Statutory Interpretation For Identification Phase In Terrorism Cases

Operative Provisions

Discuss about the Statutory Interpretation for Identification Phase.

In the mentioned case, Brian being an expert of demolition of buildings is contacted by Matthew to advise him on the procedure of safe demolition of a huge building. Brian gives a brief explanation about the demolition procedure to Matthew and his men. Matthew insisted Brian to give expert advice regarding his plan to demolish a building in order to construct a shopping centre overseas. He left the plans with Brian for future advice. A terrorist attack is caused few days later at the Rialto Tower in Melbourne and the federal police arrests him under section 101.2 of the Criminal Code Act 1995 [Cth].

The Criminal Code Act 1995 [Cth] shall be applicable in the given factual circumstances. As per section 101.2 of the Act, any person who gives or receives training relating to the preparation for or engagement of a person in or providing assistance in a terrorist act is said to have committed an offence and is liable to imprisonment for term of 25 years. In the given scenario, Brian provides adequate information to Matthew regarding demolition of the building. He had the building demolition plans with him, which compelled the Federal Police to arrest him for the alleged Terrorist act.

In the given scenario, the Federal Police arrested Brian under section 101.2 of the Act, which states if any person provides training or assistance or is in connection with a terrorist act, such person is said to have committed a terrorist act. The police investigated that he provided training on demolishing of buildings to Matthew and possessed building demolishing plan of the Rialto Tower. However, although Brian was not involved in the alleged terrorist act, he is alleged to have committed an offence under section 101.1 of the Act Criminal Code Act 1995.

The Federal police arrested Brian and was charged under the section 101.2 sub-section [1] of the Criminal Code Act [1995]. The officers told him that he is alleged to have committed the offence of causing terrorist attack at the Rialto Tower in Melbourne. The officers charged him for giving advice to the terrorists on demolishing of the building. He admitted that he did give advice to Matthew and his men on demolishing a building safely as Matthew wanted to demolish a building to create a shopping centre. He was not aware of the fact that Matthew and his men were planning to demolish a building with the people inside the building.

Exploration Phase

The officers also alleged Brian to have been giving advice to people on demolishing buildings recklessly without confirming the identification of people. Brian admitted that he did not collect much information about Matthew and his men and neither did he check on the existence of the building that Matthew claimed to own. Based on these facts, the Federal Police officers alleged Brian to have committed an offence under section 101.2 and that he was engaged in the terrorist act as per Section 101.1 of the Act.

The fact that Brian had given advice on demolishing of the building and provided detailed information about which explosives to be used and exactly where the same should be positioned in the building, led the officers to believe that Brian was engaged in the terrorist attack at the Rialto Tower in Melbourne. The officers believed that if Brian did not have any intention to conduct a terrorist attack, then he would have confirmed about Matthew and his men before giving them advice on demolition of buildings. Brian did not consider it important to confirm whether there was any such building overseas he so claims to own. These facts made the officers believe that he was engaged in the preparation of terrorist act and is in connection with the terrorists and charged him under Section 101.2 [1] of the Criminal Code Act 1995.

Further, the officers alleged that Brian has been recklessly giving advice to people without obtaining adequate information about the people. The officers relied on the subsection (2) of Section 101.2 that Brian has recklessly given advice to the terrorist, which establishes the fact that he knew the terrorists and was in connection with the people planning or preparing a terrorist attack.

Furthermore, the officer relied on subsection (1) of section 101.4 of the Act, which stipulates that if a person possessed a thing that is associated with the preparation and engagement of a terror act and the person is in connection with the people planning to conduct such terror act, the person is said to have committed an offense. In the given circumstances, Brian possessed the plans for conducting a bomb-blast in the Rialto Tower that was followed to implement the attack.

In this part of the paper, the actual purpose provided by section 101 of the Act is discussed. Section 101 is divided into 4 subsections each of them dealing with different situation in which a person can be held liable for the breach of provisions provided by the act. Statutory interpretation can be done based on three rules which are namely the Literal rule, the golden rule and the, mischief rule[1]. According to the literal rule of interpretation, the courts provide a dictionary meaning to the provisions provided by the Act in order to bring out the intention of the legislature[2]. According to the golden rule, the court deviates from the dictionary meaning of the provisions and gives it a new meaning but only if such meaning provides ambiguity to the statue and if such meaning is provided it would defeat the intention of the legislature[3]. According to the mischief rule of interpretation the court considers the fact that the present legislation was passed to cover a mischief, which present previously and such mischief is addressed by the new legislation, when it interprets the provisions of the statue[4].

It can be analyzed by going through the provisions of Section 101 that the main purpose of the section is to identify the situation in which a person can be held responsible for committing a terrorist activity. Through the Section 101.1, the legislature has provided that any person who engages in a terrorist act is committing an offence. This section has a very clear meaning and there is no need to interpret it in any other way than the literal way or else it would defeat the purpose of the legislature to punish the individual committing a terrorist act. Through Section 101.1 of the Act, the legislature provides the specific circumstances in which a person can be held liable for providing training in relation to the terrorist act. Part one of the section provides that a person who receives or provides training with respect to a terrorist activity and has the knowledge of the same is liable under this cat. Here by the words “knows the connection” the legislature provides that the individual must have the intention and knowledge to provide or receive training with respect to a terrorist activity according to the literal rule. In part two of the sub section 101.2 the legislature provides that a person who is providing or receiving training with respect to a terrorist activity without any knowledge or intention is also liable for breach of Section 101 if the individual is reckless. Here the word “reckless” provided by the legislature means that an act committed by an individual having knowledge of its potential danger but not taking reasonable precautions to address the danger carelessly[5]. A person can only be liable under this provision if he had knowledge about the potential danger of the act he had been involved in[6]. The person can also be involved in a terrorist activity if he has been in possession of a thing in relation to the terrorist activity or any other terrorist activity according to sub section 101.4.  The Section further provides that a person can be held responsible even if a terrorist activity does not occur but the person had intention to cause the terrorist activity or even if he had been involved in any other terrorist activity.

Thus it can be analyzed that the main purpose of section 101 is to provide that a person can be held responsible for a terrorist activity by providing or receiving training or being possession of a thing in relation to a terrorist activity having intention to commit such act or committing such act in a reckless manner.

In this part of the paper the rules of statutory interpretation would be applied to provision 101.2 and 101.4 of the Act so that it can be proved before the court that that Brian is “guilty” for the offence according to the Act. 

According to Section 101.2, an offence is said to be committed by a person if he had been engaged in receiving or providing training and such training is in relation to engagement or preparation or providing assistance with respect to a terrorist activity. The Section also applies if a person is found in possession of anything in relation to facilitating a terrorist activity. The legislature further provides that the individual must have knowledge that he is being engaged in a terrorist activity or had been reckless in ignoring the potential damage of his actions.

In the present scenario it can been seen that Brian had no intention to engage in a terrorist activity and he further had no idea that Mathew and the three person along with him had intentions of causing a terrorist activity.

It has to be noted in this case that Brian is a professional building Demolisher. It has to be assumed that he would have the knowledge that how dangerous a demolition process can be to the public. it also has to be assumed in this case that he should know the consequences of such techniques falling in wrong hand. According to the principles of statutory interpretation it is not the job of the court to doubt the ability of the parliament and to only provide proper meaning to the provisions in order to bring out the intention of the parliament[7]. The court can only divert from the literal meaning of the provisions if it is causing ambiguity or if it is not able to solve the defect it was introduced to address[8].

According to the section 101.2 it can be clearly indentified that Brian had been reckless in providing information and advice to Mathew about the demolition process without taking reasonable precautions to know that whether the building belong to Mathew or not. As he is a professional demolished he should have been aware of the risk of his actions.  He should have taken proper precaution before providing such critical information to an unknown person. Here the question before the court is not to determine whether the result is fair or not but to give proper meaning to the word “reckless”

This can be made simple through this example. A gun manufacturer cannot just sell a gun to anyone without verifying the fact that for what reason the gun is sought to be bought. If he does so he would be libel to the contribution in crime committed by the buyer[9].

According to Section 101.4 a person can be held liable for a terrorist act if he is found in possession of which is in connection to engagement, assistance or preparation of a terrorist activity and has knowledge about such activity or had not taken reasonable precautions towards avoiding the potential dangers of such activity. According to Sub section 5 of the act a person would not be responsible if he had no intention to cause a terrorist activity in relation to the possession of such thing. However it can be determined in this case that Brian being a professional must have verified the facts in relation to the building when he had the plan and thus he has been reckless according to part 3 (c) of Section 101.4. Thus he would be liable to be prosecuted under this Section and serve imprisonment.

Reference

Walker, Christopher J. “Inside agency statutory interpretation.” (2014).

Nourse, Victoria. “Elementary Statutory Interpretation: Rethinking Legislative Intent and History.” (2014).

Shobe, Jarrod. “Intertemporal Statutory Interpretation and the Evolution of Legislative Drafting.” Colum. L. Rev. 114 (2014): 807.

Staszewski, Glen. “The Dumbing Down of Statutory Interpretation.” (2015).

Sartor, Giovanni, et al. “Argumentation Schemes for Statutory Interpretation: A Logical Analysis.” JURIX. 2014.

Anderson, Jill C. “Misleading like a Lawyer: Cognitive Bias in Statutory Interpretation.” Harv. L. Rev. 127 (2013): 1521.

Kavanaugh, Brett M. “Fixing Statutory Interpretation.” (2015): 2118.

Solan, Lawrence M. “Precedent in Statutory Interpretation.” (2016).

Ekins, Richard. “Interpretive Choice in Statutory Interpretation.” Am. J. Juris. 59 (2014): 1.

Seidenfeld, Mark. “A process failure theory of statutory interpretation.” (2013).

Eskridge Jr, William N. “Reading Law: The Interpretation of Legal texts.” (2013): 531-592.