Under the Terrorism (Police Powers) Act 2002 in New South Wales there are 3 essential elements to what may constitute a “Terrorist Act” as per section 3.
New South Wales and Queensland, like other States and Territories, have referred power to the Commonwealth to enable the Australian Government to make laws concerning terrorism offences under the Terrorism (Commonwealth Powers) Act 2002.
The definition comes from Section 100.1 of the Criminal Code Act 1995, the Australian Government – Attorney General’s Department website, and is reproduced in Queensland’s legislation under Section 211 of the Police Powers and Responsibilities Act 2000 (Qld).
This means the majority of terrorism-specific offences and definitions are contained in the Criminal Code Act 1995 (Cth) and have been adopted by the relevant States and Territories.
Elements
The elements of a “Terrorist Act” require the act(s) to be done with:
The intention of advancing a political, religious, or ideological cause through
The motive of coercion or influencing by intimidation, the government or Commonwealth or State, Territory or foreign country or part of a state territory or foreign country or intimidating the public or section of the public, and
Action to cause serious harm to a person, such as causing a person’s death, endangering a person’s life (other than the life of the person taking the action), and or creating a serious risk to the health or safety of the public or a section of the public, and or seriously interferes with, disrupts, or destroys electronic systems such as financial, telecommunications, transport public utilities, and or essential government services.
Acts of terrorism do not include advocating, protesting, dissenting or taking industrial action that is not intended to cause serious harm to a person or create a serious risk to public safety.
What do we know so far?
Yes, there was an ideology, however, from all reports, this was not known at the time by the police officers attending the property.
The killers, Gareth, Stacey and Nathaniel Train, were reportedly ‘sovereign citizens’, who espoused anti-government and anti-authoritarian conspiracy theories. They viewed the property as an ark or refuge away from the ever-encroaching tyrannical government and authorities.
One purported post by Gareth commented on the Port Arthur Massacre in 1996 asserts that the massacre, committed by Martin Bryant, was a ‘false flag’ operation to disarm the Australian population by the government.
BUT…
The critical element is, what was known by the police at the time of the event?
On the media information available, what was being investigated was the report of a missing person and concern for welfare.
There is no evidence or information currently or publicly available that there was any intelligence or information on hand that any of the elements of a ‘terrorist act’ were operating in the minds of law enforcement at the time. If there were, there would have been a more substantial and organised response than the sending of two car crews to the property.
Act of Terrorism?
Yes, there is an ideology, but that was not discovered until after the dust settled.
There are reports that authorities may have known this ideology before these tragic events. ASIO has expressed concerns regarding the rising trend in anti-government conspiracy sentiment, but it does not appear to have been communicated. Even if it had, it might not have been of sufficient concern at the time, even following a risk assessment, for there to be a tactical response.
As mentioned above, the information appearing to be at hand was that police were investigating a relatively innocuous missing person report at the request of the NSW Police Force. They did not, and could not have known they were walking into an ambush. This suggests that the elements of a “terrorist act’ were not known in real-time.
Suppose the police did know this ideology in real-time. In that case, the question is, were the acts committed with the intention to coerce or influence by intimidation a government (Qld) and through the intention, cause serious harm, such as death to a person?
It could not be said there was such an intention on the available information. It appears the only intention was that these killers viewed the police as tyrannical government agents and trespassers. They were not, it seems, immediately driven or motivated to influence or coerce any government through their murderous acts.
The property was being used as an ark or compound to resist and provide refuge to other like-minded ‘sovereign citizens’ and their motivation being, to resist the government’s efforts to trespass on their property.
As such, the tragic outcome that occurred was a reaction to the government encroaching upon their ‘compound’ as they saw it, however misguided it was, was an intentional attack according to their radicalised conspiracy of the role of government.
In that circumstance, the incident could not be classed as a ‘terrorist act’ per the definitions under the Criminal Code Act 1995 (Cth).
While the incident itself could be considered an Active Armed Offender (AAO) incident, the police treated the situation as an AAO event entering onto the property to protect life and stop the killing, rather than the usual strategy of containing and negotiating. This strategy is not unique to acts of terrorism, it is a strategy developed by law enforcement across the world in the wake of the Columbine High School Massacre in Colorado, USA in 1999.
Also, given that the incident unfolded spontaneously, the time to classify the incident as a ‘terrorist act’ would have been counterproductive to stopping the threat, so giving the perpetrators time to prepare, bunker down, escape, and or kill other innocents.
Part of the object and purpose of the terrorism legislation is to provide police special powers and indemnities against prosecution during a terrorist act. In this matter, arguably the police had all the necessary powers to act in the lawful course of their duty to carry out their mission and functions. They did not require the definition of a ‘terrorist act’ and triggers needed to deal with the murderous intent of the killers.
Ultimately, for the acts to be classed as a ‘terrorist act’ there must be reasonable grounds and a belief (real evidence) of the elements in real-time. It would appear, as this incident occurred there was no information available at the time to satisfy motive, intention, or action.
Notwithstanding, even though, in retrospect, it could be said there was an ideology operating in the minds of the killers, it could not be said currently that ideology was driven or motivated with a view to coerce or influence any government through the killing and injuring of the heroic police officers and the neighbour, Alan Dare.
On the information available, the motive seems to be that they were driven to act and ‘defend’ their property from the trespassing of what they perceived as agents of a tyrannical government.
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