The Proscription of Terrorist Organisations in Australia
| Date | 01 March 2009 |
| Published date | 01 March 2009 |
| Author | George Williams,Nicola McGarrity,Andrew Lynch |
| DOI | 10.22145/flr.37.1.1 |
| Subject Matter | Article |
THE PROSCRIPTION OF TERRORIST ORGANISATIONS IN
AUSTRALIA
Andrew Lynch, Nicola McGarrity and George Williams*
I INTRODUCTION
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.1 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,2 United States3 and Canada 4) as well as at the
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* Associate Professor Andrew Lynch is Director, Gilbert + Tobin Centre of Public Law,
UNSW; Nicola McGarrity is Director, Terrorism and the Law Project, Gilbert + Tobin
Centre of Public Law, UNSW; George Williams is the Anthony Mason Professor and
Foundation Director, Gilbert + Tobin Centre of Public Law, UNSW. We thank Tessa
Meyrick for research assistance with this article and the two anonymous referees for their
comments.
1 See Unlawful Associations Act 1916 (Cth); Unlawful Associations Act 191 7 (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.
2 Federal Law Review Volume 37
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international level (for example, through the United Nations5 and the European
Union6).7
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;8 providing a basis for the criminalisation of
fundraising and other activities of terrorist groups;9 and as a clear symbol of 'public
revulsion and reassurance that severe measures [are] being taken'.10 The
Commonwealth Attorney-General's Department conceived this final rationale as
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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). 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, 29–30; 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.
2009 Proscription of Terrorist Organisations in Australia 3
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sending a general message to Australians 'that involvement with such organisations,
either in Australia or overseas, will not be permitted'.11
Despite the extent of experience in Australia and elsewhere, proscription remains
controversial because it raises fundamental questions about public law and the limits
of executive power, while also challenging the accepted boundaries of the criminal
justice system. Proscription regimes often devolve wide discretions to the government
of the day, with few effective checks and balances. Hence, much of the specific debate
about proscription necessarily focuses upon the model by which organisations are to
be banned and the scope for review of government decision making. This has been an
important and visible fault-line in the review of Australia's proscription scheme under
Division 102 of the Commonwealth Criminal Code Act 1995 (Cth) ('Criminal Code') and it
is these particular issues that this article explores.
In doing so, the authors do not deny the strength of the objections that have been
raised as to both the conceptual and practical aspects of the Australian proscription
regime.12 In part, these stem from misgivings over the attempt to define (and
criminalise) the concept of 'terrorism' itself. While understanding this unease, we do
not share it to the same extent,13 and in any case, it seems that particular horse has
bolted.14 Consequently, we accept that establishing mechanisms by which
organisations committed to political violence may be proscribed can be a justifiable
response to the threat they pose. Proscription is in step with the preventative purpose
that has been such a dominant characteristic of many anti-terrorism laws since
September 11 — both in Australia and overseas. While very legitimate concerns exist
as to the impact of this trend on traditional criminal justice and legal institutions,15
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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, 83; 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, 360; 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, 308. 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 270.
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)
376–8.
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, 59–73; Kent Roach, 'The World Wide
Expansion of Anti-Terrorism Laws after 11 September 2001' (2004) Studi Senesi 487; 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, 257–75.
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