Australian terrorism legislation and children’s rights contraventions: Downloading violent extremist materials

Abstract

New Australian legislation proscribes the accessing of violent extremist materials online as a terrorism offence, even if the person has no intention to commit a violent act. Given the increasing prevalence of young people accessing such material, these offences may disproportionately affect children as young as 10 and exacerbate existing children’s rights issues within Australia’s counter-terrorism framework, including harsh sentencing, the minimum non-parole period and the presumption against bail. This article argues that the 2023 legislation creates an earlier pathway into terrorism prosecution instead of prioritising diversion, and therefore contravenes our international obligations to protect the rights of children.

In 2023, Australia criminalised the accessing of violent extremist material, partially in response to an increase in young people accessing such material online. ¹ Individuals including children as young as 10 may potentially be charged. ² The new offences are classified as terrorism offences and attract corresponding measures but require a much lower standard of intent than existing preparatory terrorism offences. The new offences target the online accessing of violent extremist material regardless of a person’s reason for doing so, subject to exceptions for journalistic and other purposes. ³ There has been some debate over the human rights implications of a person being prosecuted under counter-terrorism laws simply for accessing material, but the unique issues arising from the applicability of the offences to children have not been adequately addressed.

Australia is a signatory to the United Nations Convention on the Rights of the Child (CRC), which grants unique protections to children in contact with the criminal system in recognition of their vulnerability. Article 3 requires the best interests of a child to be a primary consideration in all actions concerning children. ⁴ Article 37(b) requires imprisonment to be used only as a last resort and for purposes of rehabilitation, ⁵ and article 40 further emphasises the desirability of a child’s reintegration and diversion from judicial processes. ⁶ International law recognises that youth incarceration harms children, their families, and communities, ⁷ and considers depriving children of their liberty to be a form of structural violence. ⁸ The most serious federal offences that children may be charged with are terrorism offences, which attract special measures such as control orders, ⁹ a presumption against bail, and a minimum non-parole period. These measures are particularly restrictive of the rights of children.

Australia’s new offences were explicitly introduced to respond to the increasing prevalence of youth accessing violent extremist material online and in the context of growing rates of prosecution and conviction of children for terrorism offences. ¹⁰ Given this, more specific attention should be given to the implications of the offences on children’s rights. Using a doctrinal research approach, ¹¹ this article presents a descriptive and detailed analysis of the new legislation drawing from related secondary sources, including explanatory memoranda, submissions to Parliamentary inquiries, and reports into current practices of the prosecution of children. A human rights lens and the standard of the CRC are used as the framework for this critique as we seek to understand the potential impacts of these offences on children in Australia. We begin by outlining how the new offences operate and their relationship to earlier preparatory terrorism offences. We then examine key features of Australia’s terrorism prosecution practice which violate the CRC when applied to children. Finally, we discuss the implications of introducing new offences with such a low standard of intent into this context, ultimately arguing that creating a new entry point for children into terrorism prosecution instead of promoting rehabilitation and diversion will exacerbate the systemic harms perpetrated by the criminal justice system.

Overview of new violent extremist materials offences

The Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Act 2023 was introduced to respond to ‘new and evolving security threats’, ¹² including growing numbers of young people being investigated for terrorism offences. ¹³ The increase in investigations corresponds with a rise in arrests, charges and convictions of young people; between 2014 and 2019, over 10 per cent of terrorism convictions were children under 18 at the time of offending and 35 per cent were under 25 years of age. ¹⁴

How the offences operate

The Act inserted two new terrorism offences into the Criminal Code: ¹⁵ the first criminalises accessing, transmitting or soliciting violent extremist material using an electronic communications service, and the second criminalises the possession of violent extremist material held in a computer. ¹⁶ Material is considered ‘violent extremist material’ if: a) it depicts, provides instruction or facilitates serious violence; b) a reasonable person would consider it is intended to advance a political, religious, or ideological cause; and c) a reasonable person would consider it is intended to encourage an intimidatory act. ¹⁷ An ‘intimidatory act’ is as a violent action, or the threat of a violent action, intended to coerce or influence the government or intimidate the public. ¹⁸ The definition of ‘serious violence’ is particularly broad, extending beyond the ordinary meaning of violence to include damaging property or disrupting electronic systems. ¹⁹

The offences criminalise the nature of the material, not the intentions of the person accessing it. In order to be charged with either offence, a person must intend to access or control the material, but need only be reckless as to whether the material was violent extremist material. ²⁰ ‘Intention’ to access the material aims to prevent someone who ‘accidentally comes across’ the material online from falling under the offence, ²¹ while the term ‘reckless’ means that the person must have been aware of a substantial risk that what they were accessing was violent extremist material. ²² The person need not know that it is violent extremist material, nor have any intention to engage in violence themselves – an exceptionally low standard of intent for an offence that attracts terrorism charges. ²³

The amendment expands the definition of a ‘terrorism offence’ to include the new offences, ²⁴ meaning the Australian Federal Police (AFP) will have access to control orders against those convicted. ²⁵ Terms of control orders are extremely restrictive and often include conditions such as wearing an electronic tracking device and a prohibition on using specified technology, including the Internet. ²⁶ Any breach of a control order condition is itself a crime punishable by up to five years imprisonment. ²⁷ If charged with the new offences, defendants will also be subject to special counter-terrorism measures during their trial. ²⁸

The legislation allows for the prosecution of children as young as 10 years of age, although when charging a child under 14 with any Commonwealth offence the prosecution must overcome the presumption of doli incapax, meaning they must prove beyond reasonable doubt that the child knew their actions were seriously wrong in the criminal sense. ²⁹ When a person under 18 is charged under the new legislation, the Attorney-General must also consent to their prosecution. ³⁰ However, the child may still be remanded in custody before the consent has been given, or in circumstances where consent is eventually refused. Stigmatising interactions with the criminal system, such as being remanded in custody, can both reduce a child’s future opportunities for development and increase the likelihood of further contact with the criminal system, even when the child is not subsequently prosecuted or convicted. ³¹

Purpose and relationship to existing offences

Prior to this legislation, existing preparatory terrorism offences allowed law enforcement to intervene early in the planning of a terrorist act. It is a terrorism offence to possess a thing or make a document connected with the preparation of a terrorist act, or to do an act in preparation for or planning a terrorist act. ³² These offences can apply even before a specific terrorist act has been planned, for example, before a specific target or location has been chosen. ³³ Some submissions into the Parliamentary inquiry questioned the need for the new offences given their overlap with existing preparatory offences, ³⁴ yet the government argued the legislation was necessary as it was ‘not currently a crime to deal with violent extremist material where, for example, planning or preparation for a terrorist act has not yet begun’. ³⁵

Applying a terrorism classification to such broad offences is unprecedented in Australian federal law, however comparable legislation has been enacted in some other jurisdictions. In the UK, accessing information ‘likely to be useful’ to a person preparing a terrorist act is an offence carrying a 15-year maximum sentence, which reflects the UK’s shift even further towards targeting extremism rather than specifically violent extremism. ³⁶ Possession of ‘extremist material’ is also an offence in South Australia punishable with up to two years imprisonment and a fine, but as it sits under state law, it does not attract the status of a federal terrorism offence. ³⁷ The new federal offences are limited to ‘violent’ extremist material, but apply such a broad definition of violence that there is a real risk of capturing material which could not be said to ‘justify prohibition on the grounds of national security, public order or the rights of others’. ³⁸

Where human rights are limited by proposed legislation, the government must set out a statement of compatibility detailing how those limitations are proportionate and necessary to their purpose. ³⁹ The new legislation potentially subjects defendants who have not contemplated carrying out a terrorist act, or indeed any violence whatsoever, to counter-terrorism measures. This concern is even more pressing when the defendant is a child and, noting this, the Parliamentary Joint Committee on Human Rights questioned why it was appropriate to apply the new offences to children. ⁴⁰ The Attorney-General acknowledged that the amendment limits the right of a child to be dealt with through non-judicial means but considered this was reasonable and proportionate to preventing the use of violent extremist material to ‘radicalise vulnerable individuals (including children) to violent extremist ideologies’. ⁴¹ It justified the restriction on the basis that the viewing of violent extremist material is inherently harmful. ⁴²

While violent extremist material may be harmful to individuals viewing it, it is not clear how criminalising accessing the material will prevent harm. A criminalising approach, first, exposes children to further harm in the form of contact with the criminal system. Secondly, the explanation conflates the accessing of violent extremist material with radicalisation to violent extremist ideologies, and further conflates ideology with future acts of violence. ⁴³ The result of this is the imposition of liability ‘at a point remote from the causing of any harm’, ⁴⁴ which does not justify criminalisation and the restrictive measures associated with a terrorism offence. The legislation purports to protect vulnerable people from the harms inherent in violent extremist material, ⁴⁵ but a policy response focused on addressing this harm would support young people and their families and communities, rather than enable their earlier prosecution. The tough-on-crime approach ⁴⁶ instead risks labelling young people as terrorists and justifies their entry into the criminal system on this erroneous causal connection between viewing material, ideology and violence.

Children’s rights and the prosecution and sentencing of terrorism offences

While no case history involving the new offences exists at the time of writing, the circumstances in which they may be applied overlap significantly with existing preparatory terrorism offences. ⁴⁷ Cases in which children have been charged with comparable offences highlight both statutory issues and sentencing practices which violate the rights of children in the criminal process under the CRC. A growing number of these cases led to the then Independent National Security Legislation Monitor (INSLM) being requested to conduct a review into the prosecution and sentencing of children for federal terrorism offences. The INSLM report was published in 2018 and examined the application of federal counter-terrorism legislation to children in order to assess its necessity and proportionality in relation to national security interests. ⁴⁸

Minimum non-parole period and presumption against bail

A key issue examined by the INSLM was the minimum non-parole rule. This provision means that when imposing a sentence for a terrorism offence, a court must set a period of at least 75 per cent of the length of the total sentence before which an offender is not eligible for parole. ⁴⁹

In R v MHK, 17-year-old MHK pleaded guilty to acts in preparation for or planning a terrorist act and was sentenced to seven years imprisonment. ⁵⁰ He had been planning to detonate a bomb in a public area and had taken steps to obtain materials for explosive devices before his arrest. Because the offence was a terrorism offence, the judge was required to set the non-parole period at 75 per cent of his sentence, or five years and three months, despite believing that a four-year non-parole period would better facilitate MHK’s supervision and rehabilitation. ⁵¹ On appeal from the prosecution, the Victorian Court of Appeal found that the ‘sentencing considerations of general deterrence and denunciation must be given primacy above the ameliorating effect of youth’. ⁵² MHK was resentenced to 11 years imprisonment with a non-parole period of eight years and three months.

The INSLM found the minimum non-parole rule to breach Australia’s obligations under the CRC. ⁵³ Courts must have full discretion to ensure that children are detained only where strictly necessary, for the shortest appropriate period of time, and for the purposes of rehabilitation. ⁵⁴ The minimum non-parole rule leads to detention beyond what is strictly necessary and for purposes other than rehabilitation, and in the judge’s view in MHK’s case even directly conflicting with rehabilitation. ⁵⁵ The INSLM recommended that the minimum non-parole rule be amended to no longer apply to children. Instead, in 2019 the provision was amended to still apply to defendants under 18 years of age, unless ‘exceptional circumstances’ justified a different outcome. ⁵⁶

Secondly, the INSLM report discussed the presumption against bail, which means that a person charged with a terrorism offence must not be granted bail unless they can show ‘exceptional circumstances’ exist. ⁵⁷ In addition to leading to detention beyond what is strictly necessary, the presumption against bail also violates the specific rule that the conditional release of a child should be prioritised to the greatest possible extent. ⁵⁸ The INSLM recommended that the ‘exceptional circumstances’ test be amended to expressly provide for the best interests of the child to be taken into consideration in determining whether to grant bail. ⁵⁹ The 2019 amendment did provide for the best interests of the child to be a primary consideration, but with the protection of the community to remain the paramount consideration. ⁶⁰

Under article 3 of the CRC, ⁶¹ the requirement for the best interests of the child to be a primary consideration in all actions concerning children does not mean that the child’s interests are the only ones to be considered or that they will ‘necessarily eclipse the competing interests in the case’. ⁶² However, it does mean that the child’s best interests should not be made ‘subject to a higher paramount consideration’ that will automatically take precedence. ⁶³ The presumption against bail makes consideration of a child’s best interests subject to a higher paramount consideration that, like the minimum non-parole rule, can lead to detention of children in circumstances beyond what is strictly necessary. ⁶⁴

Harsh sentencing precedent

The child’s best interests principle also means that ‘traditional objectives of criminal justice, such as repression/retribution, must give way to rehabilitation and restorative justice objectives’. ⁶⁵ When dealing with children charged with preparatory terrorism offences, Australian courts have given primacy to general deterrence and denunciation over rehabilitation. In Khalid, 14-year-old IM pleaded guilty to conspiracy to do acts in preparation for or planning a terrorist act and was sentenced to 13 years and six months imprisonment, with a 10-year non-parole period. ⁶⁶ In determining IM’s sentence, the court acknowledged his age and immaturity along with the way he was influenced by his older co-defendants. However, it ultimately applied the sentencing precedent from MHK, finding that community protection, general deterrence and denunciation retained primacy over consideration of his youth. ⁶⁷ On appeal, the sentence was reduced to 10 years and nine months, although the court maintained its use of general deterrence as a sentencing principle. ⁶⁸

The aim of general deterrent sentencing is to prevent others from offending in the future through the threat of punishment. It is not based on an individual assessment of a child’s best interests and does not treat imprisonment as a last resort, and is therefore inconsistent with the CRC. ⁶⁹ It is also ineffective in discouraging offending in children, especially when it comes to more severe offences. ⁷⁰ In general, sentences imposed for deterrent purposes can lead to reoffending, with children who enter the criminal system young being even more likely to reoffend. ⁷¹ Any contact with the criminal system is harmful to children, but harsh sentencing practices along with statutory counter-terrorism measures mean that the rights of children charged with terrorism offences are disproportionately affected.

Both Khalid and MHK involved serious terrorism offences with a maximum sentence of life imprisonment, ⁷² but the issues of non-parole, presumption against bail and deterrent sentencing will be extended to accessing violent extremist material by virtue of their classification as terrorism offences. The INSLM warned that current patterns of prosecution would result in more arrests leading to children facing ‘a substantial period of incarceration’. ⁷³ It is this context into which the new violent extremist materials offences, requiring an unprecedentedly low standard of intent, were introduced.

Implications of the new offences in context

Some limitations of human rights are necessary and proportionate to achieve a legitimate purpose. The limitations imposed by existing preparatory offences are ostensibly justified to prevent harm to the community and protect national security. In MHK, for example, the judge considered the ‘dreadful potential consequences’ of the defendant’s plan to detonate a bomb in public, and justified his sentence based on the direct connection to serious potential harm. ⁷⁴ The new offences apply many of the same restrictive measures to far less severe circumstances than the planning of a terrorist act. They specifically target the mere accessing of material online in circumstances where ‘planning or preparation for a terrorist act has not yet begun’, ⁷⁵ failing to acknowledge that the majority of people who access such material will not go on to commit a terrorist act. This is clearly disproportionate when considering the breadth of the new offences, as noted by the Parliamentary Joint Committee on Human Rights. ⁷⁶

The legislation was a direct response to increasing numbers of young people accessing violent extremist content online – the Attorney-General argues ‘it is appropriate to subject children to criminal liability with respect to these offences given this increasing prevalence’. ⁷⁷ Therefore, there is a real risk that the offences will be disproportionately applied to young people, and in April 2024 a 14- and 17-year-old became two of the first people to be charged under the new laws, in connection with an investigation following the Wakeley church attack that month. ⁷⁸

Given the legislative context, requiring the Attorney-General’s consent to prosecute a child is not a sufficient safeguard. Not only is it unclear what criteria will be used by the Attorney-General in determining whether prosecution is appropriate, but a child can also be remanded in custody before the necessary consent has been given, and the presumption against bail will apply. ⁷⁹ The AFP submitted that they were likely to exercise their discretion to ‘pursue diversionary tactics and therapeutic options’ where children were involved in an offence. ⁸⁰ However, the Parliamentary Joint Committee on Human Rights also questioned the reliability of law enforcement discretion to consider support services and diversionary options, finding that this was also not a sufficient safeguard. ⁸¹

In Carrick, engagement of a 13-year-old in a diversionary program was covertly used to facilitate a terrorism investigation into him which took precedence over, and actively undermined, his rehabilitative progress. ⁸² A search of his home to gather evidence was conducted under the guise of a therapeutic home visit, and prosecution waited until he had turned 14 to press charges in order to avoid the presumption of doli incapax. In the Magistrate’s view, the police diversion program was ‘at best, secondary to the criminal investigation being undertaken’. ⁸³ A case like this shows the need for safeguards other than police discretion to ensure that diversion and rehabilitation are prioritised when children are under investigation. Instead, the new offences allow for prosecution at an even earlier stage rather than encouraging law enforcement to engage constructively with young people, their families and communities.

Children who experience any period of detention are more likely to suffer poor physical and mental health, trauma, stigma and social isolation. ⁸⁴ They are at higher risk of death by drug overdose and violence and are many times more likely to die by suicide. ⁸⁵ The treatment of children in Australia’s youth justice system specifically has been the subject of multiple Royal Commissions along with international criticism. ⁸⁶ The Australian Human Rights Commission recently reported that children’s rights in the criminal system are not treated as a national priority and that this is a direct barrier to meaningful change in the youth justice system. ⁸⁷ Although the five-year term of imprisonment ascribed to violent extremist material offences is a lesser sentence than that associated with other preparatory terrorism offences, labelling a child as an offender creates harmful stigma which can lead to further reoffending. In its own submission, the Attorney-General acknowledged that treating a child as an alleged criminal can negatively impact their outcomes. ⁸⁸

On the other hand, the emphasis on rehabilitation in the CRC comes from an understanding of children’s cognitive development and generally higher capacity for reintegration, ⁸⁹ which supports a restorative and rehabilitative child justice system. ⁹⁰ To make meaningful change as recommended by the INSLM, governments must work constructively with communities and services that are equipped to support vulnerable young people and address the harm that exposure to violent extremist materials can have on a child. Instead of strengthening diversion measures, the new offences take a criminalising approach, creating an earlier entry point into terrorism prosecution which will only lead to breaches of the CRC in Australia’s prosecution of children.

Conclusion

The violent extremist materials offences introduced in 2023 broaden the definition of a terrorism offence in a way that is unprecedented in federal law. By criminalising the nature of the material, rather than the intentions of the person accessing it, the legislation facilitates the prosecution as a terrorism offender of a person who has not contemplated any act of violence. As the offences were introduced in response to an increase in the number of young people accessing violent extremist material online, there is a real risk that children will be increasingly under surveillance by law enforcement, disproportionately be targeted by the offences, and subsequently prosecuted under counter-terrorism legislation at the discretion of police.

Statutory counter-terrorism measures and sentencing practices are more invasive than those applied to non-terrorism offences, and the rights of children charged with terrorism offences are uniquely impacted. The minimum non-parole period and presumption against bail cause detention of children beyond what is strictly necessary and for purposes other than rehabilitation. Deterrent sentencing which prioritises punishment and denunciation over reintegration and rehabilitation likewise fails to treat imprisonment as a last resort and is not based on an individual assessment of a child’s best interests. Reform in these areas is already needed. Instead, Australia’s approach has been to introduce legislation which criminalises and enables the prosecution of young people even earlier, before any contemplation of harm to the community has occurred. This approach cannot achieve its objective of protecting young people from exposure to harmful material online but will instead achieve the stigmatisation and labelling of more children as terrorism offenders and, as warned by the INSLM in 2018, lead to an increase in the number of young people at risk of prosecution.