Religion as a Motive – Does Australian Terrorism Law Serve Justice?

Abstract

This article will examine whether the category of religiously motivated terrorism serves justice in Australia, first considering its lawfulness from a human rights perspective and, secondly, examining its operation in the courtroom. Judicial comment in two cases, the subject of national media attention and complaints to the (New South Wales) NSW Judicial Commission, were used as a basis. This article finds that efforts to establish a ‘religious cause’ were stifled by complexity and ambiguity about the difference between Islamic adherence and violent extremism. Bias-prone assumptions had observable implications for the judicial assessment of the defendant’s culpability and rehabilitation prospects. Moreover, judicial reasoning seemed to overlook evidence of an intent to coerce the government or intimidate the public, treating religious beliefs and motives as a vehicle to establish intent. The article concludes that judicial education could help. Still, those measures would not fix the core of the problem. By removing the motive element, the issues would be avoided while focusing attention on the remaining intention elements. An alternative option is to remove ‘religious cause’ so that terrorism cases must demonstrate ‘ideological or political cause’, encouraging more precise and comparable reasoning across offending contexts.