This review is conducted under subsection 35AA(4) of the Australian Citizenship Act 2007 (the Citizenship Act).
Under sections 33AA and 35 of the Citizenship Act, a person aged 14 years or older who is a national or citizen of another country loses their Australian citizenship if they engage in certain conduct on behalf of a ‘declared terrorist organisation’, as defined in section 35AA.
Under section 35AA, the following criteria must be met for an organisation to be made a ‘declared terrorist organisation’ by the responsible Minister (the Minister for Immigration and Border Protection):
A declared terrorist organisation is any terrorist organisation, within the meaning of paragraph (b) of the definition of terrorist organisation in subsection 102.1(1) of the Criminal Code, that the Minister, by legislative instrument, declares is a declared terrorist organisation for the purposes of this section.
Before declaring that an organisation is a declared terrorist organisation, the Minister 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; and
is opposed to Australia, or to Australia’s interests, values, democratic beliefs, rights or liberties, so that if a person were to fight for or be in the service of such an organisation the person would be acting inconsistently with their allegiance to Australia.
Subsection 35AA(4) provides that, once a declaration is made by the Minister, the Parliamentary Joint Committee on Intelligence and Security (the Committee) may:
review a declaration made under subsection (1) as soon as possible after the declaration is made; and
report the Committee’s comments and recommendations to each House of the Parliament before the end of the period during which the House may disallow the declaration.
Subsection 35AA(4) was included in the Citizenship Act in response to a recommendation by the Committee in its review of the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015.
The declaration of Jabhat al-Nusra
On 27 July 2017, the Minister for Immigration and Border Protection, the Hon Peter Dutton MP, wrote to the Committee to advise of his decision to declare Jabhat al-Nusra as a ‘declared terrorist organisation’ under section 35AA of the Citizenship Act. The Minister’s letter indicated that he was satisfied on reasonable grounds that the matters at subsection 35AA(2) had been met in relation to Jabhat al-Nusra.
The declaration came into effect on 15 August 2017, the day after it was registered on the Federal Register of Legislative Instruments. The legislative instrument was tabled in the House of Representatives on 15 August 2017 and in the Senate on 16 August 2017.
This is the second time an organisation has been made a ‘declared terrorist organisation’ under the Citizenship Act, the first being the self-described ‘Islamic State’ in May 2016.
The Committee’s review
The Committee’s reviews of declared terrorist organisations inquire into both the process followed by the Government prior to making the declaration and the merits of the grounds for the declaration itself. This approach mirrors the Committee’s more established process for reviews of the listing (and re-listing) of terrorist organisations under the Criminal Code.
To satisfy the requirements for being made a ‘declared terrorist organisation’ under the Citizenship Act, an organisation must first be listed as a terrorist organisation under the Criminal Code. This requires the Attorney-General to 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 wording of this test for a Criminal Code listing is identical to the first part of the test for a ‘declared terrorist organisation’ (see section 35AA(2)(a) in paragraph 1.3 above). Furthermore, all Criminal Code listings and re-listings may be reviewed by this Committee under section 102.1A of the Criminal Code.
Therefore, prior to having been made a ‘declared terrorist organisation’ under the Citizenship Act, an organisation has already, in the view of the Attorney-General, satisfied the test outlined in section 35AA(2)(a) of the Citizenship Act; and this assessment has already been subjected to review by the Committee.
As such, with the exception of instances where the Committee has reason to believe that an organisation may not or may no longer satisfy the terrorist activity test (for example, due to changing circumstances in the period since the listing or re-listing), the Committee focuses its reviews of the merits of a declaration on the additional test in section 35AA(2)(b) of the Citizenship Act, which relates to allegiance to Australia (see paragraph 1.3 above).
Conduct of the inquiry
The Minister’s letter—including a copy of the declaration, its explanatory statement, a supporting statement and an outline of the processes undertaken for the purpose of the declaration—was accepted as a submission and published on the Committee’s website.
Notice of the review was placed on the Committee’s website. The Committee conducted a classified private hearing with representatives of the Department of Immigration and Border Protection and the Attorney-General’s Department in Canberra on 17 August 2017. A list of witnesses who appeared at the private hearing is included at Appendix A.
The remainder of this report will examine the Government’s procedures for the declaration of Jabhat al-Nusra as a ‘declared terrorist organisation’ and the merits of the declaration based on the evidence provided to the Committee.
The Government’s procedures
As noted above, an outline of the processes taken by the Government for the purposes of declaring Jabhat al-Nusra can be found on the Committee’s website.
The Committee reviewed the Government’s processes and considered the procedures undertaken by the Government to be appropriate.
At its private hearing, the Committee also discussed with the Department of Immigration and Border Protection the number of Australians associated with Jabhat al-Nusra that were likely to be affected by the declaration.
Merits of the declaration of Jabhat al-Nusra
Jabhat al-Nusra was first listed as a terrorist organisation under the Criminal Code on 29 June 2013, and was re-listed on 28 June 2016. Both listings were reviewed by the Committee.
On 28 July 2016, Jabhat al-Nusra’s leader released a video announcing that it had changed its name to Jabhat Fatah al-Sham. On 31 October 2016, the group’s Criminal Code listing was amended to include Jabhat Fatah al-Sham as an alias.
According to the supporting statement for the declaration, Jabhat al-Nusra remains part of al-Qa’ida’s global network and is a group that ‘adheres to a violent jihadist ideology that is strongly anti-Western and encourages violence as a key element of pursuing its goals’.
Jabhat al-Nusra’s objectives are to remove the Syrian al-Assad government and create a Salafist-oriented Sunni Islamist state in Syria, which it plans to expand into an Islamist Caliphate under its own rule throughout the Levant. The supporting statement notes that Jabhat al-Nusra ‘intends to expel or forcibly convert the minority Alawite and Christian communities in Syria’.
Publically, Jabhat al-Nusra has distanced itself from al-Qa’ida. The supporting statement notes that this is ‘to avoid international scrutiny and gain further support for its cause among other Syrian anti-regime groups’. Jabhat al-Nusra attempts to portray itself as less extreme and brutal than Islamic State, and promotes its activities as legitimate opposition to the government of Syria. It enjoys cooperative relationships with some like-minded Syrian opposition groups, while it uses violence against moderate Syrian opposition and rival groups.
Jabhat al-Nusra is led by Abu-Muhammad al-Jawlani (an alias) and has its strongest presence in Syria’s northwest, particularly in Idlib province.
Jabhat al-Nusra operates at least 19 training camps in north-western Syria and is estimated to have between 3000 and 10 000 fighters, along with further members in support roles. Around 30 per cent of its forces are ‘foreign fighters’ from a wide range of countries, including Australia.
Jabhat al-Nusra is ‘well-funded from a range of international donors and local sources’. Its Syria-based fundraising activities include ‘extensive kidnapping, including of Westerners, to raise ransom payments’.
Is the organisation directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act?
The supporting statement for the declaration summarises Jabhat al-Nusra’s terrorist activities as follows:
Jabhat al-Nusra undertakes a range of militant activities and terrorist attacks. They use improvised explosive devices, suicide attacks, snipers and small-arms attacks, as well as kidnapping and executions throughout Syria. Targets are often the Syrian regime of Bashar al-Assad and its perceived supporters, rival groups and religious minorities—which Jabhat al-Nusra considers apostates and infidels. The group also conducts public executions and violent punishments in areas it controls.
The statement lists numerous attacks since 2014 that have either been claimed by, or reliably attributed to, Jabhat al-Nusra. These include:
a double suicide bombing carried out with explosive belts in Damascus;
the mass execution of captured Syrian soldiers;
attacks against Shia towns and villages;
the kidnapping of aid workers, United Nations personal, and members of another Syrian rebel group;
the public execution of a woman for adultery;
a car bomb attack on an army checkpoint in Lebanon; and
the destruction of churches and religious items in captured cities, with threats to kill Christians unless they paid fees.
Does the organisation advocate the doing of a terrorist act?
The supporting statement identifies several media statements issued by Jabhat al-Nusra, and its identified members, that advocate the doing of terrorist acts.
Is the organisation opposed to Australia, or to Australia’s interests, values, democratic beliefs, rights or liberties?
The supporting statement notes that:
Jabhat al-Nusra adheres to al-Qa’ida’s global jihadist ideology—which is fundamentally anti-Western, and advocates violence to achieve its goals. It directly threatens Australia’s interests by upholding al Qa’ida’s overall mission of global terror.
The statement notes that al-Qa’ida has ‘endorsed and directly called for attacks in Australia, and encouraged attacks on Australians overseas’. Al‑Qa’ida’s leader has ‘encouraged South-East Asia-based extremists to attack Western interests in the region’ and Australians have been threatened with attacks should they visit Bali or other Indonesian tourist destinations.
Jabhat al-Nusra ‘openly praises and incites terrorist acts which oppose Australian interests at home and abroad’. A June 2015 video released by Jabhat al-Nusra commends al-Qa’ida’s 11 September 2001 attacks against the United States of America, which killed 10 Australians. An alleged Australian Jabhat al-Nusra fighter Mehmet Biber is also cited as endorsing acts of terrorism, including in Australia.
Jabhat al-Nusra and its supporters have aimed to radicalise Australian Muslims to adopt an extreme interpretation of Salafist-oriented Sunni Islam in order to increase recruitment of foreign fighters and encourage attacks across the globe.
At least 110 Australians have travelled to Syria and Iraq to join jihadist groups engaged in conflict, including Jabhat al-Nusra. Australians fighting with Jabhat al-Nusra are involved in acts of violence—including suicide bombing—in Syria. These acts of violence have been subsequently used to support Jabhat al-Nusra’s propaganda campaign.
The supporting statement concludes:
Australians fighting for or in the service of Jabhat al-Nusra are acting inconsistently with their allegiance to Australia. Jabhat al-Nusra adheres to al-Qa’ida’s global jihadist ideology which aims to remove the Syrian regime, Western influence and establish a Caliphate—first in Syria then broader—using extreme violence. Jabhat al-Nusra has also endorsed acts of terrorism which have killed Australians overseas and at home. These actions are in direct opposition to Australia's national interest, international stability and a rules-based global order.
Australians who fight for or are in the service of Jabhat al-Nusra will be expected to engage in acts of violence, in support of Jabhat al-Nusra objectives. They will also actively encourage the radicalisation of Australian citizens in an effort to increase recruitment or orchestrate terrorist attacks domestically; conduct which is incompatible with the shared values of the Australian community.
As noted above, Jabhat al-Nusra has been listed as a terrorist organisation under the Criminal Code since 2013. The Committee has considered the listing and re-listing of the organisation on two occasions and supported the Government’s assessment of Jabhat al-Nusra’s involvement in and advocacy of terrorist acts. The Committee has not received any information in the current review to contradict this assessment.
For the purposes of the Citizenship Act, the Committee has considered in this review whether the additional matters at subsection 35AA(2)(b) have been met in relation to Jabhat al-Nusra. On the basis of the evidence provided, the Committee considers the Government’s assessment to be reasonable: namely, that the group is opposed to Australia, and to Australia’s interests, values, democratic beliefs, rights or liberties.
The Committee is therefore satisfied that Jabhat al-Nusra is:
directly engaged in, preparing, planning, assisting in and fostering the doing of terrorist acts; and
opposed to Australia, Australia’s interests, values, democratic beliefs, rights and liberties, so that if a person were to fight for or be in the service of the organisation the person would be acting inconsistently with their allegiance to Australia.
Consequently, the Committee finds no reason to disallow the legislative instrument making Jabhat al-Nusra a declared terrorist organisation for the purposes of section 35AA of the Australian Citizenship Act 2007.
Mr Andrew Hastie MP