Introduction
1.1
This review is conducted under section 102.1A of the Criminal Code.
1.2
Section 102.1A provides that the Parliamentary Joint Committee on Intelligence and Security may review a regulation specifying an organisation as a terrorist organisation for the purpose of paragraph (b) of the definition of terrorist organisation in section 102.1 of the Criminal Code and report the Committee’s comments to each house of the Parliament before the end of the applicable disallowance period.
1.3
Regulations re-listing Hizballah’s External Security Organisation as a terrorist organisation were made by the Federal Executive Council on 27 April 2018. The regulation came into effect on 2 May 2018, and was presented in the House of Representatives and the Senate on 8 May 2018.
1.4
Regulations that specify an organisation as a terrorist organisation cease to have effect on the third anniversary of the day on which they take effect. Organisations can be re-listed, providing the Minister is satisfied on reasonable grounds that the organisation continues to directly or indirectly engage in terrorism or advocate the doing of a terrorist act.
The Committee’s review
1.5
In its first report, Review of the listing of the Palestinian Islamic Jihad, the Committee established procedures for reviewing terrorist listings and determined that the validity of the listing of a terrorist organisation should be tested on both the procedures and the merits. The Committee has followed this practice for all subsequent reviews and again adopted this approach for the purposes of this report.
1.6
Where an organisation is listed for the first time, the Committee will assess the adequacy and appropriateness of the evidence presented in the explanatory statement as well as the procedures followed by the Government.
1.7
Where an organisation is re-listed, the Committee expects the evidence presented to demonstrate a continuation of the requisite activities to satisfy the relevant tests specified in the Criminal Code (and outlined below).
Conduct of the inquiry
1.8
Notice of the review was placed on the Committee’s website.
1.9
A private classified hearing with representatives of the Department of Home Affairs and the Australian Security Intelligence Organisation (ASIO) was held in Canberra on 22 May 2018.
1.10
A letter from the Minister for Home Affairs, including the statement of reasons and the process of listing undertaken by the Department of Home Affairs, was accepted as Submission 1 to the review and can be found on the Committee’s website. Following a private classified hearing, the Department of Home Affairs provided a submission to the review answering technical questions raised during that hearing. ASIO also provided a classified submission.
1.11
The remainder of this chapter will examine the Government’s procedures and the merits of the re-listing of Hizballah’s External Security Organisation as a terrorist organisation based on the evidence provided to the Committee.
The Government’s procedures
1.12
On 2 May 2018, the Minister for Home Affairs wrote to the Committee to advise of the decision to re-list Hizballah’s External Security Organisation as a terrorist organisation under the Criminal Code.
1.13
The re-listing of Hizballah’s External Security Organisation is the second Criminal Code listing since machinery of government changes that transferred responsibilities under Part 5.3 of the Criminal Code from the Attorney‑General to the Minister for Home Affairs. The legislation to formally transfer these responsibilities commenced on 11 May 2018. This re‑listing was made by the Minister for Home Affairs prior to the passage of that legislation.
1.14
As noted in the Committee’s review of the re-listing of the Islamic Movement of Uzbekistan, Jaish-e-Mohammad and Lashkar-e Jhangvi, on 20 December 2017, the Attorney‑General signed an authorisation that transferred those same responsibilities to the Minister for Home Affairs until such time that the legislation formally passed through the Parliament. The Department of Home Affairs explained the need for the temporary authorisation:
The Attorney-General’s authorisation reflected that the Attorney continued (and continues) to administer the Criminal Code under the Administrative Arrangements Order (AAO) , but that with the transfer of policy responsibility for national security and law enforcement policy and operations, the Minister for Home Affairs would exercise relevant powers and functions, including in relation to counter-terrorism.
The powers that the Minister for Home Affairs exercised pursuant to the authorisation have now been made clear by amendments to Part 5.3 of the Criminal Code made by the Home Affairs and Integrity Agencies Legislation Amendment Act 2018.
1.15
Similarly, in his letter advising the Committee of the decision, the Minister for Home Affairs noted:
The Attorney-General, the Hon Christian Porter MP, who has administrative responsibility for Division 102 of the Criminal Code, has authorised me to exercise his powers and functions in respect of this Division.
1.16
An attachment to the Minister’s letter outlined the procedures followed by the Department for Home Affairs, with input from other agencies, for the re‑listing of this organisation. This document is available on the Committee’s website as an attachment to Submission 1.
1.17
Subsection 102.1(3) of the Criminal Code provides that a regulation listing a terrorist organisation ceases to have effect on the third anniversary of the day on which it takes effect. Hizballah’s External Security Organisation was previously re-listed as a terrorist organisation with effect from 2 May 2015. In his letter, the Minister for Home Affairs stated:
To ensure there is no gap in the coverage of the offences in relation to this organisation, the Regulations will commence immediately and will not be delayed until after the disallowance period. As such, the Regulations will commence the day after registration on the Federal Register of Legislative Instruments.
Committee comment
1.18
The Committee reviewed the process of listing and was satisfied with the appropriateness of the procedures undertaken by the Government.
Merits of the re-listing
The criteria for listing an organisation
1.19
For an organisation to be listed as a terrorist organisation under the Criminal Code, the Minister for Home Affairs must be 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.
1.20
In addition to these legislative criteria, ASIO may have regard to non-legislative factors, including:
ideology and links to other terrorist groups or networks;
threats to Australian interests;
proscription by the United Nations Security Council or like-minded countries; and
engagement in peace/mediation processes.
1.21
For each listing, the legislative and non-legislative factors are addressed in the statement of reasons provided to the Minister for Home Affairs by ASIO.
1.22
The Committee was first advised of ASIO’s evaluation process, including its use of non-legislative factors, in 2005. As has been the approach in past reviews, the Committee has used these criteria to assess the appropriateness and adequacy of the evidence provided.
1.23
In reviewing the re-listing, the Committee has taken into account the Minister for Home Affairs’ explanatory statement, other publicly available information, and evidence provided at the private classified hearing on 22 May 2018.
1.24
As a re-listing, the Committee’s review of Hizballah’s External Security Organisation has focussed upon the group’s activities since its last listing in May 2015.
Hizballah’s External Security Organisation
Summary of the Statement of Reasons
1.25
Hizballah is a political organisation that represents the Lebanese Shia community within Lebanon. Founded in 1982, it has evolved into a multi‑faceted organisation that includes political, social and military components. It maintains a social welfare network that encompasses education and health services.
1.26
Hizballah maintains a highly capable and well-resourced military wing. The militia is ‘structured ostensibly to support its public policy to resist Israeli aggression, but also to defend and promote Shia interests in the context of Lebanon’s historical and ongoing sectarian divisions’.
1.27
Hizballah’s External Security Organisation (the ESO) is a discrete branch or entity within Hizballah’s military wing. The statement of reasons comments that the ESO is positioned ‘alongside but distinct from, Hizballah’s formal militia and military activity’, and is responsible for procurement, intelligence, counter intelligence, surveillance, planning, coordination and execution of terrorist attacks against Hizballah’s enemies outside of Lebanon. It was established in 1983 following Hizballah’s attack on the United States’ military in Beirut.
1.28
According to the statement of reasons, the ESO operates ‘independently of its parent body’. The statement of reasons explains that since entering the Lebanese Parliament in 1992, and government in 1995, Hizballah has sought to strengthen its public image as ‘a respected resistance movement and shift its reputation as a terrorist group’. The statement of reasons comments:
This also reinforces Hizballah’s need to distance the organisation from any activity that could be construed as terrorism. Consequently, Hizballah is unlikely to either claim responsibility for a terrorist attack or acknowledge any ESO activities.
1.29
The ESO’s current leader, Talal Hamiyah, replaced Imad Mughniyah who was assassinated in 2008. In 1994, an attack took place in Argentina where 85 people were killed and over 300 injured. Hamiyah was implicated in this attack which has been attributed to the ESO. The United States’ State Department continues to offer a reward for information that leads to the location, arrest or conviction in any country of Hamiyah.
1.30
Due to its highly secretive nature, little is known about the ESO’s membership. ASIO have also concluded that little is known about the ESO’s funding or recruitment, as distinct from Hizballah, although it is believed that the ESO values recruits with dual citizenship, and who have access to passports from Western countries.
Engaging in terrorism
1.31
Due to the secretive nature of the ESO, it is difficult to gather detailed information about the group’s role and activities. Further, the ESO does not generally publicly claim responsibility for terrorist attacks outside Lebanon.
1.32
However, ASIO have concluded the ESO has an ‘ongoing program of contingency planning for terrorist activities around the world’, and ‘there is no indication that the ESO’s role has changed in recent times’.
1.33
As noted above, the Committee last undertook a review of the re-listing of the ESO in June 2015. Since that time, the following activity can be reliably attributed to the organisation:
June 2017: Two men were arrested in the United States for undertaking terrorist activities on behalf of the ESO, including allegedly being involved in planning, and supplying material support on behalf of the ESO for attacks against Israeli and United States targets. Both men had allegedly also received training from ESO.
August 2015: 26 members of the Al-Abdali terror cell were arrested by the Kuwait Security Service for stockpiling munitions and armaments on behalf of Hizballah. In January 2016, twenty-three members of the cell were found guilty of intent to carry out hostile acts against Kuwait. The methodology, including stockpiling of explosive components in preparation for hostile acts outside of Lebanon, is consistent with ESO operational methods.
July 2015: Cyprus jailed an ESO operative, after he pleaded guilty to stockpiling explosive materials.
Non-legislative factors
1.34
The statement of reasons notes that elements of Hizballah have provided training, operational support and material to Palestinian extremist groups, including the Palestinian Islamic Jihad and HAMAS’s Izz al‑Din al‑Qassam Brigades. Both organisations are proscribed entities in Australia. Operational support and material have also been provided to Shia militia elements in Iraq.
1.35
There is no information on specific threats to Australia or Australian interests posed by the ESO; however, Bulgarian authorities have charged an Australian national in absentia with involvement in an attack in Burgas, Bulgaria in July 2012.
1.36
Hizballah engages with numerous international organisations and governments. However, Hizballah’s ESO specifically has not been known to engage in peace or mediation processes.
1.37
A number of like-minded countries have appeared to question whether the ESO can be truly independent of Hizballah or its military wing (neither of which are listed as terrorist organisations under the Criminal Code). For example, the United Kingdom previously listed the ESO as a terrorist organisation, before extending the proscription to include Hizballah’s Military Apparatus. Similarly, the European Union and New Zealand have proscribed Hizballah’s Military Wing. Hizballah as a whole has been listed as a terrorist organisation by governments of the United States and Canada.
1.38
At the private classified hearing, the Committee sought clarification from agencies as to why the proscription was limited to the ESO. The Department of Home Affairs advised:
Given Hizballah’s extensive political and institutional ties, any broadening of the listing (for example, from Hizballah’s ESO to Hizballah’s Military Wing) would have implications, including for our bilateral relationship with Lebanon.
Committee comment
1.39
The Committee considered the publicly available material to support the re-listing of the ESO, and also received a private classified hearing.
1.40
The Committee is satisfied that appropriate processes have been followed and that the ESO meets the definition of terrorist organisation, namely 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.
1.41
Consequently, and on this occasion, the Committee supports the re-listing of the ESO as a terrorist organisation under the Criminal Code and finds no reason to disallow the legislative instrument.
1.42
However, the Committee considers that more detail should have been provided in the public statement of reasons, and that departments and agencies must be better prepared in providing advice to the Committee. In particular, in this instance the Committee does not consider that adequate evidence was provided regarding the decision to not include the military wing of Hizballah in the listing. The Committee also notes that proscription of the ESO is now somewhat inconsistent with the approach taken by some of Australia’s closest partners: Canada, New Zealand, the United Kingdom and the United States. Accordingly, the Committee recommends that the Government further consider extending the listing to include Hizballah’s military wing.
1.43
The Committee recommends that the Government give further consideration to extending the listing to include the military wing of Hizballah.
Mr Andrew Hastie MP
Chair
June 2018