Review of the definition of a ‘terrorist act’ in section 100.1 of the Criminal Code Act 1995
Submission Date: 27 November 2025
Terrorism is an insidious form of political violence that undermines the democratic process and exposes Australians to risk of death and serious injury.
The Law Council acknowledges the need to ensure that Australia’s definition of a “terrorist act” is calibrated to provide government, law enforcement and our intelligence services with a clear, precise, and appropriate basis for prosecuting, investigating, and disrupting political violence in Australia.
It is vitally important to Australia’s national security, the operation of criminal justice, and the safety of the community that Australia’s laws are fit for purpose and that any impacts on human rights, fundamental freedoms, or rule of law principles are limited to the extent that they are necessary and proportionate to achieve that aim.
The definition of a “terrorist act” was introduced into the Criminal Code Act 1995 (Cth) (Criminal Code) in the aftermath of 11 September 2001. The spirit of the original legislation was to provide law enforcement and intelligence services with an extraordinary set of powers to address the threat posed by sophisticated and well-financed non-state actors who seek to inflict catastrophic acts of violence and destruction upon the community.
The Law Council, noting public commentary by the Director-General of Security, acknowledges that the contemporary threat environment differs significantly to that confronting the nation twenty-two years ago. In addition to the change in threat, Australia now has a robust national security infrastructure, routinely discuss social cohesion and the maintenance of sovereignty, and the agencies are alert and equipped to respond to political violence in a manner unrecognisable a generation ago.
In broad terms, this submission makes the following suggestions for what the Law Council believes are balanced, sensible and pragmatic improvements to the definition of a “terrorist act”.
First, the definition requires careful clarification of key terms to ensure that it includes only that which is agreed to constitute terrorism while clearly excluding that which is not terrorism. The Law Council suggests that the enumerated examples of harms require refinement to ensure the high and serious threshold of terrorism is reflected in the conduct element of the definition. The Law Council proposes that the phrase “section of the public” ought to be more carefully defined, and the motive element could be amended to ensure that the concept of “ideology” covers the evolving range of motivations currently understood to constitute terrorism. It is also important to consider the appropriateness of maintaining “religion” as a category of motivation within the definition.
Second, the definition can be improved to provide greater protection to Australians. The Law Council proposes that clarifying within the definition that hostage taking can constitute a terrorist act is an improvement consistent with international best practice. Likewise, the Law Council suggests that ensuring that certain international organisations fall under the protections of anti-terrorism legislation sends an important signal to the international community. The Law Council also suggests excluding the provision of aid from the definition of terrorist act will provide greater certainty to those engaged in humanitarian relief.
Third, the Law Council thinks there are structural issues with the definition that require amendment to ensure that what constitutes a “terrorist act” has the clarity and certainty appropriate for an offence carrying a maximum penalty of life imprisonment. To this end, the Law Council recommends that “threat of action” should be removed from the definition of a “terrorist act” and re-introduced as a standalone offence with appropriate elements and penalties.
In the Law Council’s view the definition of a “terrorist act” should retain its focus on the most serious categories of political violence. The extraordinary investigatory powers, penalties, and restriction on liberty that follow from this definition, if they are to persist on the statute book, should be carefully restricted to the most serious and potentially catastrophic risks confronting the community. This includes narrowing the reference to “serious damage to property” to situations where there is either risk to, or endangerment of, persons accompanying such damage, and/or where the property constitutes critical infrastructure.
The Law Council welcomes the opportunity to make this submission to the Independent National Security Legislation Monitor’s review of this definition. The Law Council supports the careful and independent review of controversial legislation in a manner that provides civil society with ample opportunities to consult and make submissions on matters of public importance. Review mechanisms, such as this, are especially important where such laws are often proposed, drafted and passed without proper Parliamentary scrutiny and under the impost of time pressure.
Last Updated on 09/12/2025
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