Providing or Receiving Training Connected with Terrorist Acts

– section 101.2 of the Commonwealth Criminal Code
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This charge is laid when a person provides or receives training which is connected with preparation for, the engagement of a person in, or assistance in a terrorist act.
Examples of Providing or Receiving Training Connected with Terrorist Acts
  • An Australian citizen travels to Afghanistan and receives firearms and explosives training from a terrorist organisation. The person is aware that the terrorist organisation will require them to commit a terrorist act using their training upon their return to Australia.
  • An Australian citizen travels to Nigeria and receives firearms and explosives training from a terrorist organisation. The person is reckless as to whether the terrorist organisation will require them to commit a terrorist act using their training.
  • An Australian citizen teaches cyberterrorism online to members of a terrorist organisation, knowing that the members of this terrorist organisation will use what they have learned to commit terrorism acts.
Questions in cases like this
  • Has the accused provided or received training?
  • Is the training connected with the preparation for, the engagement of a person in, or assistance in a terrorist act?
  • Is the accused aware of or reckless as to a connection between the training and a terrorist act?
What are some of the possible defences to Providing or Receiving Training Connected with Terrorist Acts?

Defences to this charge are ordinarily based on some element of the offence not being made out. These defences include:

  • The accused had not provided or received training;
  • Any training the accused provided or received was not connected with the preparation for, the engagement of a person in, or assistance in a terrorist act; and
  • The accused was not aware or reckless as to whether there was a connection between any training they received and a terrorist act.

You should ring us and discuss your case if you have been charged with this offence. Terrorism offences are extremely serious. Deciding whether or not to plead guilty or not has important implications for you and should be made after proper discussions with a criminal lawyer.

Maximum penalty and court that deals with this charge

A person found guilty of this charge may be sentenced to a maximum penalty of:

  • 25 years imprisonment in cases where the person aware of a connection between their training and a terrorism offence;1 and
  • 15 years imprisonment in cases where the person was reckless as to the connection between their training and a terrorism offence.2

This is a very serious offence which is heard in the Supreme Court.

What is the legal definition of Providing or Receiving Training Connected with Terrorist Acts?

101.2 Providing or receiving training connected with terrorist acts

  1. A person commits an offence if:
    1. the person provides or receives training; and
    2. the training is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and
    3. the person mentioned in paragraph (a) knows of the connection described in paragraph (b).

    Penalty: Imprisonment for 25 years.

  2. A person commits an offence if:
    1. the person provides or receives training; and
    2. the training is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and
    3. the person mentioned in paragraph (a) is reckless as to the existence of the connection described in paragraph (b).

    Penalty: Imprisonment for 15 years.

  3. A person commits an offence under this section even if:
    1. a terrorist act does not occur; or
    2. the training is not connected with preparation for, the engagement of a person in, or assistance in a specific terrorist act; or
    3. the training is connected with preparation for, the engagement of a person in, or assistance in more than one terrorist act.
  4. Section 15.4 (extended geographical jurisdiction–category D) applies to an offence against this section.
  5. If, in a prosecution for an offence (the prosecuted offence) against a subsection of this section, the trier of fact is not satisfied that the defendant is guilty of the offence, but is satisfied beyond reasonable doubt that the defendant is guilty of an offence (the alternative offence) against another subsection of this section, the trier of fact may find the defendant not guilty of the prosecuted offence but guilty of the alternative offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.
Legislation

The relevant legislation for this offence is section 101.2 of Criminal Code Act 1995 (Cth) (the Code).

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Elements of the offence

The prosecution must prove the following elements of the offence:

  1. The accused provided or received training;
  2. The training is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and
  3. The accused was aware of the connection between their training and the terrorist act; or was reckless as to the existence of a connection between their training and the terrorist act.

Element 1: the accused provided or received training
The prosecution must first prove that the accused provided or received training.

‘Training’ is not defined in the Code and carries its ordinary meaning of ‘the action of teaching a person…a particular skill or type of behaviour.’3

‘Training’ in the context of this offence may include firearms training, explosives training or cybersecurity training.

Element 2: the training is connected with preparation for, the engagement of a person in, or assistance in a terrorist act
The prosecution must then prove that any training the accused received was connected with preparation for, the engagement of a person in, or assistance in a terrorist act.

A ‘terrorist act’ means an action or threat of action where the action is done or the threat is made with the intention of advancing a political, religious or ideological cause and the action is done or the threat is made with the intention of coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country or intimidating the public or a section of the public.4

An act or threat of action qualifies as a terrorist act if it:5

  1. causes serious harm that is physical harm to a person; or
  2. causes serious damage to property; or
  3. causes a person’s death; or
  4. endangers a person’s life, other than the life of the person taking the action; or
  5. creates a serious risk to the health or safety of the public or a section of the public; or
  6. seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to:
    1. an information system; or
    2. a telecommunications system; or
    3. a financial system; or
    4. a system used for the delivery of essential government services; or
    5. a system used for, or by, an essential public utility; or
    6. a system used for, or by, a transport system.

An act is not a terrorist act if is advocacy, dissent or industrial action and is not intended:6

  1. to cause serious harm that is physical harm to a person; or
  2. to cause a person’s death; or
  3. to endanger the life of a person, other than the person taking the action; or
  4. to create a serious risk to the health or safety of the public or a section of the public.

If there is a connection between the training and preparation for, engagement of a person in, or assistance in a terrorist act then the second element of this offence will be satisfied. For example, if someone is trained in explosives and then tasked with detonating an explosive in a public place to advance a political cause then there will be a connection between the training and the terrorist offence.

“Was there a connection between the training and the terrorist act?”

The training need not be connected to a specific terrorist act and no terrorist act needs to occur to satisfy this offence element.7

Category D extended geographical jurisdiction applies to this offence.8 This means that this offence applies whether or not the conduct constituting the alleged offence occurs in Australia; and whether or not a result of the conduct constituting the alleged offence occurs in Australia.9 This means that even if either or both the training or the terrorist act occur outside Australia, this offence will apply.

Element 3: the accused was aware of the connection between their training and the terrorist act; or was reckless as to the existence of a connection between their training and the terrorist act
The final element of this offence is satisfied if the accused was aware of a connection between their training and the terrorist act; or was reckless as to the existence of a connection between their training and the terrorist act.

A person will be aware of the connection between their training and the terrorist act if they believe that their training is connected to a terrorist act, if they intend to engage in or bring about a terrorist act based on their training or if they are aware that a terrorist act will occur in the ordinarily course of events as a result of their training.10

ImprisonmentIn cases where a person is ‘aware’ of the connection between their training and the terrorist act, the maximum penalty for the offence is 25 years imprisonment.11

A person will be reckless as to the existence of a connection between their training and the terrorist act if they are aware that there is a substantial risk that there is a connection between their training and the terrorist act and, having regard to the circumstances known to them, it is unjustifiable to take that risk.12

In cases where a person is ‘reckless’ as to the existence of a connection between their training and the terrorist act, the maximum penalty for the offence is 15 years imprisonment.13

Potential to be found guilty of an alternative offence

In cases where a person has been charged with Providing or Receiving Training Connected with Terrorist Acts and the jury is not satisfied that the defendant is guilty of this offence but is satisfied beyond reasonable doubt that the defendant is guilty of an alternative offence, the jury may find the defendant not guilty of Providing or Receiving Training Connected with Terrorist Acts but guilty of the alternative offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

Other important resources
Media information

 



[1] Commonwealth Criminal Code 1995 s 101.2
[2] Commonwealth Criminal Code 1995 s 101.2
[3] Oxford English Dictionary online, accessed 5/11/2018 <https://en.oxforddictionaries.com/definition/training>
[4] Commonwealth Criminal Code 1995 s 100.1
[5] Commonwealth Criminal Code 1995 s 100.1
[6] Commonwealth Criminal Code 1995 s 100.1
[7] Commonwealth Criminal Code 1995 ss 101.2(3)(a) and 101.2(3)(b)
[8] Commonwealth Criminal Code 1995 ss 101.2(4)
[9] Commonwealth Criminal Code 1995 s 15.4
[10] Commonwealth Criminal Code 1995 s 5.2
[11] Commonwealth Criminal Code 1995 s 101.2
[12] Commonwealth Criminal Code 199 s 5.4(1)
[13] Commonwealth Criminal Code 1995 s 101.2