Is “Fake” Terrorism Still Terrorism? Here’s What the Sydney Caravan Incident Tells Us
These do not rely on the definition of the terrorist act, so the motive requirement explained above need not be proven. However, they apply only in very specific cases, similar to copycat anthrax attacks, in which someone uses the postal service to induce a false belief that an article contains an explosive or dangerous substance (for example, if someone sends a letter containing harmless white powder with a threatening note).
A similar offence applies where someone uses a carriage service to make a hoax threat. This could apply if an organized criminal group phoned in a fake bomb threat.
This sounds quite similar to recent events, but the offence relates to the use of a carriage service to make a fake threat – not the discovery of real explosives.
This might seem a ridiculous conclusion: that the threat was actually not fake enough. If an organized criminal group phoned in a “genuinely fake” threat, they could have been prosecuted under federal terrorism laws, but not if they planted real explosives.
This is a product of trigger-response lawmaking in terrorism. The postal hoax laws were drafted in direct response to events in the US after 9/11, and the legacy remains.
In any case, the hoax offences do not attract any higher penalties than the ones being charged. In NSW, destroying or damaging property with fire attracts the same maximum penalty of ten years’ imprisonment.
Political and Community Needs
It is important to remember that police and prosecutors will make decisions to pursue specific charges based on the evidence available and the likelihood of a successful conviction for the highest penalty.
This will be based on their previous experience. If they believe they can secure a conviction for arson or property damage, but a case for terrorism or hoax terrorism might fail, they will prefer the charges with the higher chance of success.
As members of the wider community, we may wish to see different or additional charges laid, but we will not know all the evidence behind a decision to allege one crime or another.
Police and prosecutors are not infallible, but we can trust they will aim to secure the highest available penalty.
It is understandable that governments, the opposition and the wider community want clear statements and answers about whether a crime is terrorism or not. Unfortunately, this level of clarity is not always available.
In the midst of a crisis, such as the Sydney Lindt Cafe siege or Wieambilla ambush, it can be difficult to know all the circumstances that gave rise to the event, and an offender’s motivations.
In the aftermath, it can take months – even years, through major inquests and inquiries – for consensus to arise. Even then, views on whether a given act was terrorism may still differ.
The most definitive answer comes when a jury of 12 community members finds an offender guilty of terrorism beyond reasonable doubt. Unfortunately, this sort of clarity is not always possible, because the evidence available means a terrorism charge was not pursued, or an offender was killed in the attack.
It is rarely an urgent question for governments and communities to know whether organized crime activities will be prosecuted under one law or another, but terrorism provokes a special, understandable concern – especially in the current environment. It reflects valid community needs to denounce antisemitism as terrorism and achieve justice for victims.
But justice can be achieved regardless of the specific charges that police and prosecutors pursue. Better that they secure convictions, even for “lesser” crimes in the community’s eyes, than they seek terrorism charges and fail.
Keiran Hardy is Associate Professor, Griffith Criminology Institute, Griffith University. This article is published courtesy of The Conversation.
