Even if the phenomenon of politically-motivated violence appeared new to some but not to others following 9/11, it is arguable that Australia’s legislative response to terrorism to date has been exceptional. The Australian government avoided the urge to make amendments to Australia’s substantive and procedural criminal law after the Hilton bombing on 13 February 1978,^[8] and, for example, following an attempted bombing of the Turkish Consulate in Melbourne in 1986.^[9] However, following 9/11, the federal Parliament made extensive amendments to both offence definition and criminal procedure. As a result of these amendments, terror suspects can be treated very differently to other types of offenders.

Perhaps the most controversial aspect of our domestic response has been the inclusion of political, religious or ideological motive, alongside an intention to coerce or influence by intimidation a government or the public, as a key part of the definition of a terrorist act in s 100.1(1) of the Criminal Code Act 1995 (Cth) (‘Criminal Code’). At first blush at least, this legislative decision seems exceptional according to common law criminal doctrine.^[10] The relevant drafting appears in the keystone definition of terrorist act in s 100.1 of the Criminal Code as follows:

The Hyam v DPP ^[11] common law position on motive versus intention leads to concern over the drafting of the terrorist act definition. In that case a distinction was drawn between proof of intention and evidence of motive, insofar as motive is thought to be ‘an emotion prompting an act that is quite separate from an intention’.^[12] In this sense, motive, at best, may constitute some form of circumstantial evidence for proof beyond reasonable doubt of intention as the requisite mens rea element. The fault element as expressed in the s 100.1 definition of a terrorist act appears to require proof of the intentional advancement of a cause; perhaps dressing up proof of motive by using the more accepted mens rea language of intention. This drafting seems to require the fact finder to consider the perpetrator’s emotional reasons prompting them to act (though see the conclusion to this chapter, and Gani, Chapter 13 this volume, where Lodhi is discussed).

Some may argue that the drafting defines a form of acceptable specific intent, as seen in aggravated assault with the intent to have sexual intercourse or even violence offences by those possessing higher order genocidal intent. On this view, the intention of advancing a political, religious or ideological cause appears more mainstream rather than it being an attempt to criminalise behaviour based on motive rather than intention. Taking this approach normalises the use of motive in s 100.1(1) and deems this intention to be a specific intent rather than a motivating emotion as described in Hyam. In that sense, the need to prove intention to advance a political, religious and ideological cause via terrorist acts would not be all that different from the way we have been criminalising specific intents as part of the definition of many (non‑terrorism) offences predating 9/11. The case of Hyam does appear to legitimise the use of motive evidence as one way to prove intention indirectly in circumstantial cases. When this is allowed, then perhaps the distinction between motive and intention will be lost in the minds of the (lay) legal decision‑maker, and, the conceptual integrity of ‘intention’ and ‘motive’ is blurred at the level of proof in any event.

Nonetheless, one possible conclusion is that s 100.1(1), as extracted above, is a significant departure from the relevant common law position on motive and consequently its use in the prosecution of offences is an example of exceptionalism.^[13] A realistic view, prompting empirical interest in the impact of motive on blameworthiness, would be that jurors may simply understand the proof required to be an invitation to judge blameworthiness based on motive rather than applying a more formal legal test of intention to the facts as condoned by Hyam.

Some criticism of the drafting in s 100.1(1) is made by Gani and Urbas who have commented on the inadequacy of the phrase ‘the intention of advancing a political, religious or ideological cause’.^[14] Gani and Urbas see technical problems making it difficult for a prosecutor to prove such an intention. Their arguments also suggest that the defendant’s motive will not always be used fairly, based on the current approach. The rather clumsy way of criminalising motive here, if that is what the legislature intended to criminalise, is illustrated by Gani and Urbas via reference to more difficult cases. For example, could a rather peripheral actor, such as an Australian medical worker in Sri Lanka, be charged with a terrorist offence. Gani and Urbas conclude their paper by noting that:

The use of this ‘touchstone’ by juries is the main rationale for studying lay evaluations of criminal blameworthiness in this study. What level of perceived blameworthiness will be used if evidence suggests that perpetrators sought to advance particular political, religious or ideological causes? Will all such causes be considered equally blameworthy or are some causes perceived to be more heinous than others, even if the action or threat of action is the same and only the motives differ? If some motives will be considered more blameworthy than others, it is important to determine the extent to which that difference may impact on verdict decisions of lay jurors. In the context of the current ‘war on terror’, assertion of a religious motive, rather than other political or ideological motives, as the emotion prompting the alleged terrorist act may have more impact upon decision-makers.