The recent discovery of a caravan full of explosives in Dural, in Sydney’s northwest, caused significant fear about the possibility of a mass casualty attack.
On Monday, the Australian Federal Police declared it and 14 antisemitic attacks a “con job” by organised criminals who were trying to distract police or use it as a bargaining chip to influence prosecutions.
Following dawn raids, more than 140 charges have been laid, including for arson, possessing prohibited weapons, and destroying property – but not terrorism.
On radio, New South Wales Premier Chris Minns said the acts had “unleashed terror” that was very real for the Jewish community, despite revelations about the true motive.
Minns did not say the explosives and attacks would qualify legally as terrorism, but his comments raise an important question: can “fake” terrorism still be terrorism, especially if it causes significant fear?
Terrorism requires a political, religious or ideological cause
Australia’s legal definition of terrorism is found in the federal Criminal Code. It triggers many offences and it targets both conduct and threats – but these must all be done for the purpose of advancing a “political, religious or ideological cause”.
This motive requirement is the main element that distinguishes terrorism from crimes such as murder, assault and property damage.
It is the major barrier to prosecuting these acts as terrorism. The apparent motive was to benefit organised crime interests. It cannot be terrorism if it was not intended to advance a political, religious or ideological cause.
There is another requirement that terrorism be designed to intimidate part of the community (or a government), but this is additional to the motive requirement, and both need to be proven. If any single element in a prosecution fails, the defendant will be found not guilty.
This does not lessen the significant impacts on the Jewish community. It just explains why terrorism charges have not been laid.
What about hoax terrorism?
In addition to the main terrorism offences, there are offences for hoax terrorist acts. These were created in 2002 as part of Australia’s first legal responses to terrorism.
They were prompted by anthrax attacks and scares in the United States after the September 11 2001 attacks.
These do not rely on the definition of the terrorist act, so the motive requirement explained above need not be proven. However, they apply only in very specific cases, similar to copycat anthrax attacks, in which someone uses the postal service to induce a false belief that an article contains an explosive or dangerous substance (for example, if someone sends a letter containing harmless white powder with a threatening note).
A similar offence applies where someone uses a carriage service to make a hoax threat. This could apply if an organised criminal group phoned in a fake bomb threat.
This sounds quite similar to recent events, but the offence relates to the use of a carriage service to make a fake threat – not the discovery of real explosives.
This might seem a ridiculous conclusion: that the threat was actually not fake enough. If an organised criminal group phoned in a “genuinely fake” threat, they could have been prosecuted under federal terrorism laws, but not if they planted real explosives.
This is a product of trigger-response lawmaking in terrorism. The postal hoax laws were drafted in direct response to events in the US after 9/11, and the legacy remains.
In any case, the hoax offences do not attract any higher penalties than the ones being charged. In NSW, destroying or damaging property with fire attracts the same maximum penalty of ten years’ imprisonment.
Political and community needs
It is important to remember that police and prosecutors will make decisions to pursue specific charges based on the evidence available and the likelihood of a successful conviction for the highest penalty.
This will be based on their previous experience. If they believe they can secure a conviction for arson or property damage, but a case for terrorism or hoax terrorism might fail, they will prefer the charges with the higher chance of success.
As members of the wider community, we may wish to see different or additional charges laid, but we will not know all the evidence behind a decision to allege one crime or another.
Police and prosecutors are not infallible, but we can trust they will aim to secure the highest available penalty.
It is understandable that governments, the opposition and the wider community want clear statements and answers about whether a crime is terrorism or not. Unfortunately, this level of clarity is not always available.
In the midst of a crisis, such as the Sydney Lindt Cafe siege or Wieambilla ambush, it can be difficult to know all the circumstances that gave rise to the event, and an offender’s motivations.
In the aftermath, it can take months – even years, through major inquests and inquiries – for consensus to arise. Even then, views on whether a given act was terrorism may still differ.
The most definitive answer comes when a jury of 12 community members finds an offender guilty of terrorism beyond reasonable doubt. Unfortunately, this sort of clarity is not always possible, because the evidence available means a terrorism charge was not pursued, or an offender was killed in the attack.
It is rarely an urgent question for governments and communities to know whether organised crime activities will be prosecuted under one law or another, but terrorism provokes a special, understandable concern – especially in the current environment. It reflects valid community needs to denounce antisemitism as terrorism and achieve justice for victims.
But justice can be achieved regardless of the specific charges that police and prosecutors pursue. Better that they secure convictions, even for “lesser” crimes in the community’s eyes, than they seek terrorism charges and fail.
Keiran Hardy receives funding from the Australian Research Council for a Discovery Project on conspiracy extremism.
