Reform terror laws and the danger is that Iran would get off scot-free
That comes at a moment when ASIO has warned of “a greater than 50 per cent chance of a domestic terrorist attack or attack planning in the next 12 months”, with the elevated threat level expected to persist “at least out to 2030”.
The stakes could not be higher. Yet so is the pressure being exerted by a broad range of Muslim organisations seeking changes ASIO says could have “catastrophic consequences”.
Viewed superficially, the Independent National Security Legislation Monitor’s review appears extremely narrow, confined as it is to the current legislation’s definition of terrorism. But it is only when an act – or the planning of an act – falls within the definition that the legislation’s sweeping powers are engaged.
And it is those powers of surveillance, search, questioning and detention that allow law enforcement agencies to disrupt plots, identify offenders and ensure they are brought to trial.
The Muslim organisations seek, first of all, to drastically narrow the range of acts or planned acts the definition encompasses.
Acts aimed at intimidating only a section of the population – such as Jews – would be excluded. Acts that cause harm to property rather than to persons – such as arson attacks on synagogues – would be excluded as well. So too would threats and hoaxes, including the trailer found earlier this year in northwest Sydney containing explosives and notes identifying Jewish community buildings.
Had those changes been in place, virtually all of Iran’s terrorist activity in Australia would have fallen outside the definition’s scope, making it far harder to apprehend culprits and document Iran’s responsibility.
Yet backed by the taxpayer-funded Human Rights Commission and the Special Envoy for Islamophobia, the Muslim organisations’ central objective reaches further still: they want to eliminate from the definition any reference to a religious motive.
As the submissions from law enforcement agencies stress, retaining that motive is of crucial operational significance. It has, in practice, allowed agencies to specify and prioritise areas of highest risk – particularly jihadist extremism – so that they can allocate scarce resources to where they prevent the most harm.
Moreover, the meaning of a “religious motive” is now well settled in Australian jurisprudence, ensuring clarity for investigators, prosecutors and courts alike. And because it aligns closely with the approach of Australia’s principal intelligence partners, it supports timely, comprehensive intelligence-sharing, which is an indispensable component of Australia’s security.
But it is precisely that effectiveness the Muslim organisations cannot accept. The empirical record makes the reason plain. Of the 83 sentencing decisions and appeals for persons convicted of terrorism offences from 2002 to 2024, 78 involved perpetrators motivated by Islamic fundamentalism. In the same period, 28 imminent attacks were disrupted – 22 of them motivated by Islamic fundamentalism. Still today, Islamic fundamentalism dominates the threat landscape. And of the 31 groups listed as a “terrorist organisation”, 26 have a self-proclaimed link to Islam.
According to the Muslim organisations, these facts do not reflect any particular propensity among fanatical Islamists towards terrorism. They are, says Muslim Votes Matter, merely symptoms of a deeper cause: the inclusion of religion in the definition, which purportedly gives free rein to anti-Muslim prejudice in the enforcement agencies, legitimating their “presumption” that “terrorist act offences are intended/reserved for individuals affiliated with Muslim organisations or Islam”.
And, claims the Muslim Legal Network (speaking on behalf of 15 leading Muslim organisations), for so long as religious extremism remains a factor triggering the legislation’s special powers, “structural Islamophobia” will ensure those agencies’ “use Division 101 offences exclusively, or almost exclusively, for individuals who are Muslim” – even though, it asserts, Muslims are no more likely to be terrorists than anyone else.
Those arguments are plainly untenable. Were it true that the agencies, blinded by anti-Muslim bias, had (as the submissions claim) massively “over-policed” Muslims while neglecting the acute risk posed by (say) Wesleyan Methodists, we would not be confronting a renewed Islamist threat but a wave of wild-eyed Wesleyan terrorists running amok, brandishing knives, and shouting their own version of “Allahu Akbar”.
But the mere fact that this vision shows no sign of eventuating does not deter the Muslim organisations from demanding the “removal of religious expression as a standalone risk factor in assessment tools”, with risk profiling based on Muslim extremism to be “explicitly prohibited”.
What that implies is that agencies should spread their detection resources evenly across the population, ignoring systematic differences in the likelihood of terrorist offending. But assume, consistent with experience, that Muslim extremists account for some 85 per cent of the roughly 125 individuals in Sydney who pose a credible risk of planning an attack at any given time. And assume too that NSW Police, ASIO and the AFP can, at peak, dedicate approximately 350,000 hours of investigative time each month to counter-terrorism work.
Were those hours applied “equally” across the metropolitan area – sampling about 25,000 people per month – the standard criminological model indicates that agencies would detect only 0.11 genuine plotters in each period, while generating about 350 false positives. Almost every person investigated would be innocent; almost every genuinely dangerous individual would be missed.
Concentrating most of the available hours on the high-risk group changes the results dramatically. With that single adjustment, the agencies’ success in detecting genuine plotters increases 17-fold, while the number of false positives would stay essentially the same. Allocating resources in line with relative risk yields vastly greater benefit without imposing any extra burden on innocent Australians.
And were such targeting banned, achieving the same detection rate would require increasing monthly counter-terrorism hours in Sydney from 350,000 to nearly nine million. That is not policing; it is fantasy.
My modelling is, of course, merely indicative. Its lesson is not. When risk is concentrated, pretending it is evenly spread guarantees failure.
The mathematics are unforgiving: whether 60, 80 or 85 per cent of the threat sits in a small, identifiable cluster, each hour spent there yields exponentially greater returns – in plots disrupted and lives saved – than an hour spent trawling the general population, while producing roughly the same number of false alarms.
Law-enforcement agencies grasp this instinctively, as does the Attorney-General’s Department. Their concerns reflect not Islamophobia but arithmetic. And thoughtful Muslims should share those concerns too: for a surge in jihadi attacks – made possible because critical tools had been deliberately blunted – would spark an anti-Muslim backlash of unprecedented ferocity.
Whether the government understands that is an open question. What is undeniable is that the Muslim organisations, the Human Rights Commission and the Special Envoy for Islamophobia seem confident their proposals are politically viable – proposals that would make anti-Semitic attacks easier to mount, harder to detect and far more likely to succeed.
Their confidence says much about the Australia that has taken shape, with far too little resistance, since October 7.
That is precisely why these proposals cannot be permitted to drift quietly through the system. At a moment of elevated threat, weakening the instruments that keep all Australians safe would not be reform. It would be capitulation.
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