Independent National Security Legislation Monitor Jake Blight is reviewing whether Australia's terrorism laws are fit for purpose, following a rise in right-wing extremism and the increasing radicalisation of children.
Terrorism laws were supposed to be applied equally but in practice were applied differently on the basis of race and religion, Victorian Aboriginal Legal Service CEO Nerita Waight told a public hearing on Tuesday.
"Agencies are quicker and more confident to label conduct as terrorism where a suspect is black, brown or Muslim than it is when the suspect is white and they are slower to call out terrorism and violence against Aboriginal people by white people," she said.
She pointed to the delay in identifying a terrorist act after a pipe bomb was thrown into an Invasion Day rally in Perth in January, without detonating.
Equality Australia legal director Heather Corkhill said the LGBTQI+ community faced a similar challenge, with law enforcement not adequately treating incidents as a broader pattern of ideologically motivated violence.
An ideologically motivated mass shooting in Orlando in 2016 at a queer nightclub where 49 people were killed revealed where this trajectory could lead, she said.
The monitor also heard testimony from civil rights groups who said reference to religious motivations in the current definition of the laws should be removed due to the negative impacts it was having on some communities.
A terrorist act must include a motive, which is defined as an intention to advance a political, religious or ideological cause.
Mr Blight said he was leaning toward recommending that ideology be defined as a system of beliefs or ideas that relate to how society is or should be and is intended to be shared with others.
There was no doubt the definition of terrorism would still cover causes like Islamic State even if the religious motivation term was removed, he said.
The current regime contributed to over-policing and stigmatising of Muslim communities, Liberty Victoria senior vice president Michael Stanton said, agreeing that prosecutions would still be viable should the religious reference be scrapped.
The United Nations Special Rapporteur on promoting human rights while countering terrorism, Ben Saul, said it was better to omit religion as a motivation because of the negative effects it had, while legal risks could be mitigated.
"In particular, discrimination, profiling against particular religious communities," he said.
Jewish groups are against carving out the religious motivation term, arguing it would weaken the laws, while Muslim groups have submitted testimony about discrimination and undue targeting of their communities.
Attorney-General Michelle Rowland said she supports the current definition that included religion as a motive, but would consider the monitor's final report.
Faith groups and law enforcement agencies will give evidence on Wednesday.
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