Nineteen organisations have been and remain listed under the proscription provisions.[49] Many of these organisations have been re-listed on one or more occasions. No organisation has been de-listed and no organisation has had its status as a terrorist organisation lapse after the two-year sunset period. All the organisations are self-declared Islamic organisations with one exception, the Kurdistan Workers Party (PKK). The PKK is the most recent organisation to be listed for the first time.[50]
Of the 18 other organisations most are acknowledged by the Government to have no links to organisations or activities in Australia. A few have notoriety in Australia and globally, like Al Qa’ida and Jemaah Islamiyah. Most operate within the confines of specific geo-political conflicts, their Islamic ideology being merged in struggles over territory, political power and national rights. The most prominent of these are the Palestinian organisations, the military wing of Hamas (known as Izz al-Din al-Qassam Brigades) and Palestinian Islamic Jihad (PIJ)), and the alleged external wing of the Lebanese organisation, Hizballah (known as Hizballah External Security Organisation).[51] Other groups variously operate in Algeria, Iraq, the Philippines and Kashmir.
Aside from their recourse to politically inspired violence, a trait shared with many organisations and governments around the world, it is not clear why these organisations have been singled out for proscription, other than that (with the exception of the PKK) they are all Islamic revivalist (or fundamentalist) organisations. Quite apart from differences in geo-political focus, some are Sunni and others Shia. It is acknowledged in many instances that they have no direct links with each other or with Al Qa’ida. In fact, the predominant focus of organisations like Hamas and Hizballah on national rights and their participation in local and national elections are anathema to Al Qa’ida.[52]
Hamas and Hizballah are mass political organisations. Hizballah represents the largest (and poorest) ethno-religious group in Lebanon (the Shi’ites) and constitutes a significant bloc in the Lebanese Parliament. Its popular standing within Lebanon (outside as well as within the Shi’ite community) derives from its role in resisting the Israeli occupation of southern Lebanon between 1982 and 2000, a conflict that was renewed in the second half of 2006.[53] It has supporters within the Lebanese community in Australia as evidenced by calls from respected community leaders during the 2006 Israel/Lebanon war for the organisation to be de-listed.[54] Hamas (a Sunni organisation) won a landslide victory in the January 2006 Palestinian Authority elections, eclipsing the older secular Fatah organisation.
Both organisations have been engaged in long-term territorial and political conflicts with the state of Israel. Both have engaged in suicide bombings within their immediate region. They have also observed ceasefires at different times. It is not their recourse to violence that explains their popular following but, amongst other things, their reputation for honesty and the effective delivery of a range of social, educational and health services to beleaguered local populations in Lebanon and the Palestinian Occupied Territories.[55]
Acts of violence against civilians on both sides of these conflicts deserve condemnation. To define the violence of one side only as ‘terrorist’, however, serves tacitly to justify the violence of the other. It also obscures the causes of violent conflict and hinders the search for effective political responses to it.
The proscription of Hamas and Hizballah suggests a tendency to assimilate many different forms of political Islam to Al Qa’ida and see it as part of a monolithic global conspiracy against Western values and interests.[56] This is simplistic.[57] It is also dangerous. It contributes to the perception that anti-terror laws are a proxy for official anti-Islamism without regard for the particularities of any conflict involving Islamic groups and the justice or otherwise of their cause.
Whilst not recommending disallowance of any listing, the PJC has expressed scepticism regarding several of the listings.
The PJC reviews all decisions to list and re-list terrorist organisations and reports to Parliament with comments and recommendations with respect to each, including a recommendation as to whether the regulation should be disallowed. Its reviews are concerned with the merits of each listing and the adequacy of the process adopted by the executive in each case. The reviews are the major source of information concerning the administration of the executive proscription regime. They are relevant to an empirical assessment of the merits of each listing, the integrity, quality and fairness of the procedures adopted to list organisations and the attitude of the executive to the exercise of the listing powers.
The PJC is a distinctive parliamentary committee. Because it is concerned with national security it adopts a self-consciously conservative and executive-oriented approach to its responsibilities.[58] Independents and minor parties have not been represented. During the Howard government, members of the Opposition were, if possible, selected from former ministers. It seeks to avoid dividing on party lines.[59] Unsurprisingly, the PJC has on no occasion recommended disallowance of a listing regulation. It has, however, expressed misgivings about some of the listings[60] and been relentlessly critical of the approach and procedures adopted by the Howard government in the listing process. This may seem to expose the limitations, and perhaps inadequacy, of parliamentary review as a mechanism of accountability in relation to proscription. To be fair to the PJC the ‘war on terror’ creates a difficult political climate for parliamentary scrutiny of executive action and its effectiveness should not be judged by immediate impact. One of the most striking impressions left by the reports of the PJC is of a major tension between the Parliament and the executive on the issue of the proscription regime. This is reflected more concretely in some of the recurrent themes, criticisms and recommendations in the reports of the PJC.
Two themes related to the criteria for listing organisations recur in the PJC reports. First, the PJC has frequently observed that the definition of a terrorist organisation in the Criminal Code is so broad as to permit a countless number of organisations throughout the world to be proscribed.[61] It has repeatedly requested that the Attorney‑General articulate, and apply, a clear and meaningful set of criteria for listing an organisation.[62] As it was baldly put in one report: ‘The question remains: how and why are some organisations selected for proscription by Australia?’.[63]
In several reports, the PJC observed that the listed organisation had no known links to Australia, nor presented an apparent threat to Australian interests. It expressed concern that the Attorney-General did not regard these as critical considerations in the decision to list. The Attorney-General’s Department responded by pointing to the breadth of the statutory criteria, reminding the PJC that ‘the Criminal Code does not require that an organisation have a link to Australia before it can be listed’ and stressing that the rationale of the legislation was ‘proactive’ and preventative.[64] The PJC countered that this was only ‘superficially logical’, ‘vague’ and afforded no explanation of how proscription in Australia of an organisation with no connections to Australia contributed to the prevention of terrorist violence.[65] The PJC argued that the listing of organisations that have no Australian links is mere ‘symbolism’, ‘with little practical effect’ and is ‘costly in time and effort and possibly distracting for Australia’s anti-terrorism efforts’.[66]
ASIO provided a list of criteria used by it to assess organisations, which included links with Australia,[67] although the manner in which these criteria are applied has not been clarified.[68] However, it frequently acknowledged that no link existed or claimed a vague or indirect link. In one instance the only link consisted of the claim that some individuals in Australia shared the ‘ideology’ of the listed organisation.[69] Sometimes Australian interests were subsumed within an amorphous conception of ‘Western interests’. The PJC described ASIO’s view as being that ‘Australian interests should be considered at threat if they are part of a generalised threat from any organisation which clearly targets Western or foreign interests in a given country or region’.[70] Elsewhere ASIO claimed that proscription was justified because Australians travelling overseas may fall victim to an indiscriminate attack perpetrated by the organisation, the example given being that ‘there is always the possibility that an Australian or Australians visiting Israel will be involved in an attack’.[71] This invites the riposte that if the same Australians travelled to the Palestinian territories they may be at equal risk of being unlawfully killed by Israeli armed forces, as British citizens have been recently.[72]
A second theme running through the PJC reports repeats the concerns expressed by the Senate Legal and Constitutional Committee in its report on the original Bill: that there was a need to distinguish terrorism from violence associated with national independence struggles, civil conflicts and similar movements where peace processes should be pursued:
[T]he Committee would also note there are circumstances where groups are involved in armed conflict and where their activities are confined to that armed conflict, when designations of terrorism might not be the most applicable or useful way of approaching the problem. Under these circumstances — within an armed conflict — the targeting of civilians should be condemned, and strongly condemned, as violations of the Law of Armed Conflict and the Geneva Conventions. The distinction is important. All parties to an armed conflict are subject to this stricture. Moreover, these circumstances usually denote the breakdown of democratic processes and, with that, the impossibility of settling grievances by democratic means. Armed conflicts must be settled by peace processes. To this end, the banning of organisations by and in third countries may not be useful, unless financial and/or personnel support, which will prolong the conflict, is being provided from the third country. ASIO acknowledged this point to the Committee: “[When] there is a peace process … you can unintentionally make things worse if you do not think through the implications of the listing.”[73]
It is significant that ASIO has acknowledged that proscription may on occasions not only be ineffective but actually ‘make things worse’. It can undermine peace efforts, exacerbate violence and further entrench and broaden conflict. This is a salutary reminder that the listing provisions carry risks to security, and not only to legal and political freedoms. The statutory criteria do not protect against such risks. As ASIO acknowledged it is necessary to ‘think through the implications of the listing’.
It was maintained by the Howard government that this responsibility is most effectively undertaken by the executive in conjunction with the Parliament. The Howard government rejected arguments that favour replacing executive proscription with a judicial or quasi-judicial procedure.[74]
[T]he listing of organisations is a process that does not just involve the executive: it also involves the Parliament, as it is Parliament that has the power to disallow a regulation that prescribes an organisation as a terrorist organisation. It is appropriate that the executive and the Parliament play a role in determining the nature of the organisation taking into account the expert advice of those with an extensive knowledge of the security environment. The expertise of members of the executive, who have contact with senior members of the Governments and agencies of other countries, cannot be understated.[75]
The argument that the executive is better placed than a court to consult widely, to draw on relevant expertise and to do so in a timely fashion is persuasive, but whether or not it does so is an empirical question. Far from providing empirical confirmation of the then government’s claims, the PJC reviews have been consistently critical of the performance of the executive in relation to the listing process.
Notwithstanding rhetorical affirmations of the important role of the Parliament, the former government on occasions failed to even provide appropriate warning of impending listings to the PJC so that it could effectively meet its responsibilities.[76] The PJC has repeatedly complained of a failure to provide comprehensive, accurate and balanced information to support listings and validate the process. Information supplied to the Committee and/or published by the then Attorney-General in a press release to support a listing proved on at least two occasions to be inaccurate and was subsequently corrected in private hearings with the Committee.[77] Some listings have been supported by ASIO assessments that are contradicted by other authoritative sources.[78] Generally the impression is of a highly formulaic approach to the statement of reasons supporting listings. The re-listing of organisations, in particular, is treated as a mechanical process, with little if any effort to provide updated information.[79]
Within the executive decision-making framework favoured by the former government it would be expected that the broader political implications and foreign policy context of particular listings would be treated as of central importance. Yet the PJC has commented adversely on the frequent abdication of any meaningful role in the process by the Department of Foreign Affairs and Trade (DFAT). The sum total of its contribution in some cases was a one line email endorsement of the decision to list,[80] a decision apparently already taken by the then Attorney-General without consultation.[81]
A further recurrent theme is the failure of the Howard government to undertake a community consultation and information program notifying the public of impending listings and according a right to be heard to interested parties.[82] To publicise a listing the Attorney-General’s Department has done no more than issue a press release and post information on the National Security website. This is a grave departure from the principles of administrative law, especially given the serious consequences of listing an organisation.[83] No effort is made to ensure affected persons know of their vulnerability to serious criminal charges.
The government at the time responded to some of the criticisms and recommendations relating to the listing process, but it steadfastly ignored the most important of them, those relating to the quality of the information provided in support of listings and community consultation and notification. In sum, the PJC reports point to an abysmal record on the part of the then government so far as its cooperation with and responsiveness to parliamentary processes was concerned. This was in keeping with its dismissive attitude towards all criticism of its anti‑terror laws.
The former government also summarily dismissed the major recommendations of the independent external committee appointed by it to review the legislation. The Security Legislation Review Committee (the Sheller Committee) made recommendations for greater accountability and transparency in the listing process, including: provision for notification of affected parties and an opportunity to be heard prior to listing; consideration of a judicial mechanism for proscription in place of executive proscription; amendment of the legal criteria for listing to restrict the meaning of advocacy in the definition of a ‘terrorist organisation’; repeal of the offence of associating with a terrorist organisation; and a narrowing of the definition of some of the other terrorist organisation offences to ensure the need to prove a link to an actual or planned terrorist act.[84] Tabling the report in Parliament the then Attorney-General simultaneously issued a press release in which he stated:
The Government believes the current listing process contains sufficient safeguards, including judicial review and parliamentary oversight, and that it is more appropriate for the proscription power to be vested with the executive.[85]
Following the Security Legislation Review Committee the PJC conducted its own general review of the anti-terror legislation and made similar recommendations to restrict the scope of the terrorist organisation offences.[86] These recommendations appear destined to gather dust along with the others, a worrying sign of executive intransigence in the face of all criticism no matter the source or weight.
[49] A complete list of proscribed organisations is provided on the National Security website of the Attorney-General’s Department: <http://www.nationalsecurity.gov.au/agd/www/nationalsecurity.nsf/ AllDocs/95FB057CA3DECF30CA256FAB001F7FBD?OpenDocument>.
[50] Listed on 17 December, 2005: <http://www.nationalsecurity.gov.au/agd/www/nationalsecurity.nsf/ AllDocs/28B052FC3CCE4009CA2570DF000FB458?OpenDocument>.
[51] Hamas and Hizballah were originally proscribed by legislation at a time when the statutory listing criteria were linked to UN Security Council decisions: see above n 10.
[52] K Hroub, Hamas — A Beginner’s Guide (London: Pluto Press, 2006) 99‑103; A Crooke, ‘The Rise of Hamas’, Prospect (UK), February 2006; L Deeb, ‘Hizballah: A Primer’, Middle East Report Online, 31 July 2006.
[53] Deeb, ibid.
[54] R Kerbaj, ‘PM Can’t Be Swayed on Hezbollah’, The Australian (Sydney), 4 August 2006, 8.
[55] Hroub, above n 52; P McGeough, ‘Between Hezbollah and Hell’, Sydney Morning Herald (Sydney), 29‑30 July 2006, 29.
[56] This is the way the problem of terrorism is constructed in the government’s 2004 White Paper: Australian Government, above n 4, 2. The analysis in the White Paper concentrates on Islamic extremist groups and sees the source of the threat in what it depicts as their underlying religious ideology and goals: ‘an ideology that is inaccessible to reason … with objectives that cannot be negotiated’. The then Australian Foreign Minister described it in his press club launch of the White Paper as ‘a terrorist project of limitless ambition, merciless methods and reckless zealotry which is almost incomprehensible to the modern mind’: A Downer, ‘Transnational Terrorism: the Threat to Australia’ (Speech delivered to the National Press Club, Canberra, 15 July 2004). The ‘main reason’ Australia is a target, we are told in an information sheet produced by DFAT is ‘the terrorists feel threatened by us and by our example as a conspicuously successful modern society’. They simply hate our freedoms and want ‘to destroy our way of life and, where possible, to destroy us’: Department of Foreign Affairs and Trade, Transnational Terrorism: Why Australia is a Terrorist Target (2004) <http://.dfat.gov.au/publications/terrorism/is2.html>.
[57] See, eg, the special report, ‘Forty Shades of Green’, The Economist (London), 4 February 2006, 22‑4. It describes the very different ideologies, goals and methods of Islamic political organisations with their roots in the tradition of the Muslim Brotherhood (eg, Hamas) compared with those of Al Qa’ida. In particular there is a fundamental divergence of view on the use of violence, the former seeing it as justified only in exceptional circumstances like self defence or foreign occupation.
[58] It has declared its ‘cautious approach’ on several occasions. See Parliament of the Commonwealth of Australia, Review of the Listing of Six Terrorist Organisations (2005) [3.47]; Parliament of the Commonwealth of Australia, Review of the Re-Listing of ASG, JuA, GIA and GSPC (2007) [2.49].
[59] Parliament of the Commonwealth of Australia, Review of the listing of the Kurdistan Workers’ Party (PKK) (2006) Minority Report [1.1].
[60] Above n 58, Review of the Listing of Six Terrorist Organisations (2005) [3.48]‑[3.49]. The recommendations of the majority on the listing of the PKK were also qualified: above n 59.
[61] See, eg, Parliament of the Commonwealth of Australia, Review of the Listing of Six Terrorist Organisations (2005) [2.14].
[62] The issue has been raised, and the request has been made formally or informally, in all or most of the PJC reports. See, eg, Parliament of the Commonwealth of Australia, Review of the listing of the Palestinian Islamic Jihad (PIJ) (2004) [3.5] and the comments and formal recommendation in a recent report noting that there has been no response to previous requests, and renewing them: Parliament of the Commonwealth of Australia, Review of the Re-Listing of Al Qa’ida and Jemaah Islamiyah as Terrorist Organisations (2006) [1.20] and Recommendation 1.
[63] Parliament of the Commonwealth of Australia, Review of the Listing of Six Terrorist Organisations (2005) [2.22].
[64] Ibid [2.18].
[65] Ibid [2.19]‑[2.20].
[66] Parliament of the Commonwealth of Australia, Review of the Listing of Six Terrorist Organisations (2005) [3.50]; Review of the Re-Listing of ASG, JuA, GIA and GSPC (2007) [2.48].
[67] Parliament of the Commonwealth of Australia, Review of the Listing of Six Terrorist Organisations (2005) [2.24].
[68] Parliament of the Commonwealth of Australia, Review of the Re-Listing of ASG, JuA, GIA and GSPC (2007) [1.26].
[69] Parliament of the Commonwealth of Australia, Review of the listing of the Palestinian Islamic Jihad (PIJ) (2004) [3.15].
[70] Parliament of the Commonwealth of Australia, Review of the Listing of Four Terrorist Organisations (2005) [3.82].
[71] Ibid [3.34].
[72] ‘Jury Rules Israeli Soldier Murdered British Journalist’, Sydney Morning Herald (Sydney), 8‑9 April 2006, 19; T Judd, ‘Activist was Unlawfully Killed in Israel, Says Inquest Jury’, The Independent (London), 11 April 2006. The story refers to the intentional shooting by an Israeli soldier of 22-year-old British peace activist Tom Hurndell whilst he was sheltering Palestinian children from Israeli military fire in Gaza in April 2003. Hurndell was one of three British civilians killed in a seven-month period by Israeli soldiers. British inquests have found in each case that the shooting was intentional.
[73] Parliament of the Commonwealth of Australia, Review of the Listing of the Palestinian Islamic Jihad (PIJ) (2004) [3.21], also quoted by the Committee in its conclusion to its review of the listing of four organisations, including Hamas and Hizballah, Parliament of the Commonwealth of Australia, Review of the Listing of Four Terrorist Organisations (2005) [3.87].
[74] A recommendation made by some members of the Security Legislation Review Committee, Report of the Security Legislation Review Committee (2006) [9.8]‑[9.19].
[75] Joint Submission of the Attorney-General’s Department, Commonwealth Director of Public Prosecutions and ASIO to the Parliamentary Joint Committee on Intelligence and Security, Parliament of the Commonwealth of Australia, Review of the Listing Provisions of the Criminal Code Act 1995 (2007) [9.5].
[76] Parliament of the Commonwealth of Australia, Review of the Listing of Six Terrorist Organisations (2005) [2.2]‑[2.3].
[77] Parliament of the Commonwealth of Australia, Review of the Listing of Four Terrorist Organisations (2005) [3.13], [3.39]‑[3.40].
[78] Parliament of the Commonwealth of Australia, Review of the Listing of Six Terrorist Organisations (2005) [3.32].
[79] In its reports on re-listing the PJC has repeatedly called for up-to-date information rather than a mere rehearsal of the original statement of reasons for listing the organisation: Parliament of the Commonwealth of Australia Review of the Listing of Four Terrorist Organisations (2005) [2.7]‑[2.8]; Parliament of the Commonwealth of Australia, Review of the Re-Listing of Al Qa’ida and Jemaah Islamiyah as Terrorist Organisations (2006) [1.16]‑[1.17]; Parliament of the Commonwealth of Australia, Review of the Re-Listing of ASG, JuA, GIA and GSPC (2007) [1.17]‑[1.18]. In the last of these reports the PJC requested as one of its formal recommendations that the Attorney-General and ASIO provide the PJC with a set of criteria indicating the circumstances in which an organisation will not be re-listed: [1.28] and Recommendation 1.
[80] Parliament of the Commonwealth of Australia, Review of the Listing of Six Terrorist Organisations (2005) [2.5]‑[2.7]; Parliament of the Commonwealth of Australia, Review of the Listing of Four Terrorist Organisations (2005) [2.9]‑[2.16].
[81] The PJC has listed the factors that should be covered by DFAT advice on proposed listings: Parliament of the Commonwealth of Australia, Review of the Listing of the Kurdistan Workers’ Party (PKK) (2006) [1.18].
[82] Parliament of the Commonwealth of Australia, Review of the Listing of Six Terrorist Organisations (2005) [2.38]‑[2.40]; Parliament of the Commonwealth of Australia, Review of the Listing of Seven Terrorist Organisations (2005) [2.15]‑[2.17]; Parliament of the Commonwealth of Australia, Review of the Listing of Four Terrorist Organisations (2005) [2.17]‑[2.21]; Parliament of the Commonwealth of Australia, Review of the Listing of the Kurdistan Workers’ Party (PKK) (2006) [1.20]‑[1.23].
[83] Kioa v West (1985) 159 CLR 550.
[84] Report of the Security Legislation Review Committee (2006) [8.10], [9.1], [10.41], [10.42], [10.54], [10.56]‑[10.78].
[85] Attorney-General Media Release 111/2006, 15 June 2006.
[86] Parliament of the Commonwealth of Australia, Review of Security and Counter Terrorism Legislation (2006), Recommendations 14‑19. The PJC also conducted a review of the listing provisions. Its report was published too late for consideration in this paper. See Parliament of the Commonwealth of Australia, Inquiry into the proscription of ‘terrorist organisations’ under the Australian Criminal Code (2007).