This page contains the 'About National Legal Aid' and executive summary sections of National Legal Aid's submission to the Independent National Security Legislation Monitor (INSLM) review of the definition of ‘terrorist act’ in section 100.1 Criminal Code Act (Cth) 1995.
The full report is available for download below.
About National Legal Aid
Who are we?
NLA represents the eight independent Legal Aids (LAs) in each state and territory of Australia. These commissions work collaboratively to deliver essential legal services, making sure that justice is accessible to all Australians. We strive to support those who are most in need, ensuring fair and equitable legal outcomes.
What do we do?
LAs are the main publicly funded providers of criminal law representation in Australia. Each year LAs deliver 1.7 million legal assistances, including 150,000 legal representation grants – 65 per cent of which are for criminal law. LAs deliver early intervention and advice services, duty lawyer services in courts including for people facing criminal charges, ongoing case representation including serious criminal matters, and assistance for appeals. Within their criminal law divisions, LAs provide representation in terrorism-related matters.
This submission draws primarily on the experience of Legal Aid NSW, which provides legal assistance in a significant proportion of these matters, supplemented with the experience of other LAs where relevant.
Legal Aid NSW appears in criminal matters in the Children’s, Local, District, and Supreme Courts, as well as the Court of Criminal Appeal and High Court. Within the Criminal Law Division, specialist units including the Commonwealth Crimes Unit, Indictable Appeals Unit, High Risk Offender Unit, and Prisoners Legal Service provide advice and casework services in terrorism related matters. This encompasses prosecutions and appeals to parole and post sentence orders.
Why do we do it?
LAs are the ‘safety net’ of the legal system – offering to assist families and individuals in times when they are in highest need. NLA’s vision for the future is one where all people experiencing disadvantage have access to legal assistance and fair justice outcomes that contribute to safe, thriving families and communities.
Executive Summary
National Legal Aid (NLA) welcomes the opportunity to contribute to the INSLM’s review of the definition of ‘terrorist act’ in section 100.1 of the Criminal Code Act 1995 (Cth).
Drawing on the casework experience of Legal Aid NSW in assisting clients charged with terrorism offences under the current definition and, where relevant, examples from other Legal Aids, this submission highlights:
- The extraordinary practical and legal challenges involved in defending terrorism prosecutions, and
- The disproportionate impact of the current definition on children, minority groups and vulnerable individuals.
Our submission is informed by Legal Aids’ experience of the range of conduct captured under the current definition of ‘terrorist act’ in the Criminal Code Act 1995 (Cth), and how terrorism law and policy impacts on defendants, case preparation, and outcomes throughout the criminal trial process and beyond.
There are significant practical challenges for Legal Aid clients defending terrorism-related charges. Bail is rarely granted for individuals charged with Commonwealth terrorism offences, resulting in prolonged periods of remand under restrictive conditions. This not only impedes legal preparation but can also exert undue pressure on defendants to plead guilty due to delays and sentencing incentives. The psychological toll and barriers to meaningful engagement in the legal process are considerable. This is particularly the case for children and young people who are especially vulnerable to these impacts, including the risk of radicalisation in custody.
Commonwealth terrorism trials are uniquely complex and place significant strain on defendants, particularly those from vulnerable backgrounds. Prosecutorial discretion in charging decisions in relation to terrorism offences, restricted access to evidence, and mandatory jury trials often result in prolonged proceedings, heightened stress, and limited ability of defendants to engage meaningfully in the legal process. Procedural hurdles, such as repeated jury discharges and constrained defence access can compound confusion, delay justice, and exacerbate mental health challenges, especially for young people navigating these systems.
Commonwealth terrorism offences also attract significantly harsher penalties than comparable state offences, with federal sentencing provisions and limited judicial discretion contributing to disproportionately severe outcomes. These constraints are particularly problematic for children and young people, with limited sentencing options and inconsistent approaches across jurisdictions.
Federal terrorism offenders are often subjected to extremely restrictive prison conditions including prolonged isolation, frequent lockdowns, and limited access to rehabilitation, education, or even basic human contact. These conditions have been described as damaging to mental health and counterproductive to deradicalisation efforts. Case examples show that young or first-time offenders may spend years in near-solitary confinement, raising concerns about psychological harm, lack of meaningful engagement, and risk of reinforcing extremist views. We also see that the current settings for parole leave individuals without meaningful support for reintegration, and in some cases prolong incarceration unnecessarily.
Based on Legal Aids’ casework experience, NLA does not support broadening of the definition of ‘terrorist act’ in the Criminal Code Act 1995 (Cth) or lowering of the threshold by removal of the requirement to prove specific elements. In particular, we recommend that:
- The definition of ‘terrorist act’ should not be broadened
NLA opposes any expansion of the definition or lowering of the threshold by removing key elements such as motive or intent.
- ‘Threat’ should be removed from the definition
NLA supports removing “threat” from the primary definition in section 100.1 and recommends creating a separate, lesser offence for threats, consistent with UN guidance.
- The requirement to prove terrorist motive should be retained
The motive element is essential to distinguish terrorism from other serious crimes. However, NLA supports removing “religious” causes from the list of motives to reduce the risk of reinforcing Islamophobia.
- The scope of ‘ideological cause’ should be clarified and narrowed
The term “ideological” is overly broad and undefined. NLA recommends clearer legislative guidance to avoid overreach.
NLA holds concerns about the consequences of a broad approach to what constitutes a terrorist act and the scope of ‘terrorism offences’. In the context of the proliferation of online violent extremist material and vulnerability of children and other socially isolated people to radicalisation, we strongly recommend investment in evidence based, therapeutic early intervention and the exercise of greater prosecutorial discretion.
