It is indisputable that the definition of ‘terrorist act’ in Part 5.3 of the Criminal Code plays a crucial role in the operation of anti-terrorism offences in Australia. Indeed, this fact was the subject of specific comment in the 2006 Review of Security and Counter Terrorism Legislation:
The Sheller Committee recognised that the definition of a ‘terrorist act’ is pivotal within this overall scheme. Any change to the definition will influence the scope of offences and powers afforded to the Commonwealth law enforcement and intelligence agencies.[107]
The influence of the definition on the scope of these offences has been the subject of this chapter. My central argument has been that whilst the definition of ‘terrorist act’ in the Criminal Code is complex, unwieldy and apparently very expansive, it may, in what I have called ‘simple’ cases, have the somewhat perverse effect of confining the operation of broadly-drafted offences. The definition has not yet been tested by a ‘difficult’ case — although the judgment in R v Lodhi foreshadows that it may not play the same moderating role where a very peripheral player is linked to a clear case of terrorism.
By contrast, where prosecutions do not rely on a jury working with the ‘terrorist act’ definition, convictions will be easier to secure. In particular, this will be the case where the charges relate to terrorist organisation offences and the organisation has already been proscribed by the Attorney-General (as opposed to being found to be a terrorist organisation in the course of a trial). Accordingly, the least defensible form of terrorist offences (status offences in relation to executively proscribed organisations) may become the primary basis for prosecutions. This would be a worrying development. Reform of the proscription process,[108] is urgently required.
Re-working of the ‘terrorist act’ definition is a more delicate prospect. As has been demonstrated, any change to that definition would have widespread consequences for the operation of all the offences into which it is incorporated. Indeed, whilst its simplification is desirable, the preservation of its tempering effects must be ensured. What is even more important, however, is that the substantive offences relating to terrorist acts, including their capacity to encompass (and disproportionately punish) marginal players and inchoate or very preparatory conduct be re-visited.
[107] Parliamentary Joint Committee on Intelligence and Security, above n 3, [5.11].
[108] The Sheller Committee recommends a series of reforms of the proscription process to meet the requirements of administrative law in the Report of the Security Legislation Review Committee, above n 3, 9ff, ch 9.