Given the breadth of the proscription regime, comfort could be taken from the fact there have been no prosecutions relating to listed organisations. In one sense this is not surprising given most of the listed organisations are not active in Australia. However, given the global movement patterns that characterise the contemporary world, and settler societies like Australia in particular, significant numbers of immigrants and refugees from many regions of conflict have settled in communities in Australia. As noted earlier, the reach of the terrorist organisation offences are such that members of these communities are at risk of prosecution for connections with listed organisations, although they may be law-abiding citizens or residents of Australia who have no political grievance with the Australian government or people. The listing of organisations may even create a dragnet effect in relation to some ethno-religious communities in Australia (eg, Kurds, Lebanese Shia), with the threat of prosecution hanging over many of their members.

That there have been no prosecutions also does not mean that there has been no relevant enforcement of the laws. A stated rationale of new counter-terrorist measures is to gather intelligence and disrupt terrorist activity. The former Director-General of ASIO described the approach as follows:

The question is of course rhetorical and the new laws, with their broad and vaguely defined offences, reflect the priority he stressed. They do not seek to guide citizen conduct but to empower officials, often enabling the threat of prosecution to be used to compel cooperation that escapes legal scrutiny. Listing also supports the use or threat of other less-visible sanctions carrying fewer safeguards. Refusing or cancelling passports can have even more onerous effects on individuals, families and communities than a criminal prosecution. We simply do not know the extent, nature and impact of this type of enforcement activity, but it would be a mistake to assume it is not occurring and occurring in the shadow of the proscription regime.

It is a well-established principle of law that politically inspired violence against a foreign government may be justified in a claim for refugee status in Australia or in resisting an extradition order by an Australian court to face criminal charges in another country. The courts have said that the violence needs to be judged by reference to the political context in which it occurred rather than against abstract universal standards of behaviour.^[88]

The executive proscription regime contravenes this principle, but it also goes much further insofar as the net cast by listing captures persons and activities with a connection to a listed organisation but no connection to violence. The problem is illustrated by a decision of the Refugee Review Tribunal involving an application for refugee status by a Turkish Kurd. The summary of the decision provided by the Tribunal states:

As a consequence of proscription, legitimate claims for asylum under the Refugee Convention,^[90] like this one, may be prevented for fear that evidence justifying the claim will provide grounds for laying a serious criminal charge under Australian anti‑terrorism laws. The effect is to erode seriously refugee law protections. More profoundly, there is the question of who now are the persecutors. The PKK having been proscribed in Australia the applicant in the above case could be handed over to Australia’s ‘Anti-Terror’ police. His reasons, according to an Australian Tribunal, for having a well-founded fear of persecution in Turkey may now be reasons for him to fear prosecution (persecution?) under Australian criminal laws.

A problem with the current listing process is that it cannot allay the suspicion that decisions may be unduly influenced by foreign governments engaged in long-running civil conflicts with minority populations seeking recognition of their national, political and civil rights. Examples are not hard to find: the Turkish government’s conflict with its Kurdish population, Sri Lanka and the Tamils, and Israel and the Palestinians. The Turkish, Sri Lankan and Israeli governments have a manifest political interest in labelling organisations representing these peoples as terrorist and in white-washing their own repressive policies against them.

In late 2005, police raided a Melbourne Tamil group (the Tamils Rehabilitation Organisation) after a Sri Lankan government warning to the Australian government that charity donations to the group for tsunami relief may have been used to fund the Liberation Tigers of Tamil Eelam (‘Tamil Tigers’), a political movement engaged in a lengthy and bloody war to establish a separate homeland in northern Sri Lanka. The Tamil Tigers are not currently listed as a terrorist organisation in Australia, but there must be a serious possibility that they will be listed in the future and the raid illustrates the plight of organisations and persons in Australia who have a connection with civil and political conflicts in other countries. The director of the Tamils Rehabilitation Organisation in Australia, a Melbourne doctor, pointed out that it was impossible to avoid cooperating with the Tigers in directing charitable support to those parts of the country effectively controlled by them. He also indicated his support for the political cause of national self-determination for the Tamils, although not necessarily the methods of the Tamil Tigers.^[91]

There were suggestions that the decision to list the PKK was taken in response to overtures by the Turkish government, a suspicion bolstered by the timing of the proscription to coincide with a visit by the Turkish Prime Minister to Australia in December 2005. The PJC concluded that there was no evidence that the listing had been influenced by an approach from the Turkish government. Yet DFAT acknowledged that such an approach was made in April 2005, coinciding with a visit by then Prime Minister Howard to Turkey. Despite discrepancies in the evidence given by DFAT and ASIO to the PJC it appears that the process leading to proscription did not begin prior to that time. The coincidences hardly dispel suspicions that Turkish representations exercised an influence.^[92]

This illustrates some of the problems with proscription by the executive. Whilst the executive can consult widely and access expertise relevant to a decision to list (much of which may be inaccessible to a court or tribunal, for example), the process lacks transparency. The executive can pick and choose who and what it wants to hear before making a decision to list. Consultations may be broad-ranging and balanced, but equally they may be excessively narrow and characterised by tunnel vision. Any closed executive process lends itself to these problems. Principles of natural justice are designed not only to ensure fairness and protect rights, but to improve decision‑making by increasing the range of interests and information represented in the process. Confidence in the outcome is also increased. Listing may cloak a process driven more by political considerations than Australian security interests. Even where this is not the case, the process may often fail to remove the perception that it is.

In other words, the listing provisions may quite understandably be perceived in some minority communities as in effect an agent of foreign governments, extending the arm of authoritarian rule so that it reaches them in Australia, the place to which they have come seeking refuge from it. Ironically, given the preventative rationale of the law, this carries a risk over time of fostering community tensions in Australia and transplanting violence to Australia.