Proscribed organisations

The two banning regimes

As of May 4 2004, 17 organisations have been banned, all of them linked Muslim organisations.

The other law is the Charter of the United Nations Act together with the Charter of the United Nations Regulations (the UN Charter law). Under this law, the Minister for Foreign Affairs has an obligation to ban any organisation which he believes to be a terrorist organisation covered by resolution 1373 of the United Nations Security Council. In addition, the law automatically bans, in Australia, the Taliban, Usama bin Laden, any member of the Al-Qaida organisation, and any person or organisation appearing on the list maintained by the Sanctions Committee of the United Nations Security Council established under resolution 1267.

Official information can be found on the website of the Department of Foreign Affairs, at http://www.dfat.gov.au/icat/freezing_terrorist_assets.html .

The list of individuals and organisations banned under this law can also be found on the Department of Foreign Affairs website, at http://www.dfat.gov.au/icat/regulation8_consolidated.xls .

The list maintained by the Sanctions Committee of the United Nations Security Council can be found on the United Nations website at http://www.un.org/Docs/sc/committees/1267/1267ListEng.htm .

As of May 4 2004, over 400 individuals and organisations have been banned under this law.

Banning under the Criminal Code

Grounds for banning

• engaged in a terrorist act;

• preparing to do a terrorist act;

• planning a terrorist act;

• assisting in a terrorist act; or

• fostering the doing of a terrorist act.
  

• all politically, religiously or ideologically motivated acts,
• which are intended to intimidate a government, or some or all of the public, and
• which:
  • cause serious harm or death, or
  • endanger life, or
  • create a serious risk to public health or safety, or
  • cause serious damage to property, or serious disruption to electronic systems, and are not acts of industrial action, protest, dissent or advocacy.

Thus the number of organisations which are liable to be banned is very great, and includes a wide range of activist and solidarity organisations.

If you believe that an organisation has been wrongfully banned, because there is no basis for the Attorney-General's finding that it is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act, then you may appeal to the Attorney-General to de-list the organisation.

You need not be a member of the banned organisation to do this.

Consequences of banning

• Intentionally directing the activities of the organisation;

• Intentionally recruiting another to join the organisation, or to participate in its activities;

• Intentionally providing training to the organisation, or receiving training from it;

• Intentionally receiving funds from, or making funds available, to the organisation, whether directly or indirectly;

• Intentionally providing support or resources to the organisation, if such support or resources would help the organisation directly or indirectly engage in, prepare, plan, assist in or foster the doing of a terrorist act .
  

In all these cases, to commit the offence, you must either know that the organisation is a terrorist organisation, or else be reckless as to whether or not it is a terrorist organisation.

According to the law, you know that an organisation is a terrorist organisation if:

• you are aware of the identity of the organisation, and that organisation has in fact been banned (whether or not you know that it has been banned), or
• you are aware that the organisation has been banned, or
• you are aware that the organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act.

According to the law, you are 'reckless' as to the possibility that an organisation is a terrorist organisation if:

• you are aware of a substantial risk that the identity of the organisation is X, and organisation X has in fact been banned (whether or not you know that it has been banned), or
• you are aware of a substantial risk that the organisation has been banned, or
• you are aware of a substantial risk that the organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act, and
• in the circumstances known to you, it was unjustifiable to take that risk.

Committing one of these offences is punishable by up to 25 years imprisonment if you know the organisation is a terrorist organisation, or by up to 15 years imprisonment if you are reckless as to whether or not the organisation is a terrorist organisation.

In addition, if an organisation is banned under the Criminal Code , it is an offence to be a member of that organisation, to be an informal member of that organisation, or to have taken steps to join that organisation. You do not commit this offence if you can show that you took all reasonable steps to leave the organisation, once you learned that it was a terrorist organisation.

To commit this offence, you must be aware either that the organisation has been banned, or that the organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act . Unlike the other offences mentioned above, you cannot commit this offence simply by being reckless as to the possibility that the organisation was a terrorist organisation. Committing the offence of membership of a terrorist organisation is punishable by up to 10 years imprisonment.

Some offences can be committed even if an organisation has not been banned

With one exception, you can also commit any of the offences mentioned in the previous section, even if the organisation with which you are involved has not been banned. However, in this case, if you are charged with the offence, the prosecution must prove beyond reasonable doubt that the organisation was one which was directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act.

The exception is the offence of being a member of a terrorist organisation. Unlike the other offences mentioned above, you cannot commit this offence unless the organisation to which you belong has been banned .

Implications of banning under the Criminal Code

As of May 4 2004, the Government has banned 17 organisations, all of them overseas-based Islamic organisations.

If you are involved with any such organisation, it would be wise to check the list of organisations on the Attorney-General's Department website. If the organisation with which you are involved has been listed, there is a good chance you are committing a very serious offence under these laws.

Note that you can commit offences under this law, and become liable to very serious punishment, whether or not you have ever been personally involved in terrorist activity. In particular, you should be aware of the following points:

• You commit the recruiting offence even if you are not recruiting terrorists;

• You commit the training offence even if you are not involved in terrorist training;

• You commit the funding offence whatever the purpose of the transaction;

• Given the very broad definition of terrorist act', it is very easy to commit the offence of providing support to an organisation.

Recruiting an accountant for a banned organisation, teaching first aid to the members of a banned organisation, lending someone money so that they can purchase a used vehicle from a banned organisation, these are all offences under these laws.

Banning under the UN Charter law

Grounds for banning

'Freeze without delay funds and other financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts; of entities owned or controlled directly or indirectly by such persons; and of persons and entities acting on behalf of, or at the direction of such persons and entities, including funds derived or generated from property owned or controlled directly or indirectly by such persons and associated persons and entities'.

• the Taliban;

• Usama bin Laden;

• any member of the Al-Qaida organisation;

• any person or organisation appearing on the list maintained by the Sanctions Committee of the United Nations Security Council established under resolution 1267.

As of May 4 2004, over 500 individuals and organisations have been banned under the UN Charter law. More than 400 of these individuals and entities have been listed by the Sanctions Committee of the United Nations Security Council. The rest have been added by the decision of the Minister for Foreign Affairs. In practice, this decision is generally the result of advice from the government of the United States that an organisation is a terrorist organisation.

Under this law, the Minister for Foreign Affairs also has the power to freeze an asset directly, by placing it on the list. The Minister must be satisfied that the asset is one which is owned or controlled by an individual or an organisation involved in terrorist acts. As of May 4 2004, no assets have been listed under this law.

Unlike the Criminal Code , the UN Charter law does not define the meaning of terrorist act'. It is therefore very hard to predict in advance which organisations or individuals are liable to being banned under this law. An individual or an organisation which believes that they have been wrongly banned by the Minister for Foreign Affairs may apply, in writing, to have their name taken off the list of banned organisations.

However, an individual or organisation that is on the list as a result of the decision of the Sanctions Committee of the United Nations Security Council has no right of appeal.

Consequences of banning

• To intentionally use or deal with a frozen asset that you hold;

• To intentionally allow anyone else to use or deal with a frozen asset that you hold;

• To intentionally facilitate the use of or dealing with a frozen asset that you hold.

An asset becomes a frozen asset if it is owned or controlled by a banned person or organisation, or if it has itself been placed on the list by the Minister, or if it has been derived from such an asset. To commit the offence, you must either be aware that the asset is a frozen asset, or be aware of a substantial risk that the asset is a frozen asset, in circumstances which made it unjustifiable to take that risk.

Under this law, it is also an offence, unless you have the written permission of the Minister, to provide an asset either directly or indirectly to a banned person or organisation. To commit this offence, you must either be aware that they have been banned, or be aware of a substantial risk that they have been banned, in circumstances which made it unjustifiable to take that risk. 

Either of these offences is punishable by up to 5 years imprisonment.

Implications of banning under the UN Charter law

However, a number of other organisations have been banned, such as the Peruvian Shining Path, the Revolutionary Armed Forces of Colombia, and the New People's Army of the Philippines.

If you are holding the assets of an organisation that is politically opposed by the government of Australia, the United Kingdom or the United States, then it would be advisable to check the list on the Department of Foreign Affairs website in order to make sure that they are not frozen assets.

Likewise, if you are providing financial or material support to an individual or organisation, and you know that that person or organisation is politically opposed by the government of Australia, the United Kingdom or the United States, then it would be advisable to check the website in order to make sure that they have not been banned. It is possible that in holding those assets, or in providing that support, you are committing a serious criminal offence.

By Patrick Emerton. Monash University Law May 2004