It’s all fun and games until someone gets hurt: The crackdown on preparatory terrorism offences

Kimberly Ching examines proposed amendments to Australian counter-terrorism laws.

With the burgeoning frequency at which terrorism attacks feature on our late-night news broadcasts, it seems appropriate that Prime Minister Malcolm Turnbull introduce new offences to consolidate Australia’s stance against the war on terror. It has been nearly 17 years since the September 11 attacks, four years since the Sydney Lindt Café Siege, three years since the Bataclan theatre massacre and one year since the London Bridge attack.

However, as a consequence, civil unrest and advocacy for stronger anti-terror protections has increased, empowering our legislators to crack down on our domestic counter-terrorism and security laws.

Late last year, Turnbull announced a series of new security measures, including the criminalisation for making hoax threats of a terrorist attack and being in possession of instructional, terrorist material. In an effort to ‘beef up’ our current national security framework, he requested the States and Territories to follow suit in implementing these changes on a national scale.

While the new offences seem justified given the recent history of terror, they also arguably arm law enforcement agencies with greater power than before. They remove the need to distinguish premeditated harm from juvenile horseplay. In so doing, the new offences risk convicting individuals who may not possess the requisite mens rea for the offence. This begs the question about the extent to which we must go to guarantee the protection of the masses over the rights of the individual.

A Modest Proposal?

The new proposed Commonwealth offences under the Crimes Act 1914 (Cth) will equip law enforcement agencies with the right to intervene during the early, preparatory stages of a terrorist act. It can be enforced against individuals who are in possession of instructional terrorist material and/or those who are behind the digital veils of terrorism hoaxes.

The criminalisation of both offences arguably creates greater scope for law enforcement to govern our national security while managing resources appropriately, diverting emphasis away from hoaxes that only seek to disrupt the efficiency of our emergency services.

The Criticism

It seems plausible to enact these offences against preparatory acts, but they must refrain from becoming a ‘catch-all’ for individuals law enforcement deem suspect. Significant consideration should also be given to the individual, and proportionality between their conduct and intention.

Further, it risks punishing an individual pre-emptively for an action that may not have attracted a criminal quality in the first place. Some academics have further argued that these offences unjustly criminalise the formative stages of an act, rendering individuals liable for uncommitted crimes before any criminal intent has materialised.

While these offences are necessary as a precautionary and preventative measure, there must be a better standard in place to judge the exact point where the act crosses the boundary between preparation and reality.

However historically speaking, the Australian Courts have not developed a consistent approach to sentencing similar preparatory offences. Without clear guidance to determine the proportionality of sentences to the preparatory offence, varying weight has been given to subjective factors such as the perceived fanaticism of the offender, the general stigma surrounding terrorism and the need to emphasise a strong anti-terror rhetoric. In addition, there have been no developments in public policy to deal with these offences more effectively. Instead, a new danger has been created. Cases are becoming increasingly susceptible to excessive sentences to offenders that may or may not have the requisite intent to harm.

Conclusion

There is no dispute as to whether preparatory terrorist acts should be criminalised or not. In light of the age we live in, and the gradual rise of terror attacks globally, Turnbull’s choice to reinforce our national security is admirable and required. However, the new legislation must be clarified to avoid the premature punishment of individuals. Only then will our national security be an accurate reflection of what is reasonable, necessary and just.

Bibliography

Ramraj, Victor et al, Global Anti-Terrorism Law and Policy (Cambridge University Press, 2nd ed, 2012).

McDonald, Edwina and Williams, George, ‘Combating Terrorism: Australia’s Criminal Code since September 11, 2001’ (2014) 16 Griffith Law Review 1, 27.

Scanlon, Zoe, ‘Punishing Proximity: Sentencing Preparatory Terrorism in Australia and the United Kingdom’ (2014) 25 Current Issues in Criminal Justice 3, 763.