Terrorist listings under the Criminal Code
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 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 terrorism 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 a 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 symbolic value that Australia does not accept the terrorist actions of a particular group.
Re-listing of Hizballah’s External Security Organisation
1.5
On 29 April 2021 the Governor-General made a regulation under the Criminal Code re-listing Hizballah’s External Security Organisation (ESO) as a terrorist organisation.
1.6
On 30 April 2021 the regulation listing the ESO as a terrorist organisation under the Criminal Code was registered on the Federal Register of Legislation. The regulation came into effect on 2 May 2021. This was done to avoid any gap in the coverage of the offences in relation to the organisation being re-listed.
1.7
The regulation re-listing the ESO was presented to the House of Representatives and the Senate on 11 May 2021.
1.8
The ESO has been listed as a terrorist organisation under the Criminal Code since 5 June 2003. It has been re-listed since then in 2005, 2007, 2009, 2012, 2015, and most recently on 2 May 2018.
1.9
As part its review of the 2018 re-listing of the ESO, the Committee completed a report called Review of the re-listing of Hizballah’s External Security Organisation as a terrorist organisation under the Criminal Code. This report and its recommendations will be discussed further in chapter two of this report.
1.10
The most recent regulation listing the ESO will lapse on 2 May 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 re-listing 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 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 give regard to a range of other non-legislative factors which ‘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 or other like-minded countries; 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, re-listing 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
A more detailed discussion of changes which have recently occurred to the Protocol, as well as the process for re-listing taken by the Department specific to Hizballah’s ESO are contained within chapter two of this report.
1.19
The full process for the relisting of the Hizballah’s ESO provided by the Department (forming part of Submission 1 to the review) has been reproduced as Appendix C of this report.
Conduct of the review
1.20
On 6 May 2021 the Committee received a letter from the Minister for Home Affairs, the Hon. Karen Andrews MP, advising the Committee of her decision to list Hizballah’s ESO as a terrorist organisation under the Criminal Code.
1.21
The Committee commenced a review on 11 May 2021 and called for submissions on its website as well as by media release. Submissions were due on 26 May 2021.
1.22
The Minister’s letter was accepted as Submission 1 to the review. This letter included the tabled regulation, a Statement of Reasons and the process for listing followed by the Department.
1.23
The Committee received five other submissions to the review from the Zionist Federation of Australia, the Australia/Israel & Jewish Affairs Council, the Executive Council of Australian Jewry, Dr Matthew Levitt and Mr Emanuele Ottolenghi.
1.24
The Committee also received a classified briefing for Hizballah’s ESO on 14 May 2021 in Canberra. Further to this, it also held a public hearing with non-Government submitters, ASIO, the Department of Home Affairs and other relevant agencies for this review on 10 June 2021.
1.25
A further classified hearing for this review was held on 15 June 2021.
Report Structure
1.26
Chapter two of this report considers the merits of re-listing Hizballah’s ESO based on evidence received by the Committee. It also considers the changes to the Protocol and the process of re-listing undertaken by the Department.