News · Commonwealth criminal law
Advocating terrorism and violent extremist material.
Two men were put before Australian courts this week on charges that turn on words and files rather than on any act of violence. On 8 July 2026 a Gold Coast man appeared at Southport Magistrates Court charged with one count of using a carriage service for violent extremist material and six counts of possessing or controlling it. On 9 July 2026 a man appeared in the NSW Bail Division Court charged with advocating terrorism and with using a carriage service for violent extremist material, along with State weapons charges. He was refused bail. Both matters reach for three sections of the Criminal Code (Cth): section 80.2C, section 474.45B and section 474.45C. This note sets out what those sections require, what the prosecution has to prove, and what defences are open. It is written about the law, not about any person before the court.
By Aaron Kernaghan · Published 10 July 2026
What does it mean to advocate terrorism?
The offence sits in section 80.2C of the Criminal Code (Cth). The full text is on the Federal Register of Legislation, and the Act is also on JADE.
The section defines advocacy in three ways. A person advocates if they counsel, promote, encourage or urge the doing of a terrorist act or the commission of a terrorism offence. A person advocates if they provide instruction on doing a terrorist act or committing a terrorism offence. And a person advocates if they praise the doing of a terrorist act or the commission of a terrorism offence, in circumstances where there is a substantial risk that the praise may lead another person to engage in a terrorist act or to commit a terrorism offence.
The second and third limbs are recent. The instruction limb and the praise limb were added by Schedule 3 of the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Act 2023, which also lifted the maximum penalty. The praise limb is the one that does the most work in an online case, because it catches a person who never tells anyone to do anything. Praise alone is enough, provided the substantial risk is made out.
There is a second element that is often overlooked. The person must also be reckless as to whether another person will engage in a terrorist act or commit a terrorism offence. Recklessness in the Criminal Code means awareness of a substantial risk, and that it is unjustifiable to take that risk. So the prosecution proves two things: the advocacy, done intentionally, and the recklessness about what someone else might then do.
Is advocating for terrorism a crime?
Yes, and it has been since 2014. What has changed is the reach of the section and the size of the penalty. The Attorney-General's Department sets out the elements plainly. The offence does not require that anyone acted on the words. It does not require that any terrorist act was planned, attempted or carried out. The conduct that is criminalised is the speech itself, in a defined set of circumstances.
That is why two guardrails were built into the law. The first is the good faith defence in section 80.3, which protects the implied freedom of political communication. It puts outside the offence, among other things, publishing in good faith a report or commentary about a matter of public interest. The second is section 80.5, which says the Attorney-General must give written consent before proceedings for a Division 80 offence can be commenced. A charge can be laid and a person can be arrested and remanded before that consent is given, but the prosecution cannot go forward without it.
The phrase "terrorism offence" carries its own meaning, drawn from subsection 3(1) of the Crimes Act 1914 (Cth). It covers a group of Commonwealth offences, including offences about explosives and lethal devices, treason, foreign incursions and recruitment, and offences about terrorist acts and terrorist organisations. The Commonwealth Director of Public Prosecutions prosecutes all of them.
What is the penalty for advocating terrorism under section 80.2C(1)?
The maximum is 7 years imprisonment. There is no standard non-parole period, and there is no mandatory minimum. Standard non-parole periods are a New South Wales device under the Crimes (Sentencing Procedure) Act 1999 and they have no work to do on a Commonwealth charge.
A federal offender is sentenced under Part IB of the Crimes Act 1914 (Cth). Section 16A requires a sentence of a severity appropriate in all the circumstances, and sets out the matters the court takes into account. General deterrence carries real weight in this area. So does the nature of the material, how widely it was shared, whether it was directed at children or at vulnerable people, and what the person's conduct says about their commitment to the cause. A plea of guilty, cooperation, youth, mental illness and prospects of rehabilitation all remain live on sentence.
What is violent extremist material?
Violent extremist material is defined in section 474.45A of the Criminal Code (Cth), and the definition has three parts. All three must be satisfied. The material must describe, depict or provide instruction on engaging in, supporting or facilitating serious violence. A reasonable person would consider the material is intended to advance a political, religious or ideological cause. And a reasonable person would consider the material is intended to assist, encourage or induce a person to engage in, or do a thing related to, intimidatory acts, or to join or associate with organisations engaged in intimidatory acts.
An intimidatory act is violent action, or the threat of violent action, done with the intention of intimidating the public or of coercing or influencing a government by intimidation. The Attorney-General's Department fact sheet gives examples: videos of beheadings, shootings and bombings linked to a terrorist organisation or an extremist ideology; extremist manifestos and propaganda; and written guides on how to cause physical harm to a person.
Two of the three parts are assessed through the eyes of a reasonable person, not through the eyes of the accused. That is a design feature of the definition and it matters in practice. Whether a file is violent extremist material is judged objectively. What the accused thought about the file goes to a different element, which is recklessness.
Is it illegal to possess extremist material in Australia?
There are two offences, and they sit next to each other. Section 474.45B is the carriage service offence. A person commits it if they intentionally access, transmit, make available, publish, distribute, advertise, promote or solicit material, or an electronic link to material, they do so using a carriage service, and they are reckless as to whether the material is violent extremist material. A carriage service takes in the internet, web pages, social media applications, email, chat forums and text messages.
Section 474.45C is the possession offence. A person commits it if they intentionally possess or control material that was obtained or accessed using a carriage service, the material is data held in a computer or contained in a data storage device, and they are reckless as to whether the material is violent extremist material. Both offences carry a maximum of 5 years imprisonment.
Two features of section 474.45C repay attention. It reaches material stored on a phone or a hard drive long after it left the internet, because what matters is that the material was obtained or accessed by a carriage service at some point. And it operates on material downloaded before the offence commenced on 8 January 2024, provided the person continued to possess or control that material after that date. Old files on an old phone are not outside the section.
Because these offences begin with a device, they usually begin with a search. Where the material was found on a phone seized at the border, or under a search warrant, the lawfulness of the search and the seizure is the first thing a defence lawyer looks at. Our note on what happens after a search warrant deals with that ground.
What is section 80 of the Criminal Code 1995?
Division 80 of the Criminal Code is the part of the Commonwealth law that deals with treason, urging violence, advocating terrorism and advocating genocide, and with the public display of prohibited hate symbols. It sits in Part 5.1. The terrorism offences most people think of, including membership of a terrorist organisation and doing a terrorist act, sit further on in Part 5.3.
The violent extremist material offences sit somewhere different again, in Division 474, among the telecommunications offences. That is not an accident of drafting. Parliament built them as carriage service offences so that they attach to the use of the internet, in the same way as the Commonwealth child abuse material offences, which we cover in our note on online child abuse offences committed offshore. The structure of the charge, and which court hears it, follows from where the section sits.
A terrorist act itself is defined in section 100.1. It is an act, or a threat to act, done with the intention of advancing a political, religious or ideological cause, and with the intention of intimidating the public or of coercing or influencing a government by intimidation, that causes death or serious harm to a person, serious damage to property, a serious risk to public health or safety, or serious interference with critical infrastructure. Advocacy, protest, dissent and industrial action are carved out where the person does not intend to cause serious harm to a person or a serious risk to public safety. That carve-out is the reason a protest is not a terrorist act.
How are these charges defended?
Recklessness is usually the battleground. For both violent extremist material offences the prosecution must prove the accused was aware of a substantial risk that the material was violent extremist material, and that taking the risk was unjustifiable. A person who stumbles on a video with nothing in the context to warn them is not caught. Neither is a person who never opened the file, or who did not know it was on the device. Where material arrives in a group chat unbidden, or sits in a cache, or was placed on a shared device by someone else, possession and control are real questions and not formalities.
Section 474.45D then provides defences for dealings with a legitimate purpose. They cover academic or historical research, professional journalists making news reports in the public interest, advocating a change to the law or to policy, artistic works developed or exhibited in good faith, enforcing the law, assisting in court proceedings, and enabling a public official to do their duties. These defences carry an evidential burden, which means the accused must point to evidence that raises the issue, after which the prosecution must disprove it beyond reasonable doubt.
On an advocating terrorism charge the good faith defence in section 80.3 does similar work. A person who publishes a report or a commentary about a matter of public interest in good faith does not commit the offence, even where the subject is a terrorist act. And the objective limb of the praise offence, the substantial risk that the praise may lead another person to act, has to be proved on the evidence rather than assumed from the content of the words.
Consent to prosecute is a further check. The Attorney-General's written consent is required for any Division 80 offence. For the violent extremist material offences, the Attorney-General's consent is required where the accused is under 18. Young people are frequently the subject of these investigations, and the consent requirement exists so that a decision can be taken about whether prosecuting a child is the right course.
Where State charges are laid alongside the Commonwealth ones, as they were in the NSW matter this week, the two sets of charges run on different tracks with different sentencing regimes. Our notes on prohibited weapons under the Weapons Prohibition Act 1998, on unauthorised possession of a firearm, and on show cause and NSW bail deal with that side of the case.
Common questions
What is a simple definition of terrorism?
In Australian law a terrorist act is an act, or a threat to act, done to advance a political, religious or ideological cause, and done to intimidate the public or to coerce or influence a government by intimidation, which causes death or serious harm to a person, serious damage to property, a serious risk to public health or safety, or serious interference with critical infrastructure. Protest, dissent and industrial action are not terrorist acts where the person does not intend to cause serious harm or a serious risk to public safety.
What is considered extremist material?
Material is violent extremist material only if it meets all three parts of the definition in section 474.45A: it describes, depicts or instructs on engaging in, supporting or facilitating serious violence; a reasonable person would consider it intended to advance a political, religious or ideological cause; and a reasonable person would consider it intended to assist, encourage or induce a person to engage in something related to intimidatory acts, or to join or associate with organisations engaged in them. Offensive or hateful content that fails any part of that test is not violent extremist material.
What is harmful extremist content, and can accidental access be an offence?
Accidental access is not an offence. Both sections 474.45B and 474.45C require recklessness: awareness of a substantial risk that the material is violent extremist material, in circumstances making it unjustifiable to take that risk. A person who comes across the material on the internet without any warning from the context is not caught. Section 474.45D also protects dealings for research, journalism, law reform advocacy, artistic works in good faith, law enforcement and court proceedings.
What is the meaning of a violent extremist?
The Criminal Code does not make a person an offender for holding a belief. It defines the material, not the person. The offences attach to what a person does with material of a defined kind: accessing it, sharing it, promoting it, or possessing it, while reckless as to its character. Holding an extreme political or religious view is not a crime in Australia. Advocating a terrorist act, or dealing with violent extremist material, is.
Does the possession offence apply to files downloaded before 2024?
Yes, in a limited sense. The offence in section 474.45C commenced on 8 January 2024. It applies whether the material was accessed or obtained before or after that date, so long as the person continued to possess or control the material after 8 January 2024. The offence is in the continuing possession, not in the original download, so it is not retrospective in the strict sense.
What is the minimum sentence for a terrorism offence?
There is no mandatory minimum for advocating terrorism or for the violent extremist material offences, and no standard non-parole period, because those are a State device. A federal offender is sentenced under Part IB of the Crimes Act 1914, and section 16A requires a sentence of a severity appropriate in all the circumstances. General deterrence is given real weight in this area, and full-time imprisonment is a genuine prospect even on a first offence.
Can a person under 18 be charged with these offences?
Yes, but not without the Attorney-General's consent. For the violent extremist material offences the Commonwealth Attorney-General's consent is required to prosecute a person under 18, so that a decision can be made about whether the prosecution is appropriate. For any Division 80 offence, including advocating terrorism, the Attorney-General's written consent is required regardless of the person's age.
To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.
This article is written by Aaron Kernaghan, criminal defence lawyer at Good Legal Lawyers, as at 10 July 2026. It is commentary and reflects the personal opinion of the author only. It is not legal advice, it is not a substitute for advice on your own matter, and it does not purport to be accurate or complete. Any matter referred to may be before the court and any person charged is presumed innocent. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.
More criminal-law commentary by Aaron Kernaghan.