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":
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