number of people are still being detained, but I’m not in a position where I can confirm under what legislation or provisions they’re being detained. A number of people have been released yesterday as well. So, we spoke yesterday about 15 people that were detained, and were assisting police. A number of those have been released.”
Journalist: “Can you just clarify, surely that’s not an operational secret is it, how many people are still being detained?”
Colvin: “I’d prefer not to comment about numbers, I’m sorry.”
The AFP did later confirm that three men had been held under the orders, but they only confirmed this after after the men were released. The secrecy surrounding them raises serious concerns if people can be detained without knowledge for 14 days, without facing any criminal charges.
5. If detention orders can only be applied on people when there is a threat of an imminent terrorist attack, why haven’t the men who were subject to the orders been charged?
This is the most important question that remains unanswered. Under the New South Wales laws that regulate preventative detention orders they can only be invoked in a small number of circumstances. These include when there are reasonable grounds to suspect a person will engage in a terrorist act or possess a thing connected to engage in a terrorist act or have done something in preparation of a terrorist act.
These are high thresholds to meet, and yet at least three of the men subject to the orders were released without charge.
The police have a range of other measures to hold and detain people who they suspect of committing a crime, so why were preventative detention orders the method chosen? It is also interesting to note the preventative detention and control order regime was due to lapse next year. But on Monday, just after the first use of these orders, the attorney general announced they would be not be sunsetting and would remain part of Australian law.
These questions and many more must be answered, and tested in court, before judgment is passed on Azari.