Criminal Law

The legislative response to acts of terrorism has long been a defining feature of modern criminal law reform. Moments of crisis routinely prompt governments to act swiftly, introducing powers often framed as precautions necessitated by exceptional threats to public safety and national security. Yet the enduring legal significance of this approach rarely lies solely in its immediate purpose. Rather, it emerges over time, as successive legislative responses accumulate and gradually reshape the boundaries of state power.

This dynamic is best captured through the lens of incrementalism. Counter-terrorism law seldom develops through singular, transformative statutes. Instead, it evolves through a sequence of targeted reforms enacted in response to discrete crises. Each intervention may appear limited in isolation, but collectively these measures produce a steady expansion of executive authority and policing power. As Nicola McGarrity, George Williams and Jessie Blackbourn and other scholars have observed, crisis-driven security law reform tends to occur in stages, with each legislative response building upon the infrastructure created by its predecessors.

Australia’s counter-terror framework elucidates this paradigm, providing a uniquely instructive case study.

From 9/11 to the Lindt Siege

The attacks of 11 September 2001 marked the beginning of an unprecedented period of legislative activity across liberal democracies. In Australia, the Commonwealth parliament enacted an extensive suite of counter-terrorism measures under the Criminal Code Act 1995 (Cth). These reforms introduced a range of new offences criminalising preparatory conduct connected with terrorism, including providing support to terrorist organisations, possessing things connected with terrorist acts, and engaging in acts in preparation for terrorism.

Perhaps more significantly, these reforms established pre-emptive mechanisms designed to mitigate perceived security risks before any criminal conduct occurs. By introducing control orders and preventative detention orders, the framework allowed courts to impose stringent restrictions on an individual’s movement, communication, and association based solely on anticipated threats to national security.

The justification for these measures was clear. The threat posed by organised, transnational terrorist networks such as Al-Qaeda required legal tools capable of disrupting attacks before they materialised.

Subsequent domestic incidents reinforced this trajectory. The 2014 Lindt Café siege in Sydney prompted renewed legislative attention to lone-actor extremism and radicalisation. In the years that followed, federal and state governments enacted additional reforms expanding surveillance powers, strengthening offences relating to terrorist propaganda and advocacy, and increasing preventative policing capabilities.

Each reform was framed as a proportionate response to evolving security threats. Yet collectively they have entrenched a preventative model of criminal law that increasingly emphasises risk management over traditional notions of culpability.

As Gabrielle Appleby, Nicola McGarrity and George Williams observe in their analysis of Australia’s counter-terror framework, the cumulative effect of these reforms is often difficult to discern in the moment. Incremental legislative change rarely appears dramatic. Its constitutional and doctrinal consequences only become visible retrospectively.

Incrementalism and the Expansion of Security Law

The concept of incrementalism is central to understanding how counter-terror powers evolve. In their analysis of Australian counter-terror lawmaking, scholars have noted that governments often respond to crises through targeted legislative amendments that build upon existing security frameworks rather than creating entirely new ones. This process produces a gradual expansion of the state’s coercive capacity.

Importantly, the scope of these powers can shift over time. Legal tools initially designed to address exceptional threats may begin to intersect with other areas of criminal law, including public order regulation and protest policing.

In this sense, counter-terror law does not remain confined to national security. It can influence the broader architecture of criminal justice.

Recent legislative developments following the December Bondi attack at Bondi Beach suggest that Australia may be witnessing exactly this form of legal migration from national security to public order regulation.

The Bondi Attack and the Politics of Urgency

The Bondi attack generated intense public concern and immediate political pressure for action. Governments across Australia framed the incident as evidence of rising extremism and increasing social tension, particularly against the backdrop of global geopolitical conflict and polarised domestic debate.

In the months that followed, several legislative responses were proposed or enacted at the state level, particularly in New South Wales. These measures focused heavily on public order regulation and symbolic expression, rather than on traditional counter-terror infrastructure.

Among the most prominent were reforms targeting protest activity and political slogans. Amendments to public order provisions in the Crimes Act 1900 (NSW) expanded offences relating to intimidating or harassing conduct near places of worship and community institutions. Additional measures strengthened police powers to regulate demonstrations in sensitive locations and to disperse protests deemed likely to inflame social tensions.

Debates also emerged around prohibiting certain slogans or forms of political expression associated with extremist rhetoric. While framed as measures designed to curb incitement and protect community safety, these proposals raised complex questions about the limits of criminal law in regulating political speech.

Taken together, these developments represent a notable shift in emphasis. Earlier counter-terror reforms were directed primarily at organised terrorist activity and national security threats. By contrast, the post-Bondi legislative agenda reaches more deeply into the regulation of public protest, symbolic expression and political communication.

When Counter-Terrorism Meets Public Regulation

This shift is significant because it blurs the boundary between national security law and ordinary criminal regulation.

Modern counter-terror frameworks operate largely on a preventative logic. The goal is not simply to punish completed offences, but to disrupt risks before they materialise. Control orders, preventative detention and preparatory offences all reflect this logic.

When this preventative framework is applied to public order contexts, the legal consequences can be far-reaching.

First, it expands police discretion. Laws empowering authorities to regulate demonstrations or restrict symbolic expression often rely on broad standards such as preventing intimidation, preserving public order or mitigating community tensions. These standards can provide police with significant latitude when determining whether protests may proceed.

Second, it risks criminalising forms of political expression that fall squarely within the domain of democratic participation. Protest slogans, symbolic displays and collective demonstrations have long been recognised as core forms of political communication in liberal democracies.

Finally, it contributes to the gradual normalisation of emergency powers within ordinary criminal law.

Incrementalism is key here. No single legislative amendment necessarily represents a dramatic departure from established legal principles. Yet over time, the cumulative effect of these measures may significantly alter the balance between security and liberty.

Constitutional Implications

These developments inevitably raise constitutional questions, particularly in relation to Australia’s implied freedom of political communication.

The High Court has consistently held that laws burdening political communication must be compatible with the system of representative and responsible government established by the Constitution. Under the proportionality framework articulated in cases such as Lange v Australian Broadcasting Corporation and refined in later decisions including McCloy v New South Wales and Clubb v Edwards, restrictions on political communication must be justified as suitable, necessary and adequate in balance.

Legislation regulating protest activity or political slogans will therefore be assessed against this standard. If such laws impose significant burdens on political expression, particularly where they target symbolic or ideological speech, they may face constitutional scrutiny. Courts will need to determine whether the restrictions genuinely serve a legitimate purpose, such as preventing intimidation or protecting community safety, and whether less restrictive alternatives were available.

In this way, the judiciary may become an important forum for assessing the broader implications of incremental counter-terror reform.

The Normalisation of Emergency Powers

Viewed in isolation, the legislative responses to the Bondi attack may appear relatively modest. Governments frequently adjust public order laws in response to emerging social tensions. Yet when situated within the longer trajectory of Australian counter-terror legislation, these developments take on greater significance.

Since 2001, Australia’s security framework has evolved through a series of crisis-driven reforms. Each episode—9/11, the Lindt siege, and now Bondi—has prompted targeted expansions of state power designed to address specific threats.

Over time, the cumulative effect of these reforms may extend beyond the realm of national security. Legal tools originally designed to combat terrorism can gradually migrate into other areas of criminal law, reshaping the way governments regulate protest, speech and public assembly.

Whether this process represents a necessary adaptation to evolving security risks or a troubling expansion of executive authority remains a matter of ongoing debate.

What is clear, however, is that Australia’s counter-terror framework is no longer confined to the exceptional circumstances that first gave rise to it. Increasingly, it forms part of the ordinary legal landscape. And it is within that ordinary landscape that its most significant consequences may ultimately unfold.