It’s hard to decide which development is more shocking: Nazis inciting racial hatred with impunity outside the NSW parliament, this week’s McKinnon Index showing 9 per cent of the community supports political violence, or the Australian Human Rights Commission’s plan to change the terror laws.
All three events raise big issues from a rule of law perspective. But in a close race, the Human Rights Commission has its nose in front.
Consider what its latest policy would mean for the principle that we should all be subject to the same law which should be applied equally, regardless of race, religion or national origin.
On October 21, the commission told a federal inquiry the definition of terrorism should no longer refer to attacks that have a religious motivation.
Its reasons are memorable. But first, some context.
The commission made its suggestion at an inquiry being conducted by the government’s Independent National Security Legislation Monitor, Jake Bright, who is a former Deputy Inspector-General of Intelligence and Security.
Bright’s researchers have already reviewed the outcomes in 83 terrorism cases and found that 95 per cent involved religion as at least one of the motives.
He published that finding in an issues paper that says all those cases involving religiously motivated terrorism referred to Islam or the accused’s distorted interpretation of Islam.
And that is what this issue is all about: does the disproportionate presence of Islam – or a distorted version of that religion – in terror cases mean the definition of terror is unfair to Muslims?
Or does it mean the neutral term “religious”, when used in these laws to describe one of the possible motivations for terrorism, is working as intended regardless of whether those convicted are mainly Muslims?
Leaders of the Islamic community are quite naturally distressed that the public image of their faith has been tarnished but they believe this is due to the law – despite the fact that it makes no reference to Islam.
Victoria’s Muslim Legal Network recognises that the terror laws do not explicitly equate Islam with religious motivations for terrorism, but it believes “the application on the ground has overwhelmingly targeted Muslims”.
The Islamic groups that took part in this inquiry are significant. They include the Australian Federation of Islamic Councils and the Muslim Advocacy Network.
They all want the terror laws changed.
And so does the Human Rights Commission. It believes removing the reference to religiously motivated attacks would not mean watering down the concept of terrorism.
This is because it believes conduct currently characterised as terrorism would still be captured by a revised definition that would refer only to political or ideological motivations.
There are three points to be made about this. The first is that the idea that this would not amount to watering down the terror laws is contested by the main victims of terror attacks, the Jewish community.
Jillian Segal, the government’s special envoy on anti-semitism made this clear.
If religiously motivated conduct is removed from the definition of terrorism, Segal suggested that an accused person might then argue that their motivation was indeed religious – and therefore outside the scope of terror laws.
Her argument is compelling. If parliament removes the religious motivation for terrorism, judges will interpret that as meaning parliament does not want religiously motivated attacks to be treated as terrorism.
The second point is that the commission’s view on terror laws is at odds with those of the main counter-terrorism agencies – ASIO and the AFP.
“ASIO supports the current structure of the terrorist motives component of the definition, in particular as it enables the application of accurate descriptors to terrorist acts,” the spy agency said in its submission.
The AFP warned that any unintended narrowing of the definition could make it more difficult for investigators to access special counter-terrorism powers and obtain successful prosecutions.
It said the current definition of terror was “robust and effective”, had been in place for many years and aligned with the definition used by key international law enforcement agencies.
Similar concerns about changing the terror laws have been expressed by NSW Bar Association, the Australian Lawyers Alliance, the Executive Council of Australian Jewry and the Home Affairs Department.
They all see no benefit in excluding religiously motivated attacks from the definition of terrorism.
The final point is this: The Australian Human Rights Commission has aligned itself at this inquiry with a range of Islamic groups who believe the terror laws are unfair.
The main law enforcement agencies and two peak organisations representing the legal profession have all rejected changing the definition of terrorism in the way proposed by the commission.
In those circumstances it’s difficult to see how Bright could side with the commission. Its proposal looks like going nowhere.
The law is framed in neutral terms. There is no doubt, however, that its application is having a disproportionate effect on terrorists who are Muslims.
If that is leaving a stigma on “particular religious communities”, as the commission puts its, the blame does not rest with the law.
Bright’s report will go to the Attorney-General, Michelle Rowland, whose own department is among those who believe religiously motivated attacks should continue to be defined as terrorism.
“The definition applies equally to all religious causes, as it does to all political and ideological causes,” the Attorney-General’s Department said in its submission.
Removing religiously motivated acts from the definition “risks the definition being interpreted more narrowly”, the department said.
At the moment, no religion receives special treatment. That should continue.
