Terrorist organisation listings under the Criminal Code
This review is conducted under section 102.1A of the Criminal Code Act 1995 (Cth) (Criminal Code). That section provides that the Parliamentary Joint Committee on Intelligence and Security (Committee) may review a regulation specifying an organisation as a terrorist organisation and report its comments and recommendations to each House of the Australian Parliament before the end of the [15 sitting days’] disallowance period in that House.
The effect of a regulation specifying (or ‘listing’) an organisation as a terrorist organisation is to trigger the application of the offences in Division 102 of the Criminal Code. Subdivision B of Division 102 sets out the following offences:
directing the activities of a terrorist organisation (section 102.2)
being a member of a terrorist organisation (section 102.3)
recruiting for a terrorist organisation (section 102.4)
providing, receiving, or participating in training involving a terrorist organisation (section 102.5)
getting funds to, from or for a terrorist organisation (section 102.6)
providing support to a terrorist organisation (section 102.7)
associating with a terrorist organisation (section 102.8).
In addition, the Government states that listing an organisation as a terrorist organisation may disrupt terrorism-related activities and act as a deterrent, by putting the organisation and the public on notice that the organisation is a terrorist organisation under Australian law and certain dealings with it are criminal offences. Listing also has symbolic value, sending a clear public message that Australia does not condone the terrorist actions of the listed group.
Under subsection 102.1(3) of the Criminal Code, regulations listing terrorist organisations under these provisions cease to have effect (‘sunset’) three years after they commence. Organisations can be ‘re-listed’ by making a new regulation before or after the sunset date.
Procedure for listing terrorist organisations under the Criminal Code
Section 102.1 of the Criminal Code establishes procedures which must be followed when listing or re-listing an organisation as a terrorist organisation.
Under subsection 102.1(2), before the Governor-General makes a regulation listing an organisation, the Minister responsible for the Australian Federal Police (the Minister for Home Affairs, when the regulations subject to this review were made) 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.
The Department of Home Affairs (DHA) provides further guidance on the listing procedure followed by the Government in the ‘Protocol for listing terrorist organisations’ (Protocol), on its National Security website.
The Protocol explains that the Minister may also have regard to a range of non-legislative factors to ‘guide and prioritise’ the selection of organisations for consideration. These include:
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
engagement in peace or mediation processes.
The Minister considers advice from DHA and also consults a range of other Australian Government agencies about listing decisions. DHA provides advice to the Minister in the form of a Statement of Reasons, which is prepared using unclassified information and is made public, although that information may be corroborated by classified information.
Once the Minister is satisfied that an organisation meets the legislative threshold for listing, and before regulations are made, the Minister advises the Prime Minister, advises the Leader of the Opposition and offers them a briefing, and writes to the First Ministers of all the States and Territories seeking their agreement to the listing.
The Statements of Reasons for each organisation subject to this review are provided in Submissions 1 and 2 from the Minister for Home Affairs. DHA’s description of the full processes undertaken for the listing and re-listing of the eight organisations is included at Appendix B to this report.
Listing and re-listing of eight organisations in February-March 2022
On 17 February 2022, the Governor-General made regulations listing or re-listing seven organisations as terrorist organisations under the Criminal Code: Abu Sayyaf Group, al-Qa’ida, al-Qa’ida in the Lands of the Islamic Maghreb, Hay’at Tahrir al-Sham, Hurras al-Din, Jemaah Islamiyah and National Socialist Order. These were registered on the Federal Register of Legislation (FRL) the same day.
On 3 March 2022, the Governor-General made a regulation listing Hamas as a terrorist organisation. The regulation was registered on the FRL the same day.
All eight regulations were tabled in the Senate on 28 March 2022 and in the House of Representatives on 29 March 2022.
One of these organisations was listed as a terrorist organisation for the first time. Three organisations were listed for the first time, but the listing effectively replaced the listing of a predecessor or related organisation. Four organisations were re-listed due to the sunsetting of the previous regulations.
The dates of effective listing and re-listing for each organisation are as follows:
Abu Sayyaf Group (ASG): ASG was originally listed in November 2002, and re-listed in 2004, 2006, 2008, 2010, 2013, 2016 and 2019. The re-listing regulation came into effect on 9 April 2022 in line with the sunsetting of the previous listing.
al-Qa’ida (AQ): AQ was first listed in October 2002, and re-listed in 2004, 2006, 2008, 2010, 2013, 2016 and 2019. The re-listing regulation came into effect on 9 April 2022 in line with the sunsetting of the previous listing.
al-Qa’ida in the Lands of the Islamic Maghreb (AQIM): AQIM was originally listed in November 2002, and re-listed in 2004, 2006, 2008, 2010, 2013, 2016 and 2019. The re-listing regulation came into effect on 9 April 2022 in line with the sunsetting of the previous listing.
Hay’at Tahrir al-Sham (HTS): This is the first listing of HTS, but effectively replaces the previous listing of Jabhat Fatah al-Sham. The listing regulation came into effect on 9 April 2022 in line with the sunsetting of the regulations listing Jabhat Fatah al-Sham.
Hurras al-Din (HaD): This is the first listing of HaD, but effectively replaces the previous listing of Jabhat Fatah al-Sham. The listing regulation came into effect on 9 April 2022 in line with the sunsetting of the regulations listing Jabhat Fatah al-Sham.
Jemaah Islamiyah (JI): JI was first listed in October 2002, and re-listed in 2004, 2006, 2008, 2010, 2013, 2016 and 2019. The re-listing regulation came into effect on 9 April 2022 in line with the sunsetting of the previous listing.
National Socialist Order (NSO): This is the first listing of National Socialist Order. The listing regulation came into effect on 18 February 2022.
Hamas: This is the first listing of Hamas, but the regulations repealed and replaced regulations made in 2021 which had re-listed Hamas’ Izz al-Din al-Qassam Brigades as a terrorist organisation. The present regulation came into effect on 4 March 2022.
In accordance with subsection 102.1(3) of the Criminal Code, as described above, each of the eight new regulations will sunset three years from their date of effect.
Conduct of the review
On 22 March 2022 the (then) Minister for Home Affairs, the Hon Karen Andrews MP, wrote to the former Committee to advise of her decision to list or re-list ASG, AQ, AQIM, HTS, HaD, JI and NSO as terrorist organisations under the Criminal Code. On 30 March 2022 the Minister wrote to advise of her decision to list Hamas.
The Committee commenced its review of all eight listings on 31 March 2022 and invited public submissions on its website and via media release.
The two letters received from the Minister were accepted as Submissions 1 and 2 to the review. These include the relevant regulations, Statements of Reasons and descriptions of the process followed for the listings.
The Committee received eleven further submissions (including one supplementary submission) to the review. A list of submissions received is at Appendix A to this report.
On 11 April 2022, the House of Representatives was dissolved, which ended the 46th Parliament and automatically removed all members from the Committee. Following the Federal election and the formation of the 47th Parliament, members were appointed on 5 and 6 September 2022 to
re-establish the Committee.
The required 15 sitting days’ disallowance period for the regulations concludes on 26 September 2022.
The Committee is grateful to all those who made submissions to the review.
Structure of this report
Chapter two of this report discusses the merits of listing Hamas, including evidence received from submitters and witnesses.
Chapter three discusses the merits of listing or re-listing the other seven organisations subject to this review.
Both chapters include the Committee’s comments and any recommendations in regard to the listings discussed in that chapter.