The criteria for listing a terrorist organisation revolve around the concept of a ‘terrorist act’. ‘Terrorist act’ is defined as an action or threat of action where the action:

Such conduct is already covered by the general criminal law. What gives this conduct its terrorist character is the additional requirement that the action is taken or threat is made with the dual intent of advancing a political, religious or ideological cause and coercing or intimidating a government or intimidating the public or a section of the public.^[20]

Action that is advocacy, protest, dissent or industrial action is exempted from the definition of ‘terrorist act’ if it is not intended to cause serious physical harm to a person, cause a person’s death, endanger the life of a person (other than the person taking the action), or create a serious risk to the health or safety of the public or a section of the public.^[21] The onus of proof is on an accused to bring him or her self within the exemption.

The definition of ‘terrorist act’ is broad, complex and uncertain. In R v Lodhi Justice Whealy observed that the provision ‘postulates an action or threat of action of the widest possible kind’ as long as it is accompanied by the double intent of advancing a political, religious or ideological cause and coercing or intimidating a government or the public or a section of the public.^[22] It includes a wide range of actions beyond those conforming to the image of terrorism as involving acts that cause or threaten death or serious injury to persons. Threats of these other types of action are also included.

The commission of a terrorist act (which includes making threats to engage in one of the relevant types of action) is a crime punishable by life imprisonment.^[23] Ancillary offences criminalise an ill-defined range of additional behaviour antecedent to the commission of a terrorist act. These include: providing or receiving training connected with a terrorist act,^[24] possessing things connected with a terrorist act,^[25] collecting or making documents likely to facilitate the commission of a terrorist act,^[26] other acts done in preparation for, or planning, a terrorist act.^[27] In each case there is no requirement to prove that a terrorist act occurred or the connection with a specific intended terrorist act. The offences carry penalties ranging from ten years to life imprisonment.

Terrorist activity attracts particular condemnation because it targets civilians. This definition is not so confined, but extends to conduct aimed directly at coercing or intimidating governments as well. The equation of government and citizenry for this purpose might not generate great concern in contemporary Australia, but the definition is not restricted to Australia or to governments in Australia. The provisions also have extended geographical jurisdiction.^[28] In the words of Justice Bell in R v Ul-Haque, they create offences ‘that may be committed by a foreigner against a foreigner in a foreign country remote geographically from, and of no particular interest to, Australia’.^[29] Broadly defined actions of the relevant kind are included in the definition of terrorism regardless of the character of the government or political regime against which they are directed. All forms of national independence struggle, from the American and French revolutions to the anti‑colonial struggles of the recent past, would constitute terrorism, as would many lesser forms of political and industrial activism.

Based on this broad concept of a ‘terrorist act’, the executive proscription regime extends the scope of criminal liability even further by creating a range of terrorist organisation offences. Before considering these (in section E below) it is necessary to outline the statutory criteria for listing terrorist organisations. The Attorney‑General may make a regulation specifying that an organisation is a terrorist organisation if 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, whether or not in each case a terrorist act has occurred or will occur.^[30]

The advocacy provision is a recent addition to the Criminal Code Act 1995 (Cth) (‘Criminal Code’). It is defined in broad terms. An organisation advocates the doing of a terrorist act if it directly or indirectly counsels or urges the doing of a terrorist act, directly or indirectly provides instruction on the doing of a terrorist act, or directly praises the doing of a terrorist act in circumstances where there is a risk that such praise might have the effect of leading a person to engage in a terrorist act.^[31]

The advocacy provision, in particular, is of uncertain scope^[32] although it clearly takes in organisations far removed from participation in violent activity, especially via its third limb concerning ‘praise’ for terrorist acts. Statements by an organisation in Australia that condemned Israel’s invasion of Lebanon in 2006 and expressed support for the resistance led by Hizballah could well be defined as advocacy justifying proscription of the organisation as a terrorist organisation. The definition invades what many would conceive as the realm of open, pluralistic, democratic discourse concerning events of international significance.

It is important to note that in addition to proscription by the executive an organisation may be determined to be a terrorist organisation by a court.^[33] If an individual is charged with an offence relating to an alleged terrorist organisation, being an unlisted organisation, proof of the offence requires proof that the organisation in question is in fact a terrorist organisation. That would in turn require proof of the necessary connection to a ‘terrorist act’ (see Gani Chapter 13 this volume).

The concept of terrorism has received a great deal of attention but it is salient to ask also what constitutes an ‘organisation’ under the legislation. In its submissions in R v Ul-Haque the Crown stressed the breadth of the definition of ‘organisation’ under s 100.1(1) of the Criminal Code, which defined ‘organisation’ to mean ‘a body corporate or an unincorporated association’:

It is widely agreed that the principal threat and target of laws passed after 9/11 is the organisation held responsible for that atrocity, Al Qa’ida, and those it inspires. However, it is the ideological influence of Al Qa’ida rather than its organisational form or power that is central in this assessment.^[35] Many expert commentators argue that Al Qa’ida can be more accurately conceived as an idea rather than an organisation.^[36] This tends to be confirmed by events like the Madrid and London bombings, which suggest that the major threat stems from local, self-starter individuals and groupings who are inspired by a combination of extremist Islamic ideology and outrage at what they perceive to be the injustices inflicted on the Arab and Muslim world by the West. Such attacks require little by way of structured organisation or finance.^[37] What is needed in the way of motivation, training, technical knowledge and support is available in the constant, global flow of information delivered by new communications media: the internet, satellite television and so on. Thus even the broad definition of ‘organisation’ offered in R v Ul-Haque may fail to capture the extremely fluid and elusive forms of organisational activity involved in contemporary global terrorism. The effect of invoking the word ‘organisation’ may therefore be mostly symbolic, to provide illusory comfort by imposing a familiar shape on a formless threat.

Listing an organisation involves a number of steps. An unclassified statement of reasons is prepared by ASIO that details the case for the listing. This is submitted to the Attorney-General who signs the statement confirming that the criteria for listing the organisation are satisfied, signs a regulation with respect to the organisation and sets in train the other formalities required to make the regulation. Prior to making a regulation the Attorney-General is required by law to brief the Leader of the Opposition.^[38] The Commonwealth also agreed under the Inter‑Governmental Agreement on Counter-Terrorism to consult the State and Territory leaders prior to each listing and not to proceed with any listing if objected to by a majority. Having fulfilled these requirements the Attorney-General notifies the chair of the PJC of the decision to list an organisation and provides the statement of reasons. A press release is issued announcing the listing and providing the reasons. A regulation takes effect immediately it is made, but is subject to disallowance by the Parliament.

Listing an organisation as a terrorist organisation is a momentous decision for a number of reasons. Its immediate legal effect is to bring into play a range of serious criminal offences relating to those with a connection to the listed organisation (see Gani Chapter 13 this volume). Strictly speaking the listing does not directly ban or dissolve the organisation. Proscription is achieved by the effect of these offences. The offences are:

Aside from the association offence (punishable by three years imprisonment) the other offences carry penalties of between ten and 25 years imprisonment. These are serious crimes, therefore, although they require proof of no element of violent conduct or intent on the part of the individual, only the specified connection with the listed organisation. We have seen that the concept of a ‘terrorist act’ is very broadly defined and encompasses virtually any form of politically motivated violence. Political entities of all kinds (including states, armies, police forces as well as national liberation movements) use violence for political ends. In most cases the violence is a means to an end, not an end in itself. It is the objective that commands popular allegiance and support (the maintenance of the peace by a legitimate government, the achievement of a national homeland, the overthrow of a despotic regime). Thus individuals join, support, fund and participate in political organisations for reasons entirely unrelated to the violent means that those organisations may adopt on occasions.

If the qualifying adjective ‘terrorist’ is momentarily bracketed out it will be seen therefore that these offences criminalise a broad range of conventional activities constitutive of any political movement or organisation. If then we recall the breadth of the definition of terrorist organisation, a definition that does not differentiate according to the contexts and causes of political conflict, the potential reach of the proscription regime will be seen to be both very extensive and uncertain. The uncertainty offends a basic principle of the rule of law: that the law should afford a guide to conduct. Citizens should be able to ascertain with some certainty the boundary demarcating acceptable and unacceptable conduct. When the conduct in question is political in character, uncertainty may also have a chilling impact on democratic institutions and discourse.

It has also been regarded as fundamental to the concept of the rule of law that punitive consequences should attach to conduct, not to the status or social type of the offender.^[46] In reality, status offences have been far from uncommon in the criminal laws of liberal states. Laws relating to vagrancy, ‘common prostitutes’ and consorting afford examples. But such offences have overwhelmingly fallen at the less serious end of the spectrum of crimes.

The terrorist organisation offences are a fundamental departure insofar as they attach severe penalties to proof of the relevant status. Key terms, like ‘member’ and ‘support’, are not defined and none of the offences require proof of a link between the prohibited status or activity and the commission or intention to commit a terrorist act. Thus, a person who is a member (including an ‘informal member’) of an organisation designated as terrorist by a regulation made by the Attorney‑General may be sentenced to ten years imprisonment for what others in the organisation have done or are preparing, planning, assisting, fostering or advocating regardless of the person’s knowledge, intent or attitude with respect to these activities.

The terrorist organisation offences have an extended geographical jurisdiction.^[47] Organisations may be proscribed that are involved in violent political conflicts far removed from Australian territory or interests and without reference to the conditions (of state autocracy, repression, discrimination and so on) that may be driving such conflicts. Members and supporters of these organisations are liable to punishment under Australian law. The laws are practically unenforceable against most of the people involved with such organisations because they are not resident in Australia and major issues of national sovereignty and the comity of nations would be raised by any attempt at apprehension or extradition.^[48] However, the laws directly affect those persons with an organisational connection who are resident in Australia. They are liable to prosecution under the proscription regime although they may be law-abiding Australian citizens or residents with no grievance against Australia, its government or people.