Table of Contents
A core feature of anti-terror laws enacted throughout the world after the events of 11 September 2001 (9/11) has been the provision for executive proscription of terrorist organisations.[1] This chapter examines the Australian provisions and their use since their enactment in 2002.
It begins in Part I with a brief account of the background to the legislation. Part II examines in detail the legislative scheme governing the listing of terrorist organisations, including the concept of a ‘terrorist act’, the statutory criteria for listing organisations, the definition of an ‘organisation’, the listing procedure and the range of terrorist organisation offences. Part III focuses on the provisions in action, including the range of organisations currently listed, the reviews of listings undertaken by the Parliamentary Joint Committee on Intelligence and Security and controversies relating to the listing criteria and listing procedures. Part IV considers some of the actual and potential impacts of listing particular organisations. An important theme woven through the entire analysis is the play between two essential elements of terrorist legal discourse: the criminal and the political. Part V is devoted to an explicit consideration of this issue. I argue that in addition to endangering established legal principles, proscription laws distract from the need for political initiatives to address effectively the roots of violent political conflicts. Ironically, whilst enhancing the coercive powers of the executive they may inhibit recourse to the more flexible political and policy instruments (diplomacy, aid, trade) needed to safeguard national security interests.
In liberal democratic societies, use of the criminal law to ban political organisations and to punish individuals for a connection with a banned organisation, thus dispensing with the need to prove any element of harmful conduct or intent, is inevitably controversial. Where the banning power is placed in the hands of the executive it is even more so. Reviewing the first major package of anti-terror legislation, which contained the proscription provisions in their initial form, the Senate Legal and Constitutional Committee of the Australian Parliament noted that executive proscription ‘was clearly one of the most significant issues of concern during this inquiry and aroused the most vehement opposition’.[2]
Critics object that executive proscription threatens the rule of law, violating its core requirements like the principle of individual responsibility and eroding the role of the courts in judging criminal liability. They also point to the manner in which the law offends fundamental freedoms, such as freedoms of association and expression. Some invoke Justice Dixon’s warning from the Communist Party Case, in which the High Court struck down the most famous attempt by an Australian government to ban a political organisation: ‘History and not only ancient history, shows that in countries where democratic institutions have been unconstitutionally superseded, it has been done not seldom by those holding the executive power.’[3]
Defenders of the new laws respond that the threat we face from global terrorism driven by violent, fundamentalist Islamic ideology is unprecedented. It necessitates a response that reflects both the global character of the threat and the imperative of preventing potentially catastrophic attacks. Banning organisations is required to disrupt terrorist activities and stem actual and potential sources of terrorist support.[4]
[*] Associate Professor of Law, School of Law, University of New England, Armidale, NSW, Australia. This research was funded by the ARC Discovery Project DP0451473 ‘Terrorism and the Non-State Actor: the Role of Law in the Search for Security’.
[1] For a useful overview of the anti-terror laws of several countries see UK Foreign and Commonwealth Office, Counter-Terrorism Legislation and Practice: a Survey of Selected Countries (2005). Also see V Ramraj, M Hor and K Roach (eds), Global Anti-Terrorism Law and Policy (Cambridge, New York: Cambridge University Press, 2005).
[2] Senate Legal and Constitutional Legislation Committee, Parliament of the Commonwealth of Australia, Consideration of Legislation Referred to the Committee: Security Legislation (Terrorism) Bill 2002 [No2]; Suppression of the Financing of Terrorism Bill 2002; Criminal Code Amendment (Suppression of Terrorist Bombings) Bill 2002; Border Security Legislation Amendment Bill 2002; Telecommunications Interception Legislation Amendment Bill 2002 (2002) [3.155].
[3] Australian Communist Party v Commonwealth (1951) 83 CLR 1, [178].
[4] Australian Government: Department of Foreign Affairs and Trade, Transnational Terrorism: the Threat to Australia (Canberra: Commonwealth of Australia). The former Commonwealth Attorney‑General more recently argued that ‘[t]errorism is arguably the greatest threat this nation has faced in many decades, and perhaps the most insidious and complex threat we have ever faced’: P Ruddock, ‘A Safe and Secure Australia: An Update on Counter-Terrorism’ (Speech delivered at Manly Pacific Hotel, 21 January 2006).