Introduction
1.1
This review is conducted under section 102.1A of the Criminal Code.
1.2
Section 102.1A provides that the Parliamentary Joint Committee on Intelligence and Security 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 (15 sitting days).
1.3
The regulation listing Islamic State East Asia as a terrorist organisation was made by the Federal Executive Council on 7 September 2017.
1.4
The regulation came into effect on 12 September 2017, the day after it was registered on the Federal Register of Legislative Instruments. The regulation was presented in the House of Representatives on 12 September 2017 and the Senate on 13 September 2017.
1.5
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, provided 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.
1.6
This is the first time Islamic State East Asia has been listed as a terrorist organisation under the Criminal Code.
The Committee’s review
1.7
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.
1.8
Where an organisation is listed for the first time, the Committee will assess the adequacy and appropriateness of the evidence presented in the explanatory statement as well as the procedures followed by the Government.
1.9
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
1.10
A letter from the Attorney-General, including statement of reasons and the process of listing undertaken by the Attorney-General’s Department, was accepted as a submission to the review. The Department’s response to a matter taken on notice was accepted as a supplementary submission. Both submissions are available on the Committee’s website.
1.11
Notice of the review was placed on the Committee’s website and a media release was issued on 27 September 2017. One late submission was received in November 2017 and is available on the Committee’s website.
1.12
A private hearing with representatives from the Attorney-General’s Department and the Australian Security Intelligence Organisation (ASIO) was held in Canberra on 19 October 2017. Appendix A lists witnesses appearing at the hearing.
1.13
It is the practice of the Committee to conduct classified hearings with agencies so that evidence presented can be interrogated in more detail, as required. Some unclassified statements from the hearing may be included in this report to support the Committee’s findings.
1.14
The remainder of this chapter will examine the Government’s procedures for listing Islamic State East Asia as a terrorist organisation and examine the merits of the listing based on the evidence provided to the Committee.
The Government’s procedures
1.15
An attachment to the Attorney-General’s letter outlined the procedures followed by the Attorney-General’s Department, with input from other agencies, for the listing of Islamic State East Asia. This document is available on the Committee’s website as an attachment to Submission 1.
1.16
The Committee reviewed these procedures and noted that the regulations entered into effect the day after registration. Since 2008, agreed practice has been that when an organisation is listed for the first time the regulations would enter into force after the 15 sitting day disallowance period has concluded. However, flexibility was maintained so that in circumstances where the Attorney-General considered a listing should commence immediately, this could occur. In his letter, the Attorney-General advised that, in this instance, the regulations came into effect the day after registration due to:
the rapidly evolving threat and the need to ensure that law enforcement and intelligence agencies have options to respond to it.
1.17
The Committee sought additional information from the Attorney-General’s Department about the timeframe between consideration of the statement of reasons, which began on 14 July 2017, and the regulation being made by the Governor-General on 7 September 2017. The Department advised that this timeframe was in line with that for previous listings and noted that specific processes, such as consultation with states and territories, can impact on the timeframes for a listing. The Department advised that it has the ability, in particularly urgent circumstances, to progress a listing more quickly should this be required.
1.18
The Committee considered the procedures undertaken by the Government to be appropriate.
Merits of the listing
The criteria for listing an organisation
1.19
For an organisation to be listed as a terrorist organisation under the Criminal Code, the Attorney-General 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.
1.20
In addition to these legislative criteria, ASIO may have regard to non-legislative factors, including:
ideology and links to other terrorist groups or networks,
threats to Australian interests,
proscription by the United Nations Security Council or like-minded countries, and
engagement in peace/mediation processes.
1.21
For each listing, the legislative and non-legislative factors are addressed by the statement of reasons provided to the Attorney-General by ASIO.
1.22
The Committee was first advised of the ASIO’s evaluation process, including its use of non-legislative factors, in 2005. As has been the approach in past reviews, the Committee has used these criteria to assess the appropriateness and adequacy of the evidence provided.
1.23
In reviewing the merits of this listing, the Committee has taken into account the Attorney-General’s explanatory statement, other publicly available information, and evidence provided at the private hearing on 19 October 2017.
Islamic State East Asia
1.24
Islamic State East Asia is comprised of a number of extremist organisations adhering to a violent jihadist ideology that predates Islamic State’s existence. It includes the Maute Group, a faction of the Bangsamoro Islamic Freedom Fighters, Ansharul Khilafah Philippines, Dawlatul Islamiyah Waliyatul Masrik and Jama’atu al-Muhajirin wal Ansar fil Filibin.
1.25
These groups publicly pledged allegiance to Islamic State in December 2015.
1.26
Islamic State East Asia opposes elected governments and promotes sectarian violence. The organisation’s primary aim is to establish an Islamic State under Shariah law in the Philippines, with its secondary objective the wider imposition of Islamic rule beyond the Philippines.
1.27
Since merging as Islamic State East Asia, the group’s members have conducted increasingly violent acts that mimic those of Islamic State in Syria and Iraq. Members of Islamic State East Asia are referred to as ‘soldiers of the khilafah’ (‘caliphate’) in Islamic State propaganda.
1.28
While the current membership size of Islamic State East Asia is uncertain, the organisation exploits poor economic and social conditions to quickly recruit new members from local and neighbouring regions.
1.29
Islamic State East Asia has a centralised leadership structure. Isnilon Hapilon (a former leader of the listed terrorist organisation the Abu Sayyaf Group) was named by Islamic State as the leader of Islamic State East Asia.
1.30
Media reports on 17 October 2017 indicated that Isnilon Hapilon had been killed by Philippine Armed Forces. These reports were later confirmed by United States and Philippines officials. The impact of Hapilon’s death on Islamic State East Asia, and any interim and long term leadership arrangements, are as yet unclear.
1.31
During the private hearing, agencies indicated to the Committee that they would continue to monitor the organisation and any interim as well as long term leadership arrangements.
Engaging in terrorism
1.32
Islamic State East Asia conducts terrorist attacks in the Philippines and receives money from Islamic State to fund these attacks.
1.33
In May 2017, Islamic State East Asia conducted a large-scale attack in Marawi City. According to the statement of reasons, it is likely that it was the group’s aim to overthrow the Philippine Government presence in Marawi. The attack involved the killing of a number of security officials and civilians. The Islamic State flag was raised in some locations throughout Marawi city and an account of the attack was published in the Islamic State magazine Rumiyah 11.
1.34
According to the statement of reasons, the following attacks are also attributed to Islamic State East Asia:
June 2017: attacking a military outpost in Pigcawayan, Cotabato Province, taking five hostages following the attack;
June 2017: the execution of a number of hostages in Marawi City for being Christian, with an image of the hostages being shown in Islamic State’s propaganda magazine, Rumiyah;
November 2016: occupying the Butig town hall and raising the Islamic State flag;
September 2016: bombing a market in Davao City, killing 15 and injuring 69;
August 2016: attacking a prison in Marawi City, rescuing eight members of the Maute Group; and
April 2016: beheading two hostages in Lanao, Philippines, mimicking a style of murder used by Islamic State.
Advocating terrorism
1.35
Islamic State East Asia has also advocated the doing of terrorist acts. According to the statement of reasons, recent public statements by the organisation advocating terrorism include:
June 2017: a public statement by an unidentified individual, likely an Islamic State East Asia member, on a pro-Islamic State chat group ,who said that Islamic State East Asia members across the Philippines should hunt down (kill) those who had abandoned Islam;
June 2017: a public statement where Islamic State East Asia leader Isnilon Hapilon stated that the group had established a separate Islamic state and encouraged further individuals to travel to take part in the armed conflict against the ‘crusader’ Philippine Government;
May 2017: Islamic State East Asia used Islamic State’s Amaq media distribution wing to post a photo report from ‘Abu Anas al-Muhajir Camp’ which showed fighters at a training camp conducting target practice and small weaponry drills;
June 2016: Islamic State East Asia, with the assistance of Islamic State, released a 21 minute video titled Solid Structure, which featured footage of South East Asian foreign fighters affiliated with Islamic State in Syria and Iraq. These individuals encouraged the murders of ‘polytheists and apostates’ and encouraged the overthrow of ‘tyrant’ governments of Indonesia, Malaysia, Thailand and the Philippines.
Non-legislative factors
1.36
As noted earlier, Islamic State East Asia is affiliated with Islamic State and is comprised of members previously aligned to other Islamist extremist groups.
1.37
The statement of reasons indicates that, although there have been previous links between Australians and terrorist groups in the Philippines, there are no known links between Islamic State East Asia and Australia. The group has not made statements specifically threatening Australians or Australian interests, although it has issued statements threatening Westerners and Western interests more generally.
1.38
However, given Australia’s proximity to the Philippines, and Australian tourist and business interests in the Philippines, it ‘is probable Australians could be harmed in future attacks’.
1.39
Islamic State East Asia is not currently listed by the United Nations Security Council or like-minded countries. However, during the private hearing, ASIO indicated that it understood other like-minded countries to be considering a similar listing of the group.
1.40
Islamic State East Asia is not engaged in any peace or mediation processes.
Committee comment
1.41
The Committee considered the publicly available material to support the listing of Islamic State East Asia, and the additional information provided during the private hearing. The Committee notes that the effectiveness and resilience of the group, in light of the death of significant leaders, is as yet unclear. The group’s activities to date, however, indicate that it poses a significant threat, including to Australian tourist and business interests in the Philippines.
1.42
The Committee is satisfied that appropriate processes have been followed and agrees that Islamic State East Asia meets the definition of a terrorist organisation, namely that the organisation:
is directly or indirectly engaged in, preparing, planning, or assisting in fostering the doing of a terrorist act; or
advocates the doing of a terrorist act.
1.43
The Committee therefore supports the listing of the organisation under the Criminal Code and finds no reason to disallow the legislative instruments.
1.44
The Committee accepts that, in light of the group’s geographical proximity to Australia and its threat to Australian interests in the region, it was appropriate for the listing of Islamic State East Asia to come into effect immediately following registration of the regulations rather than after the 15 sitting day disallowance period.
Chair
November 2017