Section 101.1 of the Commonwealth Criminal Code provides, in substance, that the expression "terrorist act" means an act (or threat to act) intended to advance "a political, religious or ideological cause" (the motivation element) and to coerce or intimidate any government or the public or a section thereof and which causes death, serious harm or danger to a person,serious damage to property, a serious risk to the health or safety of the public, or serious interference with, disruption to, or destruction of critical infrastructure.
The inaugural Independent National Security Legislation Monitor (INSLM), Mr Bret Walker SC, described the motivation element as ineffective, inappropriate, unnecessary, contrary to the large volume of UN conventions, resolutions and Committee comments which all condemn terrorist acts as criminal regardless of motivation, and possibly counter-productive in that it could provide an accused person with a platform to politicise the trial process by offering extensive evidence about the true meaning of often ambiguous religious and political beliefs.
However, Mr Walker also noted that proof of statements couched in zealously religious or pious terms has utility. It could be good evidence of the nefarious purpose of the accused, and that, typically, hostile and hateful statements against persons described in terms conveying their status as infidels or heretics would go a long way to proof of an intent to intimidate that section of the public or a government identified with such people – the purpose that makes an offence a terrorist offence. Such entirely proper use of religious matters in proof of a terrorist offence does not involve proof of any identified body of doctrine let alone sincere belief by the accused.
The expression "terrorist act" was obviously intended by the legislature to reach even "the crude work of one man acting alone" (deranged or not) –if that is what it was – such as the ghastly taking and killing of hostages which occurred at the Lindt Café in Martin Place, Sydney on 15/16 December 2014.
Given the manifest religious character of what is (and, in the case of his web site, was) on the public record about the past conduct of the hostage-taker, Man Haron Monis, including his clerical claims, and his overt conduct during the hostage taking, it is more than passing odd that a prominent feature of the ensuing discussion and debate has been the unequivocal claim, especially voiced by the Fairfax/ABC media alliance, that the killer's actions had nothing to do with religious faith.
For the hostages and their families and friends, if not for a large section of the Australian public, it might seem to be trivialising their anguish to be suggesting, as many of the same commentators have, that the hostages were not terrorised by Monis and that we ought therefore not only not refer to religion, but also eschew the use of the word, "terrorism".
Those same Australians would probably detect both arrogance and ignorance in such commentary; the first, in the way the pundits (many of them doubling as armchair psychiatrists) have confidently asserted that some believers embrace inauthentic or immoderate or non-mainstream versions of any given set of religious beliefs, an assertion unaccompanied by any consideration of the relevant beliefs, and, the second, in the narrow, forced and ahistorical view of the religious domain.
The "nothing to do with religious faith" case misconceives the concept of religion in its conventional monotheistic manifestations and is yet another device used to censor, selectively, the open public discussion of controversial religious ideas, beliefs and practices in order to prevent offence being taken by believers.
What is religion?
The expression "religious cause" was chosen because of the re-emergence around the globe of religiously inspired mass murder and destruction.
In its report, Freedom of Religion and Belief in 21st Century Australia(2011) the Australian Human Rights Commission (AHRC) gave its imprimatur to the following baffling definition of religion – and this before alluding to the vexed question of "spirituality":
Religion can be taken to refer to an organised form of maintaining, promoting, celebrating and applying the consequences of engagement with what is taken to be ultimately defining, environing, totally beyond, totally other, and yet profoundly encountered within life. These activities are usually done by or in association with a group, an organisation and/or a community.
So far as the AHRC is concerned, that definition encompasses the three main monotheistic religions. It is clear enough, however, that its failure to refer explicitly to belief in a supreme being or an afterlife is incompatible with each of them. It needs to be noted that the monotheism of those three belief systems transcends class, clan, tribe, language, ethnic and geographical attachment, race, sex, nationality and the amorphous catch-all attribute, "culture". The teachings of each such system asserts, in its own unique way, that it is the one divinely revealed (or divinely inspired) complete system of truth governing the entirety of earthly life.
To assess a claim that any given episode of violent human behaviour has "nothing to do with religious faith", it at least needs to be recalled that, down the ages, religion has been characterised by (a) dogmatism and fanaticism, (b) endless disagreements about what sacred texts mean, permit, require, and prohibit (and about who is entitled to opine thereon), (c) everything on a spectrum of complete unchanging doctrinal rigidity from ancient inception to regular doctrinal adjustment mirroring the advancement of scientific knowledge about the physical universe, (d) messianic competition for adherents and converts, (e) persecution of blasphemers, heretics, apostates and schismatic sects and cults, (f) charlatanism, (g) a tendency for zealotry to produce or exacerbate psychological disorder, (h) a conviction that martyrdom is the ultimate form of religious expression, (i) entanglement with political ideology leading to state religions and theocratic forms of government, and (j) resort to violence against non-believers, both within and between denominations.
Whatever might be said about the positive contribution religion makes to society, at the end of the (modern secular) day, there is no good reason why the content of religious ideas and beliefs (as distinct from the right to hold and express them) should have any preferred claim to legal protection.
On the contrary, if there is any specific category of ideas which ought not be immune from questioning and denigration, it is those which have survived not because of their intrinsic value, but only because they are drummed into the heads of innocent babes on the basis that, when they reach adulthood, they cannot be permitted to think for themselves.
The prevailing ideology of multiculturalism preaches a worthy liberating gospel of minority "identity" diversity, but it permits little if anything in the way of criticism that multiculturalism may have insoluble contradictions which produce grave anti-social effects. For example, its exponents have to find a way of dealing with the fact that some religious faiths regard homosexuality as evil and treat women as the inferiors of men.
In contemporary Australia attention is diverted from questioning of the content of such religious ideas by linking them with adventitious typical cultural or ethnic connections of relevant believers. The claim that criticism of religious ideas, beliefs and practices amounts to racism is near the apex of powerful social inhibitors of free speech.
The contemporary disinclination in government and parts of the mass media and academia topermit discussion and debate of the content of religious ideas, beliefs and practices is flagrantly sectarian. It does not, for example, apply to the Catholic Church's teaching on abortion, contraception, priestly celibacy, female clergy, homosexuality, and same-sex marriage which is never far from the front page and is openly condemned and derided.
It would be naïve in the extreme not to acknowledge that some attacks on religious beliefs and practices are motivated by racial/ethnic/national (and religious) prejudice. However, the religious ideas and practices speak for themselves independently of the mind of the bigot and are recorded for all to consider and judge.
Of all the forced attempts to excise mention of religiously-inspired terrorism from the discussion of the events of 15/16 December last, the contention that to make such a connection would cause or contribute to or incite real religiously inspired terrorism takes the proverbial cake for self-deception. This demand for self censorship is a variation on the heckler's veto, but the feared third party heckler is prepared to murderthose who dare to question his or her religious beliefs.
It was this bizarre inversion of causation of the threat to public order that was deployed to disrupt the lawful peaceful street marches of the then infant Salvation Army until an English Court in Beatty v Gillbanks (1882) set aside the convictions and prison sentences of Salvationists for breaching the peace. They had courageously undertaken street matches knowing that their sworn enemy, the Skeleton Army – the real troublemakers – might riotously disrupt the marches.
The sectarian censorship of public debate about religion – led by the AHRC – becomes curiouser and curiouser when regard is had to the protection for freedom of religion conferred by s 116 of the Australian Constitution which has been held to extend to the freedom to reject religion altogether as rank superstition.
It seems that, to some extent, a small number of people who have settled in Australia in the past generation or two have been misinformed by the authorities about the secular nature of the Australian polity and, in particular, have not been informed about s 116 of the Australian Constitution or about the freedom to reject religious ideas, beliefs and practices and to do so publicly and offensively.
In his first annual report (2011) as INSLM, Mr Bret Walker SC, dared to offer the following secular heresy
One problem that may not have any remedy arises from the demonstrated capacity of terrorism to be motivated by religious beliefs and for religions to have typical cultural or ethnic identifications. Those identifications may not be fair or accurate. Prejudices can elide critical distinctions. The presence of religion in terrorist motivations also adds in most cases the weight of monotheism, a shared attribute of Judaism, Christianity and Islam. Sharing that attribute has not historically linked the People of the Book in close friendship. Such tolerance as monotheism permits is toleration, after all, of others who are held to be wrong. None of this helps to prevent social distrust or hostility when different ethnic and cultural groups travel or migrate, including in settler societies such as Australia. The success of multiculturalism cannot conceal this problem.
"De-radicalisation" – yes or no?
Nowadays, there is a lot of generalised talk about the supposed need for Australian governments to take the lead in securing "de-radicalisation" of (mostly young) persons with terrorist propensities said to be attributable to political, cultural and socio-economic factors. The National Action Plan to Build on Social Cohesion, Harmony and Security (2006) is the nation's response to what was acknowledged to be an imported religious problem.
Insofar as it is possible to make sense of official expositions of what "de-radicalisation" means, there is little reason to be confident that it can be secured and more than one reason to fear that it will do far more harm than good.
As a matter of fundamental democratic principle, the State has no role to play other than, where necessary, to emphasise that violence is intolerable and to enforce the general criminal law regardless of the motivation for violence.
Unwisely, the architects of the 2006 plan, including its opportunistic multifaith movement promoters, chose to entangle the machinery of Australian government further in the substance of religious and related beliefs or practices by seeking to ensure obedience to what is supposed to be the true, correct, or moderate version of religious beliefs.
This is asking for trouble by stirring up sectarian rivalries and animosities. Even so-called "moderates" exhibit resentment and resistance thereby promoting more religious alienation from Australia's secular system of government.