The Law in Australia on Terrorist Crime
Terrorism charges are dealt with by the law under the Commonwealth Criminal Code Act 1995, under the following provisions:
- 2C: Advocating Terrorism
- Division 101: Terrorism
- 1 Terrorist acts
- 2 Providing or receiving training connected with terrorist acts
- 4 Possessing things connected with terrorist acts
- 5 Collecting or making documents likely to facilitate terrorist acts
- 6 Other acts done in preparation for, or planning, terrorist acts
- Division 102: Terrorist Organisations
- 2 Directing the activities of a terrorist organisation
- 3 Membership of a terrorist organisation
- 4 Recruiting for a terrorist organisation
- 5 Training involving a terrorist organisation
- 6 Getting funds to, from or for a terrorist organisation
- 7 Providing support to a terrorist organisation
- 8 Associating with terrorist organisations
- Division 103: Financing Terrorism
- 1 Financing terrorism
- 2 Financing a terrorist
If a person is charged with any of the above offences, however it is not proven that they committed the offence, the ‘trier of fact’ may find you guilty of an alternative offence if they are satisfied beyond reasonable doubt that the elements have been established. The only bar to obstruction to this is where procedural fairness has not been accorded to the defendant.
As a note, terrorism offences often refer to ‘recklessness’, which can be described as a circumstance will the person is aware of a substantial risk that will eventuate if they perform a certain action, yet unjustifiably take the risk, and perform the action.
80.2C – Advocating Terrorism
In accordance to this section, a criminal offence is committed where a person counsels, promotes, encourages, or urges the doing of a terrorist act or the commission of a terrorism offence. In addition, the prosecution must demonstrate that the person engaged in that conduct reckless as to whether another person will engage or commit a terrorism offence.
The penalty is imprisonment for a maximum of amount of five (5) years.
Division 101 – Terrorism
Division 101 directly relates to terrorist acts and its various related offences.
Section 101.1 concerns engaging in a terrorist act where it carries a heavy maximum penalty of imprisonment for life.
A ‘terrorist act’ is performed where conduct:
- Is done, or a threat is made, with the intention of advancing a political, religious, or ideological cause; and
- It has the intention of coercing, influencing, or intimidating either any government or public community.
It is not considered a terrorist act if people are engaging in advocacy, protest, dissent, or industrial subject to the condition that there is no intention of urging force or violence to cause harm to others.
Section 101.2 concerns providing or receiving training for terrorist acts. The prosecution must demonstrate that you provided or received training that is connected to committing a terrorist act. If knowledge of the connection is established, then there is a maximum penalty of twenty-five (25) years imprisonment. If found that there is recklessness to the connection, then the maximum gaol term is fifteen (15) years.
Section 101.4 concerns possession of a ‘thing’ that is connected with a terrorist act. Knowledge of the connection between the ‘thing’ and the terrorist act will result in a maximum penalty of fifteen (15) years, but for recklessness, is ten (10) years. The defendant bears the burden to prove that the ‘thing’ was not intended to facilitate a terrorist act.
Section 101.5 concerns collecting or making documents which are likely to facilitate terrorist acts. If the prosecution proves that there was actual knowledge of a connection between the documents and the terrorist act, then it is a maximum sentence of fifteen (15) years. Should only recklessness be proven, then it is ten (10) years. It is up to the defendant to show that the collection or making of the document was not intended to facilitate a terrorist act.
Section 101.6 is a provision concerning any actions performed to prepare or plan terrorist acts and carries an extremely heavy maximum penalty of life imprisonment.
For sections 101.2-6, an offence is still committed where:
- A terrorist act does not occur; or
- The offence in the respective subsection is not connected to a specific or numerous terrorist act.
Division 102 – Terrorist Organisations
Division 102 of the Criminal Code comprises of offences in relation to terrorist organisations. Generally, a ‘terrorist organisation’ is defined in the legislation as an organisation that engages in preparation, planning, assisting in, or fostering the doing of a terrorist act, whether directly or not.
Section 102.2 concerns directing the activities of a terrorist organisation and is committed where a person intentionally directs the activities of a terrorist organisation. If found guilty where you knew that it was a terrorist organisation, then you may be liable for twenty-five (25) years imprisonment. On the other hand, if you are found guilty of being reckless as to whether it was a terrorist organisation, then the maximum penalty is fifteen (15) years.
Section 102.3 concerns being a member of a terrorist organisation, which carries a maximum penalty for imprisonment of ten (10) years. A defence is available where the defendant can evidence all reasonable steps taken to crease membership as soon as practicable after they became aware that it was a terrorist organisation.
Section 102.4 concerns intentionally recruiting a person to join or participate in the activities of a terrorist organisation. If it is established that you knew it was a terrorist organisation, then you may face twenty-five (25) years imprisonment. Should you be found reckless as to whether it was a terrorist organisation, then the maximum penalty is reduced to fifteen (15) years imprisonment.
Section 102.5 concerns intentionally providing, receiving, or participating in training with a terrorist organisation, where it must also be demonstrated that you were reckless as to whether it was a terrorist organisation. A maximum penalty of imprisonment for twenty-five (25) years is attached to this offence.
Section 102.6 concerns making funds available to, receiving funds from, or collecting funds on behalf of a terrorist organisation. Whether the funds were funnelled directly or indirectly is not an important factor. A critical point is if you knew it was a terrorist organisation as it carries a maximum penalty of twenty-five (25) years imprisonment, but if you were reckless, it carries a reduced sentence of fifteen (15) years. The legislation makes a defence available where the funds are received for the purpose of making payment for legal representation for another person who has been charged under this provision, or receiving legal advice in connection to whether the organisation is a terrorist organisation, or are provided to the organisation so that it may comply with Australian laws.
Section 102.7 concerns intentionally providing support or resources to a terrorist organisation to aid the organisation in engaging terrorist activities. If there is knowledge that it is a terrorist organisation, then it is a maximum penalty of twenty-five (25) years of gaol, but for recklessness, it is a sentence of fifteen (15) years.
Section 102.8 concerns associating with a terrorist organisation.
Firstly, pursuant to subsection 1, an offence is committed if a person intentionally associates with someone who is a member of, or promotes, or directs activities of a terrorist organisation. The association must provide support to the organisation and there must be intention of the support to expand or continue. The person must be shown to be aware of the connection between the individual that they are associating with to a terrorist organisation in some manner.
Secondly, pursuant to subsection 2, if a person has already been convicted of this offence, yet continues to associate with a terrorist organisation, then they may be convicted under this subsection.
The penalty for each offence is imprisonment for three (3) years.
This section does not apply if the association:
- Is with a close family member relating to family or domestic concerns; or
- Is in a place used for pubic religious worship in the course of practising a religion; or
- For the purpose of providing aid of a humanitarian nature; and
- For the purpose of providing legal advice or representation.
Additionally, this section does not apply if it were to infringe on any implied freedom of political communications.
As there are two subsections relating to associating with a terrorist organisation, a person found guilty pursuant to subsection 1 is not be liable for conduct that takes place at the same time or within seven (7) days before or after those occasions.
Division 103 – Financing Terrorism
Division 103 of the Criminal Code encompasses the act of funding terrorism (either through the terrorist act itself or a person who intends to use the funds to engage in terrorist activities). If convicted under these provisions, a person may face a maximum penalty of imprisonment for life.
Section 103.1 concerns providing or collecting funds that will be used to facilitate or engage in a terrorist act.
Section 103.2 concerns providing or collecting funds for another person, whether directly or indirectly, and that the other person will use those funds for terrorist activity.
Additionally, it must be shown that you were reckless as to whether the funds would be used to facilitate or engage in a terrorist act.
An offence is still committed where a terrorist act does not eventuate, and where the funds are not used to facilitate or engage in either a specific terrorist act or in more than one terrorist act.
How JB Solicitors Can Help
A terrorism charge is extremely serious; therefore, it is vital that you receive legal representation and advice, especially as there may be a defence or mitigating factor that is applicable to your case.
JB Solicitors has a leading team of highly experienced criminal lawyers who can assist you with your matter. We understand the seriousness of the offence, and the difficulties you face when charged with terrorism offences. You will be provided with accurate and tailored advice to assist you in achieving the best possible outcome for your personal circumstance.
If you have been charged with a terrorism offence and need to know your options moving forward, please contact JB solicitors today on 02 9723 8080.