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The Proscription of Terrorist Organisations in Australia

Published online by Cambridge University Press:  24 January 2025

Andrew Lynch ,
Nicola McGarrity  and
George Williams
Andrew Lynch
Affiliation:
Gilbert + Tobin Centre of Public Law, UNSW
Nicola McGarrity
Affiliation:
Terrorism and the Law Project, Gilbert + Tobin Centre of Public Law, UNSW
George Williams
Affiliation:
Gilbert + Tobin Centre of Public Law, UNSW
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Extract

The proscription of organisations has long been a central feature of legal regimes aimed at the suppression of terrorism. Australia is no exception. Going back many decades, the Commonwealth government has sought to meet the threat of political violence through the proscription of related organisations. In the wake of the September 11 terrorist strikes against New York and Washington, renewed efforts were made for the proscription of organisations in many national jurisdictions (for example, the United Kingdom, United States and Canada) as well as at the international level (for example, through the United Nations and the European Union.

In Australia, the Commonwealth looked directly to the justifications offered by the United Kingdom’s Lord Lloyd of Berwick and Paul Wilkinson just a few years before. In their major Inquiry into Legislation Against Terrorism, Lord Lloyd and Wilkinson presented three principal rationales to explain the role of proscription in the prevention of terrorism: ease of proof; providing a basis for the criminalisation of fundraising and other activities of terrorist groups; and as a clear symbol of ‘public revulsion and reassurance that severe measures [are] being taken’.

Type
Research Article
Information
Federal Law Review , Volume 37 , Issue 1 , March 2009 , pp. 1 - 40
Copyright
Copyright © 2009 The Australian National University

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Footnotes

We thank Tessa Meyrick for research assistance with this article and the two anonymous referees for their comments.

References

1 See Unlawful Associations Act 1916 (Cth); Unlawful Associations Act 1917 (Cth); Crimes Act 1914 (Cth) pt IIA; National Security Act 1939 (Cth); National Security Regulations 1940 (Cth); Communist Party Dissolution Act 1950 (Cth). Of these enactments, only pt IIA of the Crimes Act 1914 (Cth) (as amended) is still in force.

2 The United Kingdom proscribes ‘international terrorist organisations’ under the Terrorism Act 2000 (UK) c 11, sch 2. At 27 June 2008, 45 international terrorist organisations had been proscribed. There are 14 Northern Irish paramilitary organisations proscribed under prior emergency legislation. See Proscribed Terrorist Groups (2008) United Kingdom Home Office <http://www.homeoffice.gov.uk/security/terrorism-and-the-law/terrorism-act/proscribed-groups> at 27 June 2008.

3 The United States proscribes ‘foreign terrorist organisations’ under the AntiTerrorism and Effective Death Penalty Act of 1996, Pub L No 104-132, 110 Stat 1214 (44 organisations as at 8 April 2008); designates ‘organisations and individuals linked to terrorism’ under Executive Order 13224; and maintains a ‘terrorist exclusion list’ under the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act) Act of 2001, Pub L 107-56, 115 Stat 272 for immigration purposes. See Office of the Coordinator for Counter Terrorism, Foreign Terrorist Organisations: Fact Sheet (2008) US Department of State <http://www.state.gov/s/ct/rls/fs/08/103392.htm> at 8 April 2008.

4 Canada proscribes ‘terrorist groups’ under pt II.1 of the Criminal Code, RSC 1985, c 46 (introduced by the Anti-Terrorism Act, RSC 2001, c 41). At 27 June 2008, there were 41 organisations on the list. See Currently Listed Entities (2008) Public Safety Canada <http://www.publicsafety.gc.ca/prg/ns/le/cle-en.asp> at 27 June 2008.

5 The Al-Qaida and Taliban Sanctions Committee established pursuant to Security Council Resolution on the Situation in Afghanistan, SC Res 1267, UN SCOR, 54th sess, 4051st mtg, [6], UN Doc S/Res/1267 (1999) maintains a consolidated list of individuals and entities associated with Al-Qaida or the Taliban. At 4 June 2008, there were 113 entities and other groups associated with Al-Qaida on the list (and no entities or other groups associated with the Taliban). See United Nations Security Committee, Consolidated List Established and Maintained by the 1267 Committee with Respect to Al-Qaida, Usama bin laden, and the Taliban and Other Individuals, Groups, Undertakings and Entities Associated with Them (4 June 2008).

6 The European Union has incorporated the United Nations sanctions regime into EU law by Council Regulation (EC) No 881/2002 of 27 May 2002 Imposing Certain Specific Restrictive Measures Directed Against Certain Persons and Entities Associated with Usama Bin Laden, the Al-Qaida Network and the Taliban, and Repealing Council Regulation (EC) No 467/2001 Prohibiting the Export of Certain Goods and Services to Afghanistan, Strengthening the Flight Ban and Extending the Freeze of Funds and Other Financial Resources in Respect of the Taliban of Afghanistan [2002] OJ L 139/9 and designates ‘persons, groups and entities involved in terrorist acts’ under Council Common Position of 27 December 2001 on the Application of Specific Measures to Combat Terrorism [2001] OJ L 344/93, 93 and Council Regulation (EC) No 2580/2001 of 27 December 2001 on Specific Restrictive Measures Directed Against Certain Persons and Entities with a View to Combating Terrorism [2001] OJ L 344/70. At 22 December 2007, there were 54 persons and 48 groups and entities on the list. See European Union, Factsheet: The EU List of Persons, Groups and Entities Subject to Specific Measures to Combat Terrorism (2008) Council of the European Union 5 <http://consilium.europa.eu/uedocs/cmsUpload/080206_combatterrorism_EN.pdf> at 6 February 2008.

7 Still the most comprehensive comparative resource in this respect is Victor, V Ramraj, Michael, Hor and Kent, Roach (eds), Global Anti-Terrorism Law and Policy (2005)Google Scholar. For a more recent work which draws together developments in the United Kingdom and the United States of America — both significant influences on Australian national security legislation and policy — see Laura K Donohue, The Cost of Counterterrorism: Power, Politics and Liberty (2008).

8 Lord Lloyd of Berwick and Paul, Wilkinson, Inquiry into Legislation Against Terrorism (1996) vol 1, 29–30Google Scholar; vol 2, 57.

9 Ibid. See also Attorney-General's Department, Australian Security Intelligence Organisation, Australian Federal Police and Commonwealth Director of Public Prosecutions, Submission No 10 to Parliamentary Joint Committee on Intelligence and Security ('PJCIS’), Parliament of Australia, Inquiry into the Terrorist Organisation Listing Provisions of the Criminal Code Act 1995, 2007, 2.

10 Berwick and Wilkinson, above n 8, vol 2, 57.

11 See Attorney-General's Department et al, above n 9, 2.

12 See Patrick, Emerton, ‘Australia's Terrorism Offences — A Case Against’ in Andrew, Lynch, Edwina, Macdonald and George, Williams (eds), Law and Liberty in the War on Terror (2007), 75, 83Google Scholar; Jenny, Hocking, ‘Counter Terrorism and the Criminalisation of Politics: Australia's New Security Powers of Detention, Proscription and Control’ (2003) 49 Australian Journal of Politics and History 355, 360Google Scholar; and Russell, Hogg, ‘Executive Proscription of Terrorist Organisations in Australia: Exploring the Shifting Border between Crime and Politics’ in Miriam, Gani and Penelope, Mathew (eds), Fresh Perspectives on the ‘War on Terror’ (2008) 297, 308Google Scholar. Additionally, we acknowledge the drawbacks clearly identified by Clive Walker in respect of the United Kingdom's proscription of the Irish Republican Army in his seminal study The Prevention of Terrorism in British Law (1986) 50–1.

13 Ben, Golder and George, Williams, ‘What is “Terrorism“? Problems of Legal Definition’ (2004) 27 University of New South Wales Law Journal 270Google Scholar.

14 Saul reports that, on available evidence in 2004, 86 nation states prosecuted terrorism as an ordinary crime, while 46 employed ‘simple terrorism offences’ and a further 48 had ‘composite terrorism offences': Ben Saul, Defining Terrorism in International Law (2006) 264–9. Additionally, significant strides have been made in the last decade in producing a general definition of ‘terrorism’ in international law: Henry, J Steiner, Philip, Alston and Ryan, Goodman, International Human Rights in Context: Law, Politics, Morals (3rd ed, 2008) 376–8Google Scholar.

15 See, eg, Andrew, Goldsmith, ‘Preparation for Terrorism: Catastrophic Risk and Precautionary Criminal Law’ in Andrew, Lynch, Edwina, Macdonald and George, Williams (eds), Law and Liberty in the War on Terror (2007) 59, 59–73Google Scholar; Kent, Roach, ‘The World Wide Expansion of Anti-Terrorism Laws after 11 September 2001’ (2004) Studi Senesi 487Google Scholar; Lucia, Zedner, ‘Seeking Security by Eroding Rights — The Side-stepping of Due Process’ in Benjamin, J Goold and Liora, Lazarus (eds), Security and Human Rights (2007) 257, 257–75Google Scholar.

16 Ian Loader and Neil Walker, Civilizing Security (2007); Zedner, ‘Seeking Security by Eroding Rights', above n 15, 257–8.

17 As well as the subject of international obligations such as that found in Security Council Resolution on Threats to International Peace and Security Caused by Terrorist Acts, SC Res 1373, UN SCOR, 56th sess, 4385th mtg, art 2(b), UN Doc S/Res/1373 (2001).

18 Andrew, Ashworth, ‘Security, Terrorism and the Value of Human Rights’ in Benjamin, J Goold and Liora, Lazarus (eds), Security and Human Rights (2007), 203, 207–10Google Scholar; Donohue, above n 7, 4–6; Loader and Walker, above n 16, 54–6; Christopher, Michaelsen, ‘Balancing Civil Liberties Against National Security? A Critique of Counter-Terrorism Rhetoric’ (2006) 29(2) University of New South Wales Law Journal 1Google Scholar; Lucia, Zedner, ‘Securing Liberty in the Face of Terror: Reflections from Criminal Justice’ (2005) 32 Journal of Law and Society 507, 509–18Google Scholar.

19 Loader and Walker warn against the presentation of such arguments as simply ‘a negative, oppositional force, one that evacuates the terrain that the security lobby so effectively and affectively occupies': Loader and Walker, above n 16, 14.

20 For a history of these provisions see Roger, Douglas, ‘Keeping the Revolution at Bay: The Unlawful Associations Provisions of the Commonwealth Crimes Act’ (2001) 22 Adelaide Law Review 259Google Scholar.

21 Charter of the United Nations Act 1945 (Cth) s 15.

22 Charter of the United Nations Act 1945 (Cth) s 18.

23 Charter of the United Nations Act 1945 (Cth) ss 20–21.

24 See, eg, Criminal Code Act 1995 (Cth) s 102.8 (associating with terrorist organisations).

25 See, eg, Criminal Code Act 1995 (Cth) s 102.2 (directing the activities of a terrorist organisation) and s 102.5 (training a terrorist organisation or receiving training from a terrorist organisation).

26 For discussion of these offences see Andrew, Lynch and George, Williams, What Price Security?: Taking Stock of Australia's Anti-Terror Laws (2006) 21–7Google Scholar.

27 Criminal Code Act 1995 (Cth) s 102.1(2) (pre-10 March 2004).

28 Explanatory Memorandum, Criminal Code Amendment (Terrorist Organisations) Bill 2004 (Cth) 4.

29 Criminal Code Act 1995 (Cth) s 102.1(2). As at 16 April 2009, 18 organisations are proscribed by regulation under s 102.1(2).

30 Attorney-General's Department et al, above n 9, 5.

31 These factors were revealed to the Parliamentary Joint Committee on ASIO, ASIS and DSD ('PJC-ASIO’) by ASIO in a confidential exhibit: see PJC-ASIO, Parliament of Australia, Review of the Listing of Six Terrorist Organisations (2005) [2.24]. See Attorney-General's Department et al, above n 9, 6. A similar but certainly not identical list of factors guiding the discretion to proscribe was released by the British Home Office in early 2001: see Clive, Walker, Blackstone's Guide to the Anti-Terrorism Legislation (2002) 48Google Scholar.

32 Attorney-General's Department et al, above n 9, 5–6.

33 Criminal Code Act 1995 (Cth) s 102.1(2A).

34 Intergovernmental Agreement on Counter Terrorism Laws ('IGA’) (25 June 2004) div 3 [3.4(2)].

35 In some cases, the leaders of the States and Territories were informed only 24 hours prior to a regulation being made. See, eg, PJC-ASIO, ‘Six Terrorist Organisations', above n 31, [2.8]–[2.10]; PJC-ASIO, Parliament of Australia, Review of the Listing of Four Terrorist Organisations (2005) [2.1]–[2.6]. The PJCIS found that in fifty percent of cases, the States and Territories had been given five days or less in which to consider or comment upon a proposed listing or re-listing of an organisation. See PJCIS, Parliament of Australia, Inquiry into the Terrorist Organisation Listing Provisions of the Criminal Code Act 1995 (2007) [6.9]–[6.12].

36 Attorney-General's Department et al, above n 9, 8.

37 Security Legislation Review Committee ('SLRC’), Parliament of Australia, Report of the Security Legislation Review Committee (2006) 64.

38 Ibid 65. There is no requirement of knowledge in s 102.5(2) (training with a terrorist organisation) and therefore a regulation would still be conclusive in prosecutions for this offence. By contrast, there is neither a mens rea nor knowledge requirement for the basic offence of ‘belonging’ to a proscribed organisation under UK law: Terrorism Act 2000 (UK) c 11, s 11(1). See further, R v Hundal (Avtar Singh); R v Dhaliwal (Kesar Singh) [2004] EWCA Crim 389.

39 SLRC, above n 37, 64–5.

40 Patrick Emerton, Submission No 23 to PJCIS, Parliament of Australia, Inquiry into the Terrorist Organisation Listing Provisions of the Criminal Code Act 1995, 2007, 3.

41 Criminal Code Act 1995 (Cth) s 102.1(3).

42 PJC-ASIO, Parliament of Australia, Review of the Listing of Seven Terrorist Organisations (2005) [2.6].

43 Ibid [2.7].

44 PJCIS, Parliament of Australia, Review of the Re-Listing of Abu Sayyaf Group, Jamiat-Ul-Anser, Armed Islamic Group and Salafist Group for Call and Combat as Terrorist Organisations under the Criminal Code Act 1995 (2007) [2.6]–[2.7].

45 Criminal Code Act 1995 (Cth) s 102.1(4).

46 Criminal Code Act 1995 (Cth) s 102.1(17).

47 These characteristics, while not criticised, are acknowledged by the Attorney-General's Department et al, above n 9, 11.

48 PJCIS, ‘Inquiry into the Terrorist Organisation Listing Provisions', above n 35, [2.24]. Algeria's Armed Islamic Group, however, was not relisted when its listing expired in November 2008. The Commonwealth Attorney-General noted that ‘GIA no longer meets the threshold for proscription in the legislation': Robert McClelland, ‘Three Terrorist Organisations Re-Listed’ (Press Release, 4 November 2008). This is because the GIA has since been dispersed into other organisations.

49 Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5.

50 The pervasive operation of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) ensures that any legal proceeding is subject to strict controls: see contrasting assessments in Phillip, Boulten, ‘Preserving National Security in the Courtroom: A New Battleground’ in A, Lynch, E, MacDonald, and G, Williams (eds) Law and Liberty in the War on Terror (2007) 98Google Scholar and Stephen, Donaghue, ‘Reconciling Security and the Right to a Fair Trial: The National Security Information Act in Practice’ in A, Lynch, E, MacDonald and G, Williams (eds) Law and Liberty in the War on Terror (2007) 87Google Scholar.

51 Walker, ‘Blackstone's Guide', above n 31, 61; see 55–61 for a concise examination of the UK case law leading to this assessment. Donohue warns against assuming that the judiciary is ‘the most important player, or even the final word, in respect of counterterrorism': Donohue, above n 7, 335.

52 Ibid.

53 Criminal Code Act 1995 (Cth) s 102.1A(2). The PJCIS report was released in September 2007: PJCIS, ‘Inquiry into the Terrorist Organisation Listing Provisions', above n 35.

54 Criminal Code Act 1995 (Cth) s 102.1A(1).

55 PJCIS, ‘Inquiry into the Terrorist Organisation Listing Provisions', above n 35, [2.38].

56 This period is extended if the Parliamentary Joint Committee chooses to make comments or recommendations to either or both Houses of the Parliament: Criminal Code Act 1995 (Cth) s 102.1A(3).

57 Section 38(1) of the Legislative Instruments Act 2003 (Cth) requires a regulation to be tabled in both Houses of Parliament within six sitting days of registration on the Federal Register of Legislative Instruments. Both the regulation and the statement of reasons, which forms part of the Explanatory Memorandum, must be tabled.

58 Legislative Instruments Act 2003 (Cth) s 12(1).

59 Legislative Instruments Act 2003 (Cth) s 42.

60 Communist Party Dissolution Act 1950 (Cth) ss 5(2), 6, 9(4). There were a number of exceptions to this general rule. For example, if a person held any office or position to which s 10(1) related, he or she would be suspended from the date of publication of the declaration. The office or position would then become vacant upon the expiry of 28 days, if the person did not apply to the Court to set aside the order, or otherwise upon the making of an order by the Court that the declaration is valid.

61 This is only to be expected since the ‘single most defining feature of counterterrorist law is hypertrophic executive power': Donohue, above n 7, 6.

62 As discussed in pt I, for some, definitional difficulties negate the justification for proscription in principle. But they may also be considered at a lower level of complaint — in relation to the specific merits of a particular scheme.

63 Castan Centre for Human Rights Law, Monash University, Submission No 2 to PJCIS, Parliament of Australia, Inquiry into the Terrorist Organisation Listing Provisions of the Criminal Code Act 1995, 22 January 2007, 6.

64 Russell Hogg, Submission No 6 to PJCIS, Parliament of Australia, Inquiry into the Terrorist Organisation Listing Provisions of the Criminal Code Act 1995, 31 January 2007, 16.

65 Castan Centre, above n 63, 5–6.

66 The only case in which there has been a minority report issued by the PJCIS was in the PJCIS, Parliament of Australia, Review of the Listing of the Kurdistan Workers’ Party (PKK) as a Terrorist Organisation under the Criminal Code Act 1995 (2006) 35–41. There have been no disallowances of regulations by the Parliament.

67 This is hardly peculiar to the Australian scheme. Walker suggested the UK government would court ridicule in attempting to be the arbiter between ‘terrorist’ and ‘freedom fighter': Walker, ‘Blackstone's Guide', above n 31, 49; while Cole has highlighted the inevitable selectivity of the Secretary of State's discretion under the US proscription regime: David, Cole, Terrorism and the Constitution (2006) 137–40, 198Google Scholar.

68 See the Consolidated List, available at Department of Foreign Affairs and Trade, Australia's Implementation of United Nations Security Council Financial Sanctions <http://www.dfat.gov.au/icat/UNSC_financial_sanctions.html> at 1 December 2008.

69 See many of the submissions to the PJCIS, ‘Review of the Listing of the Kurdistan Workers’ Party', above n 66.

70 Australian Muslim Civil Rights Advocacy Network, Submission No 14 to PJCIS, Parliament of Australia, Review of the Listing of the Kurdistan Workers’ Party (PKK) as a Terrorist Organisation under the Criminal Code Act 1995 (Cth), 2006, 1.

71 Hogg, ‘Executive Proscription of Terrorist Organisations in Australia', above n 12, 318.

72 The listing of one of these organisations, the Armed Islamic Group (GIA), was not renewed when it expired in November 2008. There are currently 18 organisations proscribed as terrorist organisations.

73 Emerton, ‘Submission No 23', above n 40, 4.

74 Public Interest Advocacy Centre, Submission No 11 to PJCIS, Parliament of Australia, Inquiry into the Terrorist Organisation Listing Provisions of the Criminal Code Act 1995, 2 February 2007, 5.

75 SLRC, above n 37, [5.8].

76 Stephen Holmes, The Matador's Cape — America's Reckless Response to Terror (2007) ch 1.

77 See Hogg, ‘Executive Proscription of Terrorist Organisations in Australia', above n 12, 307–9, 318–22.

78 Emerton, ‘Submission No 23', above n 40, 4–5.

79 Ibid 6.

80 Australian Muslim Civil Rights Advocacy Network, Submission No 84 to Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Inquiry into the Provisions of the Anti-Terrorism Bill (No 2) 2004, 2004, 13.

81 SLRC, above n 37, [9.1]–[9.2].

82 Ibid [8.29], [9.1].

83 National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) s 31(8).

84 See arts 19, 20 and 23 of the Universal Declaration on Human Rights, GA Res 217 A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/Res/3/217 (1948); and arts 19, 21 and 22 of the International Covenant on Civil and Political Rights, GA Res 2200 A (XXI), UN GAOR, 21st sess, 1496th plen mtg, UN Doc A/Res/2200(XXI) (1966). Both freedoms are widely regarded as being part of customary international law.

85 The High Court unanimously accepted the existence of an implied freedom of political communication in the Commonwealth Constitution in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 ('Lange’). While the Court has not agreed on the implication of a freedom of association, in Kruger v Commonwealth (1997) 190 CLR 1, three Justices accepted such a freedom: 91 (Toohey J), 116, 126 (Gaudron J), 142 (McHugh J). See further, Mulholland v Australian Electoral Commission (2004) 220 CLR 181, 225-6 [113]–[116] (McHugh J), 277 [284] (Kirby J), with more limited support at 297 [334] (Gummow and Hayne JJ, with whom Heydon J agreed).

86 Joo-Cheong, Tham, ‘Possible Constitutional Objections to the Powers to Ban ‘Terrorist’ Organisations’ (2004) 27 University of New South Wales Law Review 482Google Scholar.

87 Crimes Act 1914 (Cth) s 30B.

88 Crimes Act 1914 (Cth) s 30D.

89 Crimes Act 1914 (Cth) s 30F.

90 Crimes Act 1914 (Cth) s 30FC.

91 Criminal Code Act 1995 (Cth) s 102.3.

92 Criminal Code Act 1995 (Cth) s 102.2.

93 Criminal Code Act 1995 (Cth) s 102.4.

94 Criminal Code Act 1995 (Cth) s 102.5.

95 Criminal Code Act 1995 (Cth) s 102.6.

96 Criminal Code Act 1995 (Cth) s 102.7.

97 Criminal Code Act 1995 (Cth) s 102.8.

98 Criminal Code Act 1995 (Cth) s 102.1(1).

99 Crimes Act 1914 (Cth) s 30H.

100 The legal burden of proof generally rests on the prosecution, and requires it to prove each element of the offence. However, here, the legal burden is on the defendant to prove that he or she took all reasonable steps to cease to be a member of the organisation as soon as practicable after he or she knew that the organisation was a terrorist organisation. By contrast, the evidential burden may traditionally rest on either party. Neither is required to prove a particular issue, but the evidential burden requires them to produce sufficient evidence to merit the consideration of a particular issue by the jury.

101 There are two obvious difficulties with this defence. First, the lack of a clear definition of membership means that a person may not realise that he or she is an informal member of an organisation and therefore will be unable to take reasonable steps to cease to be a member of that organisation. Second, if merely attending a meeting is sufficient to render a person an informal member of an organisation, it is unclear what would constitute reasonable steps to cease to be a member of that organisation.

102 Crimes Act 1914 (Cth) s 30B.

103 Crimes Act 1914 (Cth) s 30FD. This is presumably now unconstitutional in light of the decision of the High Court in Roach v Electoral Commissioner (2007) 233 CLR 162 ('Roach’).

104 Criminal Code Act 1995 (Cth) s 102.3(1).

105 Prior to 2006, the Commonwealth Electoral Act 1918 (Cth) disqualified persons serving a term of imprisonment of three years or more from voting for that term. In Roach (2007) 233 CLR 162, the Court held that 2006 amendments to the Act disqualifying persons serving any term of imprisonment from voting for that term were constitutionally invalid. The orders of the Court in Roach returned the Act to the situation pre-2006.

106 Criminal Code Act 1995 (Cth) s 102.1(1).

107 Criminal Code Act 1995 (Cth) s 102.8(1), (2).

108 SLRC, above n 37, [10.77].

109 New South Wales Council for Civil Liberties, Submission No 9 to PJCIS, Parliament of Australia, Inquiry into the Terrorist Organisation Listing Provisions of the Criminal Code Act 1995, 2 February 2007, 6; Human Rights and Equal Opportunity Commission, Submission No 14 to PJCIS, Parliament of Australia, Inquiry into the Terrorist Organisation Listing Provisions of the Criminal Code Act 1995, February 2007, 11–12; Law Council of Australia, Submission No 17 to PJCIS, Parliament of Australia, Inquiry into the Terrorist Organisation Listing Provisions of the Criminal Code Act 1995, 9 February 2007, 9.

110 SLRC, above n 37, [9.5] (Commonwealth Attorney-General's Department); Attorney-General's Department et al, above n 9, 13–14.

111 Criminal Code Act 1995 (Cth) div 104.

112 Thomas v Mowbray (2007) 233 CLR 307, 329-30 (Gleeson CJ), 507-9 (Callinan J) ('Thomas’).

113 Each of the defendants was charged with one count of being a member of a terrorist organisation (s 102.3 of the Criminal Code Act 1995 (Cth)). Some were also charged with providing funds to a terrorist organisation (s 102.6). One of the defendants, Benbrika, was charged with directing the activities of a terrorist organisation (s 102.2). Benbrika and six of his co-accused were found guilty of terrorist organisation offences. Four of the other accused were found not guilty. The jury could not reach a verdict in relation to the final accused. It has recently been announced that he will be re-tried.

114 Each of the defendants (Aruran Vinayagaamoorthy, Sivarajah Yathavan and Arumugan Rajeevan) was charged with being a member of a terrorist organisation (s 102.3 of the Criminal Code Act 1995 (Cth)), making funds available to a terrorist organisation (s 102.6),providing support or resources to a terrorist organisation (s 102.7) and making an asset available to a prescribed entity contrary to s 21 of the Charter of the United Nations Act 1976 (Cth). All charges, except those under the Charter of the United Nations Act 1976 (Cth), were withdrawn in early March 2009.

115 Thomas was charged with intentionally receiving funds from a terrorist organisation (Al Qa'ida) (s 102.6 of the Criminal Code Act 1995 (Cth)), two counts of making funds available to a terrorist organisation (Al Qa'ida) (s 102.7), and a non-terrorism offence. He was convicted in February 2006 of the first of these charges. His conviction was quashed on appeal in August 2006 (R v Thomas (2006) 14 VR 475). In October 2008, he was retried for one count of falsifying an Australian passport and one count of receiving funds from a terrorist organisation. He was found guilty only of the first charge.

116 Ul-Haque was charged with training with a listed terrorist organisation (Lashkar-e-Toiba) (s 102.5 of the Criminal Code Act 1995 (Cth)). In November 2007, the NSW Supreme Court ruled that admissions made by Ul-Haque to the Australian Federal Police were inadmissible (R v Ul-Haque (2007) 177 A Crim R 348). Prosecution was immediately abandoned.

117 SLRC, above n 37, [9.34]. The SLRC recommended either that the Attorney-General make proscription decisions on the advice of an advisory committee or the process of proscription become a judicial process.

118 ‘Seditious intention’ is defined in s 30A(3) of the Crimes Act 1914 (Cth).

119 Crimes Act 1914 (Cth) s 30AA.

120 Crimes Act 1914 (Cth) s 30AB. The penalty for failing to comply with a request by the Attorney-General is imprisonment for six months.

121 Crimes Act 1914 (Cth) s 30AA(8).

122 Crimes Act 1914 (Cth) s 30AA(9).

123 R v Hush; Ex parte Devanny (1932) 48 CLR 487. See Douglas, ‘Keeping the Revolution at Bay', above n 20, 278–9, for analysis.

124 Douglas, ‘Keeping the Revolution at Bay', above n 20, 279–82. The Communist Party was only added as a defendant in order to strengthen the Commonwealth's case against the FOSU. The Commonwealth's case was based on the affiliation of the FOSU with an unlawful association, namely, the Communist Party. Douglas suggests (at 281) that the decision to seek a declaration that the Communist Party was unlawful was based not on any particular objection to the Party but on an assessment that it was necessary if the Commonwealth was to succeed in its case against the FOSU.

125 Ibid 282.

126 Roger, Douglas, ‘Saving Australia from Sedition: Customs, the Attorney-General's Department and the Administration of Peacetime Political Censorship’ (2002) 30 Federal Law Review 135, 138Google Scholar.

127 Terrorism Act 2000 (UK) c 11, s 3(3). The Secretary of State for the Home Department may issue an order proscribing an entity as an ‘international terrorist organisation’ and placing it on sch 2 of the act.

128 Criminal Code, RSC 1985, c 46, s 83.05(1). The Governor in Council may, by regulation, establish a list of ‘terrorist groups’ and place an entity on that list.

129 Terrorism Suppression Act 2002 (NZ) ss 20–23. The Prime Minister may designate an entity as a ‘terrorist entity'.

130 8 USC § 1189 (2007). The Secretary of State may designate an entity as a ‘foreign terrorist organisation'.

131 [2005] 2 AC 68.

132 Ibid 128 [79]. See also Australian Communist Party v Commonwealth (1951) 83 CLR 1, 272; Alister v The Queen (1984) 154 CLR 404, 455 (Brennan J), 435 (Wilson and Dawson JJ).

133 In Alister v The Queen (1984) 154 CLR 404, 412, Gibbs CJ stated that the common law public interest immunity operates as a balancing test. It requires a balancing of ‘the nature of the injury which the nation … would be likely to suffer, and the evidentiary value and importance of the documents in the particular litigation.’ See further Evidence Act 1995 (Cth) s 130(1), and also the more skewed provisions of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth).

134 Thomas v Mowbray (2007) 233 CLR 307, 477-8.

135 See, for example, SLRC, above n 37, [9.10] (George Williams). Cf Gilbert + Tobin Centre of Public Law, Submission No 16 to PJCIS, Parliament of Australia, Inquiry into the Terrorist Organisation Listing Provisions of the Criminal Code Act 1995, 9 February 2007, 2.

136 PJC-ASIO, ‘Four Terrorist Organisations', above n 35, 16 [2.28] (Director-General of ASIO).

137 SLRC, above n 37, 91.

138 See, for example, PJCIS, Parliament of Australia, Review of the Re-Listing of Al-Qa'ida and Jemaah Islamiyah as Terrorist Organisations (2006) [1.5], [1.10], [1.13]–[1.14]. The only exception was the listing of Hizbollah and Hamas, where a newspaper campaign was conducted. See PJC-ASIO, ‘Six Terrorist Organisations', above n 31, [2.38].

139 Federation of Community Legal Centres (Victoria) Inc, Submission No 7 to PJCIS, Parliament of Australia, Review of the Re-Listing of the Kurdistan Workers’ Party (PKK) as a Terrorist Organisation under the Criminal Code Act 1995, May 2008, 4.

140 See PJCIS, Media Releases, Parliament of Australia <http://www.aph.gov.au/house/committee/pjcis/pkk_1/media.htm> at 3 December 2008. See also ibid.

141 PJC-ASIO, Parliament of Australia, Review of the Listing of Tanzim Qa'idat al-Jihad fi Bilad al-Rafidayn (the al-Zarqawi Network) as a Terrorist Organisation (2005) [1.22].

142 Ian, Johnstone, ‘The UN Security Council, Counterterrorism and Human Rights’ in Andrea, Bianchi and Alexis, Keller (eds), Counterterrorism: Democracy's Challenge (2008) 335, 350Google Scholar.

143 Patrick Emerton, Submission No 4 to PJC-ASIO, Parliament of Australia, Review of the Listing of Four Terrorist Organisations, 29 July 2005, 13.

144 PJC-ASIO, ‘Six Terrorist Organisations', above n 31, [2.40].

145 See, for example, PJCIS, ‘Review of the Listing of the Kurdistan Workers’ Party', above n 66, [1.23].

146 Australian Muslim Civil Rights Advocacy Network, Submission No 15 to PJC-ASIO, Parliament of Australia, Review of the Listing of Six Terrorist Organisations, 24 January 2005, 2.

147 Hogg, ‘Submission No 6', above n 64, 25–6.

148 PJC-ASIO, ‘al-Zarqawi Network', above n 141, [2.4].

149 PJC-ASIO, ‘Four Terrorist Organisations', above n 35, 47 (Recommendation 1).

150 PJCIS, ‘Review of the Listing of the Kurdistan Workers’ Party', above n 66, [2.8].

151 PJCIS, ‘Review of the Re-Listing of Abu Sayyaf Group', above n 44, [1.27].

152 See, for example, PJCIS, ‘Review of the Listing of the Kurdistan Workers’ Party', above n 66, [2.3]; PJCIS, Parliament of Australia, Review of the Relisting of Hizballah's External Security Organisation (ESO) (2007) [2.4]; PJCIS, Parliament of Australia, Review of the Re-Listing of Ansar al-Sunna, JeM, LeJ, EIJ, IAA, AAA and IMU as Terrorist Organisations (2007) [1.10].

153 PJCIS, ‘Review of the Listing of the Kurdistan Workers’ Party', above n 66, Minority Report, [1.8].

154 Ibid [1.12].

155 See, for example, PJC-ASIO, ‘Six Terrorist Organisations', above n 31, [2.27]–[2.28], [3.50], and PJCIS, ‘Review of the Listing of the Kurdistan Workers’ Party', above n 66, [2.33]–[2.36]. This was also acknowledged by the former Attorney-General, Philip Ruddock.

156 PJC-ASIO, ‘Six Terrorist Organisations', above n 31, [2.19].

157 PJCIS, ‘Review of the Listing of the Kurdistan Workers’ Party', above n 66, [2.36].

158 PJCIS, ‘Review of the Re-Listing of Abu Sayyaf Group', above n 44, [1.13].

159 Parliamentary Library (Foreign Affairs, Defence and Trade Section, Information and Research Services), The Politics of Proscription in Australia, Parliamentary Library Research Note No 63, June 2004. This was also noted by the PJC-ASIO, ‘Six Terrorist Organisations', above n 31, [3.49].

160 Emerton, ‘Submission No 23', above n 40, 4–5.

161 Ibid. Tanzim Qa'idat al-Jihad fi Bilad al-Rafidayn and Ansar al-Islam.

162 Ibid. Al-Qa'ida, Jemaah Islamiyah, Egyptian Islamic Jihad and Lashkar-e-Tayyiba.

163 Attorney-General's Department et al, above n 9, 6.

164 See Sean Investments v McKellar (1981) 38 ALR 363, 375 (Deane J); and Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 40–1 (Mason J).

165 PJC-ASIO, ‘Six Terrorist Organisations', above n 31, [2.26].

166 Patrick Emerton, Submission 18 to PJCIS, Parliament of Australia, Review of the Listing of the Kurdistan Workers’ Party (PKK), 2006, 6–7.

167 Ibid 7.

168 Ibid 7–8.

169 PJCIS, ‘Review of the Listing of the Kurdistan Workers’ Party', above n 66, [2.8].

170 Attorney-General's Department et al, above n 9, 13.

171 SLRC, above n 37, 81–4.

172 For a comprehensive discussion of whether the right to procedural fairness applies to proscription decisions, see Nicola, McGarrity, ‘Review of the Proscription of Terrorist Organisations: What Role for Procedural Fairness?’ (2008) 16 Australian Journal of Administrative Law 45Google Scholar.

173 Commonwealth, Parliamentary Debates, House of Representatives, 23 October 2002, 8452 (Simon Crean, Leader of the Opposition).

174 Attorney-General's Department et al, above n 9, 5. See also PJCIS, ‘Inquiry into the Terrorist Organisation Listing Provisions', above n 35, [2.40].

175 Terrorism Act 2000 (UK) c 11, s 123(4). An exception operates in urgent cases, as defined by the Secretary of State. In these cases, an order containing a declaration of the Home Secretary's opinion bypasses parliamentary scrutiny and is valid for 40 days (s 123(5)).

176 See the comments of Madgwick J in Leghaei v Director-General of Security [2005] FCA 1576, [81]. Additionally, see Johnstone's rejection of procedural fairness as a ‘zero-sum’ trade-off with security under the UN's Resolution 1267 proscription regime: Johnstone, above n 142, 348–9.

177 PJC-ASIO, above n 31, ‘Six Terrorist Organisations', [2.2]–[2.3].

178 PJC-ASIO, above n 35, ‘Four Terrorist Organisations', [3.13], [3.39]–[3.40].

179 See, eg, PJCIS, ‘Review of the Re-Listing of Ansar al-Sunna', above n 152, [1.15].

180 PJC-ASIO, above n 31, ‘Six Terrorist Organisations', [3.48].

181 PJCIS, Parliament of Australia, Review of the Re-Listing of Tanzim Qa'idat al-Jihad fi Bilad al-Rafidayn (the al-Zarqawi Network) as a Terrorist Organisation (2007) [1.11]–[1.12]; PJCIS, ‘Review of the Re-Listing of Abu Sayyaf Group', above n 44, [2.6]–[2.7].

182 PJCIS, ‘Review of the Re-Listing of Abu Sayyaf Group', above n 44, [2.8]–[2.13].

183 Ibid [2.12].

184 PJCIS, ‘Inquiry into the Terrorist Organisation Listing Provisions', above n 35, [2.37].

185 PJC-ASIO, Parliament of Australia, Review of the Listing of the Palestinian Islamic Jihad (2004) [2.8].

186 PJCIS, ‘Review of the Listing of the Kurdistan Workers’ Party', above n 66, 35–41.

187 PJCIS, Parliament of Australia, Review of the Relisting of Hizballah's External Security Organisation (ESO) (2007) [2.32]; PJCIS, ‘Review of the Re-Listing of Abu Sayyaf Group', above n 44, [2.49]; PJC-ASIO, ‘Six Terrorist Organisations', above n 31, [3.47].

188 An organisation is ‘concerned with terrorism’ if it commits or participates in acts of terrorism, prepares for terrorism, promotes or encourages terrorism or is otherwise concerned in terrorism (Terrorism Act 2000 (UK) c 11, s 3(5)).

189 Lord Carlile of Berriew QC, Report on the Operation in 2005 of the Terrorism Act 2000 (2006) 11.

190 Terrorism Act 2000 (UK) c 11, s 4(1), (2).

191 The Proscribed Organisations (Applications for Deproscription etc) Regulations 2006 (UK) cl 7.

192 Terrorism Act 2000 (UK) c 11, s 4(4).

193 Lord Alton v Secretary of State for the Home Department (Unreported, Proscribed Organisations Appeal Commission, 30 November 2007) [67]–[68].

194 Terrorism Act 2000 (UK) c 11, s 5(2).

195 Terrorism Act 2000 (UK) c 11, s 5(3).

196 It should be noted that this includes application of the guarantees of the European Charter of Human Rights since POAC is a ‘public authority’ under the Human Rights Act 1998 (UK) c 42, s 6: Helen, Fenwick, Civil Liberties and Human Rights (4th ed, 2007) 1397–8Google Scholar.

197 Lord Alton v Secretary of State for the Home Department (Unreported, Proscribed Organisations Appeal Commission, 30 November 2007) [119].

198 Ibid [109]–[112].

199 Ibid [114].

200 The doctrine of Wednesbury unreasonableness only requires the POAC to ask whether there was material on which the Secretary could conclude: first, that the organisation was ‘concerned in terrorism'; and, second, that the discretion to proscribe should be exercised.

201 Lord Alton v Secretary of State for the Home Department (Unreported, Proscribed Organisations Appeal Commission, 30 November 2007) [119].

202 Ibid [360].

203 Ibid [121]. At [360], the POAC noted that it would not have accepted the appellants’ arguments in relation to the second stage of the Secretary's determination.

204 R (on the Application of the Kurdistan Workers’ Party) v Secretary of State for the Home Department [2002] EWHC 644 (Admin).

205 Terrorism Act 2000 (UK) c11, s 6.

206 Walker, ‘Blackstone's Guide', above n 31, 55.

207 United Kingdom Parliament, Joint Committee on Human Rights, Tenth Report: Counter-Terrorism Policy and Human Rights (Ninth Report): Annual Renewal of Control Orders Legislation 2008 (2008) 4-5.

208 Regulation of Investigatory Powers Act 2000 (UK) c 23, s 18(1)(f).

209 Fenwick, above n 196, 1400–1; Walker, ‘Blackstone's Guide', above n 31, 52–3.

210 Lord Alton v Secretary of State for the Home Department (Unreported, Proscribed Organisations Appeal Commission, 30 November 2007) [354].

211 PJC-ASIO, ‘Six Terrorist Organisations', above n 31, [2.9]–[2.10]; PJC-ASIO, ‘Four Terrorist Organisations', above n 35, [2.1]–[2.6].

212 PJCIS, ‘Review of the Re-Listing of Al-Qa'ida', above n 138, [1.10].

213 PJCIS, ‘Review of the Listing of the Kurdistan Workers’ Party', above n 66, [1.10]–[1.11].

214 Ibid [1.12]–[1.13].

215 Attorney-General's Department, Australian Government Response to PJCIS Inquiry into the Proscription of Terrorist Organisations under the Australian Criminal Code — December 2008 (2008) <http://www.ag.gov.au/www/agd/agd.nsf/Page/Publications_AustralianGovernmentresponsetoPJCISInquiryintotheproscriptionofterroristorganisationsundertheAustralianCriminalCode-December2008> at 16 April 2009. The Government indicated that it would make a number of other changes to the terrorist organisation offences and the process for listing terrorist organisations. This includes requiring ASIO and the Attorney-General's Department to develop an unclassified protocol which outlines the key indicators which are taken into account when determining whether an organisation meets the statutory test for proscription. Without seeing the detail of the Australian Government's response (which has not yet been released to the public), it is difficult to comment on what the precise effect will be.

216 Jabbour v Thomas (2006) 165 A Crim R 32; Jabbour v Hicks (2007) 215 FLR 454; and Jabbour v Hicks [2008] FMCA 178 (Unreported, Donald FM, 19 February 2008).

217 See Ben, Golder and George, Williams, ‘Balancing National Security and Human Rights: Assessing the Legal Response of Common Law Nations to the Threat of Terrorism’ (2006) 8 Journal of Comparative Policy Analysis 43, 57Google Scholar; and Roach, ‘The World Wide Expansion of Anti-Terrorism Laws', above n 15.

218 Anthony, Reilly, ‘The Processes and Consequences of Counter-Terrorism Law Reform in Australia 2001–2005’ (2007) 10 Flinders Journal of Law Reform 81Google Scholar.

219 Kent, Roach, ‘Must We Trade Rights for Security? The Choice Between Smart, Harsh, or Proportionate Security Strategies in Canada and Britain’ (2006) 27 Cardozo Law Review 2151Google Scholar, 2172–87.

220 Philip, B Heymann, Terrorism, Freedom and Security: Winning without War (2003) 88–9Google Scholar.

221 Hogg, ‘Executive Proscription of Terrorist Organisations in Australia', above n 12, 304.

222 Goldsmith, above n 15, 70–1.

223 Stephen, Sloan, ‘Foreword: Responding to the Threat’ in Robert, J Bunker (ed), Networks, Terrorism and Global Insurgency (2005) xx, xxiv–vGoogle Scholar.

224 Hogg, ‘Executive Proscription of Terrorist Organisations in Australia', above n 12, 297.

225 Fernando, Reinares, ‘Nationalist Separatism and Terrorism in Comparative Perspective’ in Tore, Bjørgo (ed), Root Causes of Terrorism — Myths, Reality and Ways Forward (2005) 119, 129Google Scholar.