An investigation of the theoretical justifications for Australia's laws against the financing of terrorism

2017-05-26T06:53:31Z (GMT) by Harasgama, H D A Kushanthi Sajeewani
The thesis examines whether Australia’s anti-terrorism financing laws can be justified by the rationales advanced in their support, given the scope, operation and effect of these laws. The thesis identifies two kinds of justificatory arguments advanced in support of the laws: harm related arguments, and arguments that appeal to Australian values and social cohesion. It is argued that the underlying rationale of the first sort of argument is the harm principle, and that the underlying rationale of the second sort of argument is legal moralism. The thesis then considers the justifiability of the laws by reference to these two rationales. Examination of the justifiability of the laws by reference to the harm principle involves a detailed discussion of the harm principle as espoused by both Mill and Feinberg, especially the definition of ‘harm’; how the harm principle can be applied in the case of political violence and whether all types of political violence encompassed by the definition of a ‘terrorist act’ in the Criminal Code Act 1995 (Cth) cause ‘harm’ in the relevant sense; and whether the anti-terrorism financing laws, being laws that create preparatory offences and penalise the causing of remote harms or risk of remote harm, can be justified by the objectivist/subjectivist principles which govern the imputation of liability for remote harms. This examination reveals that certain types of political violence, being justified, do not constitute ‘harm’ in the sense relevant for the harm principle, and that some of the anti-terrorism financing sections can be justified by the harm principle supplemented by a subjectivist account of fair imputation of harm. Examination of the justifiability of the laws by reference to legal moralism involves reconstructing legal moralism as a coherent theory of criminalisation, identifying the common values of Australian society sought to be protected by the anti-terrorism financing laws, and examining how these laws affect the identified common values as a result of their potential to impose various funding prohibitions. In the course of this examination, it is argued that autonomy is the core Australian value and it is shown that some of the funding prohibitions imposed by the laws can have an overall negative impact on this core value of autonomy. The conclusions reached in this thesis, as a result of the above examinations, are contrary to the arguments often found in the literature, and are also somewhat counter-intuitive. First, contrary to the frequent contention that none of Australia’s anti-terrorism financing laws are justifiable on traditional criminalisation theories such as the harm principle, the thesis shows that some of these provisions can be justified by the harm principle supplemented by a subjectivist account of imputation of liability for remote harms. Second, the thesis shows that although the anti-terrorism financing laws are justified by legal moralism to a large degree, even a broad principle of criminalisation like legal moralism cannot fully justify the range of prohibitions imposed by these laws.