2.1
This chapter discusses the background to the listing of Harakat
al-Muqawama al-Islamiya (Hamas) as a terrorist organisation under the Criminal Code, the grounds for listing articulated by the Government, and the issues raised in evidence given to the Committee. The chapter concludes with the comment and recommendations of the Committee in relation to the listing of Hamas.
Background to the listing of Hamas as a terrorist organisation
2.2
As noted in Chapter 1, the regulation under review is the first to list Hamas in its entirety as a terrorist organisation under the Criminal Code.
2.3
Until the entry into effect of the present regulation, previous regulations had listed Hamas’ Izz al-Din al-Qassam Brigades (Brigades) as a terrorist organisation—originally in November 2003, then consistently re-listed until the most recent listing on 4 August 2021. The present regulation listing Hamas repeals and replaces the 2021 listing of the Brigades.
2.4
In its last review of the listing of the Brigades, in October 2021, the Committee noted that several submitters advocated for the expansion of the listing to include the whole organisation of Hamas. The Committee commented that it found the evidence from these submitters ‘very compelling’, and the Committee was not satisfied as to why the Department of Home Affairs did not explore an expanded listing of Hamas rather than only re-listing the Brigades. The Committee recommended that the Australian Government give consideration to extending the listing of the Brigades as a terrorist organisation to the entirety of Hamas.
Background to Hamas
2.5
The Australian Government describes Hamas as ‘an ideologically and religiously motivated violent extremist organisation which fuses Palestinian nationalist and Sunni Islamist objectives’. Hamas was founded in 1987, originally as a branch of the Muslim Brotherhood, with whom it retains an ideological affinity.
2.6
The Government stated that in 2006 Hamas ‘participated in the Palestinian election and in 2007 overthrew the Palestinian Authority, seizing control of Gaza’. Since then, Hamas has been the governing authority in Gaza, largely responsible for its administration and the provision of government services to its inhabitants.
2.7
Hamas does not recognise Israel as a sovereign state. Its goal is to establish an independent Islamic state comprising Gaza, the West Bank and Israel. Hamas supports a strategy of violent attacks on civilian and military targets, and armed resistance against the Israeli military, in pursuit of its goals.
2.8
Hamas is formally a hierarchical movement with several bodies that make decisions through a consultative process. Hamas’ supreme executive body is its Executive Committee. The General Shura Council is the central consultative body responsible for electing the Executive Committee and shaping Hamas’ overarching strategy and policies. Hamas’ three major regions – Gaza, West Bank and Abroad – have their own internal management systems and are represented on, and exert varying levels of influence over, the Executive Committee and General Shura Council.
2.9
Hamas’ Izz al-Din al-Qassam Brigades were officially established in 1991 as the paramilitary wing of Hamas. The Brigades undertake military activity on behalf of Hamas and have adopted terrorist tactics against both military and civilian targets in their efforts to defeat Israel. Historically the Brigades have predominantly operated in Gaza, with limited representation and activity in the West Bank and Lebanon.
Legislative criteria for listing
2.10
The Australian Government has assessed that Hamas meets the legislative criteria for listing as a terrorist organisation, by being directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of terrorist acts; and by advocating the doing of terrorist acts.
2.11
In its Statement of Reasons the Government noted that the majority of Hamas’ terrorist acts have been conducted by the Brigades, but that public statements made by Hamas’ political leaders acknowledge and support the Brigades’ terrorism-related activities. Evidence received regarding the relationship between Hamas’ political wing and the paramilitary Brigades is discussed further below.
2.12
The Government stated that such terrorist attacks have primarily consisted of small-arms, rocket and mortar fire at Israeli communities in the vicinity of Gaza, causing death and injury to both military and civilian personnel, as well as property damage. Recent examples cited were:
a small arms attack in Jerusalem’s Old City on 21 November 2021, killing one person and injuring four others
the launch of over 4,300 rockets and mortar shells toward Israel from Gaza between 10 and 21 May 2021, by Palestinian militants including members of the Brigades—reportedly causing 13 deaths and some 300 direct and indirect injuries
rockets launched toward the seas off Gaza during military drills by Palestinian militants, including members of the Brigades, on 1-2 July and 29 December 2020
firing of several hundred rockets at Israel by Hamas and Palestinian Islamic Jihad on 6 May 2019.
2.13
The Government further advised that Hamas has advocated the doing of terrorist acts, often praising terrorist acts conducted by the Brigades and by other extremist organisations or actors. Recent examples included:
on 8 December 2021, a teenager allegedly stabbed a person in Sheikh Jarrah, East Jerusalem. Hamas praised the attack
on 17 November 2021, a teenager from East Jerusalem stabbed two border police officers in the Old City. A Hamas spokesperson praised the attack and described its perpetrator as a ‘martyr’; statements the Australian Government said were ‘very likely made with the intention of encouraging other persons to engage in similar acts’.
Non-legislative criteria
2.14
In its Statement of Reasons the Australian Government also cited ‘other considerations’ (drawing on the ‘non-legislative factors’ described in Chapter 1) that guided the Minister in her decision:
links to Australia and Australian interests—while there are ‘no known direct links between Hamas and Australia’, an Australian-American dual national was killed in a suicide bombing attributed to the Brigades in Jerusalem in 2001, and the Government observed that ‘Australians could be incidentally harmed in terrorist attacks conducted by Hamas’
listings by likeminded countries—Hamas in its entirety is proscribed as a terrorist organisation by the United States, the United Kingdom and Canada
engagement in peace or mediation processes—Hamas agreed to a ceasefire and was in negotiations with Israel in 2021; and had been involved in other ceasefire agreements, including in 2020. Hamas also engaged in reconciliation talks with other Palestinian groups in 2017, 2020 and 2021 regarding elections and/or political control of Gaza.
Stakeholders’ views
2.15
The submissions received by the Committee, from community organisations, academics and members of the public, overwhelmingly focused on the listing of Hamas as a terrorist organisation.
2.16
The Executive Council of Australian Jewry (ECAJ) submitted that it ‘agree[d] entirely’ with the listing of Hamas and the Minister’s stated reasons for doing so, and reiterated the views it had expressed on that matter in its submission to the Committee’s 2021 inquiry into the re-listing of the Brigades.
2.17
Other submitters, however, expressed a range of concerns and criticisms about listing the whole of Hamas as a terrorist organisation. These related to:
the characterisation of Hamas’ activities in the context of the Israel-Palestine conflict
the relationship between Hamas and the Brigades
the legality of the listing
the potential impact of the listing for Australians engaging in non-violent civic and humanitarian activities in Gaza.
Hamas and the Israel-Palestine conflict
2.18
Several submitters argued that Australia’s listing of Hamas as a terrorist organisation was simplistic, unbalanced, and failed to take into account the broader context and legal issues surrounding the Israel-Palestine conflict.
2.19
The Palestine Israel Ecumenical Network (PIEN) argued that, while not condoning violence by either side, ‘Australia should acknowledge the whole reality of this conflict’, and recognise Hamas’ actions as a ‘regrettable, but tragically inevitable consequence’ of Israel’s occupation of and actions in Palestine, including acts of violence ‘causing many thousands of deaths and injuries’.
2.20
PIEN submitted that the cited terrorist actions of Hamas and the Brigades were ‘almost invariably… responding to Israeli-initiated violence or oppression associated with maintaining and strengthening the…Israeli occupation’.
2.21
Similarly, Australian Friends of Palestine Association (AFOPA) submitted that Hamas is a ‘bona fide resistance group’ whose conduct ‘must be compared with the conduct of its nemesis’. AFOPA stated that:
Hamas has engaged in forms of violence that [are] not terrorism. Hamas was within its rights to resist Israeli aggression and to do so with deadly violence, including by the use of rockets, the only form of resistance left open to it.
2.22
Dr Tristan Dunning and five other academics with expertise in the Palestine-Israeli conflict argued that:
the ‘terrorist’ labelling ignores why some Palestinian actors resort to armed actions, which should be understood within the context of an illegal fifty-five year military occupation…that has been condemned by dozens of legally binding UN Security Council resolutions.
2.23
Dr Dunning and his colleagues stated that it was right to criticise killing of civilians by the Hamas Brigades, but cited estimates that between six and 24 times as many Palestinian civilians as Israelis had been killed during the conflict, in which Israel was an occupying power with an advanced military: ‘The asymmetric context of these killings cannot be overlooked’.
2.24
Some submitters cited a February 2022 report published by Amnesty International which described Israel as implementing an ‘apartheid’ policy against Palestinians. AFOPA argued that ‘if either side is to be designated as ‘terrorist’ it is the State of Israel rather than Hamas’ and that ‘Hamas has the right in international law to resist the crime of apartheid being carried out in its historic home’.
2.25
Professor Ben Saul, a counter-terrorism and international law expert at the University of Sydney, submitted that Australia’s approach is ‘unbalanced’, risks adverse effects including destabilising Gaza and fuelling further radicalisation, and is ‘unlikely to make Israel safer from terrorism’. He also expressed concern that listing Hamas as a terrorist entity potentially ‘impedes post-conflict settlement and reconciliation…by stigmatising the other side’.
2.26
Others agreed. Dr Dunning and colleagues, for example, submitted that listing Hamas ‘may be counterproductive in terms of isolating Hamas more and strengthening hardliners, thereby weakening more pragmatic voices’, and at the same time ‘encourage Israel to continue with the status quo and not negotiate with Palestinians’.
Relationship between Hamas and the Brigades
2.27
In its 2021 review, the Committee noted the view of the Department of Home Affairs that the Brigades were thought to operate largely independently from the political structure of Hamas, and it was unlikely that the Brigades would seek permission for operational actions from the political leadership.
2.28
In that report the Committee also noted, however, that many submitters to the review did not agree and asserted that there was evidence that Hamas did not consider the Brigades a separate entity, evidence which a senior Department of Home Affairs official described as ‘compelling’.
2.29
In the Statement of Reasons for the 2022 listing of Hamas, the Australian Government stated again that:
The Brigades exist within the overall organisational structure of Hamas, subordinate to its political leadership, but structured as a distinct paramilitary wing. While decisions of the political leadership probably take precedence, the Brigades operate with a degree of independence and may not seek approval from the political leadership for operational activities.
2.30
However, the Statement added that Hamas’ leadership has historically stated that there is no neat separation between its political and paramilitary components. Successive Hamas leaders have publicly described Hamas as ‘one body’ or ‘one organisation with two wings or departments’. Hamas’ political leaders often refer to the militant actions of the Brigades in possessive language implying that the Brigades’ activities are sanctioned by, and carried out as part of, the wider Hamas organisation. The Statement noted that there is significant overlap between the leadership of the political and paramilitary wings of the organisation.
2.31
The Government advised that it is ‘difficult to determine’ the proportion of funds Hamas allocates to the terrorism-related activities of the Brigades.
2.32
Based on its considerations, the Australian Government concluded that:
…while the Brigades retain a degree of operational independence, their militant activities are aimed at achieving Hamas’ objectives – primarily the creation of a Palestinian state and the destruction of Israel – and are publicly supported by Hamas’ political leadership.
2.33
The Australia Palestine Advocacy Network (APAN) disagreed. APAN submitted that ‘[t]here is no evidence that any money raised for governance or humanitarian work is diverted to the Qassam Brigades’, and the Brigades are ‘not subservient to the political wing of the movement’.
2.34
Dr Tristan Dunning and colleagues also submitted that Hamas’ political and paramilitary wings were deliberately separate and should not be conflated:
Hamas has its roots in non-violent pre-Intifada welfare, charitable and economic interventions amongst Palestinians…This socio-economic base was then augmented by creation of Hamas including separate political and military wings. Since then, the various wings of Hamas have acted separately…
2.35
On the other hand, while strongly objecting to the listing of Hamas, PIEN stated that it did not argue that Hamas and the Brigades were fully separate entities: ‘We accept their overall organisational unity in the context of possible listings under the Criminal Code.’
2.36
Professor Ben Saul also expressed the view that ‘on the publicly available evidence, the two groups are sufficiently connected to plausibly comprise a single “organisation”.’ Professor Saul advised that:
It is not legally necessary that the organisation possesses a strict hierarchy in which the military wing is subordinate to the civilian wing or vice versa – views differ on this issue – or that some elements of the movement may pursue different or more limited purposes; or that some elements are public and others are clandestine. The different elements regard themselves as operating under the broad Hamas umbrella, however diffuse or centralised in certain respects.
2.37
Professor Saul did, however, raise concerns about a lack of specificity provided by the Minister regarding the ‘organisation’ of Hamas, saying it ‘raises important legal and practical questions about what is the scope of the “organisation” listed’.
Legal validity of the listing
2.38
The Australian Federation of Islamic Councils (AFIC) submitted that evidence had not been tendered to establish, on the balance of probabilities or better, that the broader Hamas organisation had directly or indirectly engaged in, prepared, planned, assisted in or fostered the doing of a terrorist act. AFIC also queried the constitutionality of the listing.
2.39
On the other hand Professor Saul assessed that Hamas likely meets the statutory criteria for listing as a terrorist organisation. However, he criticised the statutory criteria as ‘too broad, blunt and one-dimensional’ in making involvement in terrorism the sole basis for listing.
2.40
Professor Saul submitted that this legal test was particularly inappropriate in relation to ‘hybrid’ organisations like Hamas:
Fair labelling matters in the criminal law. Australian law treats the commission of ‘terrorism’ – even a single act thereof – as the sole defining characteristic of how an ‘organisation’ should be legally classified. This is plainly a blunt, overbroad, and reductive approach which does not recognise the real-world political context of certain groups or consider countervailing interests. It prioritizes countering terrorism above all else, including the legitimate needs and human rights of civilians living in areas governed by listed groups. Whole hybrid organisations should not be stigmatised as terrorist when that is only part of their function.
2.41
Professor Saul further submitted that the legislative scheme should be amended to:
exclude the activities of armed forces in armed conflict, which should instead be covered by war crimes law
vest the decision to list a terrorist organisation in a court, rather than a minister, to ‘avoid politicised listings’
confine the scope of the offences to ‘acts which proximately contribute to the commission of a terrorist act by the group’.
2.42
With regard to the non-statutory criteria, Professor Saul assessed that Hamas meets only some of them and that the evidence in relation to most is ‘very weak’. Professor Saul highlighted in particular that the Statement of Reasons concedes that Hamas does not meet what he regarded as the most important non-statutory criterion, of being a threat to Australia.
2.43
Professor Saul argued that the non-statutory criteria should be revised and legislated to better account for issues including the threat to Australia.
2.44
A number of other submitters also queried aspects of the Minister’s justification for the listing, in particular her acknowledgement that Hamas has no direct links with Australia and has made no specific threat against Australians or Australian interests. Some submitters argued that the listing of Hamas would in fact harm Australia’s national security and national interests; including by undermining social cohesion in Australia, and damaging Australia’s relations with Palestine, other Muslim nations and within the United Nations.
2.45
APAN further submitted that, contrary to the Government’s statement that Hamas refuses to recognise Israel, Hamas updated its Charter in 2017 to accept a two-state solution and remove anti-Semitic content, with the British Home Office acknowledging that Hamas ‘no longer demands the destruction of Israel’. PIEN similarly submitted that ‘more recent Hamas leadership claims about its Charter are ambiguous’, and noted that Hamas had engaged in peace and mediation processes including with Israel.
Impact on non-terrorist activities
2.46
A significant concern raised by almost all submitters was the impact the listing of Hamas in its entirety would have on Australians’ ability to engage in civic, humanitarian and other non-violent activities relating to Gaza, where Hamas is the governing authority.
2.47
Professor Saul described this in terms of the unintended effects of listing a body which is a de facto government as a terrorist organisation:
The law to proscribe terrorist organisations was primarily designed to deal with groups whose main purpose is terrorism, and which are often clandestine in nature, particularly in the light of the post-9/11 Al Qaeda context. When the law bans the whole of a hybrid group which governs civilians and/or has many purposes other than the commission of terrorism, they may have excessive and unjustifiable impacts on other legitimate interests...
2.48
Humanitarian law and policy consultant Itay Epshtain expressed concern that ‘there is a risk of conflating “Hamas” – as a political party, and an armed group, irrespective of the relationship between the two – with the civil administration in Gaza’. He stressed the importance of distinguishing ministries, departments and other elements of the civil administration of Gaza from the political party Hamas, and applying that distinction to the application of offences under the Criminal Code.
2.49
APAN believed that the listing of Hamas in its entirety ‘could appear to criminalise the entirety of the population of Gaza’ in Australia. Dr Tristan Dunning and colleagues also raised the potential impact on the Palestinian diaspora in Australia.
2.50
Professor Saul offered examples of potential offences triggered by the listing of Hamas, including training doctors, advertising or applying for government jobs such as teachers or bus drivers, supplying the government of Gaza with goods or services, or providing charitable or humanitarian funding for public services run by Hamas such as water, housing, education or healthcare.
2.51
Friends of Sabeel Australia, an ecumenical Christian organisation, outlined its experience after fundraising for a hospital in Gaza during the Christian season of Lent (March-April) 2022:
There was already some uncertainty within the faith-based aid and development agencies through whom we would normally channel such assistance to the Christian hospital in Gaza as to whether they could transfer these funds, and we anticipate that this will become even more difficult should the proposed listing of Hamas as a terrorist organisation be confirmed. It is possible that no charity registered in Australia will be able to direct funds towards the Al Ahli Arab Hospital or other similar NGOs in Gaza.
…The well-being of this small Christian community in Gaza, as well as their capacity to offer education and health care to their Muslim neighbours, very much relies on support from Christians in Australia and elsewhere in the Western world.
This all seems to be at risk if the whole of Hamas is listed as a terrorist organisation.
2.52
AFOPA also queried its potential criminal liability for terrorist offences under the Criminal Code if it were to advance monies to a hospital in Gaza, or speak publicly in support of Hamas.
2.53
Similarly, AFIC expressed concern about the listing of Hamas enlivening terrorism offences against people undertaking pro-Palestinian advocacy in Australia, as well as making Australians afraid to donate to Palestinian causes.
2.54
Professor Saul submitted that criminalising humanitarian activities ‘excessively and unjustifiably interferes in the basic rights of Palestinians to liberty and security of person’, and that uncertainty about the legal risk of a criminal offence ‘deters and impedes humanitarian actors from doing their job to aid vulnerable civilians’.
2.55
Dr Dunning and colleagues were likewise concerned that the listing may leave humanitarian and aid organisations open to charges of supporting terrorism, adding that such accusations ‘do not have to be founded to cause significant costs and disruption’ in the form of audits and court processes.
2.56
AFIC stated that the listing ‘could lead to significant humanitarian impact for Palestinian people living in highly impoverished and precarious conditions’, and emphasised its concern for the protection of the ‘basic human rights of innocent civilians’.
2.57
APAN noted evidence provided to the Committee by the Department of Foreign Affairs and Trade (DFAT) in 2021 that expanding the listing of Hamas may have implications for Australia’s aid partners. APAN submitted that:
It is vital that Australia is able to continue providing aid to Gaza, through UN and international agencies, as well as partnerships with local aid organisations. It would be a tragedy if this were to be compromised.
2.58
APAN further drew attention to ‘informal financial support’ from Australians to friends and family in Gaza, expressing concern that people would be deterred from providing such support ‘because of the perceived risk of being prosecuted for supporting terrorism’.
2.59
Professor Saul added that:
Listing Hamas sends a legal message of deterrence that no-one should work for or cooperate with the Gaza authorities. For Australia, civilian governance in Gaza is simply terrorism. The consequence of the law’s overreach is that ordinary civilians may suffer even more than they already do under the crippling Israeli blockade. The ailing economy will tank further. Degraded civilian infrastructure and services will disintegrate more. Even if there are links between Hamas’ civilian and military wings, the law disproportionately harms Palestinian civilians.
2.60
In addition, Dr Tristan Dunning and his colleagues were concerned that the listing was ‘likely to negatively affect academic and journalistic freedom’, by preventing Australians from interacting with Hamas officials or associates. This could impede research and understanding of the movement, ‘and thereby leave outside actors poorly informed and without leverage’.
Limits on offences and prosecutions
2.61
The Government’s Statement of Compatibility with Human Rights accompanying the listing regulation drew attention to limits on the offence of ‘associating with a terrorist organisation’ in section 102.8 of the Criminal Code, which are set out in subsection 102.8(4):
The offence of associating with a terrorist organisation in section 102.8…does not apply if the association is with a close family member and relates to a matter of family or domestic concern, or takes place in the course of practicing a religion in a place used for public religious worship, or the association is only for the purpose of providing humanitarian aid, or only for the purpose of providing legal advice or legal representation.
2.62
Moreover, although not mentioned in the regulation or its accompanying statements, the Attorney-General has issued and published two documents relevant to any prosecution under the Criminal Code for (any of the) terrorist offences in relation to Hamas:
a Ministerial Direction to the Commonwealth Director of Public Prosecutions requiring the Attorney-General’s consent to commence any such prosecution; and
a Policy Guideline that set out factors the Attorney-General may consider when determining whether to consent to a prosecution relating to Hamas.
2.63
The Policy Guideline states that in deciding whether to consent to a prosecution, the Attorney-General will consider the circumstances of each individual case, including:
whether the conduct directly or indirectly assisted Hamas to engage in a terrorist act
whether the person intended to do so or was reckless as to that fact
whether prosecution is in Australia’s national interest
any other relevant matter.
2.64
Without limiting the Attorney-General’s discretion, the Guideline offers examples of conduct where consent to prosecution is unlikely to be granted as long as the conduct does not directly or indirectly assist Hamas to engage in, prepare, plan, assist in, or foster the doing of a terrorist act. These are:
paying taxes to the de facto governing authority of Gaza
accessing or paying for food, medicine, education or fuel provided by Hamas
voting for Hamas in an election
sending remittances to a Hamas member for their personal living expenses
being employed by Hamas in a capacity with no link to terrorist acts
selling goods or providing services to Hamas with no link to terrorist acts.
2.65
Professor Saul did not refer to the Attorney-General’s Ministerial Direction and Policy Guideline, but expressed the view that:
The existence of prosecutorial discretion to not prosecute in cases such as these is not an adequate protection…the separation of powers requires that the Parliament must decide with precision what conduct is criminal or not, and it [is] contrary to the principle of legality and the rule of law to enact overly broad laws and expect prosecutors to subjectively decide on a case-by-case basis who is a good or bad ‘terrorist’.
2.66
Itay Epshtain acknowledged the humanitarian aid exemption provided in section 102.8 of the Criminal Code, but was concerned nevertheless that: ‘there is a risk of conflating bona fide humanitarian work with support provided to [a] proscribed entity’, and therefore believed that ‘a more robust approach to firewalling the principled delivery of humanitarian relief is desirable’.
2.67
APAN described it as ‘doubtful’ that most members of the Australian community would fully understand the effect of the Attorney-General’s guideline, and worried that Australians would instead associate the entire population of Gaza with terrorism.
2.68
PIEN recommended that, if the listing of Hamas and/or the Brigades remained in place, the Attorney-General’s guidance and details about the limitations in the Criminal Code should be made available, ‘with amplifying examples’, to the Australian public and to all people and civil society organisations who are known to, or expected to be likely to, provide humanitarian or other non-terrorist aid or support to Hamas.
Committee comment
2.69
After examining the evidence provided to it, the Committee considers that the process for listing Hamas as a terrorist organisation under the Criminal Code (as set out in Chapter 1 and Appendix B) has been followed by the Australian Government.
2.70
The Committee notes that the listing of Hamas in its entirety follows the previous Government’s consideration and analysis against the relevant legislative and non-legislative criteria, following the previous Committee’s recommendation to do so in 2021.
2.71
The Australian Government was within its powers to have reached the assessment that Hamas meets the legislative criteria for listing as a terrorist organisation, by being directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of terrorist acts; and by advocating the doing of terrorist acts.
2.72
The Committee notes that the Hamas Brigades had been listed under the Criminal Code since 2003, and that the assessment of the previous Government was that, while the Brigades exercise a degree of operational independence, they are not a separate entity but form part of the overall organisation of Hamas.
2.73
The Committee nevertheless acknowledges that there were a range of genuinely held concerns raised in the evidence provided, relating to the listing of Hamas in its entirety, that warrant consideration. These include the humanitarian impacts on people living in Gaza, the prospects for resolution of the conflict, and potential impacts on diaspora communities in Australia.
2.74
The Committee is particularly cognisant of concerns raised by most submitters about the potential impact of the listing of Hamas on humanitarian support to the people of Gaza and other non-violent engagement with the governing authority and community there.
2.75
It is nevertheless the Committee’s view that these concerns do not negate the statutory basis or legality of the previous Government’s decision to list Hamas as a terrorist organisation.
2.76
The Committee specifically notes the offence limitations within subsection 102.8(4) of the Criminal Code, along with the Ministerial Direction and Policy Guideline issued by the Attorney-General, which are intended to ensure that humanitarian aid, family contacts and other activities that do not contribute to the commission of terrorist offences are not subject to criminal prosecution.
2.77
The Committee acknowledges that these are not full protections, as outlined in various submissions. The Committee expects that both the letter and spirit of the Direction and Policy Guideline will be followed by relevant authorities whenever potential prosecutions are considered, as these may be relevant to any future reviews of this listing.
2.78
The Committee also acknowledges that affected persons including the Palestinian diaspora in Australia, and non-governmental community and aid organisations, may not be familiar with these intended safeguards. While there is a page on the Attorney-General’s website providing the information, the apparent lack of knowledge even among many submitters to this review suggests that this is not enough to ensure that all affected stakeholders are fully informed in this regard.
2.79
The Committee recommends that the Australian Government engage proactively with the Palestinian-Australian community, and with Australian organisations that are providing or are likely to provide humanitarian aid or other assistance to people in Gaza; to disseminate guidance and promote an accurate understanding of the legal scope of, and policy limits on, offences arising from the listing of Hamas under the Criminal Code.
2.80
Moreover, the Committee considers that it should monitor whether there are any unintended effects of the regulation for legitimate engagements between Australians and people and organisations in Gaza, particularly family ties and support, humanitarian aid, and non-violent civic engagement with Hamas in its role as the governing authority in Gaza.
2.81
The Committee also notes that in 2021 DFAT told the Committee that listing Hamas in its entirety may give rise to practical challenges for the performance of government activities such as diplomatic representation, consular assistance and aid programs. The Committee commented that if the Australian Government listed the whole of Hamas, it should examine how these challenges can be mitigated.
2.82
No further information on this point was available to the Committee during this review. The Committee regards this as a matter that also warrants further monitoring now that the regulation is in place.
2.83
The Committee recommends that, within 12 months of tabling this report, relevant Government agencies brief the Committee on the impact of the listing of Hamas, particularly in relation to humanitarian assistance, engagement with the Palestinian diaspora in Australia, and other governmental activities relating to Gaza.
The Committee notes that it also proposes to seek briefings from relevant non-government organisations as part of its monitoring in this regard, particularly in relation to engagements at the community level between people and organisations in Australia and Gaza.