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 under section 15AA of the Crimes Act 1914 (Cth), 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. A mandatory minimum non-parole period applies — see Sentencing below. |
| Providing or receiving training connected with a terrorist act (s101.2 Criminal Code Cth) | 25 years imprisonment where the accused knew of the connection to a terrorist act; 15 years where the fault element is recklessness | Applies equally to providing and receiving training — the maximum depends on the fault element the prosecution proves (knowledge vs recklessness), not on which of the two the accused did. |
| Possessing things connected with a terrorist act (s101.4 Criminal Code Cth) | 15 years imprisonment (knowledge); 10 years (recklessness) | 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 the section 15AA 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 follows section 19AG of the Crimes Act 1914 (Cth) for terrorist-act offences, alongside the accused’s personal circumstances, and the Court must fix a non-parole period of at least three-quarters of the head sentence for those specific offences.
Sentencing
What courts consider at sentencing
For offences involving engaging in, or preparing for, a terrorist act, section 19AG of the Crimes Act 1914 (Cth) requires the Court to fix a non-parole period of at least three-quarters of the head sentence, a mandatory statutory floor rather than the discretionary guidepost used for NSW state offences elsewhere on this site. Where a life sentence is imposed for such an offence, the minimum non-parole period is fixed at 22 years and 6 months.
A non-conviction outcome is not discussed as available anywhere on this page. Section 19B of the Crimes Act 1914 (Cth), the Commonwealth mechanism used for lower-level federal offences elsewhere on this site, expressly excludes terrorism offences by name. This is a categorical statutory exclusion, not a matter of the outcome being merely difficult to obtain, and there is no NSW-style section 10 equivalent available for a Commonwealth terrorism charge.
Beyond the mandatory non-parole regime for terrorist-act offences, the Court weighs the objective seriousness of the specific offence charged, including the accused’s role (an organiser or central figure versus a peripheral or lower-level participant), the degree of planning and sophistication involved, how close the conduct came to an actual attack, and any genuine cooperation with authorities or credible evidence of disengagement from extremist views.
Next Steps
If you've just been charged
Say nothing beyond what is legally required until you have spoken to a lawyer experienced in Commonwealth national security matters. These investigations often already have extensive surveillance material, and an ill-considered account can do far more harm than good.
Get specialist legal representation immediately, ideally at the first sign you may be under investigation, well before any formal interview or search takes place.
Understand that family members, associates, and electronic accounts and devices may also become the subject of investigation, and discuss with your lawyer what this means for you and people close to you before taking any action yourself.
Do not delete, alter or attempt to access any electronic device, account or communication once you are aware of an investigation. Preserve everything for your lawyer to review, and let your lawyer, not you, decide what steps are appropriate.
Understand that bail is exceptionally difficult to obtain given the section 15AA presumption against release. Discuss with your lawyer early what evidence might realistically support a claim of exceptional circumstances.
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. Section 15AA of the Crimes Act 1914 (Cth) 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.
No. Section 19B of the Crimes Act 1914 (Cth), the mechanism that allows a Commonwealth court to discharge a person without recording a conviction, expressly excludes terrorism offences by name. There is no equivalent non-conviction pathway available for these charges, unlike some other Commonwealth offences.
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.
Related Offences
You may also be looking for
Going to Court?
Speak with our team today for a free first conference and clear, fixed-fee advice on your matter.
Call 0414 444 474