ECAJ’s submission on the review of the definition of a ‘terrorist act’ in section 100.1 of the Criminal Code Act 1995.
The Independent National Security Legislation Monitor is reviewing the definition of ‘terrorist act’ under section 100.1 of the Criminal Code Act 1995 (Cth) (Criminal Code).
Some organisations and individuals have advocated for the removal of a terrorist motive element, including religious motivation, from the definition. It is the ECAJ’s position that dismantling the specific conceptual framework that has been developed internationally in relation to terrorism would make our society more vulnerable to acts of terrorism.
The ECAJ’s submission (PDF: 673KB):
Supports retaining the motive/purpose element
ECAJ supports retaining the motive purpose/element of the definition in its current form and opposes any change to it.
Terrorists are motivated by a variety of political, ideological, and religious motives (or a combination of them). Removing these limbs or blurring them into a one-size-fits-all category would hinder ASIO’s and AFP’s work and the distinction between terrorism and other forms of hate-based violence.
Our submission notes:
- Of the 83 sentencing decisions and appeals for people convicted of terrorism offences under 80.2C and Divisions 101–103 of the Commonwealth Criminal Code from 2002 to 2024, 78 were cases where perpetrators were religiously motivated, 4 were motivated by white supremacism or right-wing extremism, and 1 was motivated by an ideologically and politically motivated perpetrator.
- We strongly reject any suggestion that political, religious and ideological motives can all be subsumed within the rubric of ‘ideological’ motivations.
- The definition of a ‘terrorist act’, and counter-terrorism law more generally, should be guided only by an evidence-based consideration of how terrorism actually operates, and should not be treated as a tool to smooth community relations.
Supports retaining the terrorist purpose requirement
The ECAJ submission argues that the ‘terrorist purpose’ requirement of the definition must be retained to ensure that attacks with a ‘terrorist motive’ directed against specific communities, such as the Jewish community, are correctly recognised as terrorism rather than generic hate crimes.
Opposes limiting harm
Limiting harm to serious physical injury or to ‘critical infrastructure’ would exclude many genuine terrorist methods, including symbolic or communal property attacks that generate, and are intended to generate, widespread fear. Our submission supports keeping the current list of specific harms, but adding psychological harm and hostage-taking to this list.
Supports maintaining threats within the definition
We have also argued strongly in support of maintaining threats within the definition of ‘terrorist act’, noting that the capacity to prosecute threats and preparatory conduct has prevented numerous attacks since 2002.
