Commonwealth Director of Public Prosecutions

Counter Terrorism

Counter Terrorism

Section 3 of the Crimes Act 1914 defines “terrorism offence” to include a number of criminal offences, including criminal offences contained in Part 5.3 and 5.5 of the Criminal Code and the Charter of the United Nations Act 1914.

Part 5.3 of the Criminal Code is entitled “Terrorism”. This part of the Criminal Code contains offences relating to terrorism, terrorist organisations and financing terrorism. These offences were introduced into the Criminal Code in 2002 following the attacks on New York City and Washington on 11 September 2001.

Part 5.5 of the Criminal Code contains offences relating to foreign incursions and recruitment. These laws prohibit persons from engaging in hostile activity in a foreign country or preparing to do so. Foreign incursion offences were previously found in the Crimes (Foreign Incursions and Recruitment) Act 1978. These offences were relocated to the Criminal Code in 2014. Part 5.5 also prohibits persons from intentionally entering or remaining in an area that has been designated a declared area by the Minister for Foreign Affairs.

Part 5.1 of the Criminal Code also contains a number of terrorism offences as well as other offences which prohibit the urging of violence against particular groups or advocating terrorism.

A range of other Commonwealth and State legislation create offences which, whilst not terrorism offences, may nevertheless be relevant and appropriate to prosecute in cases where a person engages in, or proposes to engage in, violent conduct which is motivated by a political, religious or ideological cause.

Counter terrorism prosecutions

Counter-terrorism prosecutions play an important part in deterring those who seek to cause harm to persons or property, with the intention of coercing or intimidating Australia or its people and advancing a political, religious or ideological cause.

There has been an increase in the number of counter terrorism prosecutions conducted by the CDPP since 2014. The matters prosecuted by the CDPP include domestic terrorism plots, matters in which support has been provided to international terrorist organisations and matters where the offender has engaged in, or prepared to engage in, hostile activity in a foreign country.

Counter-terrorism prosecutions are often large, complex and resource intensive. Many matters referred to the CDPP for prosecution involve criminal conduct that has taken place wholly or partly outside Australia or evidence that has been located overseas.

As with any other matter the CDPP receives, all counter-terrorism prosecution referrals from investigative agencies are assessed in accordance with the Prosecution Policy of the Commonwealth. Due to the unique nature of counter-terrorism prosecutions, the CDPP will often be requested to provide legal advice to partner agencies during the course of active police investigations. This advice aims to better inform police operational decision making and deliver more effective law enforcement outcomes.  

Key legislation

Main offences

  • Division 101 of the Criminal Code –Terrorist act offences
  • Division 102 of the Criminal Code – Terrorist organisation offences
  • Division 103 of the Criminal Code – Financing terrorism offences
  • Division 119 of the Criminal Code - Foreign incursion and recruitment offences

Penalties

  • The maximum penalties for Division 101 offences range from life imprisonment to 10 years’ imprisonment
  • The maximum penalties for Division 102 offences range from 25 years’ imprisonment to 3 years’ imprisonment
  • The maximum penalty for Division 103 offences is life imprisonment
  • The maximum penalties for Division 119 offences range from life imprisonment to 10 years’ imprisonment.

Partner agencies

Law Reform

Legislation

Terrorism legislation has been frequently amended since 2002.

The Independent National Security Legislation Monitor (INSLM) has responsibility for the ongoing review of the operation and effectiveness of national security and counter-terrorism laws.

Reports

  • INSLM Statutory Deadline Reviews 2017
  • COAG Review of Counter-Terrorism Legislation Report 2013
  • Report of the Inquiry into Potential Reforms of Australia’s National Security Legislation by the Parliamentary Joint Committee on Intelligence & Security 2013
  • Independent National Security Legislation Monitor Annual Reports
  • Counter-Terrorism White Paper 2010
  • Street Review 2008