The Criminal Offence of Engaging in a Terrorist Act in Australia

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By Paul Gregoire and Ugur Nedim

New South Wales Police News reported last Thursday that a 16-year-old boy had been charged with a terrorism offence, “following an investigation by the Joint Counter Terrorism Team Sydney into an alleged stabbing at a Sydney church”.

This relates the stabbing of an priest in the western Sydney suburb of Wakeley, during a livestreamed mass. And the boy, identified as Muslim early on, not only injured the 53-year-old man, but also injured a 39-year-old, who rushed in to prevent the attack against his colleague.

JCTT Sydney, which is comprised of NSW police, the AFP, ASIO and the NSW Crime Commission, determined to charge the boy with committing a terrorist act under section 101.1 of the Criminal Code Act 1995 (Cth), which is an offence that carries a maximum penalty of life imprisonment.

The decision to treat the 15 April incident as terrorism, which was bizarrely announced to the media by NSW police commissioner Karen Webb at 1.35 am, has been questioned in the community, as it seems to reenforce a prejudicial trope that equates terrorism with a Muslim offender.

Indeed, the lawmakers who inserted this terror offence and a suite of others into the Criminal Code in 2002, were responding to a global call, following the severity of the 9/11 attacks of 2001, and they likely weren’t considering application in regard to teenagers with mental health issues.

A terrorist act

The reason a terror act carries such a grave a penalty as life imprisonment, is terror attacks, like that of 11 September 2001, can be on such a huge scale and are too supposed to progress an agenda via such destruction, which then might serve to encourage more violent actions with the same aim.

And the offence under section 101.1 of the Criminal Code can be used to prosecute an actual terror act or the threat of one.

So, for instance, if a person left a homemade bomb at an individual’s home and threatened to use a similar device if they failed to discontinue their public support for a political cause, this would likely constitute a terrorist act.

The legislation further explains that to establish a case against an individual accused of a terror act, the prosecution must establish beyond a reasonable doubt that they engaged in or threatened action and the intention of the crime was to advance a political, religious or ideological cause.

Further elements relating to the crime include that the act was meant to achieve this intention via coercion or influence by intimidation of any level of government, here or overseas, or via the intimidation of the public, or toward a section of any of these entities.

Section 101.1 of the Code defines a terror action as one that causes serious physical harm to a person, serious harm to property, endangers another life, creates a serious risk to health or safety of the public, or seriously interferes with, disrupts or destroys an electronic system.

Electronic systems captured by this law can include an information, telecommunications or financial system, a system that delivers essential government services or an essential public utility or transport system.

The law, however, doesn’t consider nonviolent advocacy, protest, dissent or industrial action to be of a terrorist nature.

And as for the young boy who stabbed a priest, he now has the defences of self-defence, duress or necessity open to him to argue in court.

A global lawmaking project

The Security Legislation Amendment (Terrorism) Bill 2002 [No. 2] inserted a range of terrorism offences into the Commonwealth Criminal Code, under part 5.3 division 100.

The second reading speech on the bill appears to have been crafted by both the then Howard government attorney general and the Labor opposition leader, in an act displaying the bipartisan support in parliament for these offences.

The speech explains that the bill contains “part of a package of important counterterrorism legislation designed to strengthen Australia’s counter terrorism capabilities”, and the laws were further reenacted the following year, in order to ensure they apply at state level.

“Since September 11, there has been a profound shift in the international security environment,” both majors continued, which “has meant that Australia’s profile as a terrorism target has risen and our interests abroad face a higher level of terrorist threat.”

UN Security Council Resolution 1373 was passed just a week after 9/11, and it called for UN member states to embark on drafting and enacting terrorism offences in their domestic law, with accompanying penalties reflecting the seriousness of the crimes.

Further offences created by the federal legislation include training for a terror act, making documents to facilitate one, directing activities of a terrorist organisation, financing terrorism and recruiting for a terror organisation.

But the major parties didn’t stop there. The federal government has since enacted around 100 pieces of counterterrorism and national security legislation, which have served to erode the rights of all people living here and have often been prejudicially applied to Muslim citizens and residents.

Vague and unprovided

“Police charged a 16-year-old boy with a terrorism offence, as a result of the alleged stabbing at a Sydney church on Monday evening,” explained commissioner Webb last Friday.

Although the head of NSW police didn’t provide explanation as to why a recent multiple stabbing in Bondi wasn’t considered through a terror lens, even if only to stymie any prejudicial sentiment that her decision to progress with a terror charge in this instance, might conjure in the public mind.

“Police from the Joint Counter Terrorism Team attended a medical facility last night to interview the boy and he was subsequently charged with a Commonwealth offence for terrorism,” the state’s top cop added.

Webb then outlined reasons as to why the crime might be considered terror-related, which solely included stabbing the priest six times and travelling 90 minutes to the location.

AFP police commissioner Reece Kershaw added that on the day following the crime, police seized the teen’s electronic devices and interviewed him at the hospital.

“A terrorist act is defined under Commonwealth law,” the AFP head told reporters. “We allege that the act committed meets the reasons in a statement of facts, but I will not go into those facts here today.”

“We target criminality, not countries,” Kershaw added, obviously in response to community criticisms of this development. “We investigate radicalisation and not religion.”

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