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 Protocol for listing terrorist organisations under the Criminal Code

This Protocol provides guidance on the listing of terrorist organisations under Division 102 of the Commonwealth Criminal Code Act 1995 (the Criminal Code).

A ‘terrorist organisation’ is defined under section 102.1 of the Criminal Code as an organisation that:

  • is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act, or
  • has been ‘listed’ in regulations as a terrorist organisation. 

A court may find an organisation to be a terrorist organisation during a prosecution for a terrorist organisation offence. However, it is not the role of the courts to consider whether an organisation is a terrorist organisation as a stand-alone matter.

This Protocol is focused on the process of ‘listing’ terrorist organisations in regulations. The listing process enables terrorist organisations to be identified outside of judicial proceedings.

Purpose of listing

The listing process provides a mechanism for the Australian Government to identify terrorist organisations and put the organisation and members of the public on notice that the organisation is a terrorist organisation under Australian law.

The listing of an organisation as a terrorist organisation serves a number of purposes.

A listing can provide the basis for establishing the fact that an organisation is a terrorist organisation in a criminal proceeding.

Listing an organisation has the potential to disrupt terrorism-related activities and serve as a deterrent, allowing the Australian Government to put an organisation and members of the public on notice that the organisation is a terrorist organisation under Australian law, and that certain dealings with the organisation – such as membership, funding or providing resources – are criminal offences.

The listing of an organisation also has symbolic value: it sends a clear public message that the

Australian Government does not condone the actions of groups that use terrorism to achieve their political, religious or ideological objectives.

Considerations for listing a terrorist organisation

In considering an organisation for listing, the AFP Minister (in practice the Minister for Home Affairs) considers advice in the form of an unclassified Statement of Reasons which addresses both legislative and non-legislative criteria.

The Statement of Reasons is made available to the public, and provides transparency regarding the Minister for Home Affairs’ satisfaction that the organisation meets the legislative threshold for listing.

The Statement of Reasons is prepared based on unclassified, open-source information about an organisation, and is intended to corroborate classified intelligence assessments from relevant agencies.

If there is insufficient unclassified information about an organisation, a classified briefing may be provided by relevant agencies to the Minister for Home Affairs.

Legislative criteria

Before an organisation is listed as a terrorist organisation, the Minister for Home Affairs must be 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.

While these legislative criteria are mandatory requirements for listing an organisation as a terrorist organisation, Australian Government policy is that non-legislative factors should also be taken into account where possible in determining whether an organisation should be listed.

Non-legislative factors

To guide and prioritise the selection of organisations for consideration, agencies may also give regard to a range of other factors, often referred to as the non-legislative factors. The key non-legislative factors include:

  • the organisation’s engagement in terrorism;
  • the organisation’s ideology;
  • links to other terrorist groups;
  • links to Australia;
  • threats to Australian interests;
  • listing by the United Nations or like-minded countries; and
  • engagement in peace or mediation processes.

Depending on available information, some factors may carry more weight than others in selecting organisations for consideration. For example, information indicating links to Australia or threats to Australian interests may tend to prioritise consideration of listing a particular group as a terrorist organisation. A lack of information with respect to one or more factors will not preclude an organisation from being considered for listing.

Duration of listing

A regulation listing a terrorist organisation ceases to have effect three years after it commences. However, this does not prevent the revocation of the declaration or the making of a new declaration the same in substance as the previous declaration. This ensures that there is regular review and re-evaluation as to whether the organisation continues to meet the legislative criteria for listing.

Role of Commonwealth agencies

The Department of Home Affairs (the Department) has the lead role in providing support to the Minister for Home Affairs as the Minister with policy responsibility under the Criminal Code. The Department provides the advice to the Minister for Home Affairs on whether an organisation should be listed. It prepares the Statement of Reasons in a manner which reflects a whole-of-government position on the proposed listing, re‑listing or de-listing of an organisation.

The Department is responsible for advising the Parliamentary Joint Committee on Intelligence and Security (PJCIS) when it reviews a listing, re‑listing or de‑listing of an organisation. The Department may also give evidence to the PJCIS alongside relevant operational agencies. In addition, the Department is responsible for ensuring the requirements to brief the Leader of the Opposition and consult with State and Territory counterparts are met.

Other Australian Government agencies are also consulted about listing decisions at appropriate times in accordance with their portfolio responsibilities. Agencies that are consulted by the Department may include:

  • the Attorney-General’s Department
  • the Australian Border Force
  • the Australian Criminal Intelligence Commission
  • the Australian Federal Police
  • the Australian Geospatial-Intelligence Organisation
  • the Australian Secret Intelligence Service
  • the Australian Security Intelligence Organisation
  • the Australian Signals Directorate
  • the Australian Transaction Reports and Analysis Centre
  • the Department of Defence
  • the Department of Foreign Affairs and Trade
  • the Department of Prime Minister and Cabinet, and
  • the Office of National Intelligence.

Relevant Australian Government agencies, including intelligence and law enforcement agencies, monitor international and domestic developments impacting on the appropriateness of terrorist organisation listings, and may nominate organisations for consideration for listing. In considering the possible listing, re‑listing or de-listing of an organisation, regard is given to the legislative criteria and non-legislative factors outlined above.

The Australian Government Solicitor is responsible for assessing the unclassified Statement of Reasons from a legal perspective.

Listing/re-listing/de-listing process

Where the Minister for Home Affairs is satisfied that an organisation meets the legislative threshold for listing, and has arranged for the Leader of the Opposition to be briefed on the matter, the Governor-General may make regulations to list the organisation. The Department assists in preparing the formal documentation required for the listing.

Should the Minister for Home Affairs be satisfied that the organisation meets the legislative threshold, the Minister will write separately to:

  • The Prime Minister, to advise of the recommendation to list/re-list an organisation as a terrorist organisation, and advise of the correspondence to State/Territory First Ministers and the Leader of the Opposition;
  • The Leader of the Opposition, to advise of the recommendation to list/re-list an organisation as a terrorist organisation, and offering a briefing; and
  • State/Territory First Ministers, seeking their agreement to list/re-list an organisation as a terrorist organisation.

A regulation listing/re-listing an organisation as a terrorist organisation is tabled in both Houses of Parliament, and can be disallowed by the Parliament.

Adding or removing the name of an alias to a listed terrorist organisation

Where the Minister for Home Affairs receives advice from agencies that a listed terrorist organisation is referred to by another name (an alias), or no longer uses a name listed as an alias in the regulation, the Minister for Home Affairs may add the alias to, or remove the former name from, the regulation.

Re-listing terrorist organisations

Before a listing expires, the Department will, in consultation with relevant agencies, evaluate the organisation against the legislative and non-legislative requirements and prepare the Statement of Reasons for the Minister for Home Affairs.

The Statement of Reasons for an organisation being considered for re-listing will provide information, as far as possible, indicating the organisation’s involvement in the doing, preparing, planning, assisting, fostering or advocating of terrorism since the time it was last listed. This will enable the Minister for Home Affairs to assess whether the organisation continues to meet the legislative criteria for listing.

De-listing applications

If the Minister for Home Affairs ceases to be satisfied that a listed organisation meets the legislative criteria, the Minister for Home Affairs must make a written declaration to this effect. The regulation listing that organisation will cease to have effect when that declaration is made.

Any person or organisation is entitled to make a de-listing application to the Minister for Home Affairs. If a de-listing application is made on the grounds that there is no basis for the Minister for Home Affairs to be satisfied that the organisation satisfies the legislative criteria, the Minister for Home Affairs is required to consider the de-listing application.

If the Minister for Home Affairs receives a de-listing application, the Minister may request advice from key agencies. The advice provided in relation to a de-listing application may take any form and is not required to be in the form of a Statement of Reasons.

An organisation being either de-listed or not re-listed will not prevent the organisation from being listed in the future, should circumstances change and the Minister for Home Affairs be satisfied that the organisation meets the legislative threshold.

Review and oversight

Reviews by the Parliamentary Joint Committee on Intelligence and Security (PJCIS)

By convention, the Minister for Home Affairs writes to the Chair of the PJCIS to advise of the recommendation to list/re-list an organisation. The PJCIS may review the listing, and report their comments and recommendations to the Parliament before the end of the Parliamentary disallowance period. Should the PJCIS consider that there are insufficient grounds for an organisation to be listed or have other concerns with the listing, the PJCIS may recommend that the Parliament disallow a listing regulation so that it ceases to have effect. The PJCIS may also review the addition of an alias or the removal of a former name.

Review by the PJCIS provides openness, transparency and accountability in the listing process. The PJCIS has expertise in reviewing security and intelligence matters and is well‑placed to consider listings, including where classified information may need to be examined.

Review by the PJCIS also provides an avenue for members of the public to raise any concerns and provide information to the PJCIS with respect to the listing of particular terrorist organisations. The manner in which inquiries are undertaken and advertised is a matter for the PJCIS.

Further information about the PJCIS is available on the Parliament of Australia website.

Judicial review by the courts

Judicial review of the legality of a listing is available in the courts under section 75(v) of the Constitution and section 39B of the Judiciary Act 1903.

Oversight by the Inspector-General of Intelligence and Security (IGIS)

The IGIS is an independent statutory office holder who monitors and reviews the legality and propriety of the activities of Australia’s intelligence and security agencies.

The IGIS has ‘own motion’ inquiry powers and can also conduct inquiries in response to complaints from any person or requests from ministers. Should the IGIS decide to conduct an inquiry into the role of Australia’s intelligence and security agencies in the terrorist listing of any particular organisation, the IGIS would consider whether appropriate processes had been followed when considering the organisation for listing and when providing advice to the Minister for Home Affairs.  

More information about the IGIS is available at: http://www.igis.gov.au/

Where to find the list of terrorist organisations and further information

The list of terrorist organisations and the current Statements of Reasons for each organisation are available on the Australian Government National Security website. The National Security website provides an up-to-date list of the relevant names and aliases of a listed terrorist organisation. Listed terrorist organisations are also set out in individual regulations relevant to that organisation, available on the Federal Register of Legislation website.

List of terrorist entities for counter-terrorism financing purposes

Separate to listings under the Criminal Code, the Minister for Foreign Affairs is responsible for listing individuals and entities under the Charter of the United Nations Act 1945 for targeted financial sanctions. This is a different process to the Criminal Code listing process, and implements Australia’s counter-terrorism financing obligations under United Nations Security Council Resolution (UNSCR) 1373 (2001). Further information on Australia’s implementation of UNSCR 1373 can be found on the Department of Foreign Affairs and Trade website. A consolidated list of all individuals and entities subject to sanctions, including those listed by the Minister for Foreign Affairs under Part 4 of the Charter of the United Nations Act 1945, can be found here.​​