This review is conducted under section 102.1A of the Criminal Code.
Section 102.1A provides that the Parliamentary Joint Committee on Intelligence and Security (the Committee) 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.
Regulations re-listing Al-Shabaab, Hamas’ Izz al-Din al-Qassam Brigades, the Kurdistan Workers’ Party, Lashkar-e-Tayyiba, and the Palestinian Islamic Jihad as terrorist organisations were made by the Federal Executive Council on 2 August 2018.
The regulations came into effect on 4 August 2018, and were presented in the House of Representatives and the Senate on 13 August 2018.
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 effect of the regulations confirms that the organisations which are the subject of those regulations are terrorist organisations for the purposes of offences in Division 102 of the Criminal Code. Division 102 of the Criminal Code 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 form, providing training to 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.
The Committee’s review
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.
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
On 30 July 2018, the Minister for Home Affairs wrote to the Committee to advise of the decision to re-list the five organisations as terrorist organisations under the Criminal Code. The Minister advised that he was satisfied that all five organisations were directly or indirectly preparing, planning, assisting in or fostering the doing of a terrorist act, or advocating the doing of a terrorist act. The Minister for Home Affairs’ letter was accepted as a submission to the review and can be found on the Committee’s website.
This letter included the Statements of Reasons prepared by the Australian Security and Intelligence Organisation (ASIO) on each terrorist organisation, and the process for re-listings undertaken by the Department of Home Affairs.
Notice of the review was placed on the Committee’s website.
A private classified hearing with representatives of the Department of Home Affairs and ASIO was held in Canberra on 12 September 2018. A public hearing was also held on the same date with representations made from Kurdish communities in Australia on the proposed listing of the Kurdistan Workers’ Party.
The remainder of this chapter will examine the Government’s procedures in re‑listing the five organisations under the Criminal Code based on evidence provided to the Committee.
Chapter 2 will examine the merits of the re‑listing of Al-Shabaab, Hamas’ Izz al-Din al-Qassam Brigades, Lashkar-e-Tayyiba, and the Palestinian Islamic Jihad, based on evidence provided to the Committee.
Due to the additional evidence received, geostrategic complexities and public interest in the re‑listing of the Kurdistan Workers’ Party, the Committee examines the merits of this re‑listing in a separate chapter, Chapter 3.
This report also includes the Committee’s review of the listing of Jemaah Anshorut Daulah and Jama’at Mujahideen Bangladesh as terrorist organisations under the Criminal Code. The Committee was unable to present its report to the Parliament prior to the expiration of the disallowance on 23 August 2018. For completeness however, the Committee includes its consideration of the listing of these two organisations in Part 2 (Chapter 4).
Review of the Government’s procedures
In an attachment to the Minister’s letter, the Minister outlined the procedures followed by the Department for Home Affairs, and the input by other agencies, for the re‑listings. This document is available on the Committee’s website as an attachment to Submission 1.
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. All five organisations were previously re-listed as terrorist organisations with effect from 11 August 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.
The Committee reviewed the process of listing and was satisfied with the appropriateness of the procedures undertaken by the Government.
As noted in its review of the listing of Jemaah Anshorut Daulah and Jama’at Mujahideen Bangladesh, the Committee asserts the importance of parliamentary scrutiny—particularly for new listings prior to their commencement.
However, the Committee also acknowledges the long-standing practice of the commencement of regulations re‑listing organisations prior to the end of the disallowance period. In this regard, the Committee supports the Minister’s argument quoted above that there should not be a gap in the coverage of the offences in relation to the organisations.