The meaning of :”organisation” was considered by the Court of Appeal in Abdul Nacer Bendrika (2010) VSCA 281. In that case the Court of Appeal looked at what is meant by an organisation for the purpose of the Criminal Code Act 1995 (Cth) and in particular the definition of organisation in s.100.1 of that Code. That section in general terms provides that an organisation can mean a body corporate or an unincorporated body whether or not the body is based outside Australia, consists of persons who are not Australian citizens or is part of a large organisation.
A terrorist organisation is defined by s.102.1 of the Code to mean an organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not a terrorist act occurs) or an organisation that is specified by the regulations for the purpose of the paragraph. A terrorist act is also defined in s.100.1(1) and it is useful to set out an extract from the Court of Appeal decision in the Bendrika case as follows:-
35. The definitions of ‘organisation’ in s 100.1, and ‘terrorist organisation’ in s 102.1, necessitate reference to the definition of ‘terrorist act’ in s 100.1(1). That definition is as follows:
terrorist act means an action or threat of action where:
(a) the action falls within subsection (2) and does not fall within subsection (3); and
(b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and
(c) the action is done or the threat is made with the intention of:
(i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or
(ii) intimidating the public or a section of the public.
36. Under s 100.1(2) an action can constitute a ‘terrorist act’ if it:
(a) causes serious harm that is physical harm to a person; or
(b) causes serious damage to property; or
(c) causes a person’s death; or
(d) endangers a person’s life, other than the life of the person taking the action; or
(e) creates a serious risk to the health or safety of the public or a section of the public; or
(f) seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to:
(i) an information system; or
(ii) a telecommunications system; or
(iii) a financial system; or
(iv) a system used for the delivery of essential government services; or
(v) a system used for, or by, an essential public utility; or
(vi) a system used for, or by, a transport system.
37. Under s 100.1(3), however, an action will not constitute a ‘terrorist act’ if it:
(a) is advocacy, protest, dissent or industrial action; and
(b) is not intended:
(i) to cause serious harm that is physical harm to a person; or
(ii) to cause a person’s death; or
(iii) to endanger the life of a person, other than the person taking the action; or
(iv) to create a serious risk to the health or safety of the public or a section of the public.
The Australian Government has adopted two processes for the listing of terrorist organisations. The first is under the Criminal Code Act 1995 and the second under the Charter of the United Nations (Terrorism Dealing with Assets) Regulations 2002 (UN Charter Regulations).
Seventeen organisations were officially listed as at 9 March 2012. They are as follows:
- Abu Sayyaf Group - Listed 14 November 2002, re-listed 5 November 2004, 3 November 2006, 1 November 2008 and 29 October 2010
- Al-Qa'ida (AQ) - Listed 21 October 2002, re-listed 1 September 2004, 26 August 2006, 8 August 2008 and 22 July 2010
- Al-Qa'ida in the Arabian Peninsula (AQAP) - Listed 26 November 2010
- Al-Qa’ida in Iraq (AQI) (formerly listed as Al-Zarqawi and TQJBR) - Listed 2 March 2005, re-listed 17 February 2007, 1 November 2008 and 29 October 2010
- Al-Qa’ida in the Islamic Maghreb (AQIM) - Listed 14 November 2002, re-listed 5 November 2004, 3 November 2006, 9 August 2008 and 22 July 2010
- Al-Shabaab - Listed 22 August 2009
- Ansar al-Islam (formerly known as Ansar al-Sunna) – Listed 27 March 2003, re-listed 27 March 2005, 24 March 2007, 14 March 2009 and 9 March 2012
- Hamas’s Izz al-Din al-Qassam Brigades - Listed in Australia 9 November 2003, re-listed 5 June 2005, 7 October 2005, 10 September 2007 and 8 September 2009
- Hizballah External Security Organisation - Listed 5 June 2003 and re-listed 5 June 2005, 25 May 2007 and 16 May 2009
- Islamic Movement of Uzbekistan - Listed 11 April 2003, re-listed 11 April 2005, re-listed 31 March 2007, 14 March 2009 and 9 March 2012
- Jaish-e-Mohammed (JeM) - Listed 11 April 2003, re-listed 11 April 2005, 31 March 2007, 14 March 2009 and 9 March 2012
- Jamiat ul-Ansar (formerly known as Harakat Ul-Mujahideen) - Listed 14 November 2002, re-listed 5 November 2004, 3 November 2006, 1 November 2008 and 29 October 2010
- Jemaah Islamiyah (JI) - Listed 27 October 2002, re-listed 1 September 2004, 26 August 2006, 9 August 2008 and 22 July 2010
- Kurdistan Workers Party (PKK) - Listed 17 December 2005, re-listed 28 September 2007 and 8 September 2009
- Lashkar-e Jhangvi (LeJ) - Listed 11 April 2003, re-listed 11 April 2005, 31 March 2007, 14 March 2009 and 9 March 2012
- Lashkar-e-Tayyiba - Listed 9 November 2003, re-listed 5 June 2005, 7 October 2005, 8 September 2007 and 8 September 2009
- Palestinian Islamic Jihad - Listed 3 May 2004, re-listed 5 June 2005, 7 October 2005, 8 September 2007 and 8 September 2009
Once an organisation is listed as a terrorist organisation then penalty provisions apply with imprisonment up to 25 years and the offences include directing activities, becoming a member, recruiting for, training and receiving training from, getting funds to, from or for and provide support to a listed terrorist organisation or associating with another person who is a member of or who promotes or directs the activities of a listed terrorist organisation. All these activities may be regarded as offences for which the severe penalty upon conviction for being charged. The listing of terrorist organisations is updated regularly and before joining or associating with any organisation it is advisable to check the list on the Australian National Security website.