At Chidiac & Associates, we provide experienced criminal defence representation in serious Commonwealth criminal matters. We carefully examine the alleged conduct, the evidence relied upon by the Prosecution and whether the Prosecution can establish that the conduct amounted to preparation for or planning of a terrorist act.

What is Planning a Terrorist Act?

The offence is contained in section 101.6 of the Criminal Code Act 1995 (Cth), titled “Other acts done in preparation for, or planning, terrorist acts.”

Under s 101.6(1), a person commits an offence if they do any act in preparation for, or planning, a terrorist act.

Maximum penalty: Life imprisonment

The legislation expressly provides that the offence can be committed even where:

• a terrorist act does not occur;
• the act is not done in preparation for or planning a specific terrorist act; or
• the act is done in preparation for or planning more than one terrorist act.

What is a Terrorist Act?

The meaning of “terrorist act” is defined in section 100.1 of the Criminal Code.

Broadly, a terrorist act involves an action or threat of action that:

• causes serious physical harm to a person;
• causes serious damage to property;
• causes a person's death;
• endangers a person's life;
• creates a serious risk to public health or safety; or
• seriously interferes with, seriously disrupts or destroys critical infrastructure,

where the relevant requirements concerning the intention to coerce or influence government or intimidate the public are also established.

The definition contains a number of detailed requirements and exclusions, meaning that whether particular conduct amounts to a terrorist act must be assessed carefully under the legislation.

Elements of Planning or Preparing for a Terrorist Act

To establish an offence under s 101.6, the Prosecution must prove the relevant elements beyond reasonable doubt.

1. The Accused Did an Act

The Prosecution must establish that the accused did an act.

The legislation does not require the Prosecution to establish that the accused actually carried out a terrorist attack.

The precise nature of the alleged act will therefore be important.

2. The Act Was in Preparation for or Planning a Terrorist Act

The Prosecution must establish that the act was done in preparation for, or planning, a terrorist act.

This requires examination of the circumstances surrounding the alleged conduct and its connection with the planning or preparation of terrorist activity.

The distinction between an innocent or unrelated act and an act genuinely connected with preparation or planning may therefore be critical.

Does a Terrorist Act Have to Occur?

No.

Section 101.6(2) expressly provides that a person can commit the offence even if the terrorist act does not occur.

The offence can also apply where the alleged act was not directed towards a particular terrorist act, or where it concerned more than one potential terrorist act.

This means that the Prosecution does not need to establish that an attack was ultimately carried out.

What Are the Penalties?

Under section 101.6(1) of the Criminal Code Act 1995 (Cth):

Maximum penalty: Life imprisonment

This is an exceptionally serious maximum penalty.

It is important to understand that a maximum penalty does not mean that a person convicted will automatically receive life imprisonment. The sentence imposed depends upon the circumstances of the offending and the individual circumstances of the offender.

Penalty at a Glance

Can I Defend a Planning a Terrorist Act Charge?

Being charged with an offence under s 101.6 does not mean that you are guilty. The Prosecution bears the burden of proving the offence beyond reasonable doubt.

Depending upon the circumstances, potential issues may include:

• the accused did not perform the alleged act;
• the alleged act was not an act in preparation for or planning a terrorist act;
• the Prosecution cannot establish the required connection between the conduct and a terrorist act;
• the alleged conduct has been misunderstood or taken out of context;
• the Prosecution evidence is unreliable or insufficient;
• the accused's involvement has been incorrectly attributed; or
• the evidence does not establish the necessary elements of the offence.

The appropriate defence will depend upon the precise allegations and evidence.

Evidence in Terrorism Planning Cases

These investigations can involve extensive evidence, including:

• electronic devices and forensic examinations;
• internet search history;
• digital communications;
• documents and photographs;
• CCTV and surveillance;
• financial records;
• travel records;
• witness evidence;
• police interviews; and
• evidence concerning alleged preparations or activities.

Digital evidence can be particularly significant in these matters. The context in which information was accessed, created, stored or communicated may be important when determining whether the Prosecution can establish the alleged planning or preparation.

Sentencing for Planning a Terrorist Act

If a person is convicted, the court may consider matters including:

• the nature and extent of the planning or preparation;
• the degree of the offender's involvement;
• the intended target or targets;
• the potential consequences of the proposed terrorist act;
• the level of preparation achieved;
• whether other people were involved;
• the offender's criminal history;
• personal circumstances;
• age and prospects of rehabilitation;
• remorse; and
• whether an early guilty plea was entered.

The fact that the maximum penalty is life imprisonment does not mean that every offence under s 101.6 will result in a life sentence. The sentencing court must determine the appropriate sentence based upon the particular circumstances.

How We Can Help

At Chidiac & Associates, we provide:

• confidential advice concerning Commonwealth terrorism offences;
• detailed analysis of the Prosecution case;
• examination of digital and forensic evidence;
• assessment of surveillance and communications evidence;
• advice concerning the elements of s 101.6;
• advice concerning potential defences;
• representation in Commonwealth criminal proceedings;
• preparation for defended proceedings and trials; and
• sentencing advice and representation.

Our approach is built on thorough preparation, careful analysis and strong courtroom advocacy.