This review is conducted under subsection 35AA(4) of the Australian Citizenship Act 2007 (the Citizenship Act).
Background to the Citizenship Act
The following provisions of the Citizenship Act were enacted following the passage of the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015.
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):
(1) 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.
(2) Before declaring that an organisation is a declared terrorist organisation, the Minister must be satisfied on reasonable grounds that the organisation:
(i) is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act; or
(ii) advocates the doing of a terrorist act; and
(b) 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
(a) review a declaration made under subsection (1) as soon as possible after the declaration is made; and
(b) 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 Bill in response to a recommendation by this Committee.
The declaration of Islamic State
On 4 May 2016, the Minister for Immigration and Border Protection, the Hon Peter Dutton MP, advised the Committee of his decision to declare Islamic State 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 Islamic State.
The declaration came into effect on 6 May 2016, the day after it was registered on the Federal Register of Legislative Instruments. The legislative instrument was tabled in the House of Representatives and in the Senate on 30 August 2016.
This is the first declaration of a ‘declared terrorist organisation’ under the Citizenship Act.
The Committee’s review
In reviewing the declaration of terrorist organisations under the Citizenship Act, the Committee intends to take a similar approach to its established process for reviews of the listing (and re-listing) of terrorist organisations under the Criminal Code. The Committee’s reviews will inquire into both the process followed by the Government prior to making the declaration and the merits of the grounds for the declaration itself.
The Committee notes that to satisfy the requirements for being made a declared terrorist organisation under the Citizenship Act, the organisation must already be a listed terrorist organisation under the Criminal Code. 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.
The wording of this test is identical to that in section 35AA(2)(a) of the Citizenship Act (see above). Further, all listings and re-listings under the Criminal Code are reviewed by this Committee under section 102.1A of that Code.
Therefore, prior to having been considered a declared terrorist organisation under the Citizenship Act, an organisation has already satisfied the test outlined in section 35AA(2)(a) of the Citizenship Act in the view of the Attorney-General and this assessment has already been subjected to review by this 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 will focus its review of the merits of a declaration on the test in section 35AA(2)(b), relating to allegiance to Australia.
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. The supporting statement and process for the declaration are also included at Appendix A and B to this report.
Notice of the review was placed on the Committee’s website and a media release was issued on 16 September 2016. No public submissions were received.
The Committee conducted a classified private hearing with representatives of the Department of Immigration and Border Protection, the Australian Security Intelligence Organisation (ASIO) and the Attorney-General’s Department in Canberra on 13 October 2016. Some unclassified statements from the hearing may be included in this report to support the Committee’s findings.
A list of submissions received and witnesses who appeared at the private hearing is included at Appendix C.
The remainder of this report will examine the Government’s procedures for the declaration of Islamic State as a ‘declared terrorist organisation’ and examine 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 Islamic State can be found at Appendix B.
The Committee reviewed the Government’s processes and obtained additional information from witnesses during the private hearing. The Committee considers the procedures undertaken by the Government to be appropriate.
Merits of the declaration of Islamic State
Islamic State is an Iraq and Syria-based Sunni extremist group and former affiliate of al-Qa’ida.
Islamic State follows an extreme interpretation of Islam that is anti-Western, promotes sectarian violence and targets those who do not agree with its interpretations as infidels and apostates. It aims to establish a Salafist-orientated Islamist state spanning Iraq, Syria and other parts of the Levant. Islamic State has also accepted pledges of allegiance from like-minded groups elsewhere in the world.
The group was first listed in 2005 under the name Tanzim Qa’idat al’Jihad fi Biiad al-Rafidayn and re-listed in 2007 under the same name. Subsequent listings used al-Qa’ida in Iraq and then Islamic State of Iraq and the Levant (ISIL) as the commonly recognised names for the group. Another common name for the group is Islamic State of Iraq and Syria (ISIS), reflecting differences in the translation of its Arabic name, Dawlat al-Islamiyah fil ‘Iraaq wa Shaam. The group is also frequently referred to as Daesh (or Da’esh), an Arabic acronym that has critical connotations. The Committee has supported the use of the term Daesh in the past in order to help counter the group’s desire to portray itself as representing the core beliefs of Islam. In order to avoid confusion in this instance, however, the Committee will use the same name for the group as that used for proscription by the Australian Government.
The group proclaimed an Islamic Caliphate in areas it controls on 29 June 2014 and changed its name to Dawla al-Islamiya (Islamic State).
Lands claimed by the Islamic State extend from Aleppo in Syria to Diyala in Iraq, the Sunni-dominated areas of both countries. In Iraq, areas under Islamic State control currently include parts of Anbar Province and most of Ninawa Province, including the city of Mosul. In Syria, Islamic State controls large areas of the provinces of Raqqah and Dayr az-Zawr, as well as parts of Homs, al-Hassakah and Aleppo provinces.
The Attorney-General re-listed the group under the name Islamic State on 11 July 2014.
Islamic State was affiliated with al-Qa’ida between 2004 and June 2013 and originally established operations in Syria through its former subordinate organisation, Jabhat al-Nusra. The group now operates in both Syria and Iraq as one consolidated organisation separate from Jabhat al-Nusra.
Islamic State has several thousand members in both Iraq and Syria. In Iraq, its membership is largely drawn from young Iraqi Sunni men, while in Syria, its members are drawn from Syrian nationals and foreign fighters. Fighters in both countries are able to pass across the border, which is no longer recognised by Islamic State.
Is the organisation directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act?
Islamic State is one of the world’s deadliest and most active terrorist organisations and conducts daily attacks on security forces and civilians. In addition to its war against the security forces in Iraq and Syria—and against rival opposition groups—it conducts frequent attacks against civilians. Its attacks often aim to maximise casualties and publicity by targeting crowds and gatherings at festivals and religious events. It also conducts public executions and violent punishments in areas it controls.
The supporting statement for the declaration lists a number of recent significant attacks either claimed by, or reliably attributed to, Islamic State. These attacks have taken place both within and outside the region in which Islamic State operates and include:
coordinated explosions, including a suicide bombing, at Brussels Airport and Maelbeek metro station in Belgium,
simultaneous armed assaults against a concert hall, stadium, restaurants and bars in Paris, France,
suicide bombings targeting tourists visiting Istanbul, Turkey,
car bombings and suicide bombings targeting Shiite worshippers in Syria,
attacks against Iraqi soldiers and pro-government fighters in Ramadi, Iraq, and
multiple bombings, suicide bombings and armed attacks against civilian targets in Iraq.
Does the organisation advocate the doing of a terrorist act?
The supporting statement cites examples of Islamic State’s advocacy of terrorist acts. These include the distribution of videos produced by Islamic State, many featuring the execution of captives, that threaten further attacks against Western targets and call on Islamic State followers to carry out attacks against civilians in the West.
Is the organisation opposed to Australia, or to Australia’s interests, values, democratic beliefs, rights or liberties?
The supporting statement for the declaration concludes that:
It is clear Islamic State is opposed to Australia and Australia’s interests. Islamic State leadership have openly called for attacks against Australia and Australian citizens while official Islamic State propaganda seeks to radicalise Australian Muslims in an effort to swell Islamic State ranks and encourage domestic terror attacks.
In support of this conclusion, the statement cites several examples taken from official publications of Islamic State and other propaganda where Australia has been specifically named, both in praising past terrorist attacks and in calling for further attacks on Australian soil. The statement attributes these open calls for attacks against Australia and its interests to the group’s anti-Western ideology and Australia’s support for military operations against Islamic State.
The supporting statement also highlights the aim of Islamic State and its supporters to radicalise Australian Muslims to ‘adopt its extreme interpretation of Sunni Islam and encourage violent jihad against non-believers’. It notes that:
Susceptible Australians are influenced toward radicalisation through a coordinated Islamic State propaganda campaign and exposure to extremist ideology within Australia.
More than 60 Australians are currently fighting with Islamic State in Iraq and Syria. Australians fighting with Islamic State have been involved in acts of violence including suicide bombings and beheadings; incidents subsequently used to support Islamic State’s propaganda campaign.
Further, there have been three terrorist attacks carried out within Australia that Islamic State claims to have inspired or influenced, and has openly praised through online propaganda:
23 September 2014: 18-year-old Numan Haider stabbed two counter-terrorism police officers in Endeavour Hills, Victoria.
15–16 December 2014: Man Haron Monis held hostage ten customers and eight employees of a Lindt chocolate cafe located at Martin Place in Sydney, NSW.
2 October 2015: Farhad Khalil Mohammad Jabar, a 15-year-old boy, shot and killed Curtis Cheng, an unarmed police civilian, outside the New South Wales Police Force headquarters in Parramatta, NSW.
The supporting statement for the declaration claims that Australians who are fighting for or are in the service of Islamic State are ‘acting inconsistently with their allegiance to Australia’ because
Australians who fight for or are in the service of Islamic State will be expected to engage in acts of violence, in support of Islamic State objectives, or to 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.
More broadly, the statement argues that the primary objective of Islamic State—the establishment of a worldwide caliphate by means of extreme violence—‘is in direct opposition to Australia's national interest, international stability and a rules-based global order’.
As noted above, Islamic State has been listed (under its various names) as a terrorist organisation under the Criminal Code since 2005. The Committee has considered the listing and re-listing of the organisation on each occasion and supported the Government’s assessment of Islamic State’s involvement in and advocacy of terrorist acts. In addition, the Committee has requested further information from the Department of Immigration and Border Protection on the implementation of citizenship revocation powers, and will report on this in its annual report.
For the purposes of the Citizenship Act, the Committee has considered whether the matters at subsection 35AA(2) have been met in relation to Islamic State. 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.
Accordingly, the Committee is satisfied that the self-described ‘Islamic State’ is
directly engaged in, preparing, planning, assisting in and fostering the doing of terrorist acts, and
is 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 the self-described ‘Islamic State’ a declared terrorist organisation for the purposes of section 35AA of the Australian Citizenship Act 2007.