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 (15 sitting days).
1.3
Regulations re-listing Boko Haram and Islamic State as terrorist organisations were made by the Federal Executive Council on 27 June 2017.
1.4
The regulations came into effect on 1 July 2017, the day after they were registered on the Federal Register of Legislative Instruments. The regulations were presented in the House of Representatives and the Senate on 8 August 2017.
1.5
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, provided 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
1.6
The Committee’s procedures for reviewing terrorist listings were established in its first report, Review of the listing of the Palestinian Islamic Jihad. The Committee 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.
1.7
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
A letter from the Attorney-General, including statements of reasons and the process of listing undertaken by the Attorney-General’s Department, was accepted as a submission to the review and can be found on the Committee’s website.
1.9
Notice of the review was placed on the Committee’s website and a private hearing with representatives of the Attorney-General’s Department and the Australian Security Intelligence Organisation (ASIO) was held in Canberra on 17 August 2017. Appendix A lists witnesses appearing at the hearing.
1.10
It is the practice of the Committee to conduct classified hearings with agencies so that evidence presented can be interrogated in more detail, as required. Some unclassified statements from the hearing may be included in this report to support the Committee’s findings.
1.11
The remainder of this chapter will examine the Government’s procedures for the re-listing of each group as a terrorist organisation and examine the merits of the re-listings based on the evidence provided to the Committee.
The Government’s procedures
1.12
An attachment to the Attorney-General’s letter outlined the procedures followed by the Attorney-General’s Department, with input from other agencies, for the re-listing of each organisation. This document is available on the Committee’s website as an attachment to Submission 1.
1.13
The Committee notes the most recent listing of Boko Haram came into effect on 1 July 2017, the day on which the previous Boko Haram regulation was due to expire. The Committee received further information about the process for the re-listing of Boko Haram in response to questions on notice raised at the private hearing.
1.14
The Committee reviewed the process of listing and considered the procedures undertaken by the Government to be appropriate.
The criteria for listing an organisation
1.15
For an organisation to be listed as a terrorist organisation under the Criminal Code, the Attorney-General 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.
1.16
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.
1.17
At the private hearing, ASIO summarised the process it goes through to prioritise groups for possible listing as terrorist organisations:
There are a large number of organisations that could be considered for possible listing and re-listing. In early 2016, [the National Threat Assessment Centre] reviewed its assessments of the threats to Australian interests across the globe. As part of that process, we paid particular attention to the terrorist groups operating in the countries where the threat to Australian interests was highest. The groups to be discussed today were identified and prioritised through that process.
In addition, in prioritising the groups for listing, ASIO may also have regard to a range of other factors, often referred to as non-legislative factors. Key non‑legislative factors include, for example, the organisation’s engagement in terrorism, the organisation’s ideology, links of the organisation to other terrorist groups, and any information indicating the groups have links to Australia or pose threats to Australian interests. But a lack of information with respect to these factors won’t preclude an organisation from being considered for listing.
1.18
For each listing, the legislative and non-legislative factors are addressed in the statement of reasons provided to the Attorney-General by ASIO.
1.19
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.
1.20
Noting the legislative and non-legislative factors considered by ASIO, the Committee sought more information on how different organisations were prioritised for listing. In particular, the Committee considered why certain terrorist organisations with no links to Australia, such as Boko Haram, were listed by the Australian Government, while other organisations were not. The Committee noted that there were currently only 23 terrorist organisations listed by the Australian Government, compared to 53 listed by the Canadian Government, 61 by the United States Government, and 71 by the United Kingdom Government. Additionally, the United Nations Security Council imposes sanctions on 80 entities and 257 individuals on the ‘ISIL (Da'esh) & Al-Qaida Sanctions List’.
1.21
ASIO indicated that the degree and extent of terrorist activity, and the possible risk or threat to Australian interests, were additional factors that could be taken into account during the consideration of a listing. ASIO also noted the profile that listing gives to a particular organisation:
[O]ne of the things that proscription can do is that it’s a way of registering more broadly that this is a group that you shouldn’t be associating with or identifying with, including a message to Australians.
Merits of the re-listings
1.22
In reviewing the merits of each listing, the Committee has taken into account the statement of reasons, other publicly available information, and evidence provided at the private hearing held on 17 August 2017. As these are re‑listings, the Committee’s reviews of Boko Haram and Islamic State have focused upon the groups’ activities since their last listing in 2014.
Boko Haram
1.23
Boko Haram is an Islamist extremist group committed to the implementation of Sharia law in Nigeria. The group has a secondary objective of the wider imposition of Islamic rule beyond Nigeria.
1.24
The Australian Government first proscribed the organisation on 26 June 2014.
1.25
On 7 March 2015, Boko Haram pledged its allegiance to the proscribed terrorist organisation Islamic State. Boko Haram’s aims are consistent with those of Islamic State.
1.26
Boko Haram’s membership size is estimated at ‘thousands to tens of thousands, with members originating chiefly from north-eastern Nigeria and neighbouring regions’. It is unclear who currently leads the group.
1.27
Boko Haram’s control of territory has varied over time due to regional military operations, but the group maintains strongholds in the Sambisa Forest in Nigeria, islands in Lake Chad and the Mandara mountains on the Nigeria-Cameroon border.
Engaging in terrorism
1.28
The statement of reasons lists 11 attacks that Boko Haram is responsible for, or can reliably be attributed to Boko Haram, since the group was last proscribed in June 2014.
1.29
Boko Haram continues to carry out operations against military and civilian targets in Nigeria, Niger, Cameroon, Chad and foreign interests in those countries. According to the statement of reasons, in recent years the group has employed a wide range of tactics, including ambushes, armed attacks, bombings, suicide attacks and kidnappings. Attacks since June 2014 include:
December 2016: a twin suicide bomb attack at a market, killing 56;
July 2016: an ambush against a United Nations convoy, injuring five;
June 2016: an armed attack against a military post, killing over 30;
February 2015: an armed attack on a town, killing 91;
January 2015: a series of armed attacks against villages, with estimates of hundreds killed and thousands of structures destroyed;
December 2014: 185 people kidnapped during an armed raid of a village; and
July 2014: the kidnapping of a German national.
Advocating terrorism
1.30
Boko Haram has also advocated the doing of terrorist acts.
1.31
In a December 2016 public statement, a Boko Haram leadership figure stated that the group intended to fight to establish a separate Islamic State and had encouraged its followers to conduct killings and abductions. In an August 2016 interview, a separate leadership figure stated that the group was at war with the Nigerian and other regional African governments backed by Western authorities and that Boko Haram was fighting to reclaim territory taken by those powers. The leadership figure pledged to oppose, via violent means, Christian and Western influences deemed to undermine Islamist society.
Non-legislative factors
1.32
The statement of reasons indicates that there are no known links between Boko Haram and Australia, and the group has not made statements specifically threatening Australians or Australian interests. The group has, however, issued statements threatening Westerners and Western interests more generally.
1.33
The Committee received further information about Boko Haram’s potential threat to Australian interests, including Australian companies operating in the region, at the private hearing.
1.34
As noted above, Boko Haram is an affiliate of, and is ideologically aligned with, Islamic State. The group also has historical ties with proscribed terrorist organisations al-Qa’ida in the Lands of the Islamic Maghreb and al‑Shabaab, though these linkages have dissolved due to Boko Haram’s recent alignment with Islamic State.
1.35
Boko Haram is listed as a proscribed terrorist organisation by the governments of Nigeria, the United Kingdom, the United States, Canada and New Zealand. The United Nations listed Boko Haram as an entity subject to sanctions in the ISIL (Da’esh) and Al-Qaida Sanctions List on 22 May 2014.
1.36
The statement of reasons explains that, since the June 2014 listing, Boko Haram has not participated in peace or mediation processes with the governments of Nigeria, Niger, Cameroon or Chad.
Islamic State
1.37
Islamic State is a Sunni extremist group based in Iraq and Syria. It was formerly an affiliate of al-Qa’ida.
1.38
The group has had a variety of names throughout its history and evolution. The group was first listed by the Australian Government in 2005 under the name Tanzim Qa’idat al’Jihad al-Rafidayn. Subsequent listings used the name al-Qa’ida in Iraq and then Islamic State of Iraq and the Levant (ISIL). The group has been known as Dawla al-Islamiya (Islamic State) since proclaiming an Islamic Caliphate on 29 June 2014. The Australian Government re-listed the group under the name Islamic State on 11 July 2014.
1.39
The group is also frequently referred to as Daesh (or Da’esh), an Arabic acronym that has critical connotations. In order to avoid confusion in this instance, however, the Committee will use the same name for the group as that used for proscription by the Australian Government.
1.40
Islamic State adheres to a global jihadist ideology that is anti-Western. According to the statement of reasons, the group
aims to establish a salafist-orientated Islamist state spanning Iraq, Syria and other parts of the Levant and now operates in parts of Syria and Iraq as a consolidated organisation separate from al-Qa’ida and its affiliates. Islamic State has also accepted pledges of allegiance from a number of like-minded groups elsewhere in the world to further its influence globally.
1.41
In 2015, the group claimed significant territory in Iraq and Syria. However, it experienced significant territorial and leadership losses the following year. At the time the statement of reasons was written, the group remained in control of parts of Ninewa Province in Iraq and large areas of the provinces of Raqqah and Dayr az-Zawr, as well as parts of Homs, al-Hassakah and Aleppo provinces in Syria.
1.42
Islamic State has a significant membership base. The statement of reasons notes:
Islamic State has several thousand members in Iraq and Syria; mostly young Iraqi and Syrian Sunni men and foreign fighters. While its numbers were boosted in 2014 by its success in capturing Iraqi cities and coercing or convincing Sunni tribes to ally with the group, fighter numbers in Iraq and Syria are estimated to have fallen from estimates of over 65 000, to 20 000 to 30 000 after Islamic State faced significant military losses on the battlefield through 2016.
1.43
Islamic State has linkages to other terrorist organisations, a number of which have pledged allegiance to the group. Four groups listed as terrorist organisations under the Criminal Code—Abu Sayyaf Group, Boko Haram, Islamic State-Libya, and Islamic State-Sinai—are either Islamic State affiliates or have publically pledged support for the group.
Engaging in terrorism
1.44
According to the statement of reasons, Islamic State is one of the world’s deadliest and most active terrorist organisations. The statement of reasons notes that the group
conducts daily attacks on security forces and civilians in Iraq and Syria; and against rival opposition groups. Islamic State also inspires, encourages, enables and directs attacks internationally; ranging from low-capability attacks with knives, vehicles or small arms through to complex, coordinated mixed-mode attacks with firearms and explosives. Its attacks often aim to maximise casualties and publicity by targeting crowds and gatherings at festivals and religious events; choosing targets such as churches, nightclubs, music venues and national commemorations for symbolic value. Islamic State also targets police and military personnel, both within and outside Iraq and Syria. The group incites and conducts violence against Muslims and non‑Muslim religious minorities within the region, and conducts public executions and violent punishments in areas it controls.
1.45
Islamic State has conducted a range of attacks in Egypt, Lebanon, Jordan, Saudi Arabia and Turkey. It has also threatened attacks against the Governments of Turkey and Saudi Arabia.
1.46
Since its re-listing in June 2014, the group has claimed responsibility, or been blamed, for a number of significant attacks, including:
January 2017: a large-scale, coordinated attack in Baghdad killed or wounded approximately 300;
December 2016: an individual drove a truck through a Berlin night market, killing 12;
July 2016: an individual drove a truck through a crowd at Bastille Day celebrations in Nice, killing 84;
July 2016: a vehicle-borne improvised explosive device attack at a Baghdad shopping complex killed 292;
March 2016: explosives attacks at an airport and train station in Brussels killed 32; and
November 2015: a co-ordinated attack at public venues in Paris killed 130.
Advocating terrorism
1.47
Recent public statements by the group advocating terrorism include:
January 2017: the fifth issue of the group’s Rumiyah magazine recommended arson as a terror tactic and identified apartment complexes, banks, factories, hospitals, schools and churches as targets for attack. The issue also called for more attacks against Europe;
September 2016: an issue of Rumiyah magazine called for lone-wolf attacks in the West, including in Australia;
January 2016: following the attacks in Paris, the group released a video threatening similar attacks in the United Kingdom;
November 2015: Islamic State released a video warning the United States and other countries conducting airstrikes against it in Syria and Iraq that the group would conduct attacks in their homelands; and
September 2014: the group released a statement calling on its followers located in the West to kill citizens of Western countries in terrorist attacks.
Non-legislative factors
1.48
As noted above, Islamic State has linkages to a number of other terrorist organisations, including proscribed organisations Boko Haram, Abu Sayyaf Group, Islamic State-Libya, and Islamic State-Sinai.
1.49
Islamic State has significant linkages to Australia. According to the statement of reasons:
Around 100 Australians are currently in Syria/Iraq fighting with or supporting Islamic extremist groups—the majority are with Islamic State. Australians fighting with Islamic State have been involved in acts of violence including suicide bombings and holding the decapitated head of a Syrian soldier following Islamic State beheadings; incidents subsequently used in Islamic State’s propaganda campaign.
1.50
In addition, the group
continues to openly call for attacks against Australia and its interests, both because of Australia’s support to military operations against Islamic State in Iraq and Syria, and because of the group’s anti-Western ideology. Islamic State promotes its opposition to Australia through propaganda material, foreign fighter videos and speeches by senior leadership.
1.51
Islamic State is listed as a proscribed terrorist organisation in the United States, Canada, the United Kingdom, and New Zealand. The group is listed as Islamic State of Iraq and Levant under the United Nations Security resolution 2253 (2015), expanding on the United Nations Security Council resolution 1267 (1999) Sanctions Committee’s consolidated list.
1.52
Islamic State is not engaged in any peace or mediation processes.
Committee comment
1.53
The Committee considered the publicly available material to support the re‑listing of Boko Haram and Islamic State, and the additional information provided during the private hearing.
1.54
The Committee is satisfied that appropriate processes have been followed and concludes that Boko Haram and Islamic State continue to meet the definition of a terrorist organisation, namely that these organisations:
are directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act; or
advocate the doing of a terrorist act.
1.55
The Committee therefore supports the re-listing of these organisations under the Criminal Code and finds no reason to disallow the legislative instruments.
1.56
The Committee recognises that, while many organisations around the world may meet the legislative criteria for listing, only certain organisations are prioritised for listing by the Australian Government. The existing non‑legislative criteria considered by ASIO, which include an organisation’s links to Australia, threats to Australian interests, links to other terrorist organisations, and proscription by the United Nations or like‑minded countries, go some way to explaining why certain groups are listed and not others. These non-legislative factors have been in place for some time, with the Committee first advised of ASIO’s use of them in 2005.
1.57
The Committee was informed that other factors that may influence prioritisation include the degree and extent of an organisation’s terrorist activity, the profile that listing gives to a particular organisation, and the potential threat (as opposed to actual threat) to Australian interests.
1.58
Given the relatively small number of terrorist organisations proscribed by Australia compared with the number identified by the United Nations and other like-minded countries, it may enhance the listing process if there was greater clarity as to why certain organisations are considered for listing ahead of others. The Committee considers that the reasons for a particular group’s prioritisation for listing could be more clearly expressed in future statements of reasons, including by reference to recognised non-legislative factors and to other factors. This is particularly relevant for groups, like Boko Haram, with no direct links to Australia.
September 2017