AbstractThis thesis constitutes a socio-legal discourse that explores the challenges associated with contemporary terrorism (later defined in the work as “post-modern terrorism”) and Australian law-making in the post-9/11 security environment. It aims to provide a unique insight into the important issue of how Australian anti-terrorism law has developed to meet the security challenge to civil society that the enduring threat of terrorism poses.
Terrorism is one of the darkest manifestations of human behaviour. It is orchestrated by people who consider that revolutionary change is only achievable by engaging in violence motivated by political, religious or ideological beliefs, and done with the intention of coercing or intimidating governments, the public or a section thereof. Terrorism is hardly a new phenomenon. There are historical examples depicting terrorism throughout history, such as the Sicarii in first-century Judea, the French Reign of Terror in the late eighteenth century, the anarchist movements of the 1880s and 1890s, the totalitarian regimes of the early to mid-twentieth century, the nationalist and left-wing terrorists of the mid-twentieth century, to the current day scourge of right-wing and Islamist terrorism (the latter exemplified by Al-Qaeda and most recently by Islamic State). The globalised nature of post-modern terrorism brings into sharp focus the need for strong anti-terrorism laws to manage these threats.
However, the development of Australian anti-terrorism law has not been without controversy. The proactive response taken to the legal regulation of terrorism in Australia following 9/11 has been the subject of sustained and trenchant criticism by legal scholars, often with good reason. This thesis addresses the question of whether the legislative framework represents an appropriate response to the threat of terrorism in the contemporary environment. Unlike previous legal research in this area, this question is first approached by considering the nature and scope of the post-modern terrorist threat, before moving on to other relevant considerations. It stresses the value of a multi-discipline approach, which acknowledges that anti-terrorism law and policy are heavily influenced, even shaped by, history, sociology and religion.
Part One establishes that the threat of post-modern terrorism is present, ongoing and dynamic and that terrorist attacks have increasingly been diffuse, non-hierarchical and unpredictable. As part of this analysis, the early chapters deal with topics like the historical evolution of terrorism, the trends and challenges specific to post-modern terrorism, and the nature of post-modern terrorist attacks in Western countries since 9/11 (noting, for example, an increased organisational and operational dispersion). To this end, a new approach for conceptualising post-modern terrorism is developed and discussed in relation to the problem.
Part Two examines the Australian counterterrorism legislative framework. It is argued that the Australian approach, characterised by comprehensive legal regulation, is appropriate given the nature of the post-modern terrorist threat. Later chapters consider a range of issues, including the scope of Australia’s anti-terrorism laws (including federal criminal offences), jurisprudence in relation to the prosecution of terrorists, defects in the legal regulation of terrorism (and the extent to which these defects should invalidate laws), and studies of anti-terrorism legislative schemes that are representative of preventive law-making in the post-modern epoch.
In the end, the Australian counterterrorism legislative framework is shown to be shaped by the terrorist threat itself. Hence it is proactive in its response and reflexivity, and thereby provides an explanation of law-making in the context of post-modern terrorist threats.
|Date of Award
|9 Feb 2022