Like what you've read?

On Line Opinion is the only Australian site where you get all sides of the story. We don't
charge, but we need your support. Here�s how you can help.

  • Advertise

    We have a monthly audience of 70,000 and advertising packages from $200 a month.

  • Volunteer

    We always need commissioning editors and sub-editors.

  • Contribute

    Got something to say? Submit an essay.


 The National Forum   Donate   Your Account   On Line Opinion   Forum   Blogs   Polling   About   
On Line Opinion logo ON LINE OPINION - Australia's e-journal of social and political debate

Subscribe!
Subscribe





On Line Opinion is a not-for-profit publication and relies on the generosity of its sponsors, editors and contributors. If you would like to help, contact us.
___________

Syndicate
RSS/XML


RSS 2.0

The tricky problem of defining terrorism

By Ben Golder and George Williams - posted Friday, 11 March 2005


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.

Advertisement

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.

  1. Pages:
  2. 1
  3. Page 2
  4. All

This is an edited extract from “What is ‘Terrorism’? Problems of Legal Definition’ (2004) 27 University of New South Wales Law Journal 270.



Discuss in our Forums

See what other readers are saying about this article!

Click here to read & post comments.

9 posts so far.

Share this:
reddit this reddit thisbookmark with del.icio.us Del.icio.usdigg thisseed newsvineSeed NewsvineStumbleUpon StumbleUponsubmit to propellerkwoff it

About the Authors

Ben Golder teaches law at the University of East London (UK) and is an Associate of the Gilbert and Tobin Centre of Public Law at the University of New South Wales.

George Williams is the Anthony Mason Professor of law and Foundation Director of the Gilbert + Tobin Centre of Public Law at the University of New South Wales.

Other articles by these Authors

All articles by Ben Golder
All articles by George Williams
Article Tools
Comment 9 comments
Print Printable version
Subscribe Subscribe
Email Email a friend
Advertisement

About Us Search Discuss Feedback Legals Privacy