Terrorist or criminal? Why it matters


A young man walks into a place of worship. He kills a number of people from a different ethnic or religious group, and has photos of himself displayed online with a flag known for extremist political affiliations.

If this is done in the US by a young white man, the place is a church, the victims are African Americans and the flag is the old Confederate flag – he is labelled a mass murderer and criminal. If this is done in Kuwait by a Saudi and it is a Shia Mosque, and the flag is that commonly used by Daesh or ISIS, he is a terrorist.

What is the difference when the result is the same (i.e. innocent people killed whilst practising their religion)?

This separate labelling of criminals and terrorists has some basis in The Commonwealth Crimes Act which lists the following as terrorist offences:

A terrorist act is an act, or a threat to act, that meets both these criteria:

1. It intends to coerce or influence the public or any government by intimidation to advance a political, religious or ideological cause.

2. It causes one or more of the following:

- death, serious harm or danger to a person

- serious damage to property

- a serious risk to the health or safety of the public

- serious interference with, disruption to, or destruction of critical infrastructure such as a telecommunications or electricity network.

The Government has listed 21 organisations as ‘terrorist organisations’. Only one, the Kurdish Workers Party (PKK) is not an Islamist military organisation. The PKK is a Marxist nationalist organisation. The PKK works with the Syrian Kurdish YPG and the Iraqi Kurds against Daesh. The fact that a terrorist organisation is working with groups the Australian and US Governments are supporting illustrates the complexities of the conflicts in Syria and Iraq. Although the mafia or camorra commit murder, and are a ‘serious risk to the health or safety of the public’ they are called ‘organised criminals’, not terrorists.

Why does it matter whether someone is labelled a criminal or terrorist? It matters because we can treat terrorists differently to criminals. How we name someone makes a big difference. Criminals are subject to the criminal justice system. They can access to legal aid if they meet the means and merits tests. The prosecution must prove its case and if the alleged criminal is found guilty by a court, or by a jury, they are sentenced.

Whereas a terrorist could have their citizenship cancelled under the proposed changes to the Citizenship Act if they are a dual national, simply on the basis of the conviction for certain terrorist offences. It is also possible for their citizenship to be cancelled on the basis of other acts, without even requiring a conviction.  There is no further assessment or any discretion about whether the citizenship cancellation is appropriate, or how immediate family here could be affected.

They then face mandatory detention until removed to the country of their other nationality or citizenship unless the Minister personally intervenes in their case and revokes the notification of cancellation. There is no power to force the Minister to consider the revocation, and no judicial review if the Minister declines to consider a revocation, or refuses the revocation. Banishment is the preferred solution.

I am not advocating the banishment of citizens found guilty of very serious offences, but rather questioning whether there needs to be such an obsession in just demonising and banishing one group in the name of protection of the community.  Serious criminal offences need to be dealt with by the criminal law, following a proper process. This is not done to ‘roll out the red carpet for terrorists’ as some allege. Rather, it is to ensure that whoever you are, you are subject to the same process of criminal justice in a system that follows the rule of law, not the current political whim of a politician. There will always be crime and punishment and the difficulty for Government is balancing the desire for punishment and vengeance, against the need to reform offenders.

This is much harder to achieve, and requires sober analysis and thought out processes. It is not possible to reduce it to three word slogans or just make a speech about it flanked by a bunting of flags. We need to deal with those who do not fit in, rather than just labelling them as ‘the banishable other’.

An advanced liberal democracy needs the rule of law and separation of powers as key elements to survival. As we wind these back in fear, we revert to a lesser democracy where rule of opinion polls is more important than the rule of law. This is recognised by the Minister of Communications who noted in a recent speech to the Sydney Institute:

The genius of a liberal democracy is that at the same time it empowers the majority, through the ballot box, it also constrains that majority, or its government, through the rule of law.

…We should always shudder a little, perhaps a lot, when cynics sneer at courts and laws as just troublesome obstacles standing in the way of justice.

At least one senior lawyer in Government understands the importance to our democracy of the rule of law.

Kerry Murphy profile photoKerry Murphy is a partner with the specialist immigration law firm D'Ambra Murphy Lawyers and member of the boards of the IARC and JRS.

Topic tags: Kerry Murphy, citizenship, law, terrorism, national security



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Existing comments

Has the Law been neutered in Australia by successive governments? Surely when basic principles of jus cohens are flouted, Law is dying. When life long arbitrary denial of freedom exists as accepted policy and unchallenged practice what principle of law lives? Label a deranged person who commits a crime as a terrorist and political leaders careers flourish- label him a criminal and political figures don't count.our beautiful democracy and freedom is dying and the people do not care
Pamela Curr | 17 July 2015

I do care. A criminal has committed a crime and has to be punished. A terrorist will cause severe destruction and I don't want terrorists in Australia. I am sure millions of Australians share my view.
Ron Cini | 17 July 2015

Right, Pamela. I think our democracy started dying when prime ministers started deciding things the parliament should decide.
Gavan | 17 July 2015

Thanks Kerry, Very 'to the point', as ver, and for me that [crunch] point is what you write about dealing with those who do not fit in. To this, I would add : and ask ourselves what is it we are doing or not doing which affects how they feel about not fitting in? What else do we need to, or can we engage with others to take on board to help those people feel less marginalised/more able-to-be included in our lives in this country? Also, as soon as possible, exert maximum pressure, by whatever 'advocacy' means we can access - together - to get that 'abomination legislation repealed, and return to the rule of law, and that divison of powers, so essential for the aforementioned to work. There cannot be one law for one group, and another for others, in so many cases already feeling alienated, dis-enfranchised and - yes - 'demonised', as you describe it. Love law, don't twist it, to curry favour with bigots and hate-mongers. Finally, we also need to explore what is NOT happening in communications and entertainment media to help those feeling left-out and under-valued feel different, and so begin to know they can belong! .
Lynne Green | 17 July 2015

Ron Cini, I'm sure most people are in agreement with you, including Kerry Murphy. The question isn't about whether or not to punish, or even banish, those convicted of a criminal act. It's about how the decision is made that they're guilty. What seems to be on trial here is the rule of law itself.
Joan Seymour | 17 July 2015

Ron, I believe Pamela was saying politicians are using fear to further their own political agenda. This is particularly so with the PM & Scott Morrison. The separation of powers, intrinsic to a functioning democracy, is being shamefully eroded by this ultra conservative Liberal government. This article succinctly puts the case. Dare I say all Australians who do not have sympathy for terrorist causes want Australia to be free of terrorists. However, if terrorism is committed by Australians, they are Australia's problem. They should be tried like any other criminal in a court of law, not by a politician who decides their guilt with no recourse for the accused. The Liberals seem hell bent on usurping the legal system to suit their political agenda. This makes me very scared!
Mary | 17 July 2015

Thank you Kerry Murphy for this most interesting article. Yes, it matters how we label wrongdoers. The Bikie laws in Queensland are a good examples of what not to do in response to fears: they are strongly objected to. We need to address the crime, but people should remain innocent until proven guilty. When the government uses these sloppy labels to define people they want to prosecute, they do it for propaganda purpose. I also do not want terrorists in Australia, but I want to see continued respect for the law.
Eveline Goy | 19 July 2015


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