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Being investigated for or charged with a terrorism-related offence is among the most serious criminal matters a person can face in Australia.
Terrorism allegations can involve a wide range of conduct, including alleged terrorist acts, preparation or planning, terrorist organisations, membership, training, possession of material, financing, advocacy and other conduct said to be connected with terrorism.
Terrorism offences may arise under New South Wales legislation or Commonwealth legislation, depending upon the nature of the alleged conduct and the applicable jurisdiction.
The Commonwealth Criminal Code Act 1995 contains the principal Australian terrorism offences in Part 5.3, while the Crimes Act 1900 (NSW) contains a specific terrorism offence concerning membership of a terrorist organisation under Part 6B.
At Chidiac & Associates, we provide strategic criminal defence representation to individuals facing serious terrorism-related allegations throughout Sydney and New South Wales.
These matters require careful consideration of the precise legislation relied upon, the elements of the particular offence, the evidence gathered by police and intelligence agencies, and the significant penalties that may apply.
NSW has specific legislation dealing with terrorism.
The principal NSW provision is contained in Part 6B of the Crimes Act 1900 (NSW).
Part 6B contains section 310J, Membership of terrorist organisation.
The legislation adopts the Commonwealth definition of "terrorist organisation" and "member of a terrorist organisation" by reference to section 102.1 of the Commonwealth Criminal Code.
It is therefore important to understand that an allegation prosecuted under NSW law can still require consideration of Commonwealth legislation when determining whether an organisation constitutes a terrorist organisation.
Section 310J of the Crimes Act 1900 (NSW) creates an offence where a person intentionally is a member of a terrorist organisation, knows that the organisation is a terrorist organisation and the organisation satisfies the statutory definition.
The maximum penalty is:
The legislation also contains a specific provision dealing with a person who proves that they took all reasonable steps to cease being a member as soon as practicable after becoming aware that the organisation was a terrorist organisation.
To establish an offence under section 310J, the Prosecution must establish the relevant elements.
The Prosecution must establish that the accused person was a member of the organisation.
The meaning of "member" is determined by reference to the relevant provisions of the Commonwealth Criminal Code.
The Prosecution may rely upon evidence concerning the person's conduct, communications, involvement, role or relationship with the organisation.
The Prosecution must establish that the accused person intentionally was a member of the organisation.
The mere fact that a person had some contact with individuals associated with an organisation does not necessarily establish the offence.
The circumstances and nature of the alleged membership must be carefully examined.
The Prosecution must establish that the organisation was a terrorist organisation within the meaning of the relevant legislation.
This may involve consideration of whether the organisation was an organisation directly or indirectly engaged in, preparing for, planning, assisting in or advocating the doing of a terrorist act, depending upon the statutory definition applicable at the relevant time.
The Prosecution must establish that the accused person knew that the organisation was a terrorist organisation.
This is an important mental element.
Evidence concerning the person's knowledge, communications, conduct and circumstances may therefore become central to the Prosecution case.
Section 310J contains an important statutory provision concerning a person who takes steps to cease being a member.
The offence does not apply where the person proves that they took all reasonable steps to cease being a member as soon as practicable after becoming aware that the organisation was a terrorist organisation.
This issue can therefore become particularly important where the Prosecution alleges that a person remained involved with an organisation after becoming aware of its terrorist status.
NSW legislation expressly recognises the potential overlap between section 310J and Commonwealth terrorism offences.
Section 310K provides that where the same act or omission constitutes an offence under both Part 6B and the Commonwealth Criminal Code, and the person has been punished under the Commonwealth Criminal Code, the person is not liable to be punished under the NSW provision.
This means that the precise Commonwealth and NSW charges must be carefully examined where conduct potentially falls within both legislative schemes.
The principal Commonwealth terrorism offences are contained in Part 5.3 of the Criminal Code Act 1995 (Cth).
Part 5.3 is divided principally into:
The Commonwealth legislation contains a much broader range of terrorism offences than the NSW offence of membership of a terrorist organisation.
The Commonwealth provisions can apply to conduct occurring in Australia and, in specified circumstances, conduct occurring outside Australia.
The definition of a terrorist act is fundamental to many Commonwealth terrorism offences.
The statutory definition generally requires conduct involving serious harm, serious damage, death, danger to life, serious risk to public health or safety, or serious interference with or disruption of certain electronic systems.
The action must also be undertaken with the intention of advancing a political, religious or ideological cause and with the intention of coercing or influencing government by intimidation or intimidating the public or a section of the public.
The definition contains important statutory exclusions, including provisions concerning advocacy, protest, dissent and industrial action in circumstances where the relevant statutory requirements are not met.
The exact definition must be considered carefully because it forms an essential component of several terrorism offences.
Section 101.1 of the Criminal Code creates the offence of engaging in a terrorist act.
The maximum penalty is:
The Prosecution must establish beyond reasonable doubt that:
The ideological purpose and intention requirements contained within the definition of a terrorist act can therefore become central issues at trial.
Section 101.2 creates offences concerning providing or receiving training connected with preparation for, engagement in or assistance in a terrorist act.
The Prosecution must establish the relevant training and the statutory connection between that training and terrorism.
The maximum penalty for the principal offence is:
The circumstances of the alleged training, what was taught, the purpose of the training and the accused person's knowledge may all become important issues in the defence.
Section 101.4 creates offences involving possession of a thing connected with preparation for, engagement in or assistance in a terrorist act.
Where the person knows of the relevant connection, the maximum penalty is:
Where the person is reckless as to the connection, the maximum penalty is:
The Prosecution must establish possession, the relevant connection and the applicable mental element.
Section 101.5 concerns collecting or making documents likely to facilitate terrorist acts.
The Prosecution must establish the relevant connection between the document and preparation for, engagement in or assistance in a terrorist act, together with the applicable knowledge or recklessness requirement.
The maximum penalty can be:
depending upon the applicable offence and mental element.
The context in which a document was created, collected or possessed may therefore be highly significant.
A person does not necessarily have to carry out a terrorist act before facing a serious terrorism charge.
Section 101.6 creates an offence where a person does an act in preparation for, or planning, a terrorist act.
The maximum penalty is:
The Prosecution therefore does not necessarily need to establish that the proposed terrorist act was ultimately carried out.
Division 102 of the Criminal Code creates a separate group of offences concerning terrorist organisations.
These include offences concerning:
The maximum penalty depends upon the particular offence.
The Prosecution must establish the specific elements of the relevant section rather than simply proving that the accused had some contact with an organisation.
Commonwealth law also contains an offence concerning membership of a terrorist organisation.
This should be distinguished from the separate NSW offence under section 310J of the Crimes Act 1900 (NSW).
A Commonwealth Prosecution may involve detailed evidence concerning:
The precise statutory requirements must be examined according to the particular charge and the legislation applicable at the relevant time.
Commonwealth law creates offences concerning recruiting persons for terrorist organisations.
The Prosecution must establish the relevant recruiting conduct and the applicable mental elements.
Evidence may include communications, social media activity, personal meetings, online interactions and other alleged attempts to persuade or facilitate another person's involvement.
The context of the alleged communication can be particularly important.
Division 102 also contains offences concerning providing support to a terrorist organisation.
Allegations may involve:
The Prosecution must establish the particular statutory elements of the offence charged.
Section 102.8 creates offences concerning intentionally associating with a terrorist organisation in specified circumstances.
The legislation contains detailed requirements and statutory exceptions.
An allegation of association should therefore be carefully analysed by considering:
Contact with an individual does not automatically establish criminal liability.
Division 103 creates Commonwealth offences concerning financing terrorism.
These offences can involve allegations concerning the provision, collection or handling of funds connected with terrorism.
The maximum penalty for the principal financing terrorism offence is:
Financial evidence can therefore become an important part of a terrorism Prosecution.
This may include:
Don't wait to get advice. Chidiac & Associates provides confidential criminal defence representation across Sydney and New South Wales, whenever you need it most.
Terrorism-related offences are not limited to conduct involving physical attacks.
Commonwealth law also contains an offence concerning advocating terrorism under section 80.2C of the Criminal Code.
The offence applies where a person advocates the doing of a terrorist act or the commission of specified terrorism offences and engages in that conduct recklessly as to whether another person will engage in a terrorist act or commit the relevant terrorism offence.
The maximum penalty is generally:
subject to the alternative maximum applicable where the advocacy concerns a particular terrorism offence.
The statutory definition of "advocates" includes counselling, promoting, encouraging or urging the doing of a terrorist act or commission of a terrorism offence.
The legislation also contains a statutory defence for certain acts done in good faith.
The Prosecution bears the burden of proving the elements of the particular terrorism offence beyond reasonable doubt.
The Prosecution must establish the specific statutory requirements of the offence charged.
Depending upon the allegation, this may include proving:
The fact that conduct may appear suspicious or concerning is not sufficient by itself to establish criminal guilt.
Terrorism Prosecutions require highly specialised preparation.
Depending upon the circumstances, possible defence issues may include:
The availability of a particular defence will depend upon the precise offence and evidence.
Terrorism investigations can involve substantial digital evidence.
This may include:
The context surrounding digital material can be critical.
A particular message, photograph, document or online interaction should not necessarily be considered in isolation.
The defence may need to examine who created the material, who controlled the relevant account or device, when the material was created, the surrounding communications and whether the Prosecution can establish the required mental element.
Terrorism matters can involve evidence gathered during national security investigations.
This may include:
The National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) may also become relevant to proceedings involving national security information.
These matters require careful consideration of both the criminal allegations and the procedural rules governing sensitive information.
Bail applications in terrorism matters can be particularly complex.
The seriousness of the allegations, potential penalty, alleged links to organisations or individuals, proposed conditions, risk of further offending and other matters may be relevant.
A carefully prepared bail application may need to address:
Early legal representation can be particularly important where a person has been arrested or charged in connection with a terrorism investigation.
Terrorism offences carry some of the most severe penalties available under Australian criminal law.
The applicable penalty depends upon the precise offence.
Section 310J, Crimes Act 1900 (NSW)
Maximum penalty:
Section 101.1, Criminal Code Act 1995 (Cth)
Maximum penalty:
Section 101.6
Maximum penalty:
Section 101.2
Maximum penalty:
Section 101.4
Maximum penalty:
The maximum penalties vary substantially depending upon the particular Division 102 offence.
Certain financing terrorism offences carry:
Section 80.2C carries:
subject to the statutory provisions governing the particular offence advocated.
If a person is convicted of a terrorism offence, the Court will consider the circumstances of the offending and the offender when determining the appropriate sentence.
Terrorism offending is treated as exceptionally serious, particularly where the conduct involves violence, threats of violence, preparation for an attack or an intention to cause widespread fear.
Factors may include:
Terrorism offences are also subject to special Commonwealth sentencing and post-sentence provisions in certain circumstances. The NSW Judicial Commission notes that prescribed terrorism offences can attract special procedural, sentencing and post-sentencing provisions.
The consequences of a terrorism conviction can extend beyond the ordinary sentence imposed by the Court.
Depending upon the offence and circumstances, legislation provides for particular post-sentence regimes concerning terrorism offenders, including provisions dealing with:
NSW also has specific legislation dealing with certain high-risk terrorism offenders, including the Terrorism (High Risk Offenders) Act 2017 (NSW).
These issues can therefore remain important even after a custodial sentence has been imposed.
Terrorism trials can involve highly complex evidence and difficult questions of law.
At Chidiac & Associates, we assist clients by:
Our approach is built on meticulous preparation, strategic decision-making and strong courtroom advocacy.
At Chidiac & Associates, we understand the exceptional seriousness of terrorism allegations and the consequences they can have for an accused person and their family.
We can assist with:
Our approach is built on thorough preparation, strategic advice and persuasive courtroom advocacy.
If you or a family member is being investigated for or has been charged with a NSW or Commonwealth terrorism offence, obtaining experienced legal advice as early as possible is critical.
Terrorism allegations can involve extremely serious penalties, complex evidence and significant restrictions on an accused person's liberty.
The Prosecution must nevertheless prove the specific elements of the offence charged beyond reasonable doubt.
At Chidiac & Associates, we provide strategic criminal defence representation to individuals facing serious NSW and Commonwealth terrorism allegations throughout Sydney and New South Wales.
Contact Chidiac & Associates today for confidential advice and experienced criminal defence representation in terrorism matters.
Need representation or unsure what the next steps in your case are? Contact us today for a consultation.