‘Alarmed But Not Alert’ – Australia’s Counter Terrorism Laws Ten Years On

Expansive new laws have emerged as a response to the terrorist attacks of September 2001. But in their desire to protect, have these laws introduced new dangers and threats? And do we, in any case, need them? Simon Bronitt reflects on the last ten years of legal development.

The immediate aftermath of the 9/11 bombings exposed the policy challenge of developing appropriate and effective legal responses in a climate of pervasive fear and insecurity. A cursory review of the federal statute book at that time revealed significant gaps. Most prominently, there was no federal offence dealing with terrorism!

This was not, in fact, an oversight, but rather a considered policy response following a series of independent reviews into our nation’s protective security laws after the Hilton bombing in 1978. This act of domestic terrorism targeting a CHOGRM regional meeting in Sydney, that killed a policeman and two council workers, led a shake up of our institutional arrangements for countering terrorism.

But significantly the bombing did not result in new terrorism offences or preventative powers of the type that had been introduced in the UK in the 1970s to deal with terrorism in Northern Ireland such as internment, ‘enhanced’ interrogation methods and special terrorism courts (sitting with juries).

The federal Government at the time prioritized the use of “normal laws” in the battle against terrorism, as reflected in the decision of Cabinet on 5 November June 1979 that “the general rule must be that in any battle against terror the local law enforcement authorities using the normal processes of the criminal law must predominate”.

Fast forward to 9/11, Australia’s response prioritises federal criminal law and exceptional powers at the forefront of the ‘War on Terror’. In 2002, a new bipartisan political consensus emerged on the importance of enacting comprehensive federal terrorism laws. At the heart of the national legal response is the definition of ‘terrorist act’ inserted into the federal Criminal Code in 2002.

The definition is not only used in specific offences, such as engaging in a terrorist act (punishable by life imprisonment), but is also used to define the scope of investigative powers, control orders and preventative detention, suppression of terrorist financing and even the classification and restriction of publications with terrorist themes. The preventative rationale – to ‘nip terrorism in bud’  – comes to the fore in the wide range of offences (now more than 50) that are linked in some way, directly or indirectly, to this definition.

“Terrorist act”, under s 101 of the Criminal Code (Cth), is defined as conduct involving serious physical harm, or serious property damage, or a person’s death, or endangerment of a person’s life, or serious risk to public health, or serious interference, disruption or destruction of an electronic system. This is hardly contentious, since much of this conduct is already criminal under federal, state or territory law.

What is controversial is the use of “political, religious or ideological motive” as the determining characteristic of ‘terrorist act’. To be “terrorist” in nature, these acts must be accompanied with the specific intention of  “advancing a political, religious or ideological cause”; and (i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or (ii) intimidating the public or a section of the public.

This is a novel departure from ordinary criminal laws. Motive, as every law student learns, is or ought to be irrelevant to guilt. But exceptionally for the purpose of terrorism, motive lies at the heart of legal culpability. Because the prosecution must prove the existence of a particular motive beyond reasonable doubt, the politics and religion of the defendant inevitably assume a prominent focus in terrorism trials.

The Australian definition of terrorism is not ‘homegrown’. It was inspired by the Terrorism Act 2000 (UK), which in turn drew heavily from working definitions of terrorism developed by the Federal Bureau of Intelligence (FBI) to guide its operations. The legal definition of terrorism however is not unproblematic if we examine some applications of the law in the UK and US.

Australia’s legal definition of terrorism has global reach, reflecting the international dimensions of the War on Terror. It applies beyond acts of terrorism against Australia and her allies to acts targeting the governments of any ‘foreign country’. It is also clear that under this definition, the legitimacy (or otherwise) of targeting governments is irrelevant. This means that national liberation movements seeking to overthrow violent authoritarian regimes potentially fall within this definition.

Indeed, in 2007, the Court of Appeal in the United Kingdom upheld a conviction for possessing things likely to be useful to a person committing or preparing an act of terrorism against Colonel Gaddafi and his regime. The accused was a Libyan national who had been granted asylum in the UK in 2003 following the murder of family members and friends by the Libyan regime.

As the Court of Appeal noted, the definition of terrorism under UK law was universal, applying to acts that targeted domestic as well as ‘foreign’ governments. That definition applied irrespective of the political character of those foreign governments:

… the terrorist legislation applies to countries which are governed by tyrants and dictators. There is no exemption from criminal liability for terrorist activities which are motivated or said to be morally justified by the alleged nobility of the terrorist cause.

History may show these anti-Gaddafi ‘terrorists’ to be national liberation heroes who played a role in bringing a brutal dictator and war criminal to justice.

Professor Simon Bronitt is Director of the ARC Centre of Excellence in Policing and Security. Simon was previously a Professor of Law in the ANU College of Law and Associate Director of the Australian Centre for Military Law and Justice, ANU. Between 2006-9, he served as the Director of the ANU Centre of European Studies in the Research School of Humanities. Drawing on comparative and interdisciplinary perspectives, Simon has published widely on criminal justice issues, including counter terrorism law and human rights, covert policing, telecommunications interception and international criminal law.