Is Australia’s terrorism definition still fit for purpose?

With the alleged attempted bombing at Perth’s Invasion Day protest now declared a terrorist act, the release of coronial findings into the Bondi Westfield stabbing, and ever-growing fears around hate crime and extremism, there’s a difficult question to grapple with: what is terrorism?.

An immediate answer is found in Australia’s legal definition. However, this was created back in 2002, and the global threat environment has since evolved many times over.

While organised terrorist groups such as al-Qaeda and Islamic State persist, the threat landscape is now variegated. There are neo-Nazis, incels, sovereign citizens and more on the horizon.

Lone actors are a particular challenge, as they do not always fit neatly into an ideological box. They can decide to act very quickly, and it can be difficult for agencies to know who they are and what level of risk they pose.

Violence can be driven in part by mental health crises. This is why contemporary threats are sometimes called “mixed, unstable or unclear”.

In response to this complex threat environment, the Independent National Security Legislation Monitor, Australia’s counter-terrorism law watchdog, is undertaking a landmark inquiry into Australia’s legal definition of terrorism. Is it still fit for purpose?

The current definition

Australia’s legal definition of terrorism is found in section 100.1 of the Commonwealth Criminal Code. It says conduct or a threat will qualify as a “terrorist act” if it satisfies these three requirements:

• it is done to coerce or influence a government by intimidation, or intimidate a section of the public (intention requirement)

• it is done for the purpose of advancing a political, religious or ideological cause (motive requirement)

• it causes or relates to some specified harm, including death, serious bodily injury, serious property damage, or serious risks to health or safety (harm requirement).

There is an exemption for protest, advocacy, dissent or industrial action that is intended only to cause serious property damage.

This definition was created in 2002, following the September 11 attacks in the United States by al-Qaeda the previous year.

At that time, Australia did not have any national counter-terrorism laws. Countries around the world were scrambling to enact them in line with a resolution adopted by the United Nations Security Council.

One country with laws already in place was the United Kingdom. Before September 11, the British Parliament enacted the Terrorism Act 2000, which was based on temporary and emergency powers used in Northern Ireland.

Australia and many other countries copied the UK’s definition in a rush. But we made some improvements, including the protest exemption.

More than two decades later, Australia’s definition of terrorism remains in its original form.

Why is the definition important?

Australia’s terrorism definition shapes a huge body of counter-terrorism laws. In fact, they are the world’s largest, with more than 100 statutes and 5,000 pages of legal rules.

The starting point is the offence of committing a terrorist act. However, most prosecutions relate to various offences for support and preparation, which are triggered much earlier.

Just one example is an offence for advocating terrorism, which can be prosecuted when someone promotes or encourages terrorism on social media.

This definition also triggers special powers for surveillance, questioning, control orders, and preventative and continuing detention.

It even triggers powers unrelated to investigations. For example, in response to the Bondi terrorist attack in December last year, the NSW parliament enacted controversial new laws that allow the NSW police commissioner to ban protests for up to three months after a declared terrorist act.

Given the number and scope of these offences and powers, it is crucial we have the best possible definition of terrorism on the statute books.

Is the definition fit for purpose?

The independent monitor’s inquiry will be extensive and detailed. At the heart of it will be questions about whether the motive requirement – that terrorism be done to “advance a political, religious or ideological cause” – appropriately captures current threats.

This requirement has long been controversial, mostly because it includes the word “religious”, which is said to fuel harmful discrimination linking Islam and terrorism.

If the government removed religious motive from the definition, this would send an important signal that mainstream religion does not cause terrorism.

At the same time, it is doubtful how much a change to the legal wording would fix underlying community prejudices. More would be achieved by targeting problematic media reporting and expanding community education.

Another argument against the motive requirement is that it doesn’t account well for mixed, unstable or unclear threats. New Zealand recently amended its definition to say terrorism could be done “for one or more purposes”.

Australia’s wording doesn’t preclude there being multiple or mixed motives. However, a change along those lines would acknowledge the current threat environment.

A bigger issue is that the definition does not account for mass killings where ideology is unclear or absent.

This is where legal and community answers to the question “what is terrorism?” often diverge. The multiple stabbing attack in 2024 at Westfield Bondi Junction, for example, was not considered terrorism, even though it was a public mass killing that caused widespread community fear.

For those experiencing or witnessing the crisis and the wider community, there is little reason to distinguish that attack from terrorism. It makes no difference that the offender did not follow an ideology.

Legally speaking, however, there is a big difference between someone causing terror and someone intending to cause terror. Intention is a cornerstone of criminal law because it helps to determine moral responsibility.

Terrorism is fundamentally a communicative and ideological act. If someone does not intend to communicate a message beyond the attack itself or seek change in line with a belief system, it is not terrorism.

For similar reasons, pure hate is difficult to fit within the terrorism laws. Even if it causes serious harm, hate crime is not always driven by an identifiable set of beliefs.

Removing the motive requirement altogether would mean mass killings that are purely hate-filled or where the ideology is unclear could be prosecuted more easily as terrorism.

However, this would drastically expand what currently counts as terrorism. It risks diluting the meaning of the word so it is even less clear.

For more than two decades, the motive requirement has distinguished terrorism from crimes that do not advance a belief system. Without it, there would be even greater overlap and confusion about what constitutes terrorism, murder, hate crime and many other offences.

We will know more later in the year about how the independent monitor approaches this key challenge for Australian law.