1. Listing Ansar Allah
   1. This review of the listing of Ansar Allah as a terrorist organisation is conducted under section 102.1A of Schedule 1 to the Criminal Code Act 1995 (Criminal Code). This section provides that the Parliamentary Joint Committee on Intelligence and Security (Committee) may review a regulation specifying an organisation as a terrorist organisation and report its comments and recommendations to each House of the Australian Parliament.
   2. This report consists of one chapter which discusses the legislative procedure for listing a terrorist organisation under Division 102 of the Criminal Code, the grounds for the listing articulated by the Government, and the matters raised in submissions provided to the Committee. This chapter concludes with the comment of the Committee in relation to the listing of Ansar Allah.

Conduct of the review

1.3On 28 May 2024 the Attorney-General, Hon Mark Dreyfus KC MP, wrote to the Committee to advise of the listing of Ansar Allah as a terrorist organisation under Division 102 of the Criminal Code.

1.4The Committee commenced its review pursuant to section 102.1A of the Criminal Code on 25 June 2024 and invited public submissions on its website and via media release.

1.5The letter received from the Attorney-General was accepted as submission 1 to this review. The letter included the relevant regulation, Statement of Reasons and description of the process followed for the listing.

1.6The Committee received a total of five submissions to the review. A list of submissions received is provided in Appendix A to this report. The Committee held a public hearing in Canberra on 29 July 2024. A list of witnesses is provided in Appendix B to this report.

1.7The Committee is grateful to all those who made submissions to the review.

Terrorist organisation listings under the Criminal Code

1.8Section 102.1 of the Criminal Code provides for the Governor-General to specify an organisation, by regulations, as a terrorist organisation for the purposes of Division 102, where the Minister for the Australian Federal Police (AFP)—currently the Attorney-General—is satisfied on reasonable grounds that the organisation:

• is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act; or
• advocates the doing of a terrorist act.
  9. The effect of a regulation listing an organisation as a terrorist organisation is to trigger the application of the offences in Division 102 of the Criminal Code.
  10. Subdivision B of Division 102 sets out the following offences:
• directing the activities of a terrorist organisation (section 102.2)
• being a member of a terrorist organisation (section 102.3)
• recruiting for a terrorist organisation (section 102.4)
• providing, receiving, or participating in training involving a terrorist organisation (section 102.5)
• getting funds to, from or for a terrorist organisation (section 102.6)
• providing support to a terrorist organisation (section 102.7)
• associating with a terrorist organisation (section 102.8).
  11. In its Protocol for listing a terrorist organisation (Protocol), the Department of Home Affairs (DHA) states that listing an organisation as a terrorist organisation has the potential to disrupt terrorism-related activities and serve as a deterrent. It places members of the public on notice that the organisation is a terrorist organisation under Australian law, which triggers the offences above.
  12. Listing an organisation as a terrorist organisation also demonstrates that the Australian Government does not condone the actions of groups that use terrorism to achieve their political, religious or ideological objectives.[1]
  13. The Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Act 2023 repealed Subsection 102.1(3) of the Criminal Code which previously provided that terrorist organisation listings under Section 102.1 ceased to have effect (‘sunset’) on the third anniversary of the day on which they took effect. Amendments made by that Act also exempted these regulations from ten-year sunsetting provisions which otherwise apply to all legislative instruments. As a result, regulations listing terrorist organisations under the Criminal Code no longer sunset. Organisations can only be de-listed by a Ministerial declaration under Subsection 102.1(4).

Procedure for listing terrorist organisations under the Criminal Code

1.14Section 102.1 of the Criminal Code establishes procedures which must be followed when listing an organisation as a terrorist organisation.

1.15Subsection 102.1(2) provides that before the Governor-General makes a regulation listing an organisation, the AFP Minister and agencies may consider both legislative and non-legislative criteria, as well as the publicly available statement of reasons provided by DHA.

1.16The AFP Minister considers all advice provided and consults a range of other Australian Government agencies about the listing decision.

1.17Once the Minister is satisfied that an organisation meets the threshold for listing and before regulations are made, the Minister advises the Prime Minister, advises the Leader of the Opposition and offers them a briefing, and writes to the First Ministers of all States and Territories seeking their agreement to the listing.[2]

1.18The regulation is then presented to the Governor-General for approval. The regulation comes into effect on the commencement date listed in the regulation.

1.19The Statement of Reasons for listing the organisation subject to this review is included in Submission 1 from the Attorney-General. DHA’s description of the full process undertaken for the listing of Ansar Allah is provided in Appendix C of this report.

Listing Ansar Allah

1.20On 23 May 2024, the Governor-General made a regulation listing Ansar Allah as a terrorist organisation under the Criminal Code. The Criminal Code (Terrorist Organisation—Ansar Allah) Regulation 2024 was registered on the Federal Register of Legislation on the same day and commenced the day following the registration of the instrument, on 24 May 2024.

1.21The regulation was tabled in the House of Representatives on 28 May 2024 and in the Senate on 24 June 2024.

1.22This is the first time Ansar Allah has been listed as a terrorist organisation under the Criminal Code.

Background to the listing of Ansar Allah as a terrorist organisation

1.23Ansar Allah, frequently referred to as the Houthis and also known by a number of other aliases, is a Zaydi Shia violent extremist organisation based in Yemen.[3]

1.24According to the statement of reasons provided by DHA, the organisation began as a grassroots religious movement in the early 1990s. It evolved into an organisation with political and military motivations, becoming increasingly radicalised following the United States’ invasion of Iraq in 2003, adopting the name Ansar Allah in 2011, and has significantly contributed to conflict in Yemen. While its total membership is unclear, in 2021 Ansar Allah’s armed forces were reported to number approximately 200,000.[4]

1.25Since 2022, Ansar Allah has conducted numerous violent terrorist attacks utilising an array of weaponry. Its violent activity is primarily directed at Yemeni government forces, but the organisation has also targeted civilians, foreign states and foreign-owned vessels passing through the Bab el-Mandeb Strait.[5]

1.26The Bab el-Mandeb Strait is a vital waterway for the flow of oil and international commerce. Ansar Allah has stated that these attacks are in support of the Palestinian people and will not stop until there is a ceasefire in Gaza. In its Statement of Reasons, DHA said that the attacks by Ansar Allah on commercial vessels navigating the Strait could impact global supply chains and contribute to inflation and pressure on the rising cost of living. The attacks have resulted in a reduced number of containers shipped through the Red Sea.[6]

1.27In its submission, the Australian Federal Police Association stated that the

[v]iolent attacks by Ansar Allah in the Gulf of Aden and other areas have resulted in the deaths of civilians, the taking of hostages, and serious disruptions to the freedoms and rights of navigation in the waters surrounding the Arabian Peninsula — jeopardising maritime security and world wealth.[7]

Legislative criteria for listing

1.28The Australian Government has assessed that Ansar Allah meets the legislative criteria for listing an organisation as a terrorist organisation, as the organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of terrorist acts.[8]

1.29The Statement of Reasons sets out 19 acts ‘reliably attributed’ to Ansar Allah since the beginning of 2022. In addition to more than a dozen strikes or attempted strikes against commercial vessels, the terrorist acts include missile and drone attacks on targets in Israel and Egypt as well as numerous attacks within Yemen.[9]

1.30The government noted in its Statement of Reasons that, although the majority of Ansar Allah’s terrorist attacks have not resulted in a loss of life, each of the attacks has been conducted for the purposes of taking lives and/or causing serious damage to property. This indicates that these attacks are at least evidence of preparing and planning terrorist acts.[10]

Non-legislative criteria

1.31Listed in DHA’s Protocol, the non-legislative factors the Minister and agencies may also consider include:

• the organisation’s engagement in terrorism
• the organisation’s ideology
• links to other terrorist groups
• links to Australia
• threats to Australian interests
• listing by the United Nations or like-minded countries
• engagement in peace or mediation processes.[11]
  32. In its statement of reasons, the Australian Government cited non-legislative criteria that guided the Minister in his decision:
• Links to other terrorist groups—Ansar Allah has demonstrated links to Hizballah, as Hizballah has proven to be an active supporter of Ansar Allah, and often mentors Ansar Allah in military training. Ansar Allah has also been a vocal supporter of Hamas, since its 7 October 2023 attack on Israel.[12]
• Links to Australia and Australian interests - Australia, alongside the Netherlands, Canada and Bahrain, has provided non-operational support to the United Kingdom and the US in defensive strikes against Houthi targets in Yemen since 12 January 2024. Ansar Allah has publicly vowed retribution against the US and UK for these strikes and the Government assesses that Australia’s support for them could potentially lead to reprisals by Ansar Allah against Australian interests in the Middle East.[13]
• Listings by likeminded countries - the US announced the designation of Ansar Allah as a ‘Specially Designated Global Terrorist group’, effective from 16 February 2024. The organisation is also subject to sanctions under the United Nations Security Council, including an arms embargo, and financial and travel restrictions on key leaders.
• Engagement in peace or meditation processes – various peace initiatives have been attempted since 2015, by the UN and Saudi Arabia. Most recently, on 23 December 2023, the UN Special Envoy of the Secretary-General for Yemen announced that the Presidential Leadership Council and the Houthis had agreed to implement a nation-wide ceasefire, improve living conditions in Yemen and engage in preparations for the resumption of negotiations of a UN roadmap to a lasting political solution.[14]

Stakeholder views

1.33In its submission, the Australian Council for International Development (ACFID) raised concerns that the listing of Ansar Allah may have unintended consequences for humanitarian organisations providing humanitarian assistance in Yemen. ACFID noted the dire humanitarian situation in Yemen, and the significant challenges of providing humanitarian assistance in areas affected by sanctions or counter-terrorism measures.[15]

1.34ACFID recommended that a humanitarian exemption be provided within the listing. Should this not be done, ACFID made three further recommendations, including provision of advice to relevant humanitarian agencies to clarify the impact of the listing.[16] ACFID recommended that a ‘standing humanitarian exemption’ be included in ‘all sanctions and counter-terrorism frameworks to ensure that there are no unintended consequences on the provision of assistance to the civilian population’.[17]

1.35At the Committee’s public hearing, the Attorney-General’s Department noted the existence of provisions for a ‘humanitarian carve-out’ from offences in Division 102. Notably, the offence of associating with a listed terrorist organisation in section 102.8 of the Criminal Code contains a specific exemption where the association is only for the purpose of providing aid of a humanitarian nature.[18]

1.36Two submissions were received from individuals who raised matters relating to the aliases, leadership and connections of Ansar Allah. The submissions suggested that the Statement of Reasons for the listing should be amended to include additional information about Ansar Allah, specifically with reference to the organisation’s relationship with Iran and the Islamic Revolutionary Guard Corps.[19]

1.37In the Statement of Reasons, DHA advised that Iran has repeatedly denied arming the Houthi movement, but ‘substantial evidence indicates it provides Ansar Allah direct support in the form of logistics, intelligence, weapons and financing’.[20] At the public hearing, the Department of Foreign Affairs and Trade said it was the Government’s assessment that Ansar Allah had a ‘degree of independence’ from Iran, and although Iran’s links with Ansar Allah were strong and had intensified in recent years, ‘[w]hether there’s operational control is… a questionable point’.[21] DHA stated that any omission of relevant aliases for Ansar Allah from the Statement of Reasons ‘would have been an oversight, not a conscious decision’.[22]

Committee comment

1.38The Committee notes that, following amendments made to section 102.1A of the Criminal Code in 2023, it is no longer legislatively required to report on terrorist organisation listings within the 15 sitting-day period in which they are open to disallowance by either House of Parliament. Nevertheless, bearing in mind the purpose of such review, the Committee sought to ensure it reported to parliament before the expiry of the disallowance period for the regulation in each House. The Committee welcomed the Attorney-General’s timely notification of the listing and reiterates the importance of this practice continuing, so that the Committee can consider new or amended listings and report to parliament within the disallowance period for the relevant instrument/s.

1.39The Committee notes the submission from ACFID expressing concern about possible consequences of the listing on humanitarian aid being provided by Australian organisations in Yemen. The Committee acknowledges the significant humanitarian crisis occurring in Yemen, and is absolutely supportive of the ongoing provision of humanitarian aid to the people of Yemen.

1.40ACFID’s submission did not acknowledge or comment on the adequacy of the existing limitations and exemptions within the Criminal Code applicable to humanitarian work in areas controlled by terrorist organisations, including the specific humanitarian exemption to the ‘associating’ offence.

1.41The Committee has previously considered and commented on safeguards in the Criminal Code as they relate to humanitarian aid in terrorist-controlled areas,[23] and the Committee is confident that the legislative scheme in its current form is able to protect the ability of Australian organisations to provide legitimate humanitarian aid in Yemen without fear of prosecution.

1.42At the same time, the Committee encourages the Government to be mindful of ensuring this is the case, and that organisations are not dissuaded from continuing such assistance, including by:

• proactively engaging with Australian organisations that are providing or are likely to provide humanitarian aid to people in Yemen, to ensure that they understand the legal scope of, and limits on, the offences arising from the listing of Ansar Allah; and
• considering whether a specific ministerial direction or policy guideline needs to be made in connection with this listing, as has previously been done with reference to the terrorist organisation listings of Hamas and Hizballah.
  43. The Committee further notes the suggestions made by two submitters in regard to including additional aliases for Ansar Allah and other information in the Statement of Reasons. Those submissions are on the public record for the reference of relevant agencies and any action that may be appropriate. The Committee remains confident in the ability of Australian agencies to access and analyse relevant information from both public and classified sources, and to provide accurate and high-quality advice to Government in support of the listing of terrorist organisations.
  44. Finally, the Committee notes that the regulation listing Ansar Allah commenced the day after the instrument was registered. In this respect, the Committee notes a previously agreed practice, since 2008, that when an organisation is being listed for the first time, the commencement of the regulation should begin after the disallowance period has expired. Regulations that commence immediately, before the Committee or Parliament has had an opportunity to consider them, should only be made in exceptional cases, where there are circumstances of urgency and the immediate commencement of the listing is required for reasons of national security. In such situations, the case for the urgency should be explained to the Committee.[24]
  45. In this instance no information was provided to the Committee explaining why this instrument required urgent commencement. The Committee requests that the Government comply with the previously agreed practice in this regard, in respect of future new listings.
  46. Overall, the Committee is satisfied that Ansar Allah meets the definition of a terrorist organisation and that the listing has been properly made. As such, the Committee supports the listing of Ansar Allah as a terrorist organisation under the Criminal Code and finds no reason to disallow the legislative instrument.

Mr Peter Khalil MPChairAugust 2024

Footnotes

[1]Australian Government, ‘Protocol for listing terrorist organisations’, www.nationalsecurity.gov.au/what-australia-is-doing/terrorist-organisations/protocol-for-listing, viewed 16 July 2024.

[2] Australian Government, ‘Protocol for listing terrorist organisations’, www.nationalsecurity.gov.au/what-australia-is-doing/terrorist-organisations/protocol-for-listing, viewed 19 July 2024.

[3]Attorney-General’s Department, Submission 1, p. 25 (Statement of Reasons, p.1).

[4] Attorney-General’s Department, Submission 1, p. [27] (Statement of Reasons, p.3).

[5]Attorney-General’s Department, Submission 1, p. 29 (Statement of Reasons, p.5).

[6] Attorney-General’s Department, Submission 1, p. 30 (Statement of Reasons, p.6).

[7]Australian Federal Police Association, Submission 2, p. 3.

[8]Attorney-General’s Department, Submission 1, p. [31] (Statement of Reasons p.7).

[9]Attorney-General’s Department, Submission 1, pp. [29-30] (Statement of Reasons pp.5-6).

[10]Attorney-General’s Department, Submission 1, p. 29 (Statement of Reasons, p.5).

[11] Australian Government, ‘Protocol for listing terrorist organisations’, www.nationalsecurity.gov.au/what-australia-is-doing/terrorist-organisations/protocol-for-listing, viewed 19 July 2024.

[12]Attorney-General’s Department, Submission 1, p. [28] (Statement of Reasons p.4).

[13]Attorney-General’s Department, Submission 1, p. [30] (Statement of Reasons, p.6).

[14]Attorney-General’s Department, Submission 1, p. 31 (Statement of Reasons, p.7).

[15]Australian Council for International Development, Submission 5, pp. 1-2.

[16]Australian Council for International Development, Submission 5, p. 3

[17]Australian Council for International Development, Submission 5, p.4.

[18]Ms Chloe Davidson, Acting Assistant Secretary, Security Law and Policy Branch, Attorney-General’s Department, Proof Committee Hansard, 29 July 2024, p. 2.

[19]Mr Reza Parsaee, Submission 3; Mr Arash Behgoo, Submission 4.

[20]Attorney-General’s Department, Submission 1, p. 28 (Statement of Reasons, p. 4).

[21]Mr Marc Innes-Brown, First Assistant Secretary, Middle East and Africa Branch, Department of Foreign Affairs and Trade, Proof Committee Hansard, 29 July 2024, p. 3.

[22]Ms Gemma Smyth, Acting Deputy Secretary, National Security and Resilience Group, Department of Home Affairs, Proof Committee Hansard, 29 July 2024, p. 1.

[23]See, for example, Parliamentary Joint Committee on Intelligence and Security, Review of the Listing and re-listing of eight organisations as terrorist organisations under the Criminal Code, September 2022, pp. 23-24.

[24]See, for example, the Committee’s Review of the re-listing of five organisations and the listing of two organisations as terrorist organisations under the Criminal Code, September 2018, paras 4.15-4.17 and 4.50-4.51; and Review of the listing and re-listing of six organisations as terrorist organisations under the Criminal Code, August 2019, para 2.14.