More and more, the Australian Government, ASIO and field experts have pointed to the need to take an ‘ideology-neutral’ approach to violent extremism. But do our laws allow this, or are they designed to promote a focus on one community above others?

To understand this, we have to look at the way these laws have been used.

A 45-year-old white Australian man in Adelaide took steps to manufacture a ‘Mother of Satan’ high casualty explosive. Online, he posted support for Christchurch terrorist Brenton Tarrant and held a copy of the mass shooter’s manifesto and a mass of hate materials on his phone.[1]

Before this incident, two 16-year-old Muslim boys in Sydney bought two bayonet knives in a gun store. They wrote a handwritten pledge to the ‘caliph.’[2] One boy had a history of refusing to stand for the national anthem at school, and was found to watch ISIS videos online.

These two boys received 16 years in  jail for planning a terror attack. The man in Adelaide, received just over 3 years and escaped the terror label, because he was prosecuted under state laws. Arguably, he could have been prosecuted under terror laws as a white nationalist.

My argument is not that he should have got 16 years – but the line between state laws and terrorism offending needs to be clear.

It is acknowledged that the details are not thoroughly known, but based on those reports, there are serious questions about the standards of justice used to measure and deliver terror convictions.

It appears that almost every Anglo-Australian who has possessed weapons, extremist materials and shown signs of plotting a terror attack has been charged under far less serious offences at the state level, and avoided the ‘terrorist’ label.

Rather than receiving sentences of 16[3], 18[4], 13[5] years – they have received sentences of three years jail[6], three years good behaviour bond[7], seven years (including child porn charges)[8] or even one month in prison, and a $5000 fine. [9]

Post traumatic disorder has been considered in their sentencing[10], as opposed to terrorism cases, where a host of factors normally considered in sentencing has not. For example Muslim offenders of reduced cognitive function[11], or minors[12], have been deemed to warrant terrorism penalties. The grooming of a child towards terrorism has also been rejected.[13]

Australia’s definition of terrorism requires an intent to coerce or influence the public or government through intimidation to advance a political, ideological, or religious cause.

From these cases and our discussions with police, it appears that the motive test for terrorism is much harder to prove when the offender is not a Muslim. It’s easier to achieve convictions under state criminal laws. Especially where the individual’s beliefs are not connected in any way to the agenda of an organisation on Australia’s terror list. And there are no right-wing violent extremist organisations on that list.

Following the Cronulla riots, a Muslim woman was stabbed in the stomach in broad daylight by a stranger who said she wanted to kill a Muslim. Convicted of malicious wounding, the perpetrator was sentenced to a reduced 2 year sentence due to mental illness. There was no hate crime offence in NSW that she could be charged under (and still, there is none).

However, if the tables were turned, and a Muslim woman had stabbed another woman, because she wanted to kill a Westerner, would it have been treated as a terror event? While the boundaries of hate crime and terrorism are undefined in Australia, given the nebulous territory of ‘religious motive’ under terror laws, it could have led to a terror conviction.

Field experts engaging directly with radicalising extremists have attested to the dangers of double standards at law in fuelling victimhood and narratives about a clash of civilisations that are alive across the spectrum of extremist movements.

In 2019, the Australian Federal Police investigated a very young Somali Muslim for buying a one-way ticket to Somalia. They lacked evidence to press terrorism charges, but when he refused to provide his mobile pin, he was incarcerated for more than 400 days. When he was released, a tracking device was attached to his ankle.

This young man was spiralling in terms of mental health. In December 2020, he was shot dead by police while wandering on the highway with a knife. Within a day or so, police framed the story as a ‘terror event’ – as  the young man was linked to the double homicide of an elderly couple in their home.

Some will argue that the boy’s eventual offending was proof that he was a radicalised ISIS supporter. But there is a difference between double homicide and terrorism in terms of intent.

This begs the question, what is required to demonstrate radicalisation, and indeed an intent to carry out terrorism. Did the young man intend to coerce the government or public through violence, and if so, for what cause? Being Muslim, a one way ticket, and a refusal to provide a pin – is that sufficient to prove a religious cause? Is screaming Allahu Akbar sufficient to prove a religious cause? What if he was driven to rage by a ‘system’ that ‘hates Muslims’, and committed a double homicide out of such rage and hatred? Is that a religious cause?

I would say not. But the law is not capable of differentiating between this and terrorism, nor is motivated to. Another factor pushing against scrutiny is the sense that the broader community is happy for Muslims to be policed at any cost.

The young man’s father told 7 News, “When our children, our young people are going through a mental crisis, an identity crisis… they are easily labelled ‘radicalism'”.[14] We fear that counterterror laws are compounding that crisis, and working in counterproductive ways.

The effects bleed out into the broader Muslim community through the media coverage that follows.

Although the police did not explicitly allege him to be a radicalised ISIS supporter (as they were yet to allege a motive) their decision to officially label it as a ‘terror event’ enabled the 114 media stories that then ensued, with headline references to the young man such as ‘Radicalised ISIS Supporter,’ ‘Wannabe radical,’ ‘Homegrown terror,’ ‘known extremist,’ ‘SHOT JIHADIST,’ ‘Shot Jihadi,’ ‘Police gun down ISIS radical,’ ‘ISIS Radical Gunned Down on highway,’ ‘Killed ISIS fanatic yelled ‘llahu Akbar” as he attacked police.’ Headlines that falsely suggested he was shot because he was a terrorist.

In terms of hate speech and abuse against the Muslim community at large, the repercussions and the grief that this creates are immense.

It is not media stereotyping that flows from law’s focus on ‘religious cause’. In terrorism cases, Justice Fagan asked a defendant to publicly disavow specific verses of the Qur’an[15]. Justice Fagan’s assumptions opposed research, which show that being deeply and personally religious and knowledgeable of your faith reduces the chances of becoming radicalised. [16]

People of all backgrounds are socialised to violence.[17] While many Muslims are concerned about Justice Fagan’s approach, I am even more concerned with the legal framework that seems to have enabled it.

Only a handful of countries require a motive, and even less which stipulate religious motives. Victoria’s Expert Panel on Terrorism and Violent Extremism Prevention (2017) argued that Australia should remove these motive elements from the offence of terrorism and instead require an intention to terrorise.[18]

It pointed out that under the current laws, Monis, who carried out the Lindt café siege, would have likely not met the test for terrorism because he didn’t have a clear religious, political or ideological motive.

I agree, but there are merits in combining an intention to terrorise with a political motive. It might help to justify the long-term penalties and distinguish from state weapon-based and ‘intent to harm’ offences.

‘Political motivations’ captures the conduct of someone who is seeking to violently deny the diversity and pluralism of Australia’s society by acting against Australia’s policy of multiculturalism, or by violently advancing the political agenda of a terror group.

‘Religious motivations’ is unnecessary. It should go because it links Islam and terrorism together in the public’s mind, enabling hostile sentiment towards Muslims and contributing to the current strength of right-wing groups.

Canadian,[19] Australian,[20] US,[21] and UK[22] research has found Muslims to be a favoured ‘out-group’ around which radical right-wing activism or extremism coalesces. Anti-Muslim content is considered a gateway to ‘gradually introducing more racially and politically extremist messages to a large audience of potential supporters.’[23]

Before the Christchurch attack, it seemed to be only Muslim experts saying, ‘stop making it about the religion; treat all violent extremism the same.’ Now there is a growing consensus that singular and politicised approaches of the past have been destructive and counterproductive.  Encouragingly, the official line has moved to ‘we treat all threats the same, regardless of ideology.’

But can these laws deliver an ‘ideology-neutral’ approach to countering violent extremism? Most likely not. Will these laws continue to have dangerous counterproductive effects? Yes. Australia’s Inquiry into Extremist Movements and Radicalism will have to bring fresh eyes to the definition of terrorism.

Rita Jabri Markwell is a lawyer and adviser based with the Australian Muslim Advocacy Network (AMAN), a national body engaged in policy dialogue, political advocacy and litigation, to achieve social harmony, inclusion and security for Australian Muslims.  @JabriRita

 See AMAN’s full submission to the Inquiry here.

 References/Footnotes:

[1] https://www.abc.net.au/news/2020-09-08/adelaide-man-sentenced-over-mother-of-satan-explosive/12640830

[2] https://www.9news.com.au/national/teenager-jailed-over-allegedly-planning-bankstown-terror-attack/f48a2a28-37c6-4d28-92c5-1784c131ecc3

[3] Ibid

[4] https://www.smh.com.au/national/18-years-jail-for-army-terror-attack-plan-20111216-1oy3f.html

[5] https://www.abc.net.au/news/2017-11-03/terror-plotters-sentenced-for-planning-attacks-in-nsw/9114866

[6] Above n 1.

[7] https://www.abc.net.au/news/2020-05-06/james-waugh-sentenced-for-threats-to-behead-christians/12219698

[8] Harriet Alexander, ‘White supremacist Michael Holt sentenced to 4.5 years for weapons child porn offences’,  Sydney Morning Herald, 29 September 2017. < https://www.smh.com.au/national/nsw/white-supremacist-michael-holt-sentenced-to-45-years-for-weapons-child-porn-offences-20170929-gyrmuf.html>

[9] https://www.heraldsun.com.au/news/law-order/melton-antiislam-rally-weapons-seized-ahead-of-protest/news-story/e2b89a849ae64649fb3ab351ba27412a

[10] The Adelaide individual was found to have PTSD from a former car accident, and was invited by the judge to  reconsider his anti-Islamic beliefs while on parole. Above n 1.

[11] Above n 4.

[12] Above n 2; 5.

[13]  Above n 5.

[14]  7 news interview with father, https://fb.watch/3Fy_O_OR2M/

[15]  https://www.smh.com.au/national/nsw/judge-calls-on-muslims-to-publicly-disavow-violence-in-koran-20190131-p50uvy.html

[16]  Johannes Beller and Christoph Kröger, ‘Religiosity, religious fundamentalism, and perceived threat as predictors of Muslim support for extremist violence’ (2018) 10(4) Psychology of Religion and Spirituality 345; Anne Aly & Jason-Leigh Striegher, Examining the Role of Religion in Radicalization to Violent Islamist Extremism’ (2012) 35 Studies in Conflict & Terrorism 12; Anthony Cordesman, ‘Islam and the Patterns in Terrorism and Violent Extremism’ (Center for Strategic & International Studies, 17 October 2017).

[17]               Shandon Harris-Hogan & Kate Barrelle (2020) Young Blood: Understanding The Emergence of a New Cohort of Australian Jihadists, Terrorism and Political Violence, 32:7, 1391-1412; Adrian Cherney , Emma Belton , Siti Amirah Binte Norham & Jack Milts (2020): Understanding youth radicalisation: an analysis of Australian data, Behavioral Sciences of Terrorism and Political Aggression,

[18]               Expert Panel on Terrorism and Violent Extremism Prevention and Response Powers Report 2, 2017, accessed online < https://www.vic.gov.au/sites/default/files/2019-02/Expert-Panel-on-Terrorism-Report-2.pdf>

[19]             Jacob Davey, Mackenzie Hart and Cécile Guerin, ‘An Online Environmental Scan of Right-Wing Extremism in Canada: An Interim Report’(Institute of Strategic Dialogue, June 2020). Anti-Muslim and anti-Trudeau rhetoric are the most salient topics of conversation among RWE actors in Canada. On Twitter we found that highly prolific extremist users were more likely to be engaged in anti-Muslim conversation, and spikes in activity often contained anti-Muslim conversation. Similarly, on Facebook we found that Muslims were the most widely discussed minority community, and the most common target of posts containing explicit hate speech (23%), with anti-Semitism being the second largest grouping of hate speech (16%).

[20]             Mario Peucker, Debra Smith and Muhammad Iqbal, ‘Mapping Networks and Narratives of Far-Right Movements in Victoria’ (Project Report, Institute for Sustainable Industries and Liveable Cities, Victoria University, November 2018), 7.

[21]             The Institute for Strategic Dialogue conducted weekly analysis of online hate communities in the lead up to US 2020 election called ‘Lens on Hate’. From these records, they frequently identified anti-Muslim communities to be the top five most active hate communities.

[22]             William Allchorn and Andres Dafnos, ‘Far Right Mobilisations in Great Britain: 2009-2019’ (Center for the Analysis of the Radical Right, October 2020).

[23]             Peucker et al, above n 20.