The Offence of Advocating Terrorism in Australia

by Ugur Nedim & Sonia Hickey
White Nationalists

A New South Wales teenager has been arrested and charged with terrorism offences.

In documents handed up to Albury Local Court, police allege that 18 year old Tyler Jakovac from Albury on the NSW-Victoria border used an encrypted online messaging service to share bomb-making instructions and express support for extremist ideology, encouraging others to kill “non-whites, Jews and Muslims”.

Police allege the teenager also made online comments suggesting he was willing to be involved in a “mass casualty event”.

While Police say there was no specific attack planned, they report that Mr Jokovac exhibited “an escalation in the tone which went to a support of a mass casualty event and potentially his involvement in that event”.

He has been charged with urging violence against members or groups and advocating terrorism.

Mr Jakovac’s arrest follows a joint investigation between the AFP and the NSW Police which began in August this year.

His case will return to court in February.

Second case in a week

Just days ago, a former journalist was also arrested and charged with terrorism offences.

James Waugh was arrested after a joint Counter Terrorism Team operation between the Queensland Police Service, Australian Federal Police and ASIO and charged under section 101.6 of the Criminal Code Act 1995, which prescribes a maximum penalty of life in prison for engaging in acts in preparation for, or planning for, terrorist attacks.

Urging violence against members or groups

Urging violence against members or groups is an offence under Section 80.2B of the Criminal Code Act 1995 (Cth) which carries a maximum penalty of 7 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You intentionally urged another person or group to use force or violence against a person,
  2. You did so due to your belief the targeted person was a member of a group,
  3. You intended the force or violence to be carried out,
  4. The targeted person is distinguished by race, religion, nationality, national or ethnic origin or political opinion, and
  5. The use of force or violence threatened the peace, order and good government of the Commonwealth.

The maximum penalty is 5 years if the prosecution fails to prove last ‘element’.

You are not guilty of the offence if you acted in ‘good faith’, which includes:

  1. Pointing out matters that produce, or have a tendency to produce, feelings of ill-will or hostility between different groups, in order to bring about the removal of those matters, or
  2. Publishing a report or commentary about a matter of public interest.

The onus is on you to establish the defence ‘on the balance of probabilities’.

Other defences to the charge include:

  1. Self defence
  2. Duress, and
  3. Necessity

Advocating terrorism

Advocating terrorism is an offence under section 80.2C of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 5 years in prison

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You advocated the doing of a terrorist act, or you advocated the commission of a terrorism offence, and
  2. You were reckless as to whether another person would engage in a terrorist act or commit a terrorism offence as a result.

To ‘advocate’ is to counsel, promote, encourage or urge.

A ‘terrorist act’ includes an action or threat of action that:

  1. Causes death, serious physical harm, serious property damage, serious risk to public health or safety, serious disruption or destruction to electronic systems, or endangers life,
  2. Is intended to advance a political, religious or ideological cause, and
  3. Is intended to coerce or influence a government by intimidation, or to intimidate the public or a section of the public.

‘Terrorism offences’ include:

  1. Providing or receiving training in connection with terrorist acts,
  2. Preparing for or planning terrorist acts,
  3. Possessing items in connection with terrorist acts, and
  4. Committing terrorist acts.

You can be found guilty even if the act you advocated did not occur.

You are not guilty if your conduct was in ‘good faith’, which includes:

  1. Pointing out matters that produce, or have a tendency to produce, feelings of ill-will or hostility between different groups, in order to bring about the removal of those matters, or
  2. Publishing a report or commentary about a matter of public interest.

The onus is on you to establish that defence ‘on the balance of probabilities’.

Again, the additional defences to the charge include:

  1. Self defence
  2. Duress, and
  3. Necessity.

Extremism on the rise

Authorities are concerned that during COVID-19 lockdowns, isolation has caused people to spend more time online, and has made many people more susceptible to ‘cult ideology’ which promotes a sense of belonging and kinship.

The Federal Government has recently asked Parliament’s intelligence and security committee to launch an inquiry into the threat posed by an increase in far-right extremism in Australia

The inquiry is scheduled to be completed by April 2021.

According to the terms of reference, the committee will consider the nature and extent of threat posed by extremist movements and persons holding extremist views in Australia, as well as the geographic spread of these extremist movements and persons in Australia, and their links to international extremist organizations.

The Federal Government’s announcement of the inquiry comes hot on the heels of the release of the New Zealand Royal Commission inquiry report into the 2019 Christchurch terrorist attacks, which were committed by Brenton Tarrant, an Australian white supremacist.

The Royal Commission inquiry has called for sweeping changes to New Zealand’s counter-terrorism operations.

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Authors

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with over 20 years of experience as a criminal defence lawyer. He is the Principal of Sydney Criminal Lawyers®.

Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist and owner of 'Woman with Words'. She has a strong interest in social justice, and is a member of the Sydney Criminal Lawyers® content team.

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