[32] Although the Federal Parliament took the initiative, it was deemed necessary for the Australian states to return the powers provided for in Section 5 1 (xxxvii) of the Constitution to the Commonwealth so that it could do so: Terrorism (Commonwealth Powers) Act 2002 (NSW); Terrorism (Commonwealth Powers) Act 2002 (Qld); Terrorism (Powers of the Commonwealth) Act 2002 (SA); Terrorism (Commonwealth Powers) Act 2003 (Vic); Terrorism (Commonwealth Powers) Act 2002; Terrorism (Powers of the Commonwealth) Act 2002 (Tas). As Nathan Hancock stated in “Terrorism and the Law in Australia: Legislation, Commentary and Constraints” (Research Paper No. 12, Commonwealth Parliament, 2001-02) point 1.4.1: “[The [Commonwealth] legislative power to combat terrorism can be derived from a mosaic of different direct and indirect sources”. These sources include, but are not limited to, the power of defense, the power of foreign affairs, the power of foreigners, the power of corporations, the power of banks, and power over interstate and foreign trade. The Commonwealth, New South Wales, Victoria, Queensland and the Northern Territory are the only Australian jurisdictions that have explicitly referred to terrorism in legislation. After September 11, the federal government focused on the Australian legal response. [32] In Schedule 1 of the Security (Terrorism) (Cth) Amendment Act 2002 (Cth), a new definition of “terrorist act” was incorporated into the Penal Code 1995 (Cth)[33] (“Penal Code”). The definition is set out in Part 5.3 § 100.1 of the Code and provides as follows: Of the definitions contained in Part II, most follow a general approach. However, the definitions in some countries contain specific elements, such as paragraph 5(1)(b) of the New Zealand Counter-Terrorism Act and paragraph (a) of the definition of “terrorist activities” in section 83.01 of the Canadian Criminal Code, which provide that certain offences constitute terrorist acts. The New Zealand Act also refers to offences under certain international conventions on terrorism to which New Zealand has acceded, while the Canadian Code refers to offences contained elsewhere in the Code (offences themselves created to implement some of the same international conventions). In addition, there are specific elements in Australian and South African legislation that relate to certain terrorist activities, such as the handling of electronic systems and the introduction of biological materials. [62] It is not disputed that the Terrorism Act has grown rapidly since September 11, with more than thirty Acts passed by the Commonwealth Parliament. Terrorism law today consists of a complex set of treaty and specialized offences and expanded intelligence gathering8 and police powers9, which together are based on the definition of a terrorist act.
In addition to fundamental offences, new rules on pre-trial detention and control orders have been introduced.10 One person has provided support or resources to an organization; the support or resources would assist the organization in carrying out an activity described in point (a) of the definition of terrorist group (i.e. who is directly or indirectly involved, prepares, plans, supports or encourages the commission of a terrorist act); and the person knows or recklessly whether the organization is a terrorist organization.96 [33] An almost identical definition of the term “terrorist act” is used in section 5 of the Terrorism Insurance Act 2003 (Cth), while the definition of “terrorist act” in section 10 of the Maritime Transport Security Act 2003 (Cth) refers to the definition used in the Penal Code Act 1995 ( Cth). See also the reference to the “terrorist offence” in section 4 of the Australian Security Intelligence Organisation (Cth) Act 1979. The Committee recommends that psychological harm not be included in the definition of a terrorist act. Alternatively, the Government is consulting with states and territories on this issue and is reviewing the issue in light of other changes to the definition. 3. The use or threat of acts referred to in subsection (2) involving the use of firearms or explosives constitutes terrorism, whether or not subsection 1(b) is complied with. Nevertheless, the definition of “terrorism” remains controversial and efforts within the United Nations to reach agreement on a comprehensive international legal definition have so far failed.4 However, a number of definitions of terrorism are used in the national legal systems of comparable countries and provide useful reference points.
(5) In this Act, a reference to measures for terrorist purposes includes a reference to measures in favour of a prohibited organization. Any changes to the definition of “terrorist act” that remove the ambiguities and uncertainties arising from the fact that “action” and “threat of action” are summarized in the definition are supported.46 The definition of “defender” is not limited to the way in which interests are represented. It covers all kinds of communications, comments and behaviors. The definition recognizes that such communications and behaviours are inherently dangerous because they could inspire a person to harm the community. This could be the case if it is not possible to prove that the organization intended to commit a particular terrorist offence, or even intends to disclose the material to that particular person. Therefore, the definition is not limited to the circumstances in which a terrorist act actually took place, but is available regardless of whether or not there is a terrorist act. Domestically, terrorist activities are not governed by the law of armed conflict, but fall within the scope of criminal law, unless they are of a type equivalent to armed conflict. Whether a conflict situation is terrorism and therefore a war crime or a question of criminal law depends on whether the law of armed conflict applies to the situation and to the actors. The definition has now been interpreted in court. In R v. FaheemKhalidLodhi, Wood J.
noted that the definition of the term “terrorist act” is structured as follows: (5) The term “domestic terrorism” refers to activities that – [18] The latter approach to definition has also been called the classical approach (definitio per genus and diferentiam). See Krzystof Skubiszewski, “Definition of Terrorism” (1989) 19 Israel Yearbook on Human Rights 39, 39. In Part III(A), we discuss the relative merits of these approaches. From this point of view, the definition is inherently problematic. However, experience in the UK, which does not include exceptions for advocacy, dissent, protest and advocacy, suggests that Australia should maintain its current formula. In the United Kingdom, it has been argued that the special powers of the police are used in situations that should have been treated, if any, as a matter of public order.38 The US definition has also been criticized as flawed because it does not include an exception for advocacy, dissent, protest or industrial action.39 The definition of “terrorist act” in South African law has been defined in public law and parliamentary. Debate on the original definition, extremely broad, completely revised. The South African definition now includes an element of promoting a political, ideological or religious cause.23 The capacity for judicial flexibility does not outweigh the arguments for an increased legislative role.
At the very least, Parliament`s definition of the main characteristics of terrorism has several advantages. These operate with particular force given the serious consequences that can result from the use of the word terrorism when associated with a person, act or organization. The most important reason for Parliament`s important role is that, as a representative and democratic forum, it may be the best place to discuss what constitutes terrorism. “What is terrorism?” is both a political and legal issue and should be conducted through open public debate and media control. This deliberative process may lead to a more nuanced and appropriate definition, as suggested by the Australian experience in terms of drafting the exemption for advocacy, protest, dissent or industrial action. In fact, it is almost inconceivable today that a nation could attribute consequences such as life imprisonment and invasion of privacy to a word as controversial as terrorism without a legislator first attempting to define the term. Subsection 1(3) provides that, for the purposes of paragraphs (a)(vi) and (a)(vii) of the above definition, “any act committed in pursuit of a legitimate representation of interests, protest, dissent or industrial action and that does not involve measures causing harm under paragraphs (a)(i) to (vi)” does not constitute terrorist activity. In addition, subsection 1(4) creates an exception for any act that results in the exercise or promotion of the “legitimate right of a people to national liberation, self-determination and independence.” in accordance with the principles of international law”.