Publication Details

Rose, G. L. (2012). Review of CT legislation: Submission on Federal Criminal Code CT provisions. Australia: COAG. http://www.coagctreview.gov.au/submissions/Pages/default.aspx

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This submission relates to only selected federal Criminal Code counter-terrorism (CT) laws, although recognising that national CT criminal laws form merely part a small part of the national effort required to combat extremist political violence. It suggests several of the CT provisions in which clarity could be improved.

Assessment of the federal CT laws against the criterion of necessity indicates that, although the CT criminal offences update or extend prior legislation, most prior legislation remains on the books, and overlap occurs. Yet, in another respect, they do not overlap with other extant crimes of violence. The intention of terrorism perpetrators, to coerce governments and intimidate the public, was considered by federal Parliament to pose sufficient threat to the fabric of the social and democratic system for related acts of violence to be labelled as crimes more immoral than other more common random societal tendencies to violence.

This consideration reflects a wider trend in Commonwealth legislation to relabel some violent crimes as particularly odious. The offences of genocide and crimes against humanity introduced into the Criminal Code by the International Criminal Court Act 2002 (Cth) are examples. The offences relabel violent acts otherwise criminalised, inter alia as murder, instead as genocide or crimes against humanity if committed, respectively, with the intention to destroy a particular national, ethnical, racial or religious group, or with the intention or knowledge that the murder is part of a widespread or systematic attack directed against a civilian population.2 These most heinous crimes share a similar mens rea, that is, the motivation includes intention to violently change a social order and, for this reason, they are distinctive offences.

This review is welcome as part of our safeguards for democratic process. The introduction of CT criminal law, initially accused by some social commentators of being a draconian ploy to establish a police state, in fact continues to contribute to the safeguarding of Australian constitutional democratic process.