Terrorism: a type of organised crime or an offence sui generis? Similarities and differences in the Australian and Euripean Union legislative approaches

Anne Imobersteg Harvey

Research output: ThesisDoctoral Thesis

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Abstract

This dissertation answers the question whether Australian and European Union (EU)
legislation against terrorism stems substantially from the legislation on organised crime
or if it is different or unrelated legislation. The answer is important because if the
legislation on terrorism is to be considered akin to that on organised crime, then the
legislative provisions relevant to the prevention of law enforcement and judicial
remedies for terrorism offences should mirror the rules set for organised crime. If, on
the contrary, the legislation on terrorism is sui generis, i.e. contains characteristics of its
own which differ substantially from the legislation on organised crime, this could be an
indication that we have legislation on a new type of crime which could justify different
accompanying measures, including law enforcement powers.
Two specific areas of study have been chosen to answer the thesis question. First,
money laundering legislation, considered as the first generation initiative against
organised crime, is compared to the financing of terrorism. It is concluded that in the
main the new provisions against the financing of terrorism are a natural development of
those on money laundering. However, the integration of terrorism into the money
laundering mechanism throws a spanner in the works of the anti-money laundering
machinery, which has been set up to detect large sums of money which originated from
organised crime, not the small amounts that finance terrorism.
The second generation initiative against organised crime endeavours to address the
structure of criminal organisations. Hence, the provisions against criminal organisations
are compared with those against terrorist organisations. Clearly, EU legislation on
terrorism stems from its legislation on organised crime. In Australia, the movement is
opposite yet similar. It is the terrorism legislation that has influenced the new provisions
to fight organised crime.
A particular focus is given to the definition of acts of terrorism versus the offences
committed by criminal organisations. The relevance of the Australian/EU dual concept
of motive and objective is discussed in the general context of criminal law.
This study enlarges the legislative comparison between the two political entities by
taking into account the international context. Because of their transnational character,
terrorism and organised crime are two concepts that the international community has
tried to translate into criminal law so that they can be prosecuted worldwide.
Specifically, the implementation of the United Nations Security Council resolutions
1267 and 1373 in Australia and the European Union is contrasted.
The dissertation identifies a number of points of legislative convergence and
divergence. Though neither under EU legislation nor under Australian legislation can
terrorism be considered sui generis, the reasons are different in each case. The
research also highlights the breadth of the Australian definitions of both organised
crime and terrorism. Given the reasons that have prompted the adoption of the
provisions, this study concludes with a proposal for focusing (recalibrating) the
legislation to give it a pronounced distinctive character and a sharper edge, while
strengthening democratic principles and the rule of law.
Original languageEnglish
QualificationDoctor of Philosophy
Publication statusUnpublished - Sep 2013

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