(Cth) Remove Reference to the Motive Element in the Definition of a Terrorist Act
Author: Beau Longmuir-Evans, Chi Nguyen, Fineas Baldwin-Keneally, Ishaan Tata & Nic Orr | Publish date: 15/10/2026
Content Warning: Terrorism
P: In Australia, the statutory definition of a terrorist act requires proof that the terrorist act was committed with the intention of advancing a political, religious or ideological cause.
S: The Attorney-General should repeal Subsection 100.1 (1)(b) of the Criminal Code Act 1995 (Cth) to omit the requirement that the terrorist act be made with ‘the intention of advancing a political, religious or ideological cause.’
E: The Centre for Independent Studies (CIS) (2025): ‘The CIS recommends that this subsection (s.100.1 (1)(b)) should be removed entirely.’
Problem Identification:
Subsection 100.1 (1) of the Criminal Code Act 1995 (Cth) provides the legal definition of a terrorist act, which under subsection 100.1 (1)(b) requires ‘the intention of advancing a political, religious or ideological cause’.
According to the CIS, the motive element ‘signals the kinds of beliefs [the state] considers inherently dangerous which, in turn, has profound implications for freedom of religion, conscience and speech.’ The Australian Federation of Islamic Councils (AFIC) reported that this ‘violates legal norms’ and ‘enables profiling’.
Context:
The motive element refers to the ‘reason or underlying cause’ of a terrorist act, defined in subsection 100.1 (1)(b) of the Act.
The Independent National Security Legislation Monitor (INSLM) Office reported that, between 2002-24 there have been 87 sentencing decisions and appeals for people convicted of terrorism and found that ‘of the 83 sentenced terrorism cases reviewed, almost 95 per cent … refer[red] to Islam or the accused’s distorted interpretation of Islam.’
Arguments:
Deborah White, criminal prosecutor from NSW, elaborated that ‘the "motive element" under subsection (1)(b) presents a departure from intent as the cornerstone of criminal liability’. Dr Glover and Patterson added that it ‘debases the integrity of legal certainty, and as such, the rule of law.’ According to AFIC, the current definition ‘has allowed a person’s beliefs, identity, or faith expression to become part of the legal test for terrorism’. The INSLM noted that ‘no other comparable Australian offence’ requires the motive element ‘to be proved’. AFIC suggested that ‘a restructured definition of a terrorist act, one that removes motive categories entirely, and instead focuses on the intent’ will better ‘uphold criminal law standards’.
According to the Global Internet Forum to Counter Terrorism, it is argued that ‘the motive requirement … can lead to religious or racial profiling’. The Australian Muslim Advocacy Network (AMAN) stated that ‘the inclusion of ‘religious cause’ within the definition … contributed to the marginalisation of Australians based on their faith’. Rita Jabri-Markwell, former advisor to AMAN, reported that 2 Muslim boys who bought bayonet knives were convicted for ‘planning a terror attack’, while a white Australian man who ‘took steps to manufacture a … high casualty explosive’ escaped the ‘terrorist’ label. United Nations Human Rights Council Special Rapporteur Ben Saul emphasised that ‘the focus on religion has led to law enforcement profiling of and discrimination against certain communities’.
The Australian Security Intelligence Organisation (ASIO) defended the motive element as ‘essential to support an informed understanding and subsequent response to trends in the threat landscape.’ However, the CIS asserted that ‘the requirement of motive … is increasingly unworkable given the evolving threat landscape characterised by mixed and fluid ideologies’.
Advice/Solution Identification:
The CIS, AMAN, and AFIC have called for the removal of reference to the motive element in the definition of a terrorist act. AFIC elaborated that this ‘would align Australia’s approach with established criminal law principles, international human rights standards, and the broader goals of justice and fairness.'
Precedent:
There is international precedent for removing the motive element from the definition of a terrorist act. In 2017, the EU’s definition omitted the motive element. In the USA, terrorism has been legally defined by the conduct and purpose elements since 2001.
Public Support of the Solution:
(This list reflects publicly stated positions and should not necessarily be taken as endorsement of this specific brief.)
Note: The following organisations and experts endorsed AMAN’s recommendation within this submission:
Broad Support
Australia’s Special Envoy to Combat Islamophobia - They suggested ‘reassessing the necessity and proportionality of the motive element and replacing the motive element with an improved purpose element.’ However, they haven’t called for removing the motive element from the definition of a terrorist act.
Darul Mahdi (PhD Candidate, TC Beirne School of Law) - He suggested that ‘wholesale retention [of the motive element] is not justified.’ However, he has not explicitly called for removing the motive element from the definition of a terrorist act.
Dr Philip Glover and Paulina Patterson (School of Law) - They argued that removal of the motive element is favoured. However, they haven’t explicitly called for removing the motive element from the definition of a terrorist act.
Global Internet Forum to Counter Terrorism (GIFCT) - They suggested that a general motive requirement is not recommended. However, they haven’t explicitly called for removing the motive element from the definition of a terrorist act.
Muslim Legal Network New South Wales - They regarded the motive element as ‘unwarranted and harmful’. However, they haven’t explicitly called for removing the motive element from the definition of a terrorist act.
News Coverage:
ABC News - “ISIS-inspired teen pleads guilty to preparing potential terror attack on Sydney Opera House”. This article reported on an attempt to bomb the Sydney Marathon. By Lia Harris | 1 September 2026 - Read the article here.
The Sydney Morning Herald - “Agencies, envoys at odds over push for change to terrorism definition”. This article reported strong opposition between Islamic advocacy groups and the Australian Government. By Matthew Knott | 13 July 2026 - Read the article here.
LSJ Online - “Ideology and terrorism: report considers definitions”. This article reported on the focus on reviewing ideological motive in the definition of a terrorist act. By Cat Woods | 29 April 2026 - Read the article here.
ABC News - “The case for removing religion from Australia’s definition of terrorism”. This article examined the necessity of including the religious motive in the definition of a terrorist act. By Mohamad Abdalla and Rita Jabri-Markwell | 12 September 2022 - Read the article here.
ABC News - “Does Australia have double-standard when it comes to “terror” convictions?” This article questioned whether there is an ideology-neutral approach to countering violent extremism. By Rita Jabri-Markwell | 22 February 2021 - Read the article here.
Where to go to learn more:
(2025) Submission to the Independent National Security Legislation Monitor (INSLM) | Peter Kurti, Director of the Culture, Prosperity & Civil Society program at the Centre for Independent Studies - This submission examined reforming the definition of terrorism. The submission recommended that the motive element be removed, citing concerns about human rights issues. Read the submission here.
(2025) What is Terrorism? | International Security Legislation Monitor - This media release talks about the current definition of terrorism, potential issues with said definition, and how terrorist threats have evolved over time. Read the release here.
(2018) Sydney teen jailed for at least 12 years for planning terrorist attack | Australian Associated Press - This article reported on a teenager convicted for planning a terrorist attack, given that he had purchased hunting knives and read an extremist ISIS magazine that urged readers to kill non-believers. Read the article here.
(2019) Islamophobia in Australia - III (2018-2019) | Dr Derya Iner, Associate Professor and Research Coordinator at the Centre for Islamic Studies (CISAC), Charles Sturt University - This report quoted NSW Supreme Court Justice Desmond Fagan’s statement: ‘the ideology that underlines [violent jihad] is Islam’, demonstrating how institutions ‘homogenised the specific motives of Muslim perpetrators.’ Read the report here.
(2020) Adelaide man who made 'Mother of Satan' explosives eligible for parole within months | Meagan Dillon - This article reported on a white Adelaide man who dodged terrorism charges despite constructing a high-casualty bomb and engaging with anti-Islamic ideology. Read the article here.
Criminal Code Act 1995 (Cth) - Read the full Act here.
Human Perspective:
CW: Hate Speech, Islamophobia
Marina works as a receptionist at a busy hospital and practises Islam, wearing a hijab as an expression of her faith. A few months earlier, an extremist terrorist attack had taken place in her state. On her way to work one morning, she read a news article quoting a judge who described Islam as a violent ideology. This struck her as completely at odds with the peaceful community and faith she knew, which had nothing to do with the attack. She arrived at work still unsettled by what she'd read. Later that morning, a new doctor greeted her colleagues warmly, then turned to Marina and told her that her hijab reminded him of a terrorist. Before she could respond, he began complaining about a nearby mosque, insisting that ‘Muslims were taking over’ and ‘killing Australian people’, then walked off, giving her no chance to react. Marina went to the breakroom and cried, devastated that in the space of a single morning, her long-practiced faith had been equated with terrorism not once, but twice.
To protect the anonymity of those involved, this is a fictionalised account drawn from an amalgamation of real-life stories, experiences and testimonials gathered during the research process for this brief. Any resemblance to actual individuals is purely coincidental.
Conflict of interest/acknowledgment statement:
N/A.
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Reference list:
Australian Federation of Islamic Councils (2025). A submission in response to Independent National Security Legislation Monitor review into the definition of terrorism. Independent National Security Legislation Monitor. https://www.inslm.gov.au/system/files/2025-10/australian_federation_of_islamic_councils.pdf
Australian Muslim Advocacy Network. (n.d.). Reforming the definition of a terrorist act. https://www.aman.net.au/what-we-do/reforming-the-definition-of-a-terrorist-act/
Australian Muslim Advocacy Network. (2025). INSLM Inquiry into the definition of a terrorist act. Independent National Security Legislation Monitor. https://www.inslm.gov.au/system/files/2025-10/joint-community-submission-coordinated-by-aman-dtreview.pdf
Australian Security Intelligence Organisation. (2025). ASIO submission to the Independent National Security Legislation Monitor. Independent National Security Legislation Monitor. https://www.inslm.gov.au/system/files/2025-10/australian-security-intelligence-organisation-dtreview.pdf
Board of Governors of the Federal Reserve System. (n.d.). Section 2331—Definitions. https://www.federalreserve.gov/frrs/statutes/section-2331-definitions.htm
Cunliffe, J., & Wang, J. (2025). Spreadsheet of relevant terrorism sentencing cases v3 [Data set]. Independent National Security Legislation Monitor. https://www.inslm.gov.au/system/files/2025-12/spreadsheet-of-relevant-terrorism-sentencing-cases-v3.xlsx
Criminal Code Act 1995 (Cth)
European Union. (2017). Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on combating terrorism and replacing Council Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA. https://eur-lex.europa.eu/eli/dir/2017/541/oj/eng
Glover, P., & Patterson, P. (2025). Joint Submission to the INSLM Issues Paper ‘Defining terrorism: Review of the definition of a ‘terrorist act’ in section 100.1(1) of the Criminal Code Act 1995 (Cth). Independent National Security Legislation Monitor. https://www.inslm.gov.au/system/files/2025-10/dr_phil_glover_and_paulina_patterson_dtreview.pdf
Independent National Security Legislation Monitor. (2025). Defining terrorism – issues paper – review of the definition of a ‘terrorist act’ in section 100.1 of the Criminal Code Act 1995. https://www.inslm.gov.au/system/files/2025-08/INSLM-terrorism-Issues-Paper.pdf
Iner, D. (2019). Islamophobia in Australia III (2018-2019). Sydney: Charles Sturt University and ISRA. https://researchoutput.csu.edu.au/ws/portalfiles/portal/208330970/Islamophobia_Report_3_2022_LR_Spreads_RA.pdf
Jabri-Markwell, R. (2021, February 22). Does Australia have double-standard when it comes to “terror” convictions? ABC. https://www.abc.net.au/religion/does-australia-have-double-standard-on-terror-convictions/13180824
Kurti, P. (2025). Submission to the Independent National Security Legislation Monitor (INSLM). Independent National Security Legislation Monitor. https://www.inslm.gov.au/system/files/2025-10/the_centre_for_independent_studies_dtreview.pdf
Nolan, M. (2008). Lay perceptions of terrorist acts and counter‑terrorism responses: Role of motive, offence construal, siege mentality and human rights. In M. Gani & P. Mathew (Eds.), Fresh perspectives on the “war on terror” (pp. 85–107). Australian National University.
Saltman, E. (2025). Introducing 2022 GIFCT Working Group outputs. Global Internet Forum for Countering Terrorism. https://gifct.org/wp-content/uploads/2022/07/GIFCT-22WG-ExecSummary-1.1.pdf
Saul, B. (2025). Defining terrorism to protect and respect human rights. United Nations Human Rights Council. https://www.ohchr.org/sites/default/files/documents/issues/terrorism/sr/reports/srct-report-defining-terrorism-respect-protect-annex2.pdf
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