Defining terrorism: Review of the definition of a ‘terrorist act’ in section 100.1 of the Criminal Code Act 1995
The Independent National Security Legislation Monitor (the Monitor) is in the early stages of reviewing the definition of a ‘terrorist act’ under section 100.1 of the Criminal Code Act 1995 (Cth) (Criminal Code). The Monitor is undertaking this review using the ‘own motion’ power in s 6(1)(a) of the Independent National Security Legislation Monitor Act 2010 (Cth) (INSLM Act).
The definition of a ‘terrorist act’ in section 100.1 of the Criminal Code is an element for a number of serious offences and enlivens a broad range of policing and other powers under Commonwealth, State and Territory laws.
The Australian definition of a ‘terrorist act’ has not changed since it was enacted in 2002 in the wake of the 9/11 attacks in the United States. The type of terrorism threat that Australia faces has changed significantly since that time, yet the definition has remained unchanged since its introduction. The volume and scope of powers and offences connected to the definition has expanded significantly since 2002. The last Commonwealth review of the definition was a 2013 review by the Council of Australian Governments.
Key Issues
In accordance with sections 6 and 8 of the INSLM Act, the Review will consider a range of matters including:
- the effectiveness and implications of the definition;
- whether the legislation contains appropriate safeguards for protecting the rights of individuals;
- if the definition, when considered in light of the offences and powers it enlivens, remains necessary and proportionate to the current threat of terrorism;
- whether the definition is consistent with Australia’s international obligations, including various counter-terrorism resolutions and agreements and current international ‘best practice’.
Review Process
The Monitor intends to publish an Issues Paper and invite submissions from the public and government agencies in August 2025. There will be approximately 10 weeks for written submissions to be made. During this period there will also be consultation and potentially roundtable meetings.
Additional resources including research papers will be published on the INSLM website as they become available.
The Monitor will likely hold public hearings in November/December 2025, and February/March 2026 (subject to the outcomes and response to the Issues Paper). Private hearings may also be held.
Once enough information has been gathered and analysed the Monitor will prepare a report for the Attorney-General. This report will be tabled in the Commonwealth Parliament.