Testing our counter-terrorism laws: The prosecution of individuals for terrorism offences in Australia

In December 2003, Zeky Mallah became the first person charged with a terrorism offence in Australia. Since then, more than 30 others have been charged with individual terrorism offences or terrorist organisation offences. The first purpose of this article is to provide a stocktake of the prosecutions arising from these charges, highlighting, amongst other things, the problem-atic employment of the terrorism offences by Commonwealth intelligence and policing agencies, and the evidentiary difficulties faced by the prosecution at trial. The article goes on to consider several distinct lessons that may be taken from these prosecutions. It examines the important role played by trial by jury in the terrorism context, concluding that reform of the overly broad and vague terrorism offences would substantially improve the ability of juries to apply these offences. Finally, it seeks to demonstrate how both practical and legal aspects of Australia's terrorism prosecutions have undermined the principle that an accused is innocent until proven guilty.