With the NSW Department of Public Prosecutions charged 21-year old Zeky “Zak” Mallah under Federal Anti-terrorism laws, the grey areas of this controversial legislation have largely escaped any public scrutiny.
Mallah allegedly planned to attack the ASIO offices in Sydney, take hostages and die a martyr.
The NSW Central Court also heard a recording in which Mallah allegedly claimed “My target is ASIO because I strongly believe that they have mistreated many Australian citizens…” and that he wanted to “take revenge” on the Government after it refused to grant him a passport to travel to Lebanon.
The likelihood of a conviction, and the decision to prosecute Mallah under Federal laws, ultimately comes down to what constitutes a “terrorist act” according to Australia’s law enforcement communities and the judiciary.
Mallah’s alleged actions, if proven true, would be consistent with most Australian’s general understanding of what constitutes planning a terrorist act.
Most standard definitions of terrorism involve the use, or threatened use of violence, to intimidate the public or the government, in order to advance a political, religious, or ideological cause.
While discussing the ongoing Mallah case is legally problematic, analysing previous and future cases indicates how grey our Federal terror laws are.
In mid July David Mark Robinson was not convicted due to mental impairment after a failed bid to hijack a flight between Melbourne and Launceston. He intended to crash the plain into the Walls of Jerusalem National Park.
Despite the fact that hijacking aircrafts is a terrorist act and Robinson’s goals, to bring about Armageddon is a religious cause, he was never tried under Federal terror laws.
Clearly Robinson’s mental condition was considered by prosecutors. Had he been charged under Federal Terror laws, there was a distinct possibility a plane hijacker would not receive a conviction because of his religious delusions. A very interesting legal precedent.
If Robinson was a Muslim who claimed Allah had chosen him to crash a hijacked plane into a Tasmanian National Park, would public prosecutors be more willing to use federal terrorism laws?
Many Australian Islamic leaders have expressed concerns that Federal terrorism laws will be used solely to target Muslims.
All seventeen groups on the Federal government’s prescribed terrorist groups list are Islamic fundamentalist organisations. Terrorist organisations absent from this list include the Shining Path in Peru whose speciality is hostage taking, the Tamil Tigers in Sri Lanka who regularly use suicide bombers, and ETA in northern Spain.
Islamic leader’s fears of discrimination could be eased with the addition of far-right hate organisations in Australia to the prescribed terrorist groups list.
Many of these groups have a long history of violence and intimidation against Jews, Asians, and Muslims, with the express political aims of creating a white Australia.
Their activities are consistent with the standard definition of terrorism, yet groups such as the Australian Nationalist Movement, Australian Nationalist Workers Union, White Power, and Stormfront are not considered terrorist organisations by the Attorney General.
These groups have a geographically diverse membership due to the internet being used to attract new people, but there are pockets of extremists who meet regularly and organise events beyond hate-speech in cyberspace.
Perth has experienced an increased campaign of graffiti and firebombing against synagogues, Muslim businesses, and Asian restaurants. Thousands of Australian Nationalist Movement posters declaring “Africans Out” have also been plastered around the West Australian capital.
The response to the Perth attacks saw calls for tougher racial vilification laws rather than charging those responsible under Federal anti-terrorism laws.
In reality “terrorism” has a very narrow definition within Australia’s law enforcement community, with a person’s ethnicity, rather than their activities, being a crucial factor in determining what constitutes a terrorist act.
With two Australian Nationalist Movement members charged with the latest attacks and threats in Perth, there hasn’t been any move to apply new anti-terror laws in this case.
Comparing the Mallah and Perth hate-crimes cases, it seems public prosecutors are more willing to use terror laws on a Muslim acting as an individual, rather than members of an organisation that has taken part in a decade long campaign of violence and intimidation.
According to the Attorney General Australia’s anti-terrorism laws would, “strengthen Australia’s ability to prosecute related offences under our counter-terrorism laws, which make it an offence to belong to, direct, recruit for, train with or provide training for, and receive funds from or make funds available to a terrorist organisation, whether in Australia or abroad.”
If the Federal government is serious about applying their anti-terrorism laws to all Australians, the Attorney General would list the Australian Nationalist Movement as a terrorist organisation and remind convicted firebomber Jack van Tongeren that recruiting for, or having financial ties with, people who carry out terrorist acts can carry penalties of up to 25 years imprisonment.
Iain Lygo is the author of News Overboard ; The Tabloid Media, Race Politics and Islam. [email protected]