U.S.
Army Department of Defense:

“The calculated use of violence or the
threat of violence to inculcate fear; intended to coerce or to intimidate
governments or societies in the pursuit of goals that are generally political,
religious, or ideological.”

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US
Patriot Act of 2001: Terrorist activities include:

1.  Threatening,
conspiring or attempting to hijack airplanes, boats, buses or other vehicles.

2.  Threatening,
conspiring or attempting to commit acts of violence on any
“protected” persons, such as government officials

3.  Any
crime committed with “the use of any weapon or dangerous device,”
when the intent of the crime is determined to be the endangerment of public
safety or substantial property damage rather than for “mere personal
monetary gain.

FBI:

“The unlawful use of force or violence
against persons or property to intimidate or coerce a government, the civilian
population, or any segment thereof, in furtherance of political or social
objectives.”

Other definitions are:

“Terrorism constitutes the illegitimate
use of force to achieve a political objective when innocent people are
targeted.”

(Walter
Laqueur)

 

“Terrorism is defined here as the
recurrent use or threatened use of politically motivated and clandestinely
organized violence, by a group whose aim is to influence a psychological target
in order to make it behave in a way which the group desires.”

 (C. J. M. Drake)

Causes
of Terrorism

There are various causes of terrorism.
There does not appear to be one single factor that leads people to involve in
acts of terrorism. Scholars have categorized motivations for terrorism to
include psychological, ideological, and strategic.

Psychological
Perspective

Those who participate in terrorism may do
so for personal reasons, based on their own psychological state of mind. Their
motivation may be nothing more than hatred or the desire for power and
authority. For example, in 1893 Auguste Vaillant bombarded the French Chamber
of Deputies. Prior to his conviction and subsequent execution Vaillant
explained his motivation in terms of hate for the middle classes. Valliant
wanted to spoil the sense of economic and social success, by tainting it with
his violence. In many aspects this terrorist is interested in getting attention
from others through his or her act, rather than some grand ideological or
strategic goal.

Ideological
Perspective

Ideology is defined as the beliefs,
values, and/or principles by which a group recognizes its specific aims and
goals. Ideology may encompass religion or political philosophies and programs.
Examples of terrorist groups motivated by ideology include the Irish Republican
Army (IRA), in Sri Lanka the Liberation Tigers of Tamal Eelam (LTTE), and the
Bader Meinhoff in Germany. The IRA is motivated by a political program to drive
out United Kingdom from Ireland and unite Ireland under one flag. Similarly the
LTTE seek to establish a separate state for their people, the Tamals in Sri
Lanka. Finally, the Bader Meinhoff was a terrorist group made up of
middle-class adults who opposed capitalism and required to destroy capitalist
infrastructure in Germany.

Strategic
Perspective

Terrorism is sometimes seen as a logical
extension of the failure of politics. When people seek redress of their
grievances through government, but fail to win government’s attention to their
plight, they may resort to violence. From this viewpoint, terrorism is the
result of a logical analysis of the goals and objectives of a group, and their
estimate of the likelihood of gaining victory. If victory seems unlikely using
more traditional means of opposition, then one might calculate that terrorism
is a better option. For example, in South Africa the African National Congress
only turned to the use of terrorism after political avenues were explored and
failed. Of course, not just individuals may feel let down by the political
process. States may use terrorists in the pursuit of their own strategic
interests. States may sponsor terrorist groups, especially when the objectives
of the state and the terrorist group are similar. For example, Libya used
terrorists to explode a bomb aboard Pan Am 103 flying from London to New York
in 1988, allegedly in response to U.S. and British bombing of Libya.

Defining a terrorist act

Section 100.1 of the
Criminal Code defines a terrorist act as ‘an action or threat of action’ which
is done or made with the intention of:

·        
advancing a political, religious or
ideological cause; and

·        
coercing, or influencing by intimidation,
the government of the Commonwealth, State or Territory or the government of a
foreign country or intimidating the public or a section of the public.

Action will only be
defined as a terrorist act if it:

·        
causes serious physical harm or death;

·        
seriously damages property;

·        
endangers a person’s life;

·        
creates a serious risk to public health or
safety; or

·        
seriously interferes with, seriously
disrupts, or destroys, an electronic system.

Action will not be a
terrorist act if it is advocacy, protest, dissent or industrial action and is
not intended to cause serious physical harm or death, endanger the lives of
others or create a serious risk to the public health or safety.

The definition of a
terrorist act has been criticised as being so broad its meaning is unclear.21

Criminalizing terrorist acts

Under Division 101 of the
Criminal Code it is an offence to:

·        
engage in a terrorist act;22

·        
provide or receive training connected with
the preparation for, the engagement of a person in or assistance in a terrorist
act;23

·        
possess a thing connected with the
preparation for, the engagement of a person in or assistance in a terrorist act;24

·        
collect or make documents connected with
the preparation for, the engagement of a person in or assistance in a terrorist
act;25

·        
do any act in preparation for, or planning
a terrorist act.26

These offences apply even
where a terrorist act does not actually happen, the offences are not done in
connection with a specific terrorist attack, or the offence is done in
connection with more than one terrorist attack. Criticisms that these offences
were too broad were rejected by the SLRC and Parliamentary Joint Committee on
Intelligence and Security (‘PJCIS’) reports.27

As well as the offences
in Division 101, the Criminal Code also criminalises attempts to commit these
offences, the incitement of these offences and the use of an innocent agent to
commit the offences.28

Proscribing a terrorist organisation

A terrorist organisation
is defined in s 102.1(1) of the Criminal Code as:

·        
‘an organisation that is directly or
indirectly engaged in preparing, planning, assisting in or fostering the doing
of a terrorist act (whether or not the terrorist act occurs)’ or

·        
an organisation that is listed in the
terrorist organisation regulations in accordance with a proscription process
set out in ss 102.1(2), (3) and (4).

The Attorney can
proscribe a ‘terrorist organisation’ under s 102.1(2) of the Criminal Code if
he or she is satisfied on reasonable grounds that:

·        
the organisation is directly or indirectly
engaged in, preparing, planning, assisting in or fostering the doing of a ‘terrorist
act’ (whether or not the terrorist act has occurred or will occur) or

·        
‘advocates’ the doing of a terrorist act.

·        
The Attorney can decide to repeal the listing of
(‘delist’) a proscribed terrorist organisation. An individual or organisation
(including the proscribed organisation) can apply to the Attorney to be
de-listed.

While the Attorney has to
consider the application, he or she has absolute discretion as to the
matters that he or she considers in deciding whether to de-list an
organisation.

As a consequence of
proscription, a person who is connected with a terrorist organisation may be
charged and convicted of serious criminal offences. A person who is being
prosecuted for an offence involving his or her connection with a terrorist
organisation can not deny in Court that the proscribed organisation is in fact
a terrorist organisation.29

To date, 19 organisations
have been listed as ‘terrorist organisations’. Eighteen of these organisations
self-identify as Islamic organisations.

a.    The
definition of ‘advocates’ should be amended
Section 102.1(1A) of the Criminal Code states an organisation advocates the
doing of a terrorist act if the organisation:

b.   directly
or indirectly counsels or urges the doing of a terrorist act; or

c.    directly
or indirectly provides instruction on the doing of a terrorist act; or

d.   directly
praises the doing of a terrorist act in circumstances where there is a risk
that such praise might have the effect of leading a person (regardless of his
or her age or any mental impairment, that the person might suffer) to engage in
a terrorist act.

The Commission believes
that this definition of ‘advocates’ is too broad and could possibly result in
breaches of the right to freedom of expression.

The SLRC Report
recommended that the process of proscription be reformed in order to create a
fairer, more transparent system.31 The Commission
supports this recommendation. The Commission is concerned about the current
proscription process because of:

·        
the lack of clear criteria to guide the
use of the Attorney’s proscription powers;

·        
the lack of opportunities to oppose the
proposed proscription; and

·        
the lack of opportunity to seek
independent merits review of the decision to proscribe a terrorist
organisation.

The Commission believes
that the proscription process should be a judicial rather than executive
process. Alternatively, if the Attorney remains responsible for proscribing
terrorist organisations, the process would be fairer if there was independent
merits review of the Attorney’s decision to proscribe an organisation. You can
read the Commission’s submissions on the proscription of terrorist
organisations.

Criminalising relationships with terrorist
organisations

Once an organisation is listed as a terrorist organisation, a
person who has certain relationships with that ‘terrorist organisation’ may
face criminal charges under the Division 102 of Criminal Code. Sections 102.2
to 102.8 make it an offence to:

·        
direct the activities of a terrorist
organisation;32

·        
be a member of a terrorist organisation;33

·        
recruit a person to join or participate in
the activities of a terrorist organisation;34

·        
provide training to or receive training
from a terrorist organisation;35

·        
receive funds from or make funds available
to a terrorist organisation;36

·        
provide support or resources that would
help a terrorist organisation directly or indirectly engage in preparing,
planning, assisting in or fostering the doing of a terrorist act (whether or
not the terrorist act occurs);37

·        
on two or more occasions associate with a
member or person or promotes or directs activities of a terrorist organisation.38

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