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Print Chapter 2 (PDF 154KB) | < - Report Home < - Chapter 1 : Appendix A –> |
The criteria for listing an organisation
The listing of TQJBR
Conclusion
The criteria for listing an organisation |
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2.1 | To be specified as a terrorist organisation for the purposes of paragraph (b) of the definition of terrorist organisation in section 102.1 of the Criminal Code, the Minister:
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2.2 | In previous reports, the Committee has commented on the broadness of this definition.2 The definition does not explain why certain organisations who engage in, prepare, plan, assist in or foster the doing of a terrorist act have not been proscribed under the Criminal Code. |
2.3 | At the hearing on 1 February 2005 for the Review of the listing of six terrorist organisations, the Director-General of ASIO advised the Committee of ASIO’s evaluation process in selecting entities for proscription under the Criminal Code. Factors included:
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2.4 | The statement of reasons on TQJBR, provided by ASIO for the Attorney-General, is not structured to specifically address these factors. However, at the hearing ASIO shed some light on a point of uncertainty discussed in the last report regarding the way these criteria are used. ASIO informed the Committee that:
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2.5 | While the Committee continues to gain an understanding of the process of selecting groups for listing, it is not always clear why some terrorist organisations are chosen for listing ahead of others. |
2.6 | The submission from Mr Patrick Emerton also expressed concern about the lack of clear reasons for the listing of terrorist organisations under the Criminal Code:
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2.7 | Mr Emerton proposes that the Government should address the following set of criteria in deciding whether to list an organisation under section 102.1 of the Criminal Code:
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2.8 | The proscription of an organisation creates serious criminal offences. The Committee would like to stress the need for clear reasons explaining why it is necessary to proscribe an organisation under the Criminal Code. |
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The listing of TQJBR |
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2.9 | The Attorney-General informed the Committee of the proposed listing by letter dated 9 February 2005 with an attached statement of reasons. On 26 February 2005, the Attorney-General issued a media release announcing the decision to list TQJBR. The media release provided open source details on the organisation. |
2.10 | The Attorney-General’s statement of reasons is as follows:
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2.11 | On the basis of the statement of reasons, Jane’s Terrorism and Insurgency Centre database and evidence given at the hearing, TQJBR has been measured against ASIO’s stated evaluation process as follows: |
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Engagement in terrorism |
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2.12 | TQJBR has engaged in and continues to engage in terrorist acts. A number of TQJBR’s terrorist acts are listed in the statement of reasons, the most recent being a vehicle bombing in January of this year near the Australian Embassy in Baghdad. This attack killed two Iraqi nationals and injured several people. |
2.13 | The group has been held responsible for numerous other terrorist attacks in Iraq, including attacks against Multi-National Forces, members of the Interim Iraqi Government and the abduction and beheading execution of foreign civilians. |
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Ideology and links to other terrorist groups/networks |
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Ideology |
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2.14 | The statement of reasons reports that TQJBR is a Sunni Islamist extremist network which ‘supports and promotes the global jihadist movement, as espoused by al-Qa’ida’. The objectives of TQJBR within Iraq are reportedly to overthrow the Interim Iraqi Government, expel the Multi-National Forces from the country and establish an Islamic state under Sharia law. |
2.15 | The submission from Mr Emerton raises the following point on ideology:
Mr Emerton goes on to suggest that the relevant question to ask is whether there is a connection between ideology and violence.8 |
2.16 | In the case of TQJBR, there does appear to be a strong connection between the group’s ideology and violence. The group has been held responsible for numerous violent attacks, including the kidnapping and murder of foreign civilians, the bombing of the United Nations headquarters in Baghdad and attacks on Iraqi security forces. These violent attacks have been conducted in pursuit of the group’s objective to expel the Multi-National Forces and establish an Islamic state in Iraq. |
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Links to other terrorist groups |
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2.17 | The Attorney-General’s statement of reasons reports that TQJBR is linked to, and supports, al-Qa’ida. The nature of the relationship between TQJBR and al-Qa’ida is significant. Former US Secretary of
State, Colin Powell , in his February 2003 address to the United Nations Security Council, described Abu Mus’ab al-Zarqawi, the leader of TQJBR, as ‘an associate and collaborator of Bin Laden and his Al-Qaeda lieutenants.’ 9 The Attorney-General’s statement of reasons reports that the group:
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2.18 | Nevertheless, a Newsweek story which claimed to have seen secret transcripts of the interrogations of a Jordanian militant, suggested that TQJBR and al-Qa’ida interacted, but were ‘competing with each other for funds and recruits’.10 Jane’s notes that:
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2.19 | The question remains as to whether TQJBR and al-Qa’ida are partners, rivals or autonomous entities? At the hearing on 2 May 2005, ASIO implied to the Committee that they accepted that there was a link between the two organisations.12 The Committee also notes that TQJBR has been listed by the United Nations on the 1267 Committee List as a group that is associated with al-Qa’ida. |
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Links to Australia |
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2.20 | The Committee understands that a direct link to Australia is not legally necessary in order for an organisation to be listed under the Criminal Code. However, ASIO has advised the Committee that it is one of the factors that it considers in deciding whether to list an organisation. |
2.21 | The Committee also notes that, as outlined in its report, Review of the listing of the Palestinian Islamic Jihad (PIJ), the Attorney-General has indicated that links to Australia are a significant factor in deciding whether to list an organisation under the Criminal Code.13 In an interview on Lateline on 21 April 2004, the Minister was asked:
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2.22 | The submission from Mr Patrick Emerton emphasises this point and suggests that:
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2.23 | Although the Committee understands that direct links to Australia are not legally necessary in order for an organisation to be listed under the Criminal Code, it is the Committee’s view that it should be a primary consideration. The views of ASIO, the Attorney-General and Mr Emerton would appear to be consistent with the Committee’s opinion. |
2.24 | The Attorney-General’s statement of reasons does not address whether there are any current or past connections between TQJBR and Australia, either through membership, support, training or financial donations. |
2.25 | At the hearing, the Committee sought further information on whether there are any Australian links with TQJBR. ASIO provided the Committee with information as to the links to Australia.15 |
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Threat to Australian interests |
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2.26 | The Attorney-General’s statement of reasons is of the view that ‘ Australia is seen as a legitimate target by TQJBR.’ At the hearing, officers from DFAT advised the Committee that:
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2.27 | TQJBR has claimed responsibility for an attack on an Australian Defence Force convoy in Baghdad last year and a vehicle bombing near the Australian Embassy in Baghdad in January of this year. There is no suggestion that the proscription of this organisation will prevent such attacks in the future. Mr Emerton’s submission suggests that the domestic criminal law in Iraq already protects Australians in Iraq against attacks by TQJBR.17 This, of course, is subject to the physical capacity of the authorities in Iraq to enforce their laws. However, the capacity of Australia’s anti-terrorism laws in Iraq would be no greater. |
2.28 | At the hearing, officers from ASIO were asked to explain how a listing would assist in the protection of Australian assets or personnel overseas. There was no direct answer to this question other than to say that the legislation was there for a deterrent effect to inhibit Australians from cooperating with any listed entities.18 |
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Proscription by the UN or like-minded countries |
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2.29 | The group was included in the United Nations (UN) 1267 Committee List on 18 October 2004 by the name Jama’at al-Tawhid wa’al-Jihad under the category of groups associated with al-Qa’ida. The United States Government designated the group as a Foreign Terrorist Organisation (FTO) under the Immigration and Nationality Act on 15 October 2004. |
2.30 | It is not clear how this factor is being applied in deciding whether to list an organisation under the Criminal Code. |
2.31 | The listing of TQJBR by the UN already imposes obligations on Australia. The individuals and entities on the UN 1267 Committee List are automatically incorporated onto a Consolidated List maintained by DFAT under the Charter of the United Nations Act 1945 .19 It is a criminal offence to deal with the assets of, or make assets available to, individuals or entities on the Consolidated List. |
2.32 | Although the group has been designated as a FTO in the United States of America, TQJBR is not currently proscribed by the United Kingdom or Canada. |
2.33 | At the hearing, the Committee sought further guidance on this issue. ASIO did not know why the UK and Canada had not listed TQJBR. They took the question on notice; however, they suggested that the knowledge of the existence of a network under the name TQJBR supporting the individual, al-Zarqawi, was relatively recent.20 |
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Engagement in peace/mediation processes |
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2.34 | TQJBR is not involved in any peace processes. However, at the private Committee hearing on 1 February 2005 , the Director-General of Security elaborated on this factor to include the consideration of whether terrorist actions are confined ‘to targets within domestic or local struggles.’21 |
2.35 | The Attorney-General’s statement of reasons states that:
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2.36 | However, Jane’s notes the following on this issue:
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2.37 | The Committee remains unclear on the extent of TQJBR’s objectives and operations. |
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Conclusion |
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2.38 | It is evident from the Attorney-General’s statement of reasons that TQJBR has committed violent crimes in pursuit of their objectives. The group has kidnapped and murdered civilians and attacked Multi-National Forces and members of the Interim Iraqi Government. |
2.39 | The Committee strongly condemns the violent acts of TQJBR. The proscription of TQJBR in Australia is potentially useful insofar as it prevents Australians from assisting the organisation either financially or personally. |
Recommendation 1 The Committee does not recommend disallowance of the regulation. |
1 | Mr Nicholas Bogiatzis , Transcript of Evidence, 7 March 2005 , p. 2 . Back |
2 | See: Joint Parliamentary Committee on ASIO, ASIS and DSD, Review of the listing of the Palestinian Islamic Jihad, June 2004, p. 18 and Joint Parliamentary Committee on ASIO, ASIS and DSD, Review of the listing of six terrorist organisations, March 2005, Chapter 2. .Back |
3 | Confidential exhibit, ASIO, tabled 1 February 2005 . Back |
4 | Tran Classified transcript, Private hearing 2 May 2005 , p. 1. script of Evidence, 7 March 2005 , p. 4. Back |
5 | Submission No. 3, Mr Patrick Emerton, p.8 . Back |
6 | Submission No. 3, Mr Patrick Emerton , pp. 8-9 . Back |
7 | Submission No 3, Mr Patrick Emerton , p. 10. . Back |
8 | Submission No 3, Mr Patrick Emerton , p. 10. . Back |
9 | Jane’s Terrorism and Insurgency Centre, Al-Tawhid, 21 September 2004 , http://jtic.janes.com, p. 6. . Back |
10 | Jane’s Terrorism and Insurgency Centre, Al-Tawhid, 21 September 2004 , http://jtic.janes.com, p. 4. Back |
11 | Jane’s Terrorism and Insurgency Centre, Al-Tawhid, 21 September 2004 , http://jtic.janes.com, p. 6. Back |
12 | Classified transcript, Private hearing 2 May 2005 , pp. 3-4.Back |
13 | Joint Parliamentary Committee on ASIO, ASIS and DSD, Review of the listing of the Palestinian Islamic Jihad, June 2004, p. 19 Back |
Submission No 3, Mr Patrick Emerton , p. 4 Back | |
15 | Classified transcript, Private hearing 2 May 2005 , p. 4 and p.9. Back |
16 | Transcript, Private hearing 2 May 2005 , p. 14. Back |
17 | Submission No 3, Mr Patrick Emerton , p. 10. Back |
18 | Classified transcript, Private hearing 2 May 2005 , p. 6. Back |
19 | See: http://www.dfat.gov.au/icat/freezing_terrorist_assets.html Back |
20 | Classified transcript, Private hearing 2 May 2005 , p. 3. Back |
21 | Joint Parliamentary Committee on ASIO, ASIS and DSD, Review of the listing of six terrorist organisations, March 2005, p. 17. Back |
22 | Jane’s Terrorism and Insurgency Centre, Al-Tawhid, 21 September 2004 , http://jtic.janes.com, pp. 8 -9. Back |
Print Chapter 2 (PDF 154KB) | < - Report Home < - Chapter 1 : Appendix A –> |