1.1
This review is conducted under section 102.1A of the Criminal Code Act 1995 (Cth) (the Criminal Code).
1.2
Section 102.1A of the Criminal Code provides that the Parliamentary Joint Committee on Intelligence and Security (the Committee) may review a regulation specifying an organisation as a terrorist organisation and may report the Committee’s comments to each house of the Australian Parliament before the end of the applicable disallowance period.
1.3
The effect of such a regulation listing an organisation as a terrorist organisation confirms that the organisation in question is a terrorist organisation for the purposes of the offences in Division 102 of the Criminal Code. Division 102 sets out the following offences relating to terrorist organisations:
Directing the activities of a terrorist organisation;
Being a member of a terrorist organisation;
Recruiting persons to a terrorist organisation;
Receiving training from, providing or participating in training with a terrorist organisation;
Getting funds to, from or for a terrorist organisation;
Providing support to a terrorist organisation; and
Associating with a terrorist organisation.
1.4
Further to this, the purpose of listing an organisation as a terrorist organisation can also potentially disrupt terrorist activities, act as a deterrent to people who may be tempted to join such an organisation, and also has the symbolic purpose that Australia does not accept the terrorist actions of a particular group.
Re-listing of al-Shabaab, Lashkar-e-Tayyiba, Palestinian Islamic Jihad, Hamas’ Izz al-Din al-Qassam Brigades and the Kurdistan Workers’ Party
1.5
On 23 July 2021 the Governor-General made a regulation under the Criminal Code relisting al-Shabaab, Lashkar-e-Tayyiba (LeT), Palestinian Islamic Jihad (PIJ), Hamas’ Izz al-Din al-Qassam Brigades (the Hamas Brigades) and the Kurdistan Workers’ Party (the PKK) (the Five Organisations) as terrorist organisations.
1.6
On 26 July 2021 the regulations listing the Five Organisations as terrorist organisations under the Criminal Code were registered on the Federal Register of Legislation. The regulations came into effect on 4 August 2021. This was done to avoid any gap in the coverage of the offences in relation to the organisations being relisted.
1.7
The regulations relisting the Five Organisations were presented to the House of Representatives and the Senate on 3 August 2021.
1.8
The Five Organisations have been listed and relisted as terrorist organisations under the Criminal Code as follows:
Al-Shabaab was originally listed on 22 August 2009 and has been relisted in 2012, 2015, and most recently on 4 August 2018;
LeT was originally listed on 9 November 2003, has been relisted in June and October 2005, 2007, 2009, 2012, 2015 and most recently on 4 August 2018;
PIJ was originally listed on 3 May 2004, has been relisted in June and October 2005, 2007, 2009, 2012, 2015 and most recently on 4 August 2018;
The Hamas Brigades were originally listed on 9 November 2003, has been relisted in June and October 2005, 2007, 2009, 2012, 2015 and most recently on 4 August 2018; and
The PKK was originally listed on 17 December 2005 and has been relisted in 2007, 2009, 2012, 2015 and most recently on 4 August 2018.
1.9
As part of its review of the 2018 relisting of the Five Organisations, the Committee completed a report called Review of the re-listing of five organisations and the listing of two organisations as terrorist organisations under the Criminal Code. This report and its recommendations will be discussed further in Chapters three and four of this report.
1.10
The current regulations listing the Five Organisations will lapse on 4 August 2024.
Protocol for listing terrorist organisations under the Criminal Code
1.11
Section 102.1 of the Criminal Code establishes procedures which must be followed when listing or relisting an organisation as a terrorist organisation.
1.12
The Department of Home Affairs (the Department) provides guidance on these procedures on the National Security website, called the Protocol for listing terrorist organisations under the Criminal Code (the Protocol). The Protocol sets out the following:
1.13
For an organisation to be listed as a terrorist organisation under this section, the Minister for Home Affairs (the Minister) must be satisfied on reasonable grounds that the organisation in question meets the following mandatory legislative criteria:
1
It is directly, or indirectly engaged in, preparing, planning, assisting, in or fostering the doing of a terrorist act; or
2
It is advocating the doing of a terrorist act.
1.14
The Minister may also have regard to a range of other non-legislative factors which may ‘guide and prioritise the selection of organisations for consideration’:
The organisation’s ideology and engagement in terrorism;
The organisation’s links to other terrorist groups;
The organisation’s links to Australia and any threats to Australian interests;
Listing by the United Nations (UN) or other likeminded counties of the organisation; and
Engagement in any peace or mediation processes.
1.15
In making this determination, the Minister considers advice from the Department in the form of a Statement of Reasons which assesses the organisation against the above listed legislative requirements and non-legislative factors.
1.16
The Statement of Reasons is prepared using unclassified information about an organisation which is corroborated by classified information. This is done so the Statement of Reasons can be made public and provides transparency regarding the Minister’s satisfaction that the organisation meets the legislative threshold for listing.
1.17
The Department prepares the Statement of Reasons ‘in a manner which reflects a whole-of-government position on the proposed listing, relisting, or de-listing of an organisation.’ Other Government agencies may be consulted about listing decisions as per their portfolio responsibilities and may include:
The Attorney-General’s Department;
The Australian Border Force;
The Australian Criminal Intelligence Commission;
The Australian Federal Police
The Australian Geospatial-Intelligence Organisation;
The Australian Secret Intelligence Service;
The Australian Security Intelligence Organisation;
The Australian Signals Directorate;
The Australian Transaction Reports and Analysis Centre;
The Department of Defence;
The Department of Foreign Affairs and Trade;
The Department of Prime Minister and Cabinet; and
The Office of National Intelligence.
1.18
The full process for the relisting of the Five Organisations provided by the Department (forming part of Submission 1 to the review) has been included as Appendix C to this report.
Conduct of the review
1.19
On 3 August 2021 the Committee received a letter from the Minister for Home Affairs, the Hon. Karen Andrews MP, advising the Committee of her decision to relist the Five Organisations as terrorist organisations under the Criminal Code.
1.20
The Committee commenced a review on 5 August 2021 and called for submissions on its website as well as by media release.
1.21
The Minister’s letter was accepted as Submission 1 to the review. This letter included the tabled regulations, Statement of Reasons and the process for listing followed by the Department for all five organisations.
1.22
The Committee received seven other submissions to the review from community organisations, not-for-profit groups, and Australian Government departments. A list of submissions to this review is included in Appendix A of this report.
1.23
The Committee also received a classified briefing for the Five Organisations on 25 August 2021 in Canberra. Further to this, it also held a public hearing on the relisting of Hamas’s Izz al-Din al-Qassam Brigades with ASIO, the Department of Home Affairs, the Department of Foreign Affairs and Trade, and other non-Government submitters to the inquiry on 1 October 2021.
Report structure
1.24
Chapter two of this review considers the merits of relisting al-Shabaab, Lashkar-e-Tayyiba and Palestinian Islamic Jihad.
1.25
Chapter three of this review considers the merits of relisting Hamas’ Izz al-Din al-Qassam Brigades.
1.26
Chapter four of this review considers the merits of relisting the Kurdistan Workers’ Party.