A definition should make a specific exclusion at least in favour of advocacy, dissent and industrial action. While the general approach is preferable in that it represents a more unified and prospective approach to the legal regulation of terrorism, and makes a more compelling political statement, we must be vigilant to ensure that any description of the subject matter does not impinge unduly on democratic rights and freedoms. The UK and US definitions are dangerous because they may extend to acts of public protest and industrial action. Counter-terrorist legislation can be justified in the offences it creates, and the breadth of the powers that it gives to investigative and enforcement agencies, only to the extent that it actually addresses credible threats to a democratic system. It must not provide a basis for the investigation and persecution of legitimate (even if unlawful) dissent within a society.
Should the legislature or the judiciary should play a greater role in the process of legally defining terrorism?
Which arm of government should play the greater role in defining terrorism? Given that within our legal system any legislative definition of terrorism would unavoidably be subject to judicial interpretation and elaboration, this question is not really an “either-or” question, but rather it is a question of which branch of government should play the leading role. Whether Parliament or the courts define “terrorism” is really a question about how the task should be shared and, in particular, whether Parliament should define as little as possible so as to leave the maximum scope for judicial development.
Almost all the current legal definitions of terrorism have been made by parliaments. The case for allowing judges a greater role in the definitional process is that the common law judicial method (in which the law is developed slowly over time and in response to individual cases coming before the courts) is suited to developing a nuanced and considered definition of terrorism, and one that can better respond to the exigencies and the justice required of a particular case. However, the legislature should take the lead role. The most important reason for this is that, as a representative and democratic forum, parliament is the best place in which to deliberate over what constitutes terrorism. “What is terrorism?” is a question of politics as much as law and should be conducted through open public debate and media scrutiny.
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The Australian experience bears this out. The first round of Australian counter-terrorism legislation took many months to pass through federal Parliament because of intense public scrutiny and the work of parliamentary committees that successfully recommended many changes. These changes saw specific exceptions made to the general definition of terrorism, which was amended and narrowed through the participation of concerned individuals and groups within the democratic process.
This is an edited extract from “What is ‘Terrorism’? Problems of Legal Definition’ (2004) 27 University of New South Wales Law Journal 270.
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