New concerns surround the government’s increased use of legislative powers to bypass the parliament and create laws that cannot be amended or overturned. The federal government has embedded special powers in new Covid-19 laws to make unilateral changes to non-pandemic-related legislation, using what are known as ‘Henry VIII clauses’ – named for the unchecked power they involve.
Part one: On the bridge
His heart rate would have lifted first, then his senses sharpened. He would have heard the fear as the attacker moved from the bathrooms towards the conference room at Fishmongers’ Hall. Blood would have rushed to his face or drained away, both standard survival responses. What he saw walking towards him was a student he knew, a “rehabilitated” former terrorist, only now he had knives taped to his wrists.
Jack Merritt, like every person inside Fishmongers’ Hall, would have switched instinctively to survival mode. He would have begun assessing strategies for his own safety and the safety of others. It is what our bodies do under threat.
Media outlets in the United Kingdom report that Merritt was one of the first to confront Usman Khan near London Bridge. The convicted terrorist appeared in a fake suicide vest wielding two large knives and began attacking participants at a prisoner education and rehabilitation event that Merritt had organised and at which Kahn had spoken about his own rehabilitation.
Danger as it is happening is easy to identify. The threat Khan posed was unambiguous to everyone around him in the two minutes it took to kill Jack Merritt and Saskia Jones, and injure three others.
But the threat had not been apparent before it emerged. Khan’s lawyer, Vajahat Sharif, appeared visibly shocked on television, saying there had been no sign Khan had any intention of re-offending. He could not fault the decision to grant his client early release, Sharif told the ABC.
“While he was in custody, he was engaging fully and completely with whatever the prison probation authorities required of him.
“On the face of it, he was a success; he was doing very well. So something has gone completely wrong.”
A letter Kahn wrote to prison authorities in 2012, requesting de-radicalisation counselling, was produced as long-term evidence of his change in attitude.
“I would like to do such a course so I can prove to the authorities, my family and society in general that I don’t carry the views I had before my arrest … now I … want to live my life as a good Muslim and also a good citizen of Britain,” Khan had written.
Critical questions in the aftermath of Khan’s return to violent extremism are: How did the system fail to detect the risk of this catastrophic event and prevent it? And could this happen just as easily in Australia?
Until a year ago, Jessie Smith led, alongside Rob Stary, Australia’s largest terrorism and national security practice at the law firm Stary Norton Halphen in Melbourne. Her clients included MHK, “the Mother’s Day bomber”, a 17-year-old charged with terrorism offences after he began assembling homemade bombs to stage a Daesh-inspired attack at the urging of a jihadist recruiter in the UK.
Smith recognises terrorists have a singular impact on our psyche, which makes them a unique cohort when it comes to assessing risk.
“Death and injury happens frequently in London – knife crime and domestic violence, for example … And I think that society has a capacity to absorb a certain degree of risk,” she says.
“Acts of terrorist violence test the public’s resilience. We want to lock them up forever because they raise the spectre of gross public violence in the most brutal and terrible form.”
The London Bridge attack has personal elements for Smith. Now based at Cambridge University, where she is a managing editor of the Cambridge International Law Journal and studying for her PhD, Smith has connections to the criminology department that hosted the Learning Together event where Khan staged his attack. Several of her colleagues were caught in the fray.
“Of course these moments test you,” Smith admits, “because terrorist acts can prompt an enormous sense of injustice, and the closer it gets to you, the more you feel that.”
However, she points out pragmatically, “This happens in every other area of criminal law. Every day there is recidivism, despite the state’s intervention. We cannot use these events to justify a shift towards the ‘incarceration state’. I don’t think that tougher penalties are the panacea for public protection. In fact, long jail terms can be very counter-productive.”
Smith is no apologist. She says we shouldn’t “minimise what some terrorist accused are out to do”. Most, she says, act rationally and with full autonomy. But she defends the opportunity for violent offenders to be paroled. She believes each case should be decided carefully, on its merits, as no two cases are the same.
“I don’t think someone like Jack [Merritt] and Learning Together sought to minimise criminal harms. Instead, they took the approach, ‘Once you’ve done your time, let’s move on, let’s collaborate to reintegrate you as a productive member of society’. That chimes with the objectives of the parole system.”
What we mean by “doing time” is important to Khan’s trajectory; like all offenders given parole, his release came with conditions.
Usman Khan was jailed in 2012 for his part in planning a number of Al Qaeda-inspired attacks on sites including the London Stock Exchange. He was arrested along with eight other men before the plans were carried out. Khan was described by the sentencing judge as one of “the more serious jihadis” in the group, with a long-term view on carrying out his extremist ideals.
The judge sentenced Khan to 16 years in prison, with a chance at release at the halfway point only if another judge decided at that time that the threat Khan posed to the community had abated. He would be monitored for a minimum of 10 years after his release.
But a successful legal appeal and changes to sentencing laws in Britain saw Khan and 74 other people on terrorism-related sentences automatically released from prison at the halfway mark of their sentences, with a raft of conditions on their freedom, but without individual assessments of their potential risk to the community.
This is the point security and legal analysts identify as the flaw in Khan’s release. The step in the process designed to establish his individual risk of reoffending didn’t happen because it had been removed from the statutes in an attempt to address overcrowding in UK prisons.
There is no conclusive evidence to say whether Kahn’s attack at Fishmongers’ Hall was a relapse into extremism or whether his rehabilitation was always a guise. If it was a guise, he may still have convinced a parole panel that he wasn’t a risk.
Ten days before Khan’s attack in London, Lowy Institute Research Fellow Dr Rodger Shanahan released a study of 173 Australian citizens “known to have joined radical Islamist terrorist organisations or who have been charged with terrorism offences” in Australia. One of Shanahan’s research interests is how to de-radicalise this cohort.
Shanahan suspects, as does Jessie Smith, that Khan’s attack was a long-term plan.
“There's two things in the Islamist language, one is sabr, and it just means patience… ‘Yes, you’re in prison but have patience, a lot of our brothers have been in prison and look what they achieved after they came out.’
“And there’s another notion, ‘the lie of the heart and the lie of the tongue’… For example, I’ll say I’m contrite, and that’s just a lie of the tongue. God allows you to lie if you’re doing it for the greater good, which is to kill people in God’s name,” Shanahan says.
“The elimination of the grey zone,” was a Daesh platform, Smith says. “The elimination of any space for communication, discourse and discussion outside their extreme religious world view. I think this attack is pretty symbolic of that – to target those who are trying to help you, or those that represent progressive, democratic values in society.”
So, could the same thing happen in Australia?
In a way, it already has.
In the early hours of November 8, 2005, police in Melbourne and Sydney conducted what was at the time the largest terrorism raids in this country. The investigation was called Operation Pendennis. In all, 18 men were convicted for terrorism offences.
Three of the men – Khaled Sharrouf, Amer Haddara and Ezzit Raad – were sentenced to six years in prison for planning terrorist attacks on Australian soil. Because of time already served on remand, the three men left prison between 2009 and 2012.
“Khaled Sharrouf, Amer Haddara and Ezzit Raad were released at the halfway point of their sentence,” Rodger Shanahan says, “and that was automatic release because that was the legislation in place at the time.”
They all left Australia for Syria, where it is believed they died fighting for Daesh.
Two other men accused of terrorism were found not guilty in a related case. One left Australia for Syria and was captured and “the other was killed in Melbourne,” Shanahan says.
The realisation that Australia may have avoided a version of Fishmongers’ Hall simply because, when released, convicted jihadists left the country is sobering.
So why is Shanahan confident that an Australian terrorist won’t follow in Khan’s footsteps?
Because in 2012 Australia tightened legislation to prevent convicted terrorists getting automatic release. A Sharrouf or Raad leaving prison today would have the individualised risk assessment that Khan did not get. They would also be subjected, as Khan was, to a heavy regime of monitoring post-release.
“While people have an issue about the raft of legislation that’s been enacted in response to the terrorism threat, [the laws] have to address a whole range of scenarios,” Shanahan says. “I think the tools with which the governments are equipped currently are much stronger than they were five years ago.”
On his release from prison in 2018, right up to the day of his attack, Khan wore an electronic monitoring bracelet and his travel, internet use and place of residence were monitored.
These conditions are consistent with what a convicted terrorist in Australia would be subject to if they received parole.
Jessie Smith is aware of community scepticism about the rehabilitative potential of terrorists. But she thinks there are real troubles in the prediction of future violence.
“Our imagination of future harm is often much more spectacular than the crimes they are in prison for,” she says. “Denying parole or keeping someone in prison beyond their sentence punishes them not for what they have done, but for what they might do.”
Smith says there are many studies on why terrorists quit. She says the research tells us that adherence to ideology is not fixed. “Of course, you can be coaxed away from religious or political ideas, and go on to lead a productive life,” she says. “There are examples in Australia. Reformed extremists can provide an example to others and a counter-narrative. The question is, under what conditions? And that’s the difficult question because we still don’t have accurate toolkits to assess risk.”
This is the first part of a four-part investigation published by The Saturday Paper and The Monthly. Read part two next Saturday, January 4, 2020.