Anything to do with terrorism and by extension anti-terrorism laws has a tendency to be an emotive and at times, a sensationalised topic in the media. So as a matter of broad general knowledge it is good to know exactly what is meant when a reference is made to Australia’s ‘anti-terrorism laws’ (sometimes referred to as ‘counter-terrorism laws’), the extent of those laws and the potential penalties that can be imposed under the law.

Why have an ‘Anti-Terrorism Law’?

In order to function effectively any civilised country will of necessity have in place laws that govern a wide range of people’s daily interactions. These laws may be as seemingly mundane as the laws associated with how we drive a car right through to a more serious matter such as it being illegal to taken another person’s life. Many of the laws that determine what is considered to be a legal activity in Australia were developed or enacted well before the issues of terrorism even became part of the wider general consciousness.

While Australia may be an island nation we are also undeniably part of a global community and we cannot live or function in a vacuum. Terrorist events that occur overseas as well as on Australian soil have the potential to have a profound impact on our way of life. As a responsible global citizen it is appropriate that we have in place effective laws to enable our law makers and security services to properly respond to threatened or actual terrorist acts.

What constitutes a terrorist act offence?

In order to be classified as a terrorist act there must an act or a threat to act that meets a two-fold criteria test.

Firstly, the act or threat to act must intend to coerce or influence the public or any government by intimidation to advance a political, religious or ideological cause. A terrorist act offence can include committing, planning or preparing or financing a terrorist act. It can also mean providing or receiving training connected with terrorist acts, possessing things (for example, a bomb) connected with terrorist acts or collecting and making documents likely to facilitate a terrorist attack.

However, an act or threat alone will not be sufficient to constitute a terrorist act. In addition to the first criteria, the act must cause one or more of the following things to occur:

• death, serious harm or danger to a person;
• serious damage to property;
• a serious risk to the health of safety of the public; or
• serious interference with, disruption to, or destruction of critical infrastructure such as a telecommunications or electricity network.

It is possible to be convicted of a terrorist act offence if one of the offences mentioned above is committed or if a person is reckless as to whether their actions would amount to a terrorist act. This means that deliberately planning or arranging for another person to carry out a terrorist act offence may still be an offence even if you did not carry out the terrorist act yourself.

Being reckless means that you are aware that there is a substantial risk that a result or circumstances will exist and in the circumstances known to you it is unjustifiable to take the risk.

What is not a terrorist act?

Simply advocating for another person or cause, protesting, dissenting, disagreeing or taking industrial action are not of themselves terrorist acts provided the person doing the activity does not intend to cause serious harm to a person or create a serious risk to public safety.

Terrorist Organisation Offences

A terrorist organisation is an organisation that has been listed by the Government or has been found by a Court to be either directly or indirectly engaged in preparing, planning or assisting in or supporting the doing of a terrorist act. Some safeguards are in place around the listing of organisations and before an organisation can be listed as a terrorist organisation. Any listing ceases to have effect after three years after the commencement of the listing or if the Attorney-General ceases to be satisfied that the organisation is involved in terrorist activities (whichever happens first).

What constitutes an offence?

It is an offence to be a member, direct activities, recruit, train or receive training from, acquire funds for, from or to a terrorist organisation or to provide support to a terrorist organisation. It is possible to commit a terrorist organisation offence even where an organisation has not been listed by the Government.

What are the penalties for committing a terrorist act?

The potential penalties vary but can range from a maximum penalty of 3 years imprisonment for anyone found guilty of associating with a terrorist organisation through to 10 years imprisonment for being found guilty of being a member of a terrorist organisation. In addition, if a person is found guilty of one of the other terrorist organisation offences they may be imprisoned for up to 25 years.

What is the focus of the laws?

Australia’s counter-terrorism laws have both a pro-active and a re-active focus. In addition these laws aim to prevent the financing of terrorism and the recruitment of Australian citizens for foreign incursions and recruitment of offences and also address the issue of urging of violence and the advocating of terrorism offences.

The role of the Australian Federal Police

The police may detain people under preventative detention orders but only where there is a threat of an imminent terrorist attack or immediately after such an attack. Such preventative detention can be for a maximum of 48 hours under Commonwealth law and up to 14 days under State or Territory laws with the combined detention time not to exceed 14 days (even if both Commonwealth and State or Territory Laws are utilised).

In addition police have powers to issue a control order if it will substantially assist in preventing a terrorist attack or if the person subject to the order has trained with a listed terrorist organisation. Among other things, a control order can stop or limit a person’s movements in certain areas or from leaving the country, can prevent a person from communicating with certain people and can limit access to technology including the internet.

Anti-terrorism and counter-terrorism laws are an interesting and evolving part of the Australian legal landscape and we felt it worthwhile to provide a simple summary of the laws as they currently apply so you were more well-informed.

About the author:

This article has been written by Peter Heazlewood of Lift Legal.