Australia

The Definition of Terrorism in Domestic Law

Under Australia's Criminal Code, a terrorist act is an act, or a threat to commit an act, that:

• causes death or serious harm, or endangers a person, causes serious damage to property, causes a serious risk to the health or safety of the public, or seriously interferes with electronic systems affecting critical infrastructure; and
• the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and 
• is done with the intention of: 
   (i) coercing, or influencing by intimidation, the government of Australia or another State; or 
   (ii) intimidating the public or a section of the public.S. 100.1, 1995 Criminal Code Act.

A terrorist act does not cover engaging in advocacy, protest, dissent, or industrial action where there is no intention to cause harm to others.S. 100.1, 1995 Criminal Code Act.

Terrorist offences only apply if:

• the conduct or result of the conduct occurs wholly or partly in Australia, or 
• the person is an Australian citizen or resident, 
• or the offence an ancillary offence where the primary offence is intended to occur wholly or partly in Australia.S. 15.2, 1995 Criminal Code Act. 

Part 5.5 of the 1995 Criminal Code Act contains provisions on foreign recruitment, prohibiting persons from engaging in hostile activity in a foreign country or preparing to do so. It is also an offence to enter, or remain in, a 'declared area'.S. 119.3, 1995 Criminal Code Act.

Membership of a terrorist organisation includes an informal member and a person who has taken steps to become a member. It is only an offence if a person is intentionally a member of a terrorist organisation with knowledge that it is a terrorist organisation. 

Terrorist organisations are proscribed in regulations, based on evidence that the organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act, or that it advocates the conduct of a terrorist act. Individuals or organisation may make applications for de-listing.S. 102.1, 1995 Criminal Code Act.

Adherence to Global and Regional Terrorism Treaties

Australia is a State Party to all of the main United Nations treaties on terrorism.

In adhering to the 1997 Terrorist Bombings Convention, Australia objected to the reservation by Pakistan which sought to exempt national liberation movements fighting for self-determination from the provisons of the Convention. Australia stated that the objection did not preclude the entry into force of the Convention between Australia and Pakistan.

There are no regional treaties governing terrorism in force for Australia.

Laws and Penalties for Terrorist Offences

The Criminal Code sets out a number of offences relating to terrorism. It is an offence to:

• commit a terrorist actS. 101.1, 1995 Criminal Code Act (as amended).
• plan or prepare for a terrorist actS. 101.6, 1995 Criminal Code Act. 
• finance terrorism or a terroristDivision 103, 1995 Criminal Code Act. 
• provide or receive training connected with terrorist actsS. 101.2, 1995 Criminal Code Act. 
• possess things connected with terrorist acts, with knowledge or recklessness as to the connection to terrorismS. 101.4, 1995 Criminal Code Act. 
• collect or make documents likely to facilitate terrorist actsS. 101.5, 1995 Criminal Code Act. 
• be a member of a terrorist organisationS. 102.3, 1995 Criminal Code Act. 
• train with, fund, support, or associate with a terrorist organisationS. 102.5, 102.6, 102.7, and 102.8, 1995 Criminal Code Act. 
• direct the activities of a terrorist organisationS. 102.2, 1995 Criminal Code Act.
• recruit members for a terrorist organisationS. 102.4, 1995 Criminal Code Act.
• provide or collect funds connected to terrorist organisations, terrorists, or terrorist acts (directly or indirectly)Ss. 102.6 and 103.1, 1995 Criminal Code Act.
• advocate the conduct of a terrorist act or offenceS. 80.2(c), 1995 Criminal Code Act.

The maximum sentence for the commission of a terrorist act is life imprisonment.S. 101.1(1), 1995 Criminal Code Act.There are no mandatory sentences.

Section 80.2C of the Criminal Code makes it an offence, punishable by five years imprisonment, to advocate the conduct of a terrorist act or offence, where the person is reckless as to whether another person will engage in that conduct as a result. A person advocates terrorism if he or she “counsels, promotes, encourages or urges the doing of a terrorist act or the commission of a terrorism offence”. The standard of recklessness applies where the defendant is aware of a “substantial risk” that another person would engage in terrorism, such that the risk was unjustifiable. This offence sets a lower bar than incitement of terrorism and may have adverse impacts on free speech.

Section 102.8 of the Criminal Code creates an offence of associating with a person who is a member of, or who promotes or directs the activities of a terrorist organisation, where that person knows the organisation is a terrorist organisation and the association does and intends to provide support to the terrorist organisation. The offence does not apply to association for the purpose of family concern with close family members, public religious worship, humanitarian aid, or legal representation. With these safeguards, the association offence appears to safeguard against unnecessary restrictions on freedom of association.

Prosecutions for Terrorist Offences

Australia reported in 2015 that there had been 35 prosecutions and 26 convictions for terrorism.

Lodhi v. R (2006)

Before the Federal Court of Australia, Mr Lodhi was convicted of planning a terrorist act, through procuring a map of the Australian electricity supply system in connection with preparations to bomb part of that system.Lodhi v. R (2006) 199 FLR 364.

The Queen v. Khazaal (2012)

The case was heard before the High Court of Australia. The respondent had made an electronic book entitled "Provisions on the Rules of Jihad: Short Judicial Rulings and Organizational Instructions for Fighters and Mujahideen Against Infidels", which included advice on assassination techniques and listed categories of assassination targets, including Australia. The respondent was convicted with the terrorism offence of making document "connected with . . . assistance in a terrorist act" under Section 101.5(1) of the Criminal Code.The Queen v Khazaal (2012) 246 CLR 601.

Control Orders

Sections 104 and 105 of the Criminal Code permit a Court to impose certain coercive measures on a person for the purpose of preventing terrorism. These measures are separate to penalties relating to terrorist offences. Control orders and preventative detention orders do not require that the person they apply to is found guilty of any terrorist offences. Post-sentence orders apply to persons found guilty of terrorist offences, imposing obligations, prohibitions, or restrictions on them following the end of their sentence. 

The 2019 Counter-Terrorism (Temporary Exclusion Orders) Act provides that the Minister may prevent an Australian citizen, located outside Australia, from re-entering Australia, if the Minister suspects on reasonable grounds that the order would assist in preventing terrorism related activities. The order can apply to citizens of 14 years and older, for a duration of up to two years, permitting successive exclusion orders against the same person. These orders raise concerns for the internationally recognised right to return to one’s country of origin.Art. 12(4), 1966 International Covenant on Civil and Political Rights. 

Control orders allow the Court to impose obligations, prohibitions or restrictions on a person, including: 

• requiring a person remain at a specified premises for up to 12 hours a day, 
• requiring the person wear a monitoring device
• restricting presence at certain places, 
• prohibit communication with specified individuals
• prohibit use of certain forms of technology, including the internet.

An issuing court must be satisfied on the balance of probabilities that the control order would substantially assist in preventing a terrorist act or the support for a terrorist act. Alternatively, the court must be satisfied on the balance of probabilities that the person has engaging in training with a terrorist organisation, engaged or supported hostile activity in a foreign territory, or been convicted in Australia or overseas of a terrorism-related offence. 

The Court must be satisfied on the balance of probabilities that a control order is reasonably necessary and reasonably appropriate and adapted for protecting the public from a terrorist act, or preventing support for a terrorist act, or preventing support for a hostile activity in a foreign country. 

A control order may be in force for up to 12 months, but successive control orders can be made to extend this duration.S. 104.6, 1995 Criminal Code Act.It is an offence to contravene a control order with a penalty of up to 5 years imprisonment.S. 104.27, 1995 Criminal Code Act.Control orders may be imposed on children between 14-17 years of age.S. 104.28, 1995 Criminal Code Act. 

Preventative detention orders allow a person to be detained in custody for up to 48 hours (may be extended for an additional 48 hours)S. 105.9–105.10, 1995 Criminal Code Act.to prevent a terrorist attack that could occur within the next 14 days or preserve evidence related to a recent terrorist attack.S. 105.1, 1995 Criminal Code Act.Preventative detention orders can apply for persons aged 16 years and older.S. 105.5, 1995 Criminal Code Act.

Post-sentence orders apply to terrorist offenders where the Court accepts that the person poses an unacceptable risk of committing a serious terrorism related offence, after end of a sentence of imprisonment. A continuing detention order, is one such order, requiring the detention of a person in a prison for a period of up to 3 years.S. 105(A).7, 1995 Criminal Code Act.A continuing detention order (CDO) requires the Court to accept there is a ‘high degree of probability’ that the person poses a risk of committing a serious terrorism related offence. An extended supervision order, is another such order, imposing conditions upon a person (similar to the conditions of a control order), for up to a period of 3 years.S. 105(A).3, 1995 Criminal Code Act.

Counterterrorism Capacities and Policies at Domestic Level

Australia has a detailed federal counterterrorism strategy, most recently adopted in 2022, which is based on partnerships between all levels of government, communities, and the private sector. Joint Counter Terrorism Teams are partnerships between members from the Australian Federal Police, state and territory police, and the Australian Security Intelligence Organisation to combat terrorism. The aims of the strategy are said to be achieved through:

• countering violent extremism in all its forms by preventing radicalisation of individuals before an attack takes place, and rehabilitating and reintegrating violent extremist offenders
• equipping law enforcement, security intelligence and other operational agencies with the resources and powers to tackle terrorist threats
• ensuring counterterrorism arrangements are resilient, collaborative, consistent, and proportionate both nationally and internationally.

At the same time, Australia has stated that the threat of terrorism in the country is rising and that "it is becoming harder to combat".

Police (Federal and State) have powers in relation to terrorist acts and offences, set out in the 1914 Crimes Act. These powers include to stop and search a person for terrorism-related items, seizure of such items, emergency entry into premises without a warrant, power to request information or documents, and powers of arrest. 

The Australian Defence Force may also respond to terrorist incidents within Australia, including by use of reasonable and necessary force.S. 51(N), 1903 Defence Act 1903. 

The Australian Security Intelligence Organisation (ASIO) is empowered to conduct surveillance, and detain and question people who may have information on terrorism related activities.1979 Australian Security Intelligence Organisation Act.

The Independent National Security Legislation Monitor (INSLM) has responsibility for the ongoing review of the operation and effectiveness of national security and counter-terrorism laws.