Radicalisation of Law : Tool of Governance

“The notion of ‘radicalization’ is generally used [by some States] to convey the idea of a process through which an individual adopts an increasingly extremist set of beliefs and aspirations. This may include, but is not defined by, the willingness to condone, support, facilitate or use violence to further political, ideological, religious or other goals.”

— Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, UN Doc A/HRC/33/29, para. 19.

Radicalisation Beyond Religion

Radicalization always has purpose. Political debate is often centred around religious radicalisation, especially Islam, over the years following what the world witnessed since September 11, 2001.

Calling it “Islamic Radicalisation” may politically suit certain narratives, however in many cases it is in fact non-religious, or perhaps more accurately, un-Islamic radicalisation. Calling it “Islamic Radicalisation” itself may act as fuel to the fire.

If I may give an example based on my limited understanding, as I am not a practicing Muslim, my understanding is based on what I have learned from Muslim friends.

My understanding is that “Kafir” refers to a person who does not believe in one God. However, according to the ideology promoted by some terrorist organisations, anyone other than themselves may become labelled as “Kafir”, and that label itself becomes the justification to kill someone.

All that needs to be said is: “I killed a Kafir,” and within that radicalized mindset, the act becomes justified.

Westerners were targeted by ISIS and Al-Qaeda as “Kafirs”. The attacks of September 11 attacks were planned and executed under that ideological framework.

However, people who follow this ideology are not necessarily following the Quran itself, but rather an interpretation presented to them by a person in authority.

One of the core ingredients of so-called radicalisation is the manipulation of existing biases, particularly those which are already emotionally flammable, while the objective is often to create fear within the society in which people live, or within the communities being targeted. I

Interpretation and Law

Now if we replace the Holy Quran with, for example, the Constitution of a country or legislation itself, the issue again becomes interpretation.

A text itself does not act independently. Human beings interpret the text, enforce the text, and exercise power through the text. The same principle applies to religion, politics, ideology, and law.

An officer may interpret law through bias, assumptions, fear, training culture, or preconceived notions, and in the short term that interpretation may cause harm, fear, or significant consequences to ordinary people.

For example, we may look at a real case involving SafeWork NSW.

Reasonable Belief

For an officer to exercise regulatory power, the law requires the officer to form and document a reasonable belief before taking enforcement action for alleged breaches of workplace health and safety laws. There is a legal test prescribed by law commonly referred to as the “reasonable person test”.

The requirement of “reasonable belief” under section 191 is a jurisdictional fact. As the High Court held in George v Rockett (1990) 170 CLR 104 at 112:

“When a statute prescribes that there must be ‘reasonable grounds’ for a state of mind – including suspicion and belief – it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.”

The Practical Example

However, in this case, that test did not appear to be applied. Instead, a different approach appeared to be taken:

“In order to issue an Improvement Notice under section 191 of the Act, SafeWork NSW through an Inspector must reasonably believe that a person conducting a business or undertaking (PCBU) is contravening a section of the Act or has contravened a provision of the Act in circumstances making it likely that the contravention will continue or be repeated. This reasonable belief must be objective and made on appropriate enquiries and not simply on assumptions. To form an objective reasonable belief there is no expectation that a full investigation is conducted.”

The officer in this matter conducted no meaningful investigation regarding the actual use of LPG within a commercial kitchen environment. Rather, the understanding or operational mindset appeared to function almost as “see LPG cylinder indoors, conclude breach because it can explode,” even where industrial ventilation was present.

This is where interpretation becomes important. The fear of explosion itself becomes sufficient to justify action, even before proper technical analysis, contextual understanding, or proportional assessment takes place.

Rule of Law and Safeguards

However, the important part within the rule of law is that there are processes available to challenge those decisions. At each stage, written reasons are generally required. These mechanisms operate as checks and balances against exercises of power which may be influenced by bias, assumptions, fear, or radicalised interpretations.

Australia’s legal system may not be perfect, and it may contain parts of history which many would not be proud of. However, the existence of review mechanisms, written reasons, and legal accountability still provides significantly greater protection than systems where state power operates with little or no meaningful restraint.

Once again, it appears that controlled forms of radicalised interpretation can operate effectively within systems of law and governance when it comes to interpretation and enforcement.

Let us hope that religious radicalisation does not further learn from or adopt similar frameworks of fear, assumption, and authority-driven interpretation.