Terrorism Charges
Clear advice on penalties, defences and what to expect in a Commonwealth terrorism prosecution.
Terrorism offences are prosecuted under Part 5.3 of the Criminal Code Act 1995 (Cth), a Commonwealth statute that applies uniformly across Australia and is prosecuted by the Commonwealth Director of Public Prosecutions rather than the NSW DPP, even though matters against NSW residents are typically heard in the Supreme Court of NSW exercising federal jurisdiction. The offences span a wide spectrum — from committing or preparing an actual terrorist act, through providing or receiving training, financing terrorism, or being a member of or associating with a terrorist organisation, to possessing or collecting material connected with a terrorist act.
Many of the offences in this Part are deliberately drafted to capture preparatory conduct well before any attack takes place, which means a person can be charged with a serious terrorism offence carrying a lengthy maximum penalty without any terrorist act ever having occurred. Some offences only require proof that the accused was reckless as to whether an organisation was a terrorist organisation, rather than requiring actual knowledge, which significantly lowers the threshold the prosecution must meet compared to what many people expect of such serious charges.
These matters are also subject to a far more restrictive bail regime than ordinary criminal charges. Commonwealth law imposes a presumption against bail for terrorism offences, requiring an accused person to demonstrate exceptional circumstances before being released, and investigations frequently involve extended covert surveillance, preventative detention powers and large volumes of electronic material that take considerable time to review. Given the complexity, the stakes involved, and the specialised procedural and evidentiary rules that apply, these matters require early and experienced legal representation from the moment a person becomes aware they are under investigation.
Penalties
What you could be facing
| Penalty | Maximum | Notes |
|---|---|---|
| Committing or preparing for a terrorist act (s101.1 Criminal Code Cth) | Life imprisonment | Covers both carrying out an act of terrorism and doing any act in preparation for, or planning, a terrorist act, regardless of whether an attack was ultimately carried out. |
| Providing or receiving training connected with a terrorist act (s101.2 Criminal Code Cth) | Up to 25 years imprisonment for providing training; up to 15 years for receiving it | Applies regardless of whether any terrorist act ever occurs as a result of the training. |
| Possessing things connected with a terrorist act (s101.4 Criminal Code Cth) | Up to 15 years imprisonment (10 years where recklessness as to the connection is alleged) | Aimed at preparatory possession of material, rather than requiring proof of an intended specific attack. |
| Membership of, or association with, a terrorist organisation (ss102.3, 102.8 Criminal Code Cth) | Up to 10 years imprisonment for membership; up to 3 years for association | Can be established without proof of direct involvement in planning any specific attack, and in some cases only requires recklessness as to the organisation’s character. |
Possible Defences
Ways this charge can be challenged
Absence of the required knowledge or recklessness
Many offences in this Part require proof that the accused knew, or was at least reckless as to, matters such as an organisation’s terrorist character or an item’s connection to a terrorist act. A genuine lack of that knowledge or awareness can be a defence to the relevant charge.
Family or humanitarian exceptions to association offences
Narrow statutory defences exist for the association offence, including association that consists only of contact with a close family member, which can be relevant where the alleged association arises from a family relationship rather than involvement in an organisation’s activities.
Duress
Where conduct was engaged in only because of a genuine and immediate threat to the safety of the accused or another person, duress may be available as a defence in the same way it applies to other serious criminal charges.
Conduct did not meet the statutory threshold
Whether conduct amounts to a "terrorist act", or whether a group meets the definition of a "terrorist organisation", can genuinely be contested, including in cases involving political protest, advocacy or dissent that lacked the intended coercive or intimidatory violent purpose the definitions require.
What Happens Next
The Local Court process
- 01
Terrorism investigations typically involve state and federal police, including the Australian Federal Police and joint counter-terrorism teams, often following extended covert surveillance well before any arrest occurs.
- 02
Following arrest, an accused may be held under specific extended investigation and detention powers, and any bail application is assessed against a presumption against release, requiring exceptional circumstances to be demonstrated.
- 03
Matters are prosecuted by the Commonwealth Director of Public Prosecutions and typically proceed in the Supreme Court of NSW, reflecting both the seriousness of the charges and their status as serious indictable Commonwealth offences.
- 04
Extensive disclosure and case management hearings are common before trial, given the volume of surveillance, electronic and intelligence material usually involved, and special procedures can apply to how sensitive national security information is handled and disclosed.
- 05
If a not guilty plea is entered, the matter proceeds to a trial before a judge and jury, where the prosecution must prove each element of the charge — including any required state of mind such as intention, knowledge or recklessness — beyond reasonable doubt.
- 06
If convicted, or on a guilty plea, sentencing takes into account the seriousness the law attaches to protecting the community from terrorism, alongside the accused’s personal circumstances, and remains subject to statutory non-parole period requirements that commonly apply to offences under this Part.
Frequently Asked Questions
Common questions
Yes. Many offences under Part 5.3 of the Criminal Code criminalise preparatory conduct — such as planning, training, financing or possessing connected material — meaning a person can face a very serious charge without any terrorist act ever actually occurring.
Bail is far more difficult to obtain than for most other offences. Commonwealth law imposes a presumption against bail for terrorism offences, meaning the accused must demonstrate exceptional circumstances before a court will consider releasing them.
Committing or preparing a terrorist act involves direct steps towards an act of violence intended to advance a political, religious or ideological cause through coercion or intimidation. Membership offences, by contrast, can be established simply by being a member of a listed or proscribed organisation, without proof of involvement in planning any specific act.
No. Terrorism offences are serious indictable Commonwealth offences that proceed through committal before being dealt with in the Supreme Court of NSW, given both their seriousness and the specialised procedures that apply to them.
It may. Investigations of this kind often involve intelligence material, and special statutory procedures exist to manage how sensitive national security information is disclosed and used at trial, which can significantly affect how the defence case is prepared.
Immediately. Given the complexity of these matters, the restrictive bail regime, and the extended investigation powers available to police, engaging an experienced lawyer at the earliest possible stage — ideally before any formal interview — is critical.
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