26.3.1.1 - Terrorism risk or record

On 1 October 2018 the Justice Legislation Amendment (Terrorism) Act 2018 amended the BA to provide for the use of terrorism risk information by a court considering whether to grant an accused bail; and to specify procedures and tests in bail determinations involving terrorism-related circumstances.

Relevant definitions

Section 3 of the BA defines a “terrorism or foreign incursion offence” as an offence against:

  1. s4B of the Terrorism (Community Protection) Act 2003 (or a corresponding interstate provision); or
  2. a provision of Subdivision A of Division 72 of Chapter 4 of the Criminal Code Act 1995 (Cth); or
  3. a provision of Part 5.3 or 5.5 of the Criminal Code Act 1995 (Cth); or
  4. a provision of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) as in force before its repeal.

A person has a “terrorism record” under the BA if the person:

  1. has been convicted of a terrorism or foreign incursion offence; or
  2. is or has been subject to a terrorism-related order (s3AAB).

“Terrorism risk information” means an assessment made by a specified entity that there is a risk the person will commit a terrorism or foreign incursion offence, and the information relied on in making that assessment (s3AAC).

Preliminary determination

The Court is required to make a preliminary determination if there is a risk that the accused will commit a terrorism or foreign incursion offence if:

The BA outlines the considerations for the Court in bail determinations for accused charged with Schedule 1 or Schedule 2 offences where terrorism-related circumstances arise.

See 26.3.1.2 and 26.3.1.3 for discussion on the relevant tests in bail determinations involving terrorism offences or terrorism-related issues.

See Also

26.3.1 - Presumption of bail and exceptions

26.3.1.2 - Exceptional circumstances

26.3.1.3 - "Show compelling reason"

26.3.1.4 - Unacceptable risk

26.3.1.5 - Surrounding circumstances

26.3.1.6 – Two-step process for bail determination