Review of the Definition of a “Terrorist Act
Mr Jake Blight
Independent National
Security Legislation Monitor
3-5 National Circuit Barton
DefiningTerrorism@inslm.gov.au
Dear Sir
Review of the Definition of a “Terrorist Act” – Section 100.1 of the Criminal Code Act 1995 (Cth)
Kindly accept this submission in relation to the above review.
1. General Comments
The Queensland Council for Civil Liberties (QCCL) welcomes the opportunity to contribute to the Independent National Security Legislation Monitor’s (INSLM) review of the statutory definition of a terrorist act in section 100.1 of the Criminal Code Act 1995 (Cth).
Our central submission is that the current definition should not be expanded. Terrorism should not be seen as a ‘catch-all’ term for serious crimes. The criminal law, with its established principles of criminal justice and procedure, already accommodate crimes which may constitute terrorism. Any further extension of the definition of terrorism would intervene in this system. It would enlarge the application of a wide set of powers that are both repugnant to civil liberties and inconsistent with these established principles of criminal justice, which are specifically and uniquely enlivened to combat terrorism.
The current definition was introduced into Australian law in 2002. It has become central to a statutory regime aimed at responding to the extraordinary and organised threat environment which existed following the attacks of September 11 2001.
Today, the nature of terrorism has changed: lone actors, spontaneous acts of violence, and hybrid ideologies have usurped organisations like Al Qaeda as the most significant threats to the Australian community. Where these actors strike, their crimes are already addressed by ordinary criminal offences — for example, the criminal code has its own offences of murder, attempted murder and arson. Any definition of terrorism should, in our submission, as far as possible be limited to activities which represent a sufficiently serious risk to the Australian community to justify this broad spectrum of powers, and the entailing deprivations of civil liberties.
Therefore, the definition of terrorism should remain narrow, precise, and anchored in the core concept of politically motivated violence intended to intimidate or coerce governments or the public. Heinous crimes exist and the criminal law has sufficient provisions to deal with these crimes. The definition of terrorism must involve something more than a heinous crime.
2. Over-breadth and the Expansion of Powers
The threat of terrorism has given rise to a wide set of statutory offences, powers and regimes operating at both State and Commonwealth level. These include:
1. Preparatory offences, which are an exceptional situation (we discuss these further below);
2. Terrorist organisation offences, which impose harsh penalties on, inter alia, directing the activities of, associating with, participating in, or providing support to a proscribed terrorist organisation.[1] We recognise that, even in other liberal democracies, there have been politicised attempts to label political opponents as terrorist organisations;[2]
3. Offences of ‘advocating’ terrorism,[3] understood as counselling, promoting, praising or providing instructions on a terrorist act where that person is reckless as to whether another person may engage in that Act. We note that this goes beyond criminal law ‘incitement’, which requires that a person intend the offence to be committed.[4] Thus a person may be imprisoned for up to 7 years on mere recklessness alone;
4. The power to question an accused person for 24 hours, and the power to detain that person for a week;[5]
5. The power of law enforcement to search and seize items or objects without warrant, if a ‘search area’ has been declared;[6]
6. A presumption against bail,[7] which is a reversal of the standard common law provision;
7. The imposition of post-detention orders[8]
These powers are repugnant to long-established civil liberties, particularly the presumption of innocence, freedom from arbitrary detention,[9] and the right to a fair trial. The QCCL is deeply concerned that any broadening of the definition will necessarily expand the reach of these extraordinary powers linked to it. Because these powers are so repugnant to civil liberties, in our submission they could only ever be justified if they were exercised in dealing with a serious and imminent threat to the Australian community. The definition of terrorism should recognise this.
3. Incitement and Freedom of Expression
The Council notes the INSLM’s questions concerning the treatment of incitement and advocacy.
Any reconsideration of the definition must acknowledge that freedom of speech, while not an entrenched Constitutional right, should be acknowledged as a civil liberty in an evolved democracy.
This principle has been endorsed internationally in the Johannesburg Principles on National Security, Freedom of Expression and Access to Information (1996),[10] which affirm that restrictions on expression are legitimate only when necessary to prevent imminent violence.
Restrictions on freedom of speech in the name of national security may be imposed only where the speech was intended to incite imminent violence and there is a direct and immediate connection between the expression and the likelihood or occurrence of such violence. This test has been endorsed by the United Nations Special Rapporteur on freedom of opinion and expression and has been recommended by the United Nations Human Rights Committee. A similar approach was adopted by the European Court of Human Rights in the case of Karates v Turkey[11]
Australian terrorism law departs from this standard. The offences of advocating terrorism and associating with a terrorist organisation criminalise speech far removed from any imminent threat. Any extension of the definition of terrorism would raise serious freedom of speech implications. For this reason, the QCCL submits that the INSLM should recommend tightening these provisions to conform to the Johannesburg standard, ensuring that only intentional incitement of imminent violence is criminalised.
4. The Motive Element
The Council supports retention of the motive element in section 100.1, which requires that a terrorist act be done with the intention of advancing a political, religious or ideological cause.
This element is a critical safeguard distinguishing terrorism from ordinary violent crime. It ensures that the exceptional label of “terrorism” is confined to conduct directed toward political or ideological coercion, not simply serious violence for private reasons.
Motive is essential both conceptually and legally. Its removal would risk collapsing terrorism into general criminality and expanding the application of counter-terrorism powers beyond their intended scope. QCCL unequivocally supports the continued demarcation between terrorism and other criminal offences: if that demarcation were to be weakened, it would have disastrous effects on civil liberties
5. Religion and Ideology
The Council notes the controversy concerning inclusion of the term “religious” within the motive element. While we acknowledge that many terrorist offences in practice have been motivated by religious ideology, QCCL supports removal of the term “religious” from the definition.
Religious belief, even when fervent, should not be treated as inherently suspect; especially if it risks stigmatising entire communities and infringing freedom of religion, which is guaranteed under s 116 of the Constitution.
However, the Council supports retention of the term “ideological”, provided it is clearly defined. We endorse the definition proposed in the Canadian study referenced at paragraph 4.47 of the Issues Paper. It sought to reduce stigmatisation of specific groups, by ensuring that terrorist ideology was directed at a more closely defined understanding of terrorist activity. In our submission, it is desirable to have a more closely defined definition of ideology, given the risk of a loosely defined definition threatening the demarcation between terrorism and other crimes.
The Canadian study demands we ask 4 questions:
1. Does the accused ascribe to a system of beliefs?
2. Does their system of beliefs relate to how they understand society?
3. Does their system of beliefs prescribe an ideal society?
4. Is their system of beliefs intended to be shared with and influence others?
As noted in the discussion paper, many of the issues being considered by this review were discussed by Mr Jonathan Hall KC, the UK’s Independent Reviewer of Terrorism Legislation in his recent report[12] Mr Hall argued at paragraph 1.2.1 of his review, that treating every violent eccentric as a potential terrorist would skew the threat level and divert resources. The narrower definition of ideology given here helps provide clarity in applying the definition going forward.
6. Inclusion of “Psychological Harm”
The QCCL opposes the proposed inclusion of “psychological harm” within the definition of a terrorist act.
The concept of “psychological harm” has no settled meaning in criminal law – the risk is that this may encompass conduct far short of terrorism, which is problematic given the unusual suspension of civil liberties in a terrorist situation
By adding another undefined term, the law becomes uncertain and susceptible to misuse. Without a clear threshold for what constitutes psychological harm, the provision could capture conduct resulting in mere distress or emotional upset. This ambiguity offends the principle of legality and creates scope for injustice. To impose the extreme measures which are enlivened by terrorism, there must be some element of physical harm.
Moreover, existing criminal law already addresses threats, intimidation, and offences against the person. There is no demonstrated necessity for extending the definition in this way. The proposal should therefore be rejected as an unnecessary and dangerous expansion of the law.
The use of this term also threatens to reduce freedom of speech, as many people claim to be psychologically harmed by speech.
7. Exclusions for Advocacy, Protest and Humanitarian Action
The Council strongly supports retention of the explicit exclusion for advocacy, protest, dissent, or industrial action in section 100.1(3). This safeguard ensures that legitimate democratic expression cannot be characterised as terrorism merely because it causes disruption or alarm.
Removing or narrowing this exclusion would impermissibly expand the scope of the terrorism definition and chill political participation. To impose the measures enlivened by the definition of terrorism on legitimate protests would be draconian and, in our submission, unjust.
We make the submission despite the argument that this exclusion is unnecessary because anything that is otherwise within the definition would not fall within these concepts. As as usual with the law, particularly a law which imposes criminal responsibility, it is best to be clear to deal with borderline cases.
We also agree that the provision of assistance by impartial humanitarian organisations must remain excluded from the terrorism framework. Humanitarian actors operating in conflict zones act under international humanitarian law and should not risk criminal liability for neutral assistance.
Finally, we endorse the explicit exclusion of armed forces during armed conflict, as those activities are governed by international humanitarian law.
9. Property
We support the removal of “serious property damage,” from the definition.
The recent decision of the government of the United Kingdom to proscribe Palestinian Action on the basis that some members sprayed red paint on two RAF aircraft makes clear the unacceptability of the inclusion of property in this definition. Even if the paint might have disabled some of the electronics of the aircraft this is not at all on the same level as causing physical harm to a person. It cannot be used to justify making individuals guilty of an offence by virtue of their association with other individuals.
We support the replacement of the term “serious property damage” with the expression “significant harm to critical infrastructure”. We say “ significant harm” because we would not want somebody being accused of terrorism because for example they spray painted a coal fired power station.
10 Lone Actors and the Hall Review
QCCL endorses the conclusions of the Hall Review, which cautioned, at paragraph 1.2.1, that treating every violent eccentric as a potential terrorist distorts threat assessment and diverts resources.
We oppose the extension of the definition to isolated individuals who are fixated or have some peculiar world views. This is because that would widen the scope of the extraordinary powers, to situations where there is no terrorist organization to speak of.
Hall recommended at paragraph 5.30, that the government consider bringing forward legislation to create a new offence where an individual, with the intention of killing two or more persons, engages in any conduct in preparation for giving effect to this intention.
This would add yet another preparatory offence.
There are significant issues with preparatory offences.
The common law is well familiar with what might be called "inchoate" offences. These offences are covered by the traditional criminal law concepts of attempting to commit an offence, inciting the commission of an offence and conspiracy to commit an offence.
The anti-terror laws go much further by criminalising acts made in preparation for a criminal offence including intentionally providing or receiving training, possessing a thing or collecting or making a document that is "connected with preparation for, the engagement of a person in or assistance in a terrorist act". Broader offences created are in section 101.6 of the Criminal Code of "intentionally doing any act in preparation for or planning a terrorist act". The new offences do not require a terrorism act or offence to actually occur for the offences to have been committed.
The liability is extended even further by the fact that each of the four offences attracts inchoate liability. For example it is an offence to attempt to do an act in preparation for a terrorist act.
These offences go much further than the common law concepts.
An illustration of this point came in the trial of five Sydney men in February 2010 usually called the Elomar case. They were charged with a combination of preparatory and inchoate offences, mainly conspiracy to do an act connected with preparation for a terrorist offence. The evidence was that they had purchased large amounts of ammunition, chemicals and laboratory equipment. They all had extremist propaganda and military how-to manuals. They had not reached an agreement as to the nature of the attack they intended to carry out and they did not necessarily intend to kill innocent civilians. They were nonetheless sentenced to between 26- and 28-years imprisonment.[13]
Whilst a person can be found guilty of conspiracy even if the offence is not committed, the law of conspiracy generally requires an agreement to undertake certain conduct with a view to committing a particular offence or offences[14].It is for this reason that the conduct of the individuals in the Sydney case would not have resulted in conviction for conspiracy because they had apparently not agreed on any particular offence to commit. Thus, their convictions, and the significant penalties imposed, arose entirely because of the breadth of the ‘prophylactic’[15] offences surrounding terrorism.
If, despite its objections, changes to the anti-terrorism laws to deal with this issue were to proceed, the QCCL would prefer the targeted-offence model suggested by the Hall Review to any expansion of the terrorism definition to avoid the further expansion of the repugnant powers that hang off the definition. We make it clear that this is a highly qualified position, noting particularly that we have not seen the language of any proposed offence.
10. Conclusions and Recommendations
The Queensland Council for Civil Liberties submits that:
1. The current definition of “terrorist act” should not be expanded.
2. Extraordinary powers tied to the definition are repugnant to civil liberties and must not be enlarged.
3. Freedom of expression must be protected by aligning incitement standards with the Johannesburg principles.
4. The motive element should be retained.
5. The term “religious” should be removed, but “ideological” should remain with the clarified Canadian definition.
6. The proposed inclusion of psychological harm should be rejected.
6 “serious property damage,” should be removed from the definition and replaced with “significant harm to critical infrastructure”.
7. The advocacy and protest exclusion must be retained; humanitarian and armed-forces exclusions reaffirmed.
9. The definition should not be extended to lone individuals acting without an organised or political dimension.
The QCCL recognises the importance of protecting the Australian community from politically motivated violence. However, genuine security is not achieved by undermining the freedoms that define a democratic society. The exceptional powers created in the name of counterterrorism must remain exceptional.
The Council therefore urges the Independent National Security Legislation Monitor to recommend that the definition of terrorism in section 100.1 be retained in its current narrow form, clarified for precision as we recommend, and not expanded in any respect.
We thank QCCL intern Charlie Hoare for preparing this submission.
We trust this is of assistance to you in your deliberations.
[1] See Div. 102 of the Criminal Code (Cth), as outlined at 3.11 of the discussion paper.
[2] Designating Antifa as a Domestic Terrorist Organisation, September 22, 2025, (https://www.whitehouse.gov/presidential-actions/2025/09/designating-antifa-as-a-domestic-terrorist-organization/).
[3] Under s 80.2C of the Criminal Code (Cth)
[4] See, for example, s 11.4 of the Criminal Code (Cth)
[5] Crimes Act 1913 (Cth) pt IC, div 2, subdiv B and pt ICdiv 2, subdiv A
[6] See for example Crimes Act div 3A, Subdiv B
[7] Crimes Act s 15AA
[8] See, for example, the provisions upheld in Minister for Home Affairs v Benbrika (2021) 272 CLR 68.
[9] See, for example, Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1; Blackstone Commentaries, bk 1 ch 1.
[10] Johannesburg Principles on National Security, Freedom of Expression and Access to Information October 1995 – A set of principles on freedom of expression and national security developed by a group of experts from around the world.
[11] Case number 23168/94
[12] Independent Review on Classification of Extreme Violence Used in Southport Attack on 29 July 2024 13 March 2025
[13] R v Elomar (2010) 264 ALR 759
[14] Lodhi v R [2006] NSWCCA 101 at 66 per Spigelman CJ.
[15] Minister for Home Affairs v Benbrika (2021) 272 CLR 68 [56] (Gageler J).