These are some initial observations on the facts as far as I have been able to determine them from media reports.
There is no question that the provisions of the Commonwealth Criminal Code pertaining to terrorism, under which men arrested as a result of raids in Melbourne last week were charged, are sufficiently wide to include the acts which they are alleged to have been planning. A ‘terrorist act’ is defined in section 100.1 of the Code and the circumstances of their preparation for an attack on a military base inside Australia clearly fit under several different sub-sections.
Yet the nature of the proposed attack begs the question: is there a difference between what these men were planning and other forms of terrorist act? I would suggest that there is.
Firstly, an attack on a military target is considered legal under the international law of armed conflict. This is most often highlighted when attacks are carried out on non-military targets, when much hue and cry accompanies the bombing of civilian targets such as hospitals, for example.
If, as it is alleged, the target in question here was the Holdsworthy base in New South Wales, it would obviously qualify as a legitimate war-time target.
Yet, equally clearly, Australia cannot be said to be at war with the forces to which these men sought to align themselves.
This makes the reports that the men were seeking a fatwa to legitimize their attacks even more interesting. In effect, they were seeking the authorization to declare war on Australia, and, it would appear, would not have conducted the attack without such authorization.
Surely if a society is outraged at acts of terrorism which offend humanity by ignoring accepted notions of what constitutes legitimate violence between combatants, such as the bombing of hotels, nightclubs and so forth, we must also be prepared to acknowledge the qualitative differences between those acts and conspiracies such as that allegedly perpetrated by these accused men.
If indeed such differences have any value, there may be practical repercussions for the nature of the charges brought against them. I think it is most likely that the Commonwealth will be able to secure a prosecution against the men for alleged conspiracy to commit a terrorist act, but suggest that it is at least more accurate to portray their alleged conspiracy as treasonous under section 80.1 of the Code.