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.

For more:

• Download the full ECAJ sub­mis­sion on defining terrorism (PDF: 673KB)
• Defining terrorism review on the Inde­pend­ent National Security Legis­la­tion Monitor website