Legal Regulation of Terrorism in Australia II - Lecture 8
Preparatory “Terrorist Act” Offences
Division 101 of Part 5.3 of the Criminal Code Act 1995 (Cth) [“Criminal Code”]
This section addresses actions taken in preparation for terrorist acts, outlining various offenses and their corresponding penalties.
Specific sections covered include 101.2, 101.4, 101.5 and 101.6.
Section 101.2: Providing or Receiving Training
It is an offense to provide or receive training “connected with” terrorist acts. This includes any instruction, practice, or learning that could aid in the commission of a terrorist act.
Penalty:
If the person knows the training is connected with preparation, engagement, or assistance in a terrorist act: Maximum penalty is 25 years. This severe penalty reflects the deliberate nature of the involvement.
If the person is merely reckless as to this connection: Maximum penalty is 15 years. This applies when the person disregards a substantial risk that the training could be connected to terrorism.
The offense applies even if no terrorist attack actually occurs: s 101.2(3)(a). The focus is on preventing potential acts, not just punishing completed ones.
What must be demonstrated:
The physical element: “providing or receiving of training” connected to a contemplated terrorist act. This requires proof that the training was actually given or received.
The connection must be by way of preparation, engagement, or assistance. The training must be shown to directly contribute to planning, carrying out, or supporting a terrorist act.
As of the time of this lecture, no person has been charged with an offence under this section. This could be due to the difficulty of proving the required connection and intent.
Section 101.4: Possessing “Things”
It is an offense to possess “things” “connected with” terrorist acts. This covers a wide range of items, from weapons to materials used in bomb-making.
Penalty:
If the person knows they possess a thing connected with preparation, engagement, or assistance in a terrorist act: Maximum penalty is 15 years. This indicates a clear awareness of the item's intended use.
If the person is only reckless as to this connection: Maximum penalty is 10 years. This applies when a person is aware of a risk that the item could be used for terrorist purposes but disregards that risk.
Like s 101.2, the offense applies even if no terror attack occurs: s 101.4(3)(a). The aim is to prevent potential attacks by criminalizing possession of related items.
What must be demonstrated:
The main physical element: possession of a thing connected to a contemplated terrorist act (“preparing for”, “engaging in” or “assisting in”). This involves proving the person had control over the item and that the item is linked to terrorist activities.
“Thing” has a wide meaning.
Examples:
A loaded gun (R v Alameddine (No 3) [2018] NSWSC 681)
Bomb-making materials (copper pipes, gun-powder and detonator caps)
Instructional notes (R v Touma [2008] NSWSC 1475)
Consider the “thing” in Director of Public Prosecutions (Cth) v Karabegovic [2013] VSCA 380
Section 101.5: Collecting or Making Documents
It is an offense to collect or make a document and the document is “connected with” a contemplated terrorist act. This includes gathering information or creating materials that could facilitate a terrorist act.
Penalty:
If the person knows of the connection between the document and preparation, engagement, or assistance in a terrorist act: Maximum penalty is 15 years.
If the person is merely reckless that the connection exists: Maximum penalty is 10 years.
A terrorist attack need not occur, but the collection/making of the document MUST be intended to facilitate a terrorist act: s 101.5(5)
What must be demonstrated:
“Collecting” or “making” a “document” connected to a contemplated terrorist act (“preparing for”, “engaging in” or “assisting in”).
Examples:
Collecting documents (maps) of Sydney’s electricity system where that system is the target of a future terrorist attack: R v Lodhi [2006] NSWCCA 121
Making of an electronic book called “Provision on the Rules of Jihad”, which included advice on techniques of assassination and categories of targets for assassination: The Queen v Khazaal (2012) 246 CLR 601
Section 101.6: Preparation for or Planning Terrorist Acts
This is the most prosecuted offense in Div. 101
It is an offense for a person to do ‘any act in preparation for, or planning, a terrorist act’. This is a broad offense that captures various activities leading up to a potential attack.
The maximum penalty for this offence is life imprisonment, irrespective of whether or not an attack occurs. This offence, along with s 101.1, are the most serious offences contained in Div. 101
What must be demonstrated:
1) A person must “intend” to do the act of preparation or planning. This requires proof that the person consciously and deliberately undertook the action.
2) There must be an “act” of preparation or planning. This encompasses a wide range of activities, from acquiring materials to conducting surveillance.
Numerous cases provide guidance on the meaning of “acts” for the purpose of s 101.6
Examples of “acts”:
Acquiring firearm ammunition and attempting to make improvised explosive devices (IEDs) [R v Touma [2008] NSWSC 1475]
Seeking information about the availability of materials capable of being used to manufacture explosives [R v Lodhi (2006) NSWSC 596]
Purchasing chemicals and laboratory equipment capable of being used in the manufacture of explosives, and attending a training camp [R v Elomar [2010] NSWSC 10]
Surveilling a military barracks to assess its susceptibility to an attack [Director of Public Prosecutions (Cth) v Fattal [2013] VSCA 276]
Possessing a knife intended to be used in an attack, conducting internet searches on potential locations for an attack, and communicating with extremists online [R v Besim [2016] VSC 537]
Pledging an oath of allegiance to the leader of Islamic State, purchasing a hunting knife capable of being used to commit an attack, and recording a martyrdom video [R v Al-Kutobi & Kiad [2016] NSWSC 1760]
Sourcing and obtaining firearms and ammunition, and considering targets for possible terrorist acts (e.g. New South Wales police and Federal police) [R v Khalid [2017] NSWSC 1365
Summary of what must be proven (R v Azari (No 1) NSWSC 404):
1) The accused “did an act” in preparation for terrorist acts; and 2) The accused intended to do that act and did so believing it was being done “in preparation for, or planning” a terrorist act (as defined in s 100.1(1) of the Code)
Proscription Regime and “Terrorist Organisation” Offences
Division 102 of the Criminal Code provides for the proscription of organizations considered to be “terrorist organizations”: s 102.1. This section outlines the process for identifying and banning groups involved in terrorism.
The two grounds for declaring “terrorist organisations” are
The meaning of “organisation” was considered by Bongiorno J in Benbrika v The Queen [2009] VSC 142
A body consisting of “more than a fluctuating or amorphous group of individuals. There must be some measure, at least, of membership”: at [104]
A number of indicia may help to identify the point at which a group becomes an “organisation” preparing for terrorist acts (also at [104])
Div. 102 also establishes a number of offences in respect of a person’s involvement with such organizations. These offenses target individuals who participate in or support terrorist organizations.
Interestingly, proscription carries no direct consequences for the terrorist organisation itself. However, it enables law enforcement to target the organization's members and activities.
See ss 102.2, 102.3, 102.4, 102.5, 102.6, 102.7 and 102.8
Declaring “Terrorist Organisations”
There are two ways an “organisation” may be characterised as a “terrorist organisation”:
1) Organisations which are ‘directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act’ (s 102.1(1)(a))
2) Organisations which are specified under the regulations (i.e. as a “listed terrorist organisation”) (ss 102.1(1)(b) and s 102.1(2))
Process of “declaring” organisations to be “terrorist organisations”
1) Ground 1: Designation as a “terrorist organisation” in court as part of the prosecution of persons for terrorist offences. This occurs when evidence presented in a trial demonstrates the organization's involvement in terrorism.
2) Ground 2: Power is vested in the Attorney-General for the Commonwealth to designate organisations as “terrorist organisations”. This is a separate administrative process.
The Attorney-General must be satisfied that the group engages in, prepares, plans, or assists in the doing of a terrorist act; or advocates the doing of a terrorist act
Further information about the process and requirements for the listing of a terrorist organisation can be found at: https://www.nationalsecurity.gov.au/what-australia-is-doing/terrorist-organisations/protocol-for-listing
The Listing of Terrorist Organisations
The Attorney-General receives advice from ASIO
The advice takes the form of a “Statement of Reasons”
The Attorney-General’s Department then works with the Australian Government Solicitor
There are 30 “listed” terrorist organisations currently proscribed in Australia
https://www.nationalsecurity.gov.au/what-australia-is-doing/terrorist-organisations/listed-terrorist-organisations
At the end of 2021, there were 27 listed terrorist organisations – 25 Islamist (including Al-Qaeda, Islamic State and Hamas’ military wing), 1 left-wing revolutionary group (Kurdistan Workers’ Party) and 1 right-wing (The Sonnenkrieg Division, or SKD)
Of the 30 currently listed terrorist organisations, 26 are Islamist (note that the whole of Hamas is now declared a “terrorist organisation”), 1 is left-wing (Kurdistan Workers’ Party) and 3 are right-wing (SKD, The Base, and National Socialist Order)
See ABC video (https://www.youtube.com/watch?v=h6MNnvoD3Jg) for some observations about Australia’s proscribed organisations list (from 1:30 onwards)
Proscribed Terrorist Organizations (List)
Abu Sayyaf
Islamic State (ISIS)
Kurdistan Workers Party
Al-Qaeda (AQ)
ISIS (East Africa)
Lashkar-e-Tayyiba (LeT)
Al-Qaeda (Arabian Peninsula)
ISIS (Libya)
National Socialist Order
Al-Qaeda (Indian Subcontinent)
ISIS (Khorasan)
Neo-Jama’at Mujahideen
Al-Qaeda (Islamic Maghreb)
ISIS (Sinai)
Bangladesh
Al-Shabaab
ISIS (Somalia)
Palestinian Islamic Jihad
Boko Haram
ISIS (West Africa)
Sonnenkrieg Division
Hamas
Jaish-e-Mohammad
The Base
Hay’at Tahrir al-Sham
Jama’at Mujahideen Bangladesh
Ansar Allah
Hizballah
Jama’at Nusrat al-Islam wal-Muslimin
Hurras al-Din
Jemaah Islamiyah
Section 102.2: Directing the Activities of a Terrorist Organisation
Provides that a person commits an offence if he/she ‘directs the activities of a terrorist organisation’. This targets individuals who are in leadership roles within terrorist groups.
What is required to be demonstrated? Three elements:
1) The person intentionally “directs” the activities of an organisation; 2) the organisation is a “terrorist organisation”; and 3) the person either knows the organisation is a terrorist organisation or is reckless as to this fact
What constitutes “direction”?
Surprisingly, not defined in Div. 102 of the Criminal Code. Whether a person has “directed” the activities of an organisation is determined by regard to the facts of the case
In Benbrika v The Queen [2010] VSCA 281, it was relevant that Benbrika was the leader of the organisation; that he alone approved major items of expenditure, specified member contributions and determined who could join the organisation; encouraged its members to train for jihad; and that his “teachings” were regarded as authoritative by members of the organisation
Section 102.3: Membership of a Terrorist Organisation
Provides that a person commits an offence if he/she is intentionally a member of a terrorist organisation. This targets individuals who knowingly belong to a banned terrorist group.
What is required to be demonstrated? Again, three elements:
1) the person intentionally is a “member” of an organisation; 2) the organisation is a terrorist organisation; and 3) the person knows the organisation is a terrorist organisation
This offence does not provide for the lesser fault element of recklessness
Defence: If the person can prove that he/she took all reasonable steps to stop being a member as soon as practicable after the person knew that the organisation was a terrorist organisation, they evade prosecution: s 102.3(2)
What is the meaning of “member”?
Formal and informal members of an organisation, and persons who have taken steps to become a member of the organisation: R v Lelikan [2019]
Another leading case on “membership” of a terrorist organisation is R v Abdirahman-Khalif [2020] HCA 36
Bell, Keane, Nettle and Gordon JJ observed:
“the nature and purpose of the provisions found in Pt 5.3 and, in particular, Div 102 of the Code dictate that they must be taken to extend to groups devoid of structural hierarchy that function in secrecy, with little formality, without a written constitution or set of rules, and without a contractual relationship between members. In such cases, the existence of the terrorist organisation is thus more readily proved by evidence of what it does than by abstract analysis of its structure. And where such evidence does establish that persons have so informally associated together for the purposes of carrying out terrorist acts or supporting those who carry out terrorist acts, it is open to a jury to find that they are members of that terrorist organisation despite the absence of a constitution or rules of membership.”
Section 102.4: Recruiting for a Terrorist Organisation
Provides it is an offence to recruit for a terrorist organisation. This targets individuals who actively seek to enlist new members into terrorist groups.
What is required to be demonstrated? Three elements!
1) the person intentionally “recruits” another person to join, or participate in the activities of, an organisation; 2) the organisation is a terrorist organisation; and 3) the first-mentioned person knows the organisation is a terrorist organisation or is reckless as to whether the organisation is a terrorist organisation
What does “recruiting” mean?
As this is the physical element, it is important to know the meaning of the word
This would include acts of inciting, inducing or encouraging a person to join or participate in the activities of a terrorist organisation
There has been scant consideration of this section
Section 102.5: Training Involving a Terrorist Organisation
To some extent, this largely is a redundant provision, given the presence of s 101.2
Following the ill-fated prosecution of Izhar Ul-Haque in 2004, no person has been charged with an offence under s 102.5 of the Criminal Code
Provides it is an offence for a person to provide training to, receive training from, or participate in training with, a terrorist organisation. This targets individuals involved in training activities with terrorist groups.
Section 102.5(1) holds that a person commits an offence where:
1) He or she “provides training”, “receives training” or “participates in training with” a terrorist organisation;
2) The organisation is a terrorist organisation; and
3) He or she does so intentionally and is reckless to the fact the organisation is a terrorist organisation (the max. penalty is 25 years)
Section 102.6: Getting Funds To, From or For a Terrorist Organisation
Provides it is an offence to fundraise for a terrorist organisation. This targets individuals who provide financial support to terrorist groups.
What is required to be demonstrated? Unsurprisingly, three elements!
1) A person must intentionally “receive funds from”, “make funds available to”, “or collect funds for or on behalf of”, an organisation; 2) the organisation is a terrorist organisation; and 3) the person either knows the organisation is a terrorist organisation or is reckless to the fact that it is a terrorist organisation
Defence: Section 102.6(3) provides a defence for persons in receipt of funds from an organisation where the person can prove that they received the funds only for the purpose of providing legal representation in criminal proceedings
There have been several prosecutions under s 102.6
R v Benbrika & Ors [2009] VSC 21
R v Azari (No. 12) [2019] NSWSC 314
Section 102.7: Supporting a Terrorist Organisation
Establishes the offence of providing support or resources to a terrorist organisation. This targets individuals who offer assistance, whether tangible or intangible, to terrorist groups.
What is required to be demonstrated: Three elements yet again…
1) A person intentionally provides support or resources that would help the organisation to ‘engage in, prepare, plan, assist in or foster the doing of a terrorist act’; 2) the organisation is a terrorist organisation; and 3) the person either knows the organisation is a terrorist organisation or is reckless as to whether the organisation is a terrorist organisation
Several individuals have been convicted of offences under s 102.7:
R v Benbrika & Ors [2009] VSC 21
Making oneself available as a resource to the organisation
R v Zahab [2019] NSWSC 629
Advice to Islamic State for developing a high-tech weapons capability
Section 102.8: Associating with Terrorist Organisations
Provides it is an offence for a person to associate with a terrorist organisation. This section aims to prevent the normalization and spread of terrorist ideologies through social connections.
The section creates two separate offences for persons who associate with members of a terrorist organisation. The elements for each are:
1) Where a person, on two or more occasions: 1) intentionally associates with a member of a terrorist organisation; 2) knows the organisation is a terrorist organisation; 3) provides support to the organisation; 4) intends that the support assists the organisation to expand or continue to exist; and 5) knows that the other person is a member of a terrorist organisation: s 102.8(1)
2) Where a person has previously been convicted of an offence under s 102.8(1), and again intentionally associates with a member of a terrorist organisation. The remaining base elements, as described in 2-5 above, are the same: s 102.8(2)
Foreign Incursions and Recruitment
What is a foreign fighter?
A “non-citizen of a state experiencing civil conflict who arrives from an external state to join an insurgency”
David Malet, ‘Foreign Fighter Mobilization and Persistence in a Global Context’ (2015) 27(3) Terrorism and Political Violence 454, 459
What numbers of foreign fighters are we talking about?
One of Islamic State’s most significant achievements was its ability to attract thousands of foreign fighters from all over the world to fight alongside and settle within the caliphate
It is estimated that more than 20,000 fighters travelled to Iraq and Syria to join Islamic State prior to 2015 (Neumann), and since then this figure only increased to in excess of 40,000 (Hoffman)
It is estimated that up to 250 were Australians and travelled from Australia to join these conflicts
Gen Y jihadists: preventing radicalisation in Australia, available at: https://www.aspi.org.au/report/gen-y-jihadists-preventing-radicalisation-australia
While the exact number is unknown, the total number is believed to sit around 230 (Carroll, 2019)
Statistics on Australian foreign fighters (of those known):
Gender: 80% male, 20% female
Age at departure: Average age was 25
Educational level: 68% either did not complete high school or had high school as their highest level of educational attainment; 32% attended some form of university or technical college (with 11% confirmed as attaining a university degree)
Marriage and children: 94% were married; 2% divorced; 2% single (of those married, 75% were already married at time of departure; 25% married in the conflict zone); 44% had children
Place of birth: 67% born in Australia; 33% were born overseas
Criminal history: Only 11% were confirmed as having some form of criminal history
Where are they now? 40% deceased; 25% unknown; 25% detained by Kurdish, Turkish, Syrian, or Iraqi authorities; 10-11% have returned to Australia
What is the threat posed by returning foreign fighters?
It is far from certain that a returning fighter would not commit a future attack on Australian soil – as such, we should be vigilant and take the issue seriously
This concern is magnified by some high-profile terrorist attacks in Europe, which were committed by returned foreign fighters
In one of the most widely cited studies on the issue, Thomas Hegghammer explored the question of whether returning foreign fighters subsequently went on to commit terrorist attacks in Western countries
Read this article for this week’s tutorial: Thomas Hegghammer, ‘Should I stay or Should I Go? Explaining Variation in Western Jihadists’ Choice between Domestic and Foreign Fighting’ (2013) 107(1) American Political Science Review 1 (available in the Reading List)
Other studies have found that a correlation exists
E.g. see Daveed Gartenstein-Ross and Laura Grossman, Homegrown Terrorists in the US and UK (FDD Press, 2009)
Foreign Incursions Offences
Prior to 2014, foreign incursions and recruitment offences were contained in the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth)
With the adoption of the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (Cth), the 1978 Act was repealed and offences are now situated in Part 5.5 of the Criminal Code Act 1995 (Cth)
Div. 119 of Part 5.5 contains 9 foreign incursions offences across five categories
Entering a foreign country with the intention of engaging in hostile activities in that or another foreign country: s 119.1(1)
Engaging in a hostile activity in a foreign country: s 119.1(2)
Entering, or remaining in, an area of a foreign country declared to be a conflict zone (i.e. a “declared area”): s 119.2(1)
Preparing for incursions into foreign countries for the purpose of engaging in hostile activities: s 119.4
Allowing the use of buildings, vessels and aircraft with the intention of committing, supporting or promoting the commission of an offence against s 119.4: s 119.5
There are also two categories of recruitment offences:
1) Recruiting persons to join organisations engaged in hostile activities against foreign governments: s 119.6
2) Recruiting another person in Australia to serve in any capacity with a foreign armed force: s 119.7(1)
Most prosecutions have involved s 119.1 and s 119.4:
Section 119.1 – Entering a foreign country: Alqudsi v Commonwealth [2015] NSWCA 351
This case involved a notorious ISIS recruiter in Australia
Section 119.4 – Preparing for incursions into foreign countries: R v Taleb (No 3) [2019] NSWSC 397
Taleb was arrested at Sydney Airport trying to board a plane to Turkey en route to joining ISIS in Syria. What conduct did he engage in before leaving? He:
Met, planned and consulted with a person who he believed could assist him to travel overseas; participated in long distance training exercises; purchased military style clothing; attempted to send money to a Syrian contact; and attempted to leave Australia on a