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Are corrupt bankers terrorists?


There is a new proposal from Prime Minister Malcolm Turnbull that those convicted of terrorism offences are to be remanded in jail even after they finish serving their sentences.

The Drum article about bank bailoutsWhile the details are yet to be finalised, this will apparently mirror existing legislation which permits the same thing in the case of pedophiles or violent offenders. The accused, it seems, will not actually have to commit any further terror offences, just be regarded as likely to do so.

While the predatory behaviour of pedophiles is nowadays generally seen as something of an addiction, with a notoriously high rate of recidivism, the same has yet to be shown of 'terrorism' — a crime which has proven very difficult to define in any event.

According to s.100.2 of the Criminal Code, a terrorist act is an act which 'intends to coerce or influence the public or any government to advocate any political, religious or ideological cause' and causes harm or danger to an individual, damage to property, disruption to infrastructure or danger to the public.

The Code casts the net even wider, including 'providing support to' or 'associating with' an organisation which the government lists as a terrorist organisation under the rubric of terrorism offences as well as 'procuring', 'inciting' or 'encouraging' a terrorism offence. 'Acts of preparation' are also included in the Code's purview, including making objects for use in a terrorism offence.

Who actually gets charged with any of these things is, of course, rather subjective in practice. Given that 'disruption' of the banking network is explicitly included in the Act, those who rigged the LIBOR rates or brought about the global financial crisis by reckless trading (recklessly committing a terrorism offence is specifically caught by the Code) could, technically, be charged. The coercion of economic policy is surely every bit as 'ideological' as religious or party political activism in this day and age.

Arguably, so too could those who used the precedent of the GFC bailout to demand the government issue new bailouts for the banks or watch customers get stung with new fees in the face of record profits while playing a major role in raising foreign private debt to 85 per cent of national output (thereby damaging economic stability). But it's very unlikely that that would ever happen.

Even acts which would traditionally be labelled as terrorism if committed in the service of a far-left or other cause do not seem to attract the provisions of the Code when committed by far-right groups — the assault of Minh Duong in Ascot Vale in 2012, for example.

This mirrors the situation overseas. In the US, the horrific shootings in San Bernardino were immediately described as terrorist offences by government and media; those in Charleston were not.

Given these precedents, there is good reason to fear that any new powers to detain people beyond the expiration of their sentences for terrorism offences will, like the offences themselves, be applied in a politically selective manner.

Indeed, it says much for the blunting of Western sensibilities that we are even considering such a measure: the very core of the Rule of Law used to be said to include that one did not get punished (in this case, punished again) without having committed an offence.

Ironically, such watering down of long-cherished liberties is likely to do more to exacerbate terrorism than to solve it. The narrative of extremist groups such as ISIS, the bogeyman du jour, is precisely that Western society allows no space for members of the relevant group to practise their faith.

As Waleed Aly points out, Western narratives of intolerance feed and reinforce that narrative and play into the hands of ISIS recruiters.

Explicitly allowing those who have served their sentences to continue to be held indefinitely will expose the Western ideal of justice as a charade and certainly not worth committing to. In other words, not having a stake in one's home society makes terror groups seem like a more legitimate alternative.

What Aly says of terrorism based on warped views of Islam is every bit as applicable to any other form of terrorism. As Lord Hoffmann famously said of laws allowing indefinite detention without trial of terror suspects: 'The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these.

'That is the true measure of what terrorism may achieve. It is for parliament to decide whether to give the terrorists such a victory.'


Justin GlynJustin Glyn SJ is studying for the priesthood. Previously he practised law in South Africa and New Zealand and has a PhD in administrative and international law.

Topic tags: Justin Glyn, Malcolm Turnbull, terrorism, detention, Islam, Waleed Aly



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Existing comments

Hi Justin, First, I was tempted by the suggestion in your title that corrupt bankers might be seen as terrorists but it would be good to see the case against them clearly argued. The LIBOR example alone does not suffice. Second, what on earth do you mean by saying that who gets charged 'is subjective in practice'? 'Subjective' is usually taken to mean 'not objective', 'arbitrary' or 'not resulting from a well-defined and unambiguous process'. I suspect that what you meant was arbitrary or lacking a proper process. But this is a general problem in Australian law enforcement.

barry hindess | 14 December 2015  

I too like barry hindess was intrigued by the question: Are corrupt bankers terrorist? I thought of another question: What does a corrupt banker do as a banker by way of corruption? Does he or she corrupt staff? Does he or she corrupt customers seeking loans? Does he or she corrupt the banking system? Now I think there's the rub. Most of the crimes committed by terrorists are the same as the violent actions carried out by other criminals except that in addition the terrorists use tactics that are designed to instil fear or terror. So despite the definition in the Criminal Code S 100.2 which seems to make terrorism the purview of Law Enforcement Agencies, if one includes the aim of instilling fear/terror for political/military purposes then terrorism becomes an area of interest to security intelligence and defence organisations as well as to the police.

Uncle Pat | 14 December 2015  

Excellent points! Hopefully, this will help unpack what I had in mind. Uncle Pat, I, too, think that terrorism (if it is to be a crime) should include some element of fear and should be much more clearly defined. The fact that s.100.2 is as loose as it is means that what the law thinks terrorism is is far too broad. The fact that it does not, means that all sorts of people can be sucked in by the law (and will soon be able to be detained indefinitely). A law that broad is going to be used at the whim of the executive to target those it does not like. Thus, to answer Barry's equally good point, it will be so broad that the executive will be charge (and hold) people who cannot, on any normal reading of the word, be called terrorists. This is different to the arbitrariness inherent in law enforcement. Most penal laws define their targets tightly (even though some may be selectively enforced). A broad law such as 100.2 is not only open to selective enforcement but to selective interpretation as well.

Justin Glyn SJ | 17 December 2015  

It staggers me that politicians who style themselves as conservatives and protectors of traditional values are so ready to throw away the fundamental principles on which our 'government according to law' is based. Detention without trial, deportation by executive fiat without judicial appeal, evidence tendered in secret and withheld from the accused, penalties for whistleblowers in off-shore detention centres... these are surely the evils for which, our conservative politicians are so ready to say, our servicemen and women fought and died. But so long as these corruptions of the Law are directed toward 'the other' the rest of us do little more than 'write a letter to ES'.

Ginger Meggs | 22 December 2015  

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