Terrorist listings under the Criminal Code
This review is conducted under section 102.1A of the Criminal Code Act 1995 (the Criminal Code).
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.
New listing and five re-listings
On 4 April 2019, the Governor-General made the following regulations under the Criminal Code:
listing Islamic State-Somalia as a terrorist organisation; and
re-listing Abu Sayyaf Group, al-Qa’ida, al-Qa’ida in the Lands of the Islamic Maghreb, Jabhat Fatah al-Sham and Jemaah Islamiyah as terrorist organisations.
On 8 April 2019, regulations re-listing Jabhat Fatah al-Sham and Jemaah Islamiyah organisations as terrorist organisations under the Criminal Code were registered on the Federal Register of Legislation.
Regulations re-listing Abu Sayyaf Group, al-Qa’ida and al-Qa’ida in the Lands of the Islamic Maghreb were registered on 9 April 2019. The regulations came into effect the day after they were registered to avoid any gap in the coverage of the offences in relation to the organisations being re-listed.
A regulation listing Islamic State-Somalia as a terrorist organisation under the Criminal Code was registered on the Federal Register of Legislation on 8 April 2019. However, it will not come into effect until after the applicable disallowance period. The Minister for Home Affairs noted that this delay is to enable the Committee to review and table its report on the new listing prior to the regulation coming into effect.
All six regulations were presented in the House of Representatives and in the Senate on 2 July 2019.
The effect of these 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 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 training, 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 listing of Jamiat ul-Ansar lapsed on 28 June 2019 in accordance with section 102.1 of the Criminal Code which provides that 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 that 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 Minister was not satisfied in this case. Although the Committee is not required to review the de-listing, it has elected to reflect on it for completeness.
Process for listing terrorist organisations
Section 102.1 of the Criminal Code establishes procedures which must be followed when listing or re-listing an organisation as a terrorist organisation.
For an organisation to be listed as a terrorist organisation under section 102.1(2) of the Criminal Code, the Minister for Home Affairs must be satisfied on reasonable grounds that the organisation meets the following legislative criteria:
is directly, or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act; or
advocated the doing of a terrorist act.
In making this determination, the Minister for Home Affairs considers advice from ASIO in the form of a Statement of Reasons which assesses the organisation against the legislative requirements above and the following non-legislative factors:
the organisation’s engagement in terrorism;
the organisation’s ideology;
links to other terrorist groups;
threats to Australian interests;
listing by the United Nations or like-minded countries; or
engagement in peace or mediation processes.
Ms Heather Cook, Deputy Director-General, Operations and Assessments Group, ASIO said that some non-legislative factors may be afforded more weight in considerations than other non-legislative factors:
Depending on the availability of information, some of these non-legislative factors may carry more weight than others in selecting organisations for consideration. For example, information indicating links to Australia or threats to Australian interests may tend to prioritise consideration of listing a particular group as a terrorist organisation. However, a lack of information with respect to one or more factors will not preclude an organisation from being considered for listing.
The Statement of Reasons is prepared using unclassified information about an organisation, which is corroborated by classified information. This enables the Statement of Reasons to be made public.
Dr Tony Murney, a specialist in police development with experience in conflict affected nations and terrorism issues, made a late submission to the review commenting on the process for listing terrorist organisations. Time constraints prevented the Committee from exploring these issues during the current review. However, these issues are pertinent to all terrorist organisation listings and the Committee expects to consider these issues further as part of its next review.
Conduct of the inquiry
On 7 May 2019, the Committee received a letter from the Minister for Home Affairs advising the Committee of his decision to list Islamic State-Somalia and re-list Abu Sayyaf Group, al-Qa’ida, al-Qa’ida in the Lands of the Islamic Maghreb, Jabhat Fatah al-Sham and Jemaah Islamiyah as terrorist organisations under the Criminal Code.
The Minister advised that he is satisfied that all six organisations are directly or indirectly preparing, planning, assisting, or fostering the doing of terrorist acts, or advocating the doing of a terrorist act. The Minister also advised the Committee that there is insufficient evidence to re-list Jamiat ul-Ansar as a terrorist organisation under the Criminal Code. The Minister’s letter was accepted as a submission to the inquiry and can be found on the Committee’s website.
The letter included a Statement of Reasons prepared by ASIO on each terrorist organisation. It also outlined the process for listing organisations used by the Department of Home Affairs.
The Committee promoted its review, and called for submission on its website and via media release on Friday, 5 July 2019.
A public hearing and a classified hearing was conducted with representatives of the Department of Home Affairs and ASIO in Canberra on 31 July 2019.
Chapter one examines the merits of listing Islamic State-Somalia, based on evidence received by the Committee from the Minister for Home Affairs and the Department for Home Affairs.
Chapter two considers the merits of re-listing Abu Sayyaf Group, al-Qa’ida, al-Qa’ida in the Lands of the Islamic Maghreb, Jabhat Fatah al-Sham and Jemaah Islamiyah, based on evidence received by the Committee from the Minister for Home Affairs and the Department for Home Affairs. It also reflects on the de-listing of Jamiat ul-Ansar.