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Intelligence and Security—Parliamentary Joint Committee—Review of the relisting of five organisations as terrorist organisations under the Criminal Code—Al-Shabaab, Lashkar-e-Tayyiba, Palestinian Islamic Jihad, Hamas' Izz al-Din al-Qassam Brigades and the Kurdistan Workers' Party (PKK)—Report, October 2021


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PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

Review of the relisting of five organisations as terrorist organisations under the Criminal Code

Al-Shabaab, Lashkar-e-Tayyiba, Palestinian Islamic Jihad, Hamas' Izz al-Din al-Qassam Brigades and the Kurdistan Workers' Party (PKK)

Parliamentary Joint Committee on Intelligence and Security

© Commonwealth of Australia

ISBN 978-1-76092-297-9 (Printed Version)

ISBN 978-1-76092-298-6 (HTML Version)

This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia License.

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ttp://creativecommons.org/licenses/by-nc-nd/3.0/au/.

iii

Contents

Members ........................................................................................................................................... vii

Abbreviations .................................................................................................................................... ix

Terms of Reference ........................................................................................................................... xi

Overall Conclusion ......................................................................................................................... xiii

List of Recommendations ............................................................................................................... xv

The Report

1 Introduction .............................................................................................................. 1

Re-listing of al-Shabaab, Lashkar-e-Tayyiba, Palestinian Islamic Jihad, Hamas’ Izz al-Din al-Qassam Brigades and the Kurdistan Workers’ Party .......................... 2

Protocol for listing terrorist organisations under the Criminal Code ........................... 3

Conduct of the review ......................................................................................................... 5

Report structure .................................................................................................................... 6

2 Al-Shabaab, Lashkar-e-Tayyiba and Palestinian Islamic Jihad ..................... 7

Overview ............................................................................................................................... 7

Al-Shabaab ............................................................................................................................. 8

Legislative criteria ..................................................................................................... 8

Non-legislative factors ............................................................................................ 9

Lashkar-e-Tayyiba .............................................................................................................. 10

Legislative criteria ................................................................................................... 11

Non-legislative factors .......................................................................................... 12

Palestinian Islamic Jihad .................................................................................................... 12

iv

Legislative criteria .................................................................................................. 13

Non-legislative factors ........................................................................................... 14

Comments from submitters .................................................................................. 15

Committee comment ......................................................................................................... 15

3 Hamas' Izz al-Din al-Qassam Brigades ............................................................ 17

Overview .............................................................................................................................. 17

Background ......................................................................................................................... 17

Legislative criteria for relisting ........................................................................................ 19

Non-legislative factors ....................................................................................................... 20

Previous reviews ................................................................................................................. 21

Expanding the listing ......................................................................................................... 21

Inconsistency in terrorist organisation listings ................................................... 22

Hamas as a unitary entity ..................................................................................... 23

Ideology and activities of Hamas ........................................................................ 27

Terrorism financing and Hamas .......................................................................... 30

Domestic considerations ........................................................................... 31

International and diplomatic considerations .......................................... 31

Listing status in other countries ............................................................................ 33

Process for relisting ............................................................................................................ 34

Committee Comment ........................................................................................................ 36

4 The Kurdistan Workers' Party ............................................................................ 39

Overview ............................................................................................................................. 39

Background .......................................................................................................................... 39

Legislative criteria for listing ............................................................................................. 40

Non-legislative factors ........................................................................................................ 41

Previous reviews ................................................................................................................ 42

Stakeholder concerns .......................................................................................................... 46

The PKK does not meet the legislative threshold for listing ............................ 47

v

Actions of the Turkish Government against the Kurdish minority and the PKK ............................................................................................................... 49

The PKK and peace and stability in the region .................................................. 50

Trauma and the Kurdish-Australian Diaspora .................................................. 51

Committee Comment ........................................................................................................ 52

Appendix A. List of Submissions .................................................................................. 55

Appendix B. Witnesses appearing at a public hearing ............................................. 57

Appendix C. Process for the 2021 relisting of five organisations under the Criminal Code ........................................................................................................ 59

List of Tables

Table 4.1 Department of Home Affairs consultation with Kurdish community organisations ............................................................................................... 44

vii

Members

Chair

Senator James Paterson

Deputy Chair

Hon Anthony Byrne MP

Members

Dr Anne Aly MP

Ms Celia Hammond MP

Hon Mark Dreyfus QC MP

Mr Julian Leeser MP

Mr Tim Wilson MP (to 8 October 2021)

Senator the Hon Eric Abetz

Senator Jenny McAllister

Senator the Hon David Fawcett

Senator the Hon Kristina Keneally

ix

Abbreviations

AFP Australian Federal Police

AIJAC Australia/Israel & Jewish Affairs Council

ASIO Australian Security Intelligence Organisation

ATAA Australian Turkish Advocacy Alliance

DFAT Department of Foreign Affairs and Trade

DHA Department of Home Affairs

ECAJ Executive Council of Australian Jewry

FDD Foundation for the Defense of Democracies

FDKSA Federation of Democratic Kurdish Society - Australia

Hamas Brigades Hamas’ Izz al-Din al-Qassam Brigades

Hizballah’s ESO Hizballah’s External Security Organisation

ISIL Islamic State of Iraq and the Levant

KLA Kurdish Lobby Australia

LeT Lashkar-e-Tayyiba

PIJ Palestinian Islamic Jihad

PKK Kurdistan Workers’ Party (Partîya Karkerên Kurdistanê)

PJCIS Parliamentary Joint Committee on Intelligence and Security

UK the United Kingdom

US the United States of America

ZFA Zionist Federation of Australia

xi

Terms of Reference

This inquiry and report are conducted under the following powers:

Criminal Code

Section 102.1A Reviews by Parliamentary Joint Committee on Intelligence and Security

Disallowable instruments

1 This section applies in relation to the following disallowable instruments:

a. A regulation that specifies an organisation for the purposes of paragraph (b) of the definition of terrorist organisation in section 102.1;

b. An instrument made under section 102.1AA.

Review of a disallowable instrument

2 The Parliamentary Joint Committee on Intelligence and Security may:

a. Review the disallowable instrument as soon as possible after the making of the instrument; and

b. Report the Committee’s comments and recommendations to each House of Parliament before the end of the applicable disallowance period for that House.

And

Criminal Code (Terrorist Organisation -Al-Shabaab) Regulations 2021

Criminal Code (Terrorist Organisation - Lashkar-e-Tayyiba) Regulations 2021

xii

Criminal Code (Terrorist Organisation - Palestinian Islamic Jihad) Regulations 2021

Criminal Code (Terrorist Organisation - Hamas’ Izz al-Din al-Qassam Brigades) Regulations 2021

Criminal Code (Terrorist Organisation -the Kurdistan Workers’ Party) Regulations 2021

xiii

Overall Conclusion

The Committee is satisfied that appropriate processes have been followed and concludes that Al-Shabaab, Hamas’ Izz al-Din al-Qassam Brigades, Lashkar-e-Tayyiba, Palestinian Islamic Jihad and the Kurdistan Workers’ Party meet the definition of terrorist organisations, namely that these organisations:

 Are directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act; or  Advocate the doing of a terrorist act.

The Committee therefore supports the re-listing of Al-Shabaab, Hamas’ Izz al-Din al-Qassam Brigades, Lashkar-e-Tayyiba, Palestinian Islamic Jihad and the Kurdistan Workers’ Party as terrorist organisations under the Criminal Code and finds no reason to disallow these legislative instruments.

The Committee has made recommendations regarding the expansion of the listing of Hamas’ Izz al-Din al-Qassam Brigades. The Committee has also made recommendations regarding the consultation processes in relation to the listing of the Kurdistan Workers’ Party.

xv

List of Recommendations

Recommendation 1

3.95 The Committee recommends that the Australian Government give consideration to extending the listing of Hamas’ Izz al-Din al-Qassam Brigades as a terrorist organisation to the entirety of Hamas.

Recommendation 2

4.59 The Committee recommends that Australian Government agencies continue to engage with the Kurdish community in relation to the listing of the Kurdistan Workers’ Party and provide advice on the conduct and communications which would fall under the ambit of criminal conduct of the Criminal Code.

Recommendation 3

4.61 The Committee recommends that, within 18 months of tabling this report, the Parliamentary Joint Committee on Intelligence and Security receive a briefing, either orally or in writing, from the Department of Home Affairs on its continuing engagement with the Kurdish Community on the listing of the Kurdistan Workers’ Party.

1

1. Introduction

1.1 This review is conducted under section 102.1A of the Criminal Code Act 1995 (Cth) (the Criminal Code).

1.2 Section 102.1A of the Criminal Code provides that the Parliamentary Joint Committee on Intelligence and Security (the Committee) may review a regulation specifying an organisation as a terrorist organisation and may report the Committee’s comments to each house of the Australian Parliament before the end of the applicable disallowance period.

1.3 The effect of such a regulation listing an organisation as a terrorist organisation confirms that the organisation in question is a terrorist organisation for the purposes of the offences in Division 102 of the Criminal Code. Division 102 sets out the following offences relating to terrorist organisations:

 Directing the activities of a terrorist organisation;  Being a member of a terrorist organisation;  Recruiting persons to a terrorist organisation;  Receiving training from, providing or participating in training with a

terrorist organisation;  Getting funds to, from or for a terrorist organisation;  Providing support to a terrorist organisation; and  Associating with a terrorist organisation.1

1.4 Further to this, the purpose of listing an organisation as a terrorist organisation can also potentially disrupt terrorist activities, act as a deterrent to people who may be tempted to join such an organisation, and also has the

1 Criminal Code Act 1995 (Cth), ss-102.2-102.8.

2

symbolic purpose that Australia does not accept the terrorist actions of a particular group.2

Re-listing of al-Shabaab, Lashkar-e-Tayyiba, Palestinian Islamic Jihad, Hamas’ Izz al-Din al-Qassam Brigades and the Kurdistan Workers’ Party

1.5 On 23 July 2021 the Governor-General made a regulation under the Criminal Code relisting al-Shabaab, Lashkar-e-Tayyiba (LeT), Palestinian Islamic Jihad (PIJ), Hamas’ Izz al-Din al-Qassam Brigades (the Hamas Brigades) and the Kurdistan Workers’ Party (the PKK) (the Five Organisations) as terrorist organisations.

1.6 On 26 July 2021 the regulations listing the Five Organisations as terrorist organisations under the Criminal Code were registered on the Federal Register of Legislation. The regulations came into effect on 4 August 2021. This was done to avoid any gap in the coverage of the offences in relation to the organisations being relisted.3

1.7 The regulations relisting the Five Organisations were presented to the House of Representatives and the Senate on 3 August 2021.

1.8 The Five Organisations have been listed and relisted as terrorist organisations under the Criminal Code as follows:

 Al-Shabaab was originally listed on 22 August 2009 and has been relisted in 2012, 2015, and most recently on 4 August 2018;  LeT was originally listed on 9 November 2003, has been relisted in June and October 2005, 2007, 2009, 2012, 2015 and most recently on 4 August

2018;

 PIJ was originally listed on 3 May 2004, has been relisted in June and October 2005, 2007, 2009, 2012, 2015 and most recently on 4 August 2018;  The Hamas Brigades were originally listed on 9 November 2003, has been relisted in June and October 2005, 2007, 2009, 2012, 2015 and most

recently on 4 August 2018; and

2 Australian Government, Australian National Security, ‘Protocol for listing terrorist organisations

under the Criminal Code, viewed 31 August 2021.

3 Department of Home Affairs (DHA), Submission 1, p. 2.

3

 The PKK was originally listed on 17 December 2005 and has been relisted in 2007, 2009, 2012, 2015 and most recently on 4 August 2018.4

1.9 As part of its review of the 2018 relisting of the Five Organisations, the Committee completed a report called Review of the re-listing of five organisations and the listing of two organisations as terrorist organisations under the Criminal Code.5 This report and its recommendations will be discussed further in Chapters three and four of this report.

1.10 The current regulations listing the Five Organisations will lapse on 4 August 2024.

Protocol for listing terrorist organisations under the Criminal Code

1.11 Section 102.1 of the Criminal Code establishes procedures which must be followed when listing or relisting an organisation as a terrorist organisation.

1.12 The Department of Home Affairs (the Department) provides guidance on these procedures on the National Security website, called the Protocol for listing terrorist organisations under the Criminal Code (the Protocol).6 The Protocol sets out the following:

1.13 For an organisation to be listed as a terrorist organisation under this section, the Minister for Home Affairs (the Minister) must be satisfied on reasonable grounds that the organisation in question meets the following mandatory legislative criteria:

1 It is directly, or indirectly engaged in, preparing, planning, assisting, in or fostering the doing of a terrorist act; or

2 It is advocating the doing of a terrorist act.7

4 Australian Government, Australian National Security, ‘Listed Terrorist Organisations’

viewed 31 August 2021.

5 Parliamentary Joint Committee on Intelligence and Security (PJCIS), Review of the re-listing of five

organisations and the listing of two organisations as terrorist organisations under the Criminal Code, September 2018.

6 Website available here:

viewed 31 August 2021.

7 Criminal Code Act 1995 (Cth), s. 102.1(2)(a) and (b).

4

1.14 The Minister may also have regard to a range of other non-legislative factors which may ‘guide and prioritise the selection of organisations for consideration’:

 The organisation’s ideology and engagement in terrorism;  The organisation’s links to other terrorist groups;  The organisation’s links to Australia and any threats to Australian interests;

 Listing by the United Nations (UN) or other likeminded counties of the organisation; and  Engagement in any peace or mediation processes.8

1.15 In making this determination, the Minister considers advice from the Department in the form of a Statement of Reasons which assesses the organisation against the above listed legislative requirements and non-legislative factors.

1.16 The Statement of Reasons is prepared using unclassified information about an organisation which is corroborated by classified information. This is done so the Statement of Reasons can be made public and provides transparency regarding the Minister’s satisfaction that the organisation meets the legislative threshold for listing.

1.17 The Department prepares the Statement of Reasons ‘in a manner which reflects a whole-of-government position on the proposed listing, relisting, or de-listing of an organisation.’9 Other Government agencies may be consulted about listing decisions as per their portfolio responsibilities and 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;

8 Australian Government, Australian National Security, ‘Protocol for listing terrorist organisations

under the Criminal Code, viewed 31 August 2021.

9 Australian Government, Australian National Security, ‘Protocol for listing terrorist organisations

under the Criminal Code, viewed 31 August 2021.

5

 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.10

1.18 The full process for the relisting of the Five Organisations provided by the Department (forming part of Submission 1 to the review) has been included as Appendix C to this report.

Conduct of the review

1.19 On 3 August 2021 the Committee received a letter from the Minister for Home Affairs, the Hon. Karen Andrews MP, advising the Committee of her decision to relist the Five Organisations as terrorist organisations under the Criminal Code.

1.20 The Committee commenced a review on 5 August 2021 and called for submissions on its website as well as by media release.

1.21 The Minister’s letter was accepted as Submission 1 to the review. This letter included the tabled regulations, Statement of Reasons and the process for listing followed by the Department for all five organisations.

1.22 The Committee received seven other submissions to the review from community organisations, not-for-profit groups, and Australian Government departments. A list of submissions to this review is included in Appendix A of this report.

1.23 The Committee also received a classified briefing for the Five Organisations on 25 August 2021 in Canberra. Further to this, it also held a public hearing on the relisting of Hamas’s Izz al-Din al-Qassam Brigades with ASIO, the Department of Home Affairs, the Department of Foreign Affairs and Trade, and other non-Government submitters to the inquiry on 1 October 2021.

10 Australian Government, Australian National Security, ‘Protocol for listing terrorist organisations

under the Criminal Code, viewed 31 August 2021.

6

Report structure

1.24 Chapter two of this review considers the merits of relisting al-Shabaab, Lashkar-e-Tayyiba and Palestinian Islamic Jihad.

1.25 Chapter three of this review considers the merits of relisting Hamas’ Izz al-Din al-Qassam Brigades.

1.26 Chapter four of this review considers the merits of relisting the Kurdistan Workers’ Party.

7

2. Al-Shabaab, Lashkar-e-Tayyiba and Palestinian Islamic Jihad

Overview

2.1 This chapter will review the merits of relisting the three above organisations as terrorist organisations under the Criminal Code.

2.2 As mentioned in chapter one, there are two factors that the Minister for Home Affairs may take into account when determining whether an organisation should be listed as a terrorist organisation under the Criminal Code. In brief they are:

1 Legislative criteria as per section 102.1(2) of the Criminal Code (that the organisation in question is directly or indirectly engaged in terrorist acts or advocates the doing of the same);1 and

2 A variety of non-legislative criteria.2

2.3 For all three listings, the Statement of Reasons prepared by the Minister for Home Affairs for each organisation addresses both the legislative criteria and non-legislative factors taken into account when making the decision to relist the organisations.3

1 Criminal Code Act 1995 (Cth), s. 102.1(2)(a) and (b).

2 See chapter 1 for a complete list. List also available at Australian Government, Australian

National Security, ‘Protocol for listing terrorist organisations under the Criminal Code, viewed 31 August 2021.

3 See DHA, Submission 1, p. 46 as an example.

8

2.4 The Committee has used the Minister’s explanatory statement and the Statement of Reasons for each organisation as well as other information in order to complete this review. As all of these organisations are relistings, the Committee has focused on their activities since the last relisting in 2018.

Al-Shabaab

2.5 A Somalia based religiously motivated extremist organisation and an officially recognised affiliate of al-Qa’ida, al-Shabaab currently controls territory in southern Somalia with an ultimate goal of establishing an Islamist State in the Horn of Africa based on Sharia law.4

2.6 Founded in 2006, al-Shabaab emerged as a prominent militia group within the Council of Islamic Courts, an organisation in Somalia set up as a rival government and eventual insurgency to the Somali Transitional Federal Government. Between 2009 and 2011, al-Shabaab controlled most of Somalia until it was ousted from Mogadishu by combined Ethiopian and Kenyan military forces in 2011.5

2.7 The current leader of al-Shabaab is Sheikh Ahmed Umar who took over the organisation in 2014 after the death of its long-time previous emir, Ahmad Abdi Aw Muhammad Godane. Its membership is estimated to be between 5,000 and 14,000 people who it recruits primarily within Somalia through its domestic radio operations. Internationally, it recruits largely from within the diaspora Somali population through increasingly sophisticated video propaganda.6

2.8 Al-Shabaab is currently financed through a combination of taxes levied on people living within its territory, demanding protection money from Somali business owners, private fundraising done overseas, and its own business operations.7

Legislative criteria

2.9 The Statement of Reasons states that al-Shabaab has been responsible for conducting 1,630 terrorist attacks within the last twelve months and for at least 3,630 attacks within the last three years. These attacks are primarily

4 DHA, Submission 1, p. 47.

5 DHA, Submission 1, p. 47.

6 DHA, Submission 1, pp. 47-48.

7 DHA, Submission 1, p. 48.

9

aimed at both Ethiopian, Kenyan and Somali interests as well as Western and Jewish interests.8

2.10 The Statement of Reasons provides a list of 17 significant attacks carried out by al-Shabaab since the last relisting of this organisation in 2018. The most deadly of these listed attacks occurred on 28 December 2019 when al-Shabaab attacked a Turkish vehicle convoy, killing 87 people. The most recent of these attacks occurred on 10 April 2021 when a suicide bomber killed three people outside a hotel in Baidoa, Somalia.9

2.11 Aside from actively performing terrorist attacks, al-Shabaab also advocates the doing of terrorist attacks against Western interests. The Statement of Reasons provides the following examples:

 In January 2020, al-Shabaab advocated attacks against US interests and tourists in Kenya, saying Kenya ‘should never be safe again;’  On 28 January 2020, it released a video celebrating the five year anniversary of a terrorist attack against a joint US-Kenya airbase and

reminded its members of their duty to attack US interests in Africa; and  On 30 March 2021, in a video released online, al-Shabaab’s leader called for attacks on US and French interests in Djibouti and reiterated the duty of al-Shabaab members to attack foreigners in Djibouti and Somalia.10

Non-legislative factors

2.12 As mentioned above, Al-Shabaab is an officially recognised affiliate of al-Qa’ida, another terrorist organisation listed under the Criminal Code. In 2012, an officially released video by the leader of al-Shabaab pledged the organisation’s allegiance to al-Qa’ida and its leader Ayman al-Zawahiri. This was reiterated in another official video released in 2014. Although the leadership of al-Shabaab is independent from al-Qa’ida, the senior leadership of al-Qa’ida has previously supported some of al-Shabaab’s activities.11

2.13 Although al-Shabaab has not made any specific threats against Australia or Australian interests, it has called for and performed attacks against Western

8 DHA, Submission 1, p. 48.

9 DHA, Submission 1, p. 48.

10 DHA, Submission 1, p. 49.

11 DHA, Submission 1, p. 48.

10

interests and targeted areas known to be frequented by Westerners overseas, such as cafes and shopping malls.12

2.14 The Statement of Reasons provides examples of al-Shabaab’s connections to Australia:

 An Australian-British duel national was killed in Nairobi, Kenya by an al-Shabaab attack on a shopping centre in 2013.  Some of those convicted of terrorist offenders in Australia have had connections to al-Shabaab, such as Yacqub Khayre who was responsible

for the murder and hostage situation that occurred on 5 June 2017 at the Buckingham International Serviced Apartments in Brighton, Victoria.  In late 2011, three Australian citizens with links to al-Shabaab were convicted of conspiring to do acts in preparation of a terrorist act in the

Victorian Supreme Court.13

2.15 Al-Shabaab is listed as a terrorist organisation by other Five Eyes nations, New Zealand, Canada, the UK and the US. It is also listed as a terrorist organisation by the UN.14 It is not known to have engaged in any peace or mediation processes despite appeals to do so from the Federal Government of Somalia.15

Lashkar-e-Tayyiba

2.16 Lashkar-e-Tayyiba (LeT) is a Sunni Islamist extremist organisation operating out of Pakistan with a stated goal of uniting Indian administered Kashmir with Pakistan under Islamic law. Its broader goals are the creation of an Islamic Caliphate across the whole Indian subcontinent.16

2.17 Listed by the Global Terrorism Index as one of the most active terrorist organisations in the Jammu and Kashmir regions, LeT is operational in Pakistan, Afghanistan, Jammu and Kashmir. Recent arrests of senior members of LeT and action by the Pakistani Government to combat financial

12 DHA, Submission 1, p. 49.

13 DHA, Submission 1, p. 50.

14 DHA, Submission 1, p. 50.

15 DHA, Submission 1, p. 50.

16 DHA, Submission 1, pp. 89-90.

11

assistance for terrorism have increased pressure on the organisation however.17

2.18 Originally founded in 1989 in order to wage violent jihad against the Soviet Union for its occupation of Afghanistan, LeT shifted its focus to Indian administered Kashmir in the 1990s after the Soviet withdrawal from the region. LeT also operates under the name Jamaat ud-Dawa, a charitable front organisation founded in 2002 by the leader of LeT immediately prior to the Pakistani Government banning LeT. 18

2.19 The founder and emir of LeT, Hafiz Muhammad Saeed was arrested in 2019 for terrorism financing charges and is currently serving a five and a half year sentence. Despite this, he continues to provide leadership to LeT.19

2.20 As of the time of writing, three other senior members of LeT are currently either sentenced for or awaiting trial on terrorism financing charges: Zaki ur Rehman Lakhvi (the LeT chief of operations who was arrested for his role in the 2008 Mumbai terrorist attacks), Yahya Mujahid, and Zafar Iqbal.20

2.21 The UN estimates that there are roughly 1,000 members of LeT active in Afghanistan, though an estimate of the total membership of LeT is difficult to ascertain. Media reports have claimed that LeT runs 16 training camps in Pakistan-claimed Kashmir as well as within Pakistan proper.21

2.22 Despite attempts by the Pakistani Government to halt financing for LeT, this organisation still receives funding through charitable donations from sympathisers in Saudi Arabia, Pakistan, South Asia, various Gulf States and from within Europe. LeT also runs numerous mosques, schools and colleges within Pakistan which not only provide income but also give them access to the Pakistani population for recruitment purposes.22

Legislative criteria

2.23 LeT has undertaken and planned for terrorist attacks against both Indian and Afghan security forces, Indian infrastructure and against civilians.23

17 DHA, Submission 1, p. 90.

18 DHA, Submission 1, p. 90.

19 DHA, Submission 1, p. 90.

20 DHA, Submission 1, p. 90.

21 DHA, Submission 1, p. 90.

22 DHA, Submission 1, pp. 90-91.

23 DHA, Submission 1, p. 91.

12

2.24 The Statement of Reasons prepared by the Department lists seven recent attacks which can be attributed to LeT. The most recent of these occurred on 14 May 2020 when LeT, in collaboration with another terrorist organisation, used a truck borne improvised explosive device to attack Gardez in Paktia Province, Afghanistan, killing five people and injuring 19.24

Non-legislative factors

2.25 LeT maintains connections with numerous other terrorist organisations and violent extremist groups. These include the Afghan Taliban, Harkat ul Jihad al Islami, al-Qa’ida and Jaish-e-Mohammad. It also maintains connections with domestic extremist groups within India and Kashmir and is known to have previously collaborated with the Haqqani Network. LeT members have also been known to have been involved in other conflicts involving Muslims around the world, such as those in Kosovo, Bosnia and Chechnya.25

2.26 Similarly to al-Shabaab, LeT has made no specific threats to Australia or Australian interests though Australians could be harmed by LeT attacks against targets such as tourist sites, hotels and transport infrastructure. Two Australians were killed in the 2008 Mumbai attacks committed by LeT. The LeT affiliated Australian Faheem Khalid Lodhi was convicted in 2006 for planning terrorist acts.26

2.27 LeT is proscribed as a terrorist organisation by the UK, the US and Canada and is listed by the UN’s Security Council on its consolidated list. It has not engaged in any peace or mediation processes with the Indian or Pakistani Governments.27

Palestinian Islamic Jihad

2.28 Palestinian Islamic Jihad (PIJ) was founded in Gaza in 1981 as an offshoot of the Muslim Brotherhood to be a radical militant alternative to this organisation with a focus on the liberation of Palestine.28 It is a religiously and ideologically motivated extremist organisation, blending radical Sunni Islamism and Palestinian nationalism with a goal of establishing an Islamic

24 DHA, Submission 1, p. 91.

25 DHA, Submission 1, p. 91.

26 DHA, Submission 1, pp. 91-92.

27 DHA, Submission 1, p. 92.

28 DHA, Submission 1, p. 103.

13

State within the historic borders of Palestine. It rejects the two state solution and advocates for the complete destruction of Israel.29

2.29 PIJ primarily operates in Gaza but has offices in other parts of the Middle East such as Syria and Lebanon. Its focus as an organisation is almost entirely on its militant activities and as such there is little distinction between PIJ as a whole and its military wing, the al-Quds Brigades.30

2.30 The founders of PIJ were Dr Fathi abd al-Aziz Shaqiqi and Shayk Abd al-Aziz Awda, both originally members of the Muslim Brotherhood. The current leader of PIJ is Ziyad al-Nakhaleh who took over after the previous leader was hospitalised in 2018.31

2.31 Due to PIJ’s secretive nature, estimates of its membership are difficult to ascertain and range from less than one thousand members to over 8,000. Its recruitment techniques are similarly opaque, though it is known to have used women as suicide bombers and targeted children in order to continue the Palestinian resistance into the next generation. Funding for the PIJ comes primarily from Iran, despite the PIJ being a Sunni organisation.32

Legislative criteria

2.32 PIJ has engaged in and continues to plan for terrorist attacks against Israel. The Statement of Reasons provided by the Department lists the following examples of attacks which can be reasonably assessed as being the work of PIJ:

 In the period of 3-5 May 2019 PIJ and Hamas’ Brigades fired over 700 rockets into Israel, killing four civilians and injuring many others in response to the deaths of several Palestinian protestors at the Israel-Gaza perimeter fence;33  In February 2020 after tensions escalated between Israel and PIJ over the

death of one of its members, PIJ fired 80 rockets into Israel;  On 24 August 2020 four members of PIJ were killed while working on a bomb intended to be fired into Israel;34

29 DHA, Submission 1, pp. 102-103.

30 DHA, Submission 1, p. 103.

31 DHA, Submission 1, p. 103.

32 DHA, Submission 1, p. 103.

33 DHA, Submission 1, p. 104.

34 DHA, Submission 1, p. 104.

14

 In March 2021 PIJ released a video showing its members preparing to fire a rocket which coincided with a rocket launch towards Be’er Sheva, Israel around the time the Israeli Prime Minister was due to visit this area;35  During the period of 10-21 Mary 2021, Palestinian militants including

members of PIJ launched over 4,000 rockets into Israel. PIJ has taken responsibility for the firing of rockets, mortar shells and rocket-propelled grenades at Israel during this period.36

2.33 As well as performing terrorist acts, PIJ also encourages the doing of terrorist acts against Israel through its Arabic language website which promotes anti-Israeli propaganda, memorialises martyrs and celebrates Jihadist attacks. The leaders of PIJ have also made direct calls for attacks against Israel.37

Non-legislative factors

2.34 PIJ maintains strong relationships with Hizballah.38 Hizaballah’s External Security Organisation (ESO) is listed as a terrorist organisation under the Criminal Code.39 PIJ has also engaged in operations with the Hamas Brigades (this organisation is discussed further in chapter three) including the shared use of tunnel networks.40

2.35 There are no known links between Australia and PIJ though like with the other organisations mentioned in this chapter, PIJ’s attacks could result in injury to Australians or Australian interests incidentally.41

2.36 PIJ is listed as a terrorist organisation by Australia’s Five Eyes partner nations: the US, the UK, Canada and New Zealand.42

35 DHA, Submission 1, p. 104.

36 DHA, Submission 1, pp. 103-104.

37 DHA, Submission 1, p. 104.

38 DHA, Submission 1, p. 103.

39 For an in depth discussion of Hizballah’s External Security Organisation see the following

report: PJCIS, Report on the review of the re-listing of Hizballah’s External Security Organisation as a terrorist organisation under the Criminal Code, June 2021.

40 DHA, Submission 1, p. 103.

41 DHA, Submission 1, p. 105.

42 DHA, Submission 1, p. 105.

15

2.37 PIJ is currently part of a ceasefire agreement brokered following the escalation of tensions between Israel and Palestine in May 2021. PIJ has also previously been part of ceasefire agreements in 2014, 2019 and 2020 though these have sometimes been breached by PIJ and other parties to the agreements.43

Comments from submitters

2.38 In its submission to this review, the Australia/Israel & Jewish Affairs Council (AIJAC) was supportive of the relisting of PIJ as a terrorist organisation.44

2.39 AIJAC reinforced several of the facts listed by the Statement of Reasons, including PIJ’s participation in the May 2021 conflict between Israel and Palestine and PIJ’s recruitment of children to its cause.45

2.40 The Executive Council of Australian Jewry (ECAJ) was also supportive of the relisting of PIJ in its submission to this review.46

Committee comment

2.41 The Committee finds that the three organisations discussed in this chapter, al-Shabaab, Lashkar-e-Tayyiba and Palestinian Islamic Jihad, meet the requirements for listing as terrorist organisations under the Criminal Code, namely that they:

 Are directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act; or  Advocate the doing of a terrorist act.

2.42 As such, the Committee supports the relisting of these organisations as terrorist organisations under the Criminal Code and finds no reason to disallow these instruments.

43 DHA, Submission 1, p. 105.

44 Australia/Israel & Jewish Affairs Council (AIJAC), Submission 3, p. 1.

45 AIJAC, Submission 3, pp. 10-14.

46 Executive Council of Australian Jewry (ECAJ), Submission 7, p. 10.

17

3. Hamas' Izz al-Din al-Qassam Brigades

Overview

3.1 This chapter examines the grounds for relisting Hamas’s Izz al-Din al-Qassam Brigades (the Hamas Brigades), both through the legislative criteria for relisting and non-legislative factors included in the Statement of Reasons prepared by the Department of Home Affairs.

3.2 As part of this review the Committee received several submissions from interested individuals and groups arguing that the listing of the Hamas Brigades as a terrorist organisation should be expanded to the whole organisation of Hamas. These submissions and their arguments for expanding the listing are also discussed in this chapter.

Background

3.3 Founded during the first intifada in 1987, Hamas was originally a branch of the Muslim Brotherhood1 . A religiously and ideologically motivated extremist organisation and political party that fuses Palestinian nationalism with Sunni Islamist objectives, Hamas has been the governing body in Gaza since elections in 2006. It is responsible for the provision of government services and administration within Gaza.2

3.4 More recently, Hamas has prioritised its nationalist objectives over its religious ones, probably due to political pragmatism. Its primary goal is the

1 DHA, Submission 1, p. 61.

2 DHA, Submission 1, p. 61.

18

establishment of an independent Islamic Palestinian state comprising of Gaza, the West Bank and the territory of Israel, destroying Israel as a political entity in the process.3

3.5 The Hamas Brigades were established in 1991 as the paramilitary wing of Hamas. As part of this work, they undertake military activity on behalf of Hamas and have adopted the tactics of terrorism in order to further this aim, such as suicide bombings, kidnappings of Israeli citizens and military personal and indiscriminate rocket attacks.4

3.6 Although falling underneath the political leadership of Hamas within its internal structure, the Hamas Brigades are thought to operate largely independently from the political structure of the organisation. According to the Statement of Reasons it is unlikely it would ask for permission to take operational actions from the political leadership.5

3.7 The Hamas Brigades had predominantly operated in Gaza with a limited presence in the West Bank. Its operations have been limited to the historical borders of Palestine and it has not demonstrated any intent to attack targets outside of Israel. Despite this, the leader of the Hamas Brigades has stated that the work of the Brigades is to ‘act against the Zionist enemy wherever it may be.’6

3.8 The leader of the Hamas Brigades since 2002, Mohammad Deif has been described as Israel’s most wanted man. His deputy, Marwan Issa, represents the Hamas Brigades within Hamas’ political bureau.7 Membership of the Hamas Brigades is difficult to ascertain but is estimated as being between several thousand and 30,000 people. The proportion of Brigade members who work in legitimate security and military duties and those who take part in terrorist activities is also unknown.8

3.9 Similarly, it is difficult to ascertain the amount of money Hamas allocates to the Hamas Brigades and the origins of those funds. The Statement of Reasons states that Iran is known to fund the Brigades. Hamas’ funding

3 DHA, Submission 1, p. 60.

4 DHA, Submission 1, pp. 60-61.

5 DHA, Submission 1, p. 61.

6 DHA, Submission 1, p. 61.

7 DHA, Submission 1, p. 61.

8 DHA, Submission 1, p. 61.

19

comes from a number of sources, both official and private, as well as from taxes collected within Gaza.9

3.10 The Hamas Brigades have been known to organise and collaborate with other terrorist organisations. One of these is PIJ (see chapter two for more discussion of this organisation). The Brigades also maintain their own website to promote their message, commemorate events and praise anti-Israel protests.10

Legislative criteria for relisting

3.11 The Statement of Reasons sets out that the Hamas Brigades have met the legislative criteria for relisting as a terrorist organisation through directly or indirectly engaging in terrorist acts.11

3.12 Since 2005, the Hamas Brigades terrorist activities have consisted mostly of rocket, mortar and small arms fire at Israel and at communities near Gaza resulting in injuries and death to civilians and military personnel as well as property damage.12

3.13 The Statement of Reasons provides a list of terrorist activities which can be attributed to the Hamas Brigades, reproduced below:

 From 10-21 May 2021, Palestinian militants, including from the Brigades, launched over 4,000 rockets into Israel from Gaza. The Brigades’ official spokesperson claimed its responsibility for multiple strikes against Israel during this period.

 On 29 December 2020, Palestinian militant groups, including the Brigades, launched rockets into the Mediterranean Sea off Gaza during joint military drills. According to an official Brigades statement, the exercises aimed to simulate expected threats posed by Israel and to develop the capability of Palestinian resistance fighters for conflict.

 Throughout August 2020, Palestinian militants in Gaza launched hundreds of incendiary and explosive balloons and at least 16 rockets into Israel before a ceasefire between Israel and Hamas was reached on 31 August. The Brigades probably supported some of these attacks.

9 DHA, Submission 1, p. 61.

10 DHA, Submission 1, p. 61.

11 DHA, Submission 1, p. 61-62.

12 DHA, Submission 1, p. 61.

20

 From 1-2 July 2020, the Brigades fired 24 rockets and 20 large-calibre mortars towards the sea from Gaza. An anonymous Hamas official told media that Hamas’ rocket tests aim to improve its military capabilities to counter any Israeli plan to attack the Palestinian people.

 On 6 May 2019, the Brigades spokesperson posted on social media that the Brigades had ‘succeeded in overcoming the so-called Iron Dome by adopting the tactic of firing dozens of missiles in one single burst’ which caused ‘great losses and destruction to the enemy’. The Israel Defense Forces (IDF) confirmed Hamas and PIJ had repeatedly fired at a specific location, although few rockets had penetrated the system. At least 690 projectiles were fired in total.

 On 30 May 2018, the Brigades and PIJ issued an official joint statement claiming their responsibility for ‘targeting occupation settlements and military sites near Gaza Strip with tens of projectiles and mortars’.13

3.14 The rockets fired into Israel during the escalation of tensions between Gaza and Israel during April 2021 can also be attributed to both the Hamas Brigades and PIJ.14

Non-legislative factors

3.15 The Hamas Brigades are known to have links to several other terrorist organisations including to PIJ, a listed terrorist organisations discussed in more detail in chapter two of this report.15

3.16 As with the listing for PIJ, the Statement of Reasons sets out that the Hamas Brigades have made no specific threats to Australia or Australian interests though Australians could be harmed incidentally from attacks from this organisation.16

3.17 Hamas and/or the Hamas Brigades are proscribed as terrorist organisations by several other nations. Both the UK and New Zealand proscribe the Hamas Brigades, whereas the US and Canada proscribe the whole organisation of Hamas, the Hamas Brigades falling within that listing. The European Union also lists Hamas as a terrorist organisation as part of its anti-terrorism financing measures.17

13 DHA, Submission 1, p. 62.

14 DHA, Submission 1, p. 62.

15 DHA, Submission 1, p. 61.

16 DHA, Submission 1, p. 62.

17 DHA, Submission 1, p. 62.

21

3.18 The Department of Foreign Affairs and Trade (DFAT) includes Hamas in its Consolidated List18 which implements Australia’s anti-terrorism financing obligations under the Charter of the United Nations Act 1945 (Cth).19

3.19 Mr Roger Noble AO DSC CSC, Ambassador for Counter-Terrorism at DFAT stated that the entirety of Hamas has been listed under this regime since 2001 and has been relisted in 2010, 2013, 2016 and 2019.20

3.20 The Hamas Brigades agreed to a ceasefire with Israel after the May 2021 escalation in violence between Israel and Palestine. In 2017, Hamas also engaged in reconciliation processes with the Palestinian Authority (led by its rival Fatah), however these processes did not address the future of the Hamas Brigades and as of writing they have not disarmed. There are also ongoing reconciliation processes between Hamas and Fatah.21

Previous reviews

3.21 As stated in chapter one, the Hamas Brigades were originally listed on 9 November 2003, and have been relisted in June and October 2005, 2007, 2009, 2012, 2015 and most recently on 4 August 2018.

3.22 In its August 2018 review of the listing of the Hamas Brigades, the Committee noted stakeholder support for the expansion of the listing to include the whole organisation of Hamas but made no recommendation in that regard.22

Expanding the listing

3.23 The Committee received several submissions from interested parties to the review on the relisting of the Hamas Brigades. These submissions to the review were supportive of the continued listing of the Hamas Brigades but wanted to see the listing expanded to include the whole organisation of

18 Full list and more information about this regime available at this link:

viewed 8 September 2021.

19 DHA, Submission 1, p. 62.

20 Mr Roger Noble AO DSC CSC, Ambassador for Counter Terrorism, Department of Foreign

Affairs and Trade (DFAT), Proof Committee Hansard, Canberra, 1 October 2021, p. 17.

21 DHA, Submission 1, pp. 62-63.

22 PJCIS, Review of the re-listing of five organisations and the listing of two organisations as terrorist

organisations under the Criminal Code, September 2018, pp. 13-14.

22

Hamas and advocated for the Committee to recommend this to the Australian Government.23

3.24 On 1 October 2021 the Committee held a public hearing discussing these issues with the submitters to the review on this relisting.

Inconsistency in terrorist organisation listings

3.25 The Zionist Federation of Australia (ZFA) noted what it viewed as inconsistencies in the Government’s decision to list only the Hamas Brigades as a terrorist organisation and the Minister’s Statement of Reasons.

3.26 The ZFA stated that the Statement of Reasons lists Hamas’ goal of the destruction of the State of Israel as well as its strategy of armed resistance and use of the Hamas Brigades to achieve these ends.24 It argued these factors mean that Hamas as a whole organisation meets the criteria of a terrorist organisation and should be listed as such.25

3.27 The ZFA drew a parallel between the listing of Islamic State and its militia and Hamas and the Hamas Brigades, noting that after the Islamic State in Iraq and the Levant (ISIL) took control of swathes of territory in Syria and Iraq in 2014, Australia did not recognise this organisation as a legitimate ruling body of the area and listed the whole organisation of Islamic State as a terrorist organisation in the same year.26 ZFA stated:

There are obvious parallels here to Hamas, which overran the rightful and recognised government in Gaza (i.e. the Palestinian Authority) in 2007, is not recognised by Australia as the legitimate ruler of Gaza, and operates both a government and a terrorist militia. (The recent overthrow of the Afghan government by the Taliban is another parallel situation.)27

3.28 The ZFA also noted that the whole organisation of Hamas is listed as a terrorist organisation under DFAT’s Consolidated List for terrorism financing purposes (see paragraph 3.18 above) but not as part of the Criminal Code’s regime.28

23 AIJAC, Submission 3, p. 1; Foundation for Defense of Democracies (FDD), Submission 4, p. 2;

Zionist Federation of Australia (ZFA), Submission 5, p. 2; ECAJ, Submission 7, p. 2.

24 ZFA, Submission 5, p. 2.

25 ZFA, Submission 5, p. 3.

26 ZFA, Submission 5, p. 4.

27 ZFA, Submission 5, p. 4.

28 ZFA, Submission 5, p. 3.

23

3.29 At the public hearing into this relisting, Mr Roger Noble of DFAT went into more detail about the process for DFAT’s anti-terrorism financing listing:

Essentially, the Minister must list an entity if satisfied on reasonable grounds that it is owned or controlled directly or indirectly by persons who commit terrorist acts or acts on behalf of or at the direction of such persons. For 20 years, starting in 2001, governments have decided that, under the financial sanctions code, that applied to Hamas in its entirety. Under the Criminal Code…the criteria for listing a terrorist organisation are that the organisation is directly or indirectly engaged in preparing, planning, assisting in or fostering the doing of a terrorist act. It's a much more prescriptive legal requirement…So they are different regimes with different purposes, and at their heart is a similar look at the organisation. 29

3.30 Mr Noble said further that DFAT and the Department of Home Affairs (DHA) brief each other on both regimes very regularly, saying ‘in a practical sense, we do that every two weeks.’ DFAT and DHA also have a forum where both agencies discuss new entities which may be considered for listing by either agency. This interagency team has a high level of awareness of both regimes with DFAT leading on financial sanction and DHA leading on Criminal Code listings.30

Hamas as a unitary entity

3.31 Many of the submissions to this review noted that, despite what is written in the Statement of Reasons prepared by the Department, there is evidence that Hamas does not consider the Hamas Brigades a separate entity, and as such the whole organisation of Hamas should be listed as a terrorist organisation.

3.32 In its submission to the review, AIJAC stated that the leadership of Hamas do not consider there to be a distinction between the Hamas Brigades and Hamas itself.31 AIJAC noted the following quote from a Human Rights Watch analysis of Hamas from 2002:

In the case of Hamas, there is abundant evidence that the military wing is accountable to a political steering committee that includes Shaikh Ahmad Yassin, the group’s acknowledged “spiritual” leader, as well as spokespersons such as Ismail Abu Shanab, `Abd al-`Aziz al Rantisi, and Mahmud Zahar. Yassin himself, as well as Salah Shehadah, the late founder and commander of

29 Mr Noble, DFAT, Proof Committee Hansard, Canberra, 1 October 2021, p. 21.

30 Mr Noble, DFAT, Proof Committee Hansard, Canberra, 1 October 2021, p. 21.

31 AIJAC, Submission 3, p. 3.

24

the `Izz al-Din alQassam Brigades, have confirmed in public remarks that the military wing implements policies that are set by the political wing. 32

3.33 ECAJ also stated:

Whilst some academic commentators have asserted that the al-Qassam Brigades operate with complete independence, senior Hamas leaders have themselves pointed out that a separation between the political and military wings does not exist. 33

3.34 ECAJ cited the work of Dr Matthew Levitt, an academic and former counterterrorism intelligence analysist for the US Federal Bureau of Investigation who has written extensively on terrorism in the Middle East. Dr Levitt pointed to the words of the founder of Hamas, Sheikh Ahmad Yassin, who was quoted as saying about the organisation of Hamas:

“We cannot separate the wing from the body. If we do so, the body will not be able to fly. Hamas is one body.”34

3.35 The view was echoed by the Foundation for Defense of Democracies (FDD), a US based nonpartisan research institute ‘focusing on national security and foreign policy,’35 in its submission to the review:

In truth, there are no “wings” of Hamas. This is a false distinction. A very large body of literature supports the fact that the organization operates cohesively. Indeed, the purported division between Hamas’ political and military wings is a narrative often wielded by governments that seek to maintain engagement with the group despite its terrorist activities. The political operatives within Hamas directly support the activities of its warfighters, and vice versa.36

3.36 Dr Johnathan Schanzer, Senior Vice President for Research at the Foundation for Defense of Democracies (FDD), stated at the public hearing:

There is no separating the Qassam Brigades from the broader organisation. This is a fiction perpetuated by those who wish to engage with elements of the

32 Human Rights Watch, ‘Erased in a Moment: Suicide Bombing Attacks against Israeli Civilians,’

October 2002, p. 63, viewed 8 September 2021.

33 ECAJ, Submission 7, p. 7.

34 M Levitt, ‘Hamas from Cradle to Grave,’ Middle East Quarterly, Winter 2004, pp. 3-15.

35 FDD, Submission 4, p. 1.

36 FDD, Submission 4, p. 3.

25

terrorist group. The fact remains that senior leaders like Yahya Sinwar, the leader of Hamas in Gaza; or Saleh al-Arouri, the deputy of the politburo, have served in both political and military roles, and they go back and forth with ease. The group receives funding from the likes of Iran, Qatar and perhaps even Turkey, and it makes no distinctions or earmarks for how that money is spent, so those funds are commingled. The political figures of the organisation advocate for the use of human shields by those carrying out terrorist acts. This practice is a war crime. So is the practice of holding the bodies of Israeli soldiers with the intent to use them as leverage in future negotiations, and this is done by the so-called political figures of Hamas in concert with those that have carried out attacks. 37

3.37 Dr Schanzer went on to say that although there are tensions and divisions within the organisation of Hamas (such as between members of the organisation in the West Bank and those in Gaza, as well as between members based in various other countries) and in general it is less disciplined as an organisation than other governments and military organisations, it is important to remember that the Hamas Brigades still operate within the jurisdiction of the political wing of Hamas. ‘If that political class does not want a war, there will not be one.’38

3.38 Dr Schanzer of the FDD also gave evidence before the Committee that fundraising done by and for Hamas is often ‘comingled’ between the political wing of Hamas and the Brigades. Mr Schanzer described that during fundraising activities, funds are provided to a member of the Brigades who then gives them to a member of the political wing who is responsible for disbursing the funds. 39

3.39 Dr Schanzer provided an example of the unitary nature of Hamas from 2014. In the summer of 2014, during conflict between Hamas and Israel, several members of Hamas’ leadership were based in Turkey. Mr Salah al-Arouri, a political figure of Hamas based within Turkey who was also the leader of the Brigades in the West Bank took responsibility for one of the initial attacks during that conflict, showing that this person was ‘playing a political role inside Turkey while also preparing and dispatching terrorists to carry out attacks in the West Bank just months before.’40

37 Dr Johnathan Schanzer, Senior Vice President for Research, Foundation for Defense of

Democracies (FDD), Proof Committee Hansard, Canberra, 1 October 2021, p. 1.

38 Dr Schanzer, FDD, Proof Committee Hansard, Canberra, 1 October 2021, p. 2.

39 Dr Schanzer, FDD, Proof Committee Hansard, Canberra, 1 October 2021, p. 2.

40 Dr Schanzer, FDD, Proof Committee Hansard, Canberra, 1 October 2021, p. 3.

26

3.40 Dr Schanzer also stated that after the most recent conflict in between Israel and Hamas, Israel discovered a system of tunnels, some of them hundreds of kilometres long, built beneath Gaza for the purpose of military activities. This tunnel network could not have been made without close coordination with the political apparatus of the Gaza Strip, in particular the authorities which maintain the sewerage, water and electricity networks, showing a very high level of coordination between the military and political wings of Hamas.41

3.41 AIJAC’s submission lists several senior members of Hamas who have been involved in terrorist activities of the Hamas Brigades, such as Yahya Sinwar, Fathi Hamad, Husam Badran and Saleh al-Arouri.42

3.42 In evidence before the Committee, Ms Naomi Levin, Senior Policy Analyst for AIJAC, quoted the current leader of Hamas in Gaza, Yahya Sinwar who said on 26 May 2021: ‘We support the eradication of Israel through armed jihad and struggle. This is our doctrine.’43

3.43 Ms Levin stated further:

This is not a man who is leading the Brigades; this is a man who is leading Hamas as a full entity and sits on the politburo in Gaza, their main territory. I think that goes to the heart of exactly your question. Sinwar has previously had a significant role in the brigades, but these days, to international observers, he is part of the political wing of Hamas 44

3.44 In 2019, the European Union’s General Court rejected a petition from Hamas to delist the organisation as a terrorist organisation. The Court stated that Hamas was unable to prove that the two organisations, Hamas and the Hamas Brigades, were separate organisations and as such it had no choice but to reject its petition.45

3.45 The ZFA provided numerous examples of senior members of Hamas’ political leadership making statements that indicated that the Hamas

41 Dr Schanzer, FDD, Proof Committee Hansard, Canberra, 1 October 2021, p. 4.

42 AIJAC, Submission 3, pp. 4-5.

43 Ms Naomi Levin, Senior Policy Analyst, AIJAC, Proof Committee Hansard, Canberra, 1 October

2021, p. 9.

44 Ms Levin, AIJAC, Proof Committee Hansard, Canberra, 1 October 2021, p. 9.

45 Hamas v Council of the European Union (T 289-15) [2019] ECLI:EU, 138, para. 99-109, available at

viewed 8 September 2021.

27

Brigades were directed by the political wing of Hamas, as well as examples of Hamas’s political leadership advocating terrorist acts.46

3.46 In his evidence before the Committee, Mr Mike Burgess, the Director-General of ASIO stated that he has no doubt that Hamas as a whole advocates violence or acts of violence, though it is the Brigades that carries these acts of violence out.47

3.47 At the public hearing, AIJAC, the ZFA and ECAJ were in no doubt that Hamas as a whole met the requirements of being listed as a terrorist organisation under the Criminal Code. 48

Ideology and activities of Hamas

3.48 Several of the submissions also noted that the ideology of the whole organisation of Hamas as well as the violent actions of the organisation during the May 2021 conflict with Israel are further evidence of the need to expand the listing of the Hamas Brigades to the whole organisation of Hamas.49

3.49 In its submission, AIJAC stated that the founding charter of Hamas cites the Protocols of the Elders of Zion, a notorious anti-Semitic forgery, and little has changed in Hamas’ ideology since then, with the ultimate goal of Hamas being the complete destruction of Israel.50 The FDD echoed this, stating:

The 1988 charter, which remains the overarching political document defining Hamas’ principles and methods, calls for the violent destruction of Israel. The charter’s preamble posits that “Israel will exist and will continue to exist until Islam will obliterate it, just as it obliterated others before it.” The charter also includes vehemently antisemitic language, asserting that Jews “take control of the world media,” were behind “most of the revolutions” throughout modern history, and use “money to establish clandestine organizations which are

46 ZFA, Submission 5, pp. 6-7.

47 Mr Mike Burgess, Director-General of Security, Australian Security Intelligence Organisation

(ASIO), Proof Committee Hansard, Canberra, 1 October 2021, p. 15.

48 Dr Colin Rubenstein, Executive Director, AIJAC, Proof Committee Hansard, Canberra, 1 October

2021, p. 11; Mr Peter Wertheim, Co-Chief Executive Officer, ECAJ, Proof Committee Hansard, Canberra, 1 October 2021, p. 11; Mr Bren Carlill, Director of Public Affairs, ZFA, Proof Committee Hansard, Canberra, 1 October 2021, p. 11.

49 AIJAC, Submission 3, p. 7; ZFA, Submission 5, p. 8; ECAJ, Submission 7, pp. 3-4.

50 AIJAC, Submission 3, p. 7.

28

spreading around the world, in order to destroy societies and carry out Zionist interests.”51

3.50 Dr Schanzer of the FDD also discussed the original charter of Hamas, describing it as ‘dripping with violent sentiment’ and a document that encouraged murder and genocide and the destruction of the State of Israel. Subsequent documents released by Hamas since then, such as the 2017 ‘Document of General Principles and Policies’ (released by the Hamas leadership based in Qatar) did not supplant this charter.52

3.51 In 2017, Hamas released A Document of General Principles and Policies as part of a larger campaign to soften its image with the international community.53 Despite some softening of language within this document, Hamas’ aim as an organisation continues to be the complete destruction of the State of Israel, stating ‘Hamas rejects any alternative to the full and complete liberation of Palestine, from the [Jordan] river to the [Mediterranean] sea.’54

3.52 Mr Peter Wertheim, Co-Chief Executive Officer of ECAJ stated the following at the public hearing:

For most of its history Hamas as an organisation has made no attempt to hide or disguise the full enormity of what it stands for. It not only calls for the destruction of Israel as a state but its founding charter, the Hamas covenant, openly advocates in article 7 the killing of Jews and in article 13 the indiscriminate use of violence. Article 13 also repudiates negotiations and compromise of any kind. Article 28 declares that the Jews control 'the Freemasons, the Rotary and Lions clubs and other sabotage groups' and 'that Israel, Judaism and Jews challenge Islam and the Moslem people'. Much of this language would not be out of place in a Nazi manifesto. There is no attempt to hide behind weasel words about Zionism and Zionists. The hostility is openly directed at Jews and the Jewish people.55

3.53 Dr Bren Carlill, Director of Public Affairs at the ZFA, also noted Hamas’ treatment of civilians within Gaza, pointing out that Hamas persecutes

51 FDD, Submission 4, p. 7.

52 Dr Schanzer, FDD, Proof Committee Hansard, Canberra, 1 October 2021, p. 2.

53 FDD, Submission 4, p. 7.

54 Palestinian Islamic Resistance Movement Hamas, ‘A Document of General Principles and

Policies’ viewed 9 September 2021.

55 Mr Wertheim, ECAJ, Proof Committee Hansard, Canberra, 1 October 2021, p. 8.

29

Christians and LGBTIQ+ people within its territories and imposes strong restrictions on freedom of speech and mobility. He stated this does not directly go towards whether Hamas as a whole should be listed as a terrorist organisation but speaks to the character of the organisation.56

3.54 Dr Bren Carlill of the ZFA also made reference to the statements of Fathi Hammad, the head of Hamas’ television channel Al-Aqsa TV, in May 2021, who had called for the beheading of Jews and also said:

The Jews are a treacherous people. There can be no peace with the Jews. There can be no peace with the Zionists. The only thing we have for the Zionists is the sword. The only thing we have for the Zionists is the Ayyash 250 rocket. 57

3.55 In its submission, the FDD wrote that Hamas’ practice of withholding the remains of killed Israeli soldiers, a policy endorsed and put into practice by both the political and military wings of the organisation, is another example of the blurred line between Hamas as a paramilitary organisation and a political one. The withholding of remains may constitute a war crime under customary human rights law.58

3.56 As well as this, the ZFA stated in its submission that Hamas is known to cultivate children through its ‘Pioneers of Liberation’ summer camps which include indoctrination and military training. Child attendees of these camps are ‘trained how to abduct Israelis, stab Israeli civilians and overrun IDF bases.’59

3.57 Mr Richard Feakes, First Assistant Secretary and Deputy Counter-Terrorism Coordinator at DHA stated that the evidence presented by Mr Schanzer and all the stakeholder groups was ‘compelling’ but the Department would need to seek legal advice to ensure that the actions of Hamas met the legal benchmarks for listing under the Criminal Code.60

56 Dr Carlill, ZFA, Proof Committee Hansard, Canberra, 1 October 2021, p. 10.

57 Dr Carlill, ZFA, Proof Committee Hansard, Canberra, 1 October 2021, p. 9.

58 FDD, Submission 4, p. 5.

59 ZFA, Submission 5, p. 10.

60 Mr Richard Feakes, First Assistant Secretary, Deputy Counter-Terrorism Coordinator, DHA,

Proof Committee Hansard, Canberra, 1 October 2021, p. 16.

30

Terrorism financing and Hamas

3.58 Another argument for expanding the listing of the Hamas Brigades to the whole organisation of Hamas is that Hamas uses its charitable endeavours as fronts for fundraising for its terrorist activities.

3.59 AIJAC referenced two instances of funding being diverted to Hamas from charitable organisations. In 2016, a former Director of the non-government organisation World Vision called Mohammed el-Halabi was charged by the Israeli Government with diverting funds from World Vision to Hamas. This led to Australia cutting funding to World Vision’s Gaza-based activities.61 In 2018, the charitable organisation Ansaar International was banned in Germany for its fundraising for a variety of terrorist groups, including Hamas. The German Interior Ministry provided the following statement:

Financial support, even for what at first glance appear to be charitable activities, secures the terrorist groups’ power and dominance in the respective region, facilitates the recruitment of activists, and saves the terrorist group money, which in turn can be used to carry out the crimes it plans. 62

3.60 Dr Colin Rubenstein, Executive Director of AIJAC stated that if the listing of Hamas was expanded to the whole organisation it was likely to assist law enforcement in Australia in preventing fundraising for that organisation, saying ‘the more jurisdictions cut off Hamas’ fundraising ability, the lower the chance Hamas can pursue its violent goals.’63

3.61 Dr Rubenstain also said that legitimate fundraising for humanitarian purposes is often abused and ends up ‘subsidising the terrorist and militaristic activities of Hamas proper,’ saying:

Law enforcement in Australia have made it clear, certainly in reference to the Hizballah inquiries which you held, that this can be a problem. Stopping this improper use of genuine charitable fundraising given for correct purposes and prescribing the entire organisation would eliminate this option. 64

61 AIJAC, Submission 3, p. 12.

62 The Times of Israel, ‘Germany bans fundraising group, saying it aids Hamas, other terror

organisations,’ < https://www.timesofisrael.com/germany-bans-fundraising-group-saying-it-aids-hamas-other-terror-organizations/> viewed on 9 September 2021.

63 Dr Rubenstein, AIJAC, Proof Committee Hansard, Canberra, 1 October 2021, pp. 7-8

64 Dr Rubenstein, AIJAC, Proof Committee Hansard, Canberra, 1 October 2021, p. 11.

31

Effect of listing on Australia and its interests

3.62 The Committee heard evidence at the public hearing of the effects of listing the whole organisation of Hamas on Australia, its interests overseas, and on its diplomatic relationships with other countries.

Domestic considerations

3.63 Mr Mike Burgess, Director-General of Security of ASIO said he would be supportive of expanding the listing of Hamas to the whole organisation.65 He also said that listing of the whole organisation would be of no operational benefit to ASIO.66

3.64 Mr Burgess also stated that expanding the listing to the whole organisation of Hamas would make it unlawful for Australians to support Hamas, as this would be supporting a terrorist organisation.67

3.65 Mr David Chick, Assistant Secretary of the Counter-Terrorism Strategic Policy Branch at DHA stated that Australians participating in protests in support of Palestine or even Hamas would probably not meet the definition of support of a terrorist organisation under division 102 of the Criminal Code if the listing was expanded to the whole of Hamas. He said:

…under separate sections 100 and then 101, which creates the offence of terrorist acts, a terrorist act does not include advocacy, protest, dissent or industrial action where it is not intended to cause serious harm, cause a person's death, endanger the life of a person or create serious risk to the health or safety of the public or a section of the public. So there is that connection there between violence, threat and risk to the public or sections of the public. It would only be if advocacy or a demonstration moved across that spectrum into that more dangerous field that you would be at risk of committing a terrorist offence 68

International and diplomatic considerations

3.66 Mr Peter Wertheim of ECAJ stated that listing the whole organisation of Hamas would be beneficial to Australia’s interests. Some countries in the

65 Mr Burgess, ASIO, Proof Committee Hansard, Canberra, 1 October 2021, p. 15.

66 Mr Burgess, ASIO, Proof Committee Hansard, Canberra, 1 October 2021, p. 14.

67 Mr Burgess, ASIO, Proof Committee Hansard, Canberra, 1 October 2021, p. 15.

68 Mr David Chick, Assistant Secretary, Counter-Terrorism Strategic Policy Branch, DHA, Proof

Committee Hansard, Canberra, 1 October 2021, pp. 21-22.

32

Middle East, particularly the Gulf States would welcome the expanded listing as it would be consistent with their own interests and would be beneficial to their own internal security.69

3.67 Dr Colin Rubenstein of AIJAC also stated that listing the whole of Hamas would benefit Australia, in particular its security standing and standing with its allies such as the US, Canada and the EU.70

3.68 Dr Schanzer of the FDD stated, noting Australia’s support for the Two State Solution to the Israel-Palestine conflict, listing the whole of Hamas would be beneficial to Australia as well as it would empower the ‘more pragmatic faction within the Palestinian political divide,’ also saying that ‘Hamas has no interest whatsoever in making peace.’71

3.69 Mr Marc Innes-Brown PSM, First Assistant Secretary for the Middle East and Africa Division of DFAT gave evidence of effects on Australia’s international interests which would be need to be considered if the Government decided to expand the listing to the whole of Hamas:

 DFAT has a small consular constituency of around ten people in Gaza that, while small, can have complex case needs. Although DFAT currently has no direct contact with Hamas, if the listing of Hamas was expanded to the whole organisation, DFAT would have to make changes in arrangements to who it deals with in Israel and Gaza in order to continue its work with its consular cases.  Australia has some aid activities in Gaza through the UN and other

partners. If the listing of Hamas was expanded there may be implications for some of Australia’s smaller aid partners, in particular if Hamas chose to retaliate against Australian projects.  DFAT would have to look at the practical implications for the management of its own programs in Gaza.  DFAT would have to reassess the security of its diplomatic mission in Ramallah. While security in the West Bank is maintained by the Palestinian Authority’s security forces, this is still something that should be considered if any changes to the listing are made.  If Hamas decided to run candidates in future Palestinian elections in the West Bank and wins seats in the Palestinian Authority there could be implications for Australia’s activities in the West Bank.

69 Mr Wertheim, ECAJ, Proof Committee Hansard, Canberra, 1 October 2021, p. 12.

70 Dr Rubenstein, AIJAC, Proof Committee Hansard, Canberra, 1 October 2021, p. 12.

71 Dr Schanzer, FDD, Proof Committee Hansard, Canberra, 1 October 2021, p. 6.

33

 There could be wider foreign policy impacts to Australian interests in the Middle East as there are a range of regional governments that are strong supporters of the Palestinian cause as well as of Hamas.72

3.70 Mr Noble of DFAT stated that any decision in this area should be for the Government and the security of Australia’s mission in Ramallah and the other factors listed are considerations that may influence that decision. He clarified that concerns about the security of the Australian mission in Ramallah is not a driver for listing or not listing the whole organisation of Hamas.73

3.71 Mr Richard Feakes of DHA echoed this statement, saying that there are factors which need consideration when managing a new or changed listing but do not preclude listing.74

3.72 Mr Feakes of DHA stated that because an expanded listing has not been considered by the Australian Government at this time, the Department has not considered any implications of an expanded listing on Australian’s travelling to Gaza.75

Listing status in other countries

3.73 The Committee also received evidence about the listing status of Hamas and the Hamas Brigades in other countries.

3.74 ECAJ provided a list of countries or State groupings which list Hamas in its entirety and countries that only listed the Hamas Brigades in its submission:

 Countries that list Hamas: the US, the EU, Canada, Japan, Israel and the Organisation of American States;  Countries that list the Brigades: Australia, the UK, New Zealand and Paraguay.76

3.75 Dr Schanzer of the FDD stated that he did not know why the UK did not list Hamas in its entirety as a terrorist organisation but the fact that it had not had been was a source of strain in the relationship between the US and UK Governments. He went on to say that the UK Government has been reticent

72 Mr Marc Innes-Brown PSM, First Assistant Secretary, Middle East and Africa Division, DFAT,

Proof Committee Hansard, Canberra, 1 October 2021, pp. 17-18.

73 Mr Noble, DFAT, Proof Committee Hansard, Canberra, 1 October 2021, p. 19.

74 Mr Feakes, DHA, Proof Committee Hansard, Canberra, 1 October 2021, p. 19.

75 Mr Feakes, DHA, Proof Committee Hansard, Canberra, 1 October 2021, p. 22.

76 ECAJ, Submission 7, p. 9.

34

to list certain charities operating within the UK that have connections to Hamas and that he believed the reason for this was political and ‘that it might have something to do with constituents inside the UK.’77

3.76 In its response to a question on notice AIJAC stated that the UK has relied upon the EU’s listing of the whole organisation of Hamas as a de facto proscription on the group but ‘since the UK’s withdrawal from the European Union in 2020, this is no longer considered satisfactory to prevent Hamas activity on British soil.’78

3.77 Dr Schanzer of the FDD gave evidence that a number of countries in the Middle East are becoming less friendly towards Hamas. These include Sudan, which is currently purging Hamas assets from its country, the United Arab Emirates, Bahrain and Morocco, which now have normalisation agreements with Israel, and Saudi Arabia which is increasingly distancing itself from Hamas. Although there are still many countries that embrace Hamas, such as Iran, Syria, Malaysia, Turkey and Qatar, ‘they will engage in international relations with Australia, whether you designated Hamas in its entirety or not.’79

3.78 Mr Marc Innes-Brown of DFAT stated that he is not aware of any effects on the US, Canada and the EUs aid work in the region caused by the expanded listing of Hamas.80 He also said in response to questioning that he was not aware of any effects on these countries’ diplomatic relations in the region by the listing of the whole organisation of Hamas.81

Process for relisting

3.79 The Committee also considered the decision making process of the Department and how it comes to decisions about whether to list, relist or delist an organisation.

77 Dr Schanzer, FDD, Proof Committee Hansard, Canberra, 1 October 2021, p. 5.

78 AIJAC, Submission 3: 1, Answer to Question on Notice, p. 1.

79 Dr Schanzer, FDD, Proof Committee Hansard, Canberra, 1 October 2021, p. 6.

80 Mr Innes-Brown, DFAT, Proof Committee Hansard, Canberra, 1 October 2021, p. 17.

81 Mr Innes-Brown, DFAT, Proof Committee Hansard, Canberra, 1 October 2021, p. 18.

35

3.80 In listing a terrorist organisation under the Criminal Code, the Department has a set protocol which it follows.82 An overview of this protocol is provided in chapter one of this report.

3.81 Mr Richard Feakes of the Department stated that he is not aware of any rationale as to why the whole organisation of Hamas is not listed as a terrorist organisation under the Criminal Code. He stated that multifaceted organisations like Hamas and Hizballah (which has previously been reviewed by the Committee) require careful consideration before listing the whole organisation due to potential implications, ‘particularly with regard to the association offense.’83

3.82 Mr Feakes went on to say this is not a reason to preclude listing of a whole organisation, but that these organisations may require more careful consideration than less complex terrorist organisations.84

3.83 Mr Feakes stated there was no consideration or engagement with other agencies about any expansion of the listing of Hamas prior to the relisting process which completed in August 2021.85 He also confirmed that the Department was not currently considering a wider listing of Hamas at the time of the public hearing. Mr Feakes also said there was not a conscious decision by the Department to not expand the listing and it open to the Department and the other agencies to pursue an expanded listing of Hamas in the future.86

3.84 Mr Feakes said that in order to pursue a listing of the whole organisation of Hamas, one of the intelligence or policy agencies would have to make a nomination of that organisation which would then be forwarded to the Australian Government Solicitor for advice. As far as Mr Feakes was aware, the Department had not received a nomination to list Hamas from any of the agencies but this does not preclude any agency doing so in the future.87

82 See

viewed 6 October 2021.

83 Mr Feakes, DHA, Proof Committee Hansard, Canberra, 1 October 2021, p. 17.

84 Mr Feakes, DHA, Proof Committee Hansard, Canberra, 1 October 2021, p. 17.

85 Mr Feakes, DHA, Proof Committee Hansard, Canberra, 1 October 2021, p. 16.

86 Mr Feakes, DHA, Proof Committee Hansard, Canberra, 1 October 2021, p. 16.

87 Mr Feakes, DHA, Proof Committee Hansard, Canberra, 1 October 2021, p. 20.

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3.85 Mr Feakes of the Department said the process for listing an organisation is an open one. He made reference to the recent listing of Sonnenkrieg Division done in August 2021 as a response to the increasing caseload of ideologically motivated violent extremist organisations being handled by ASIO. In that situation the Department lead the nomination.88

3.86 Mr Feakes of the Department confirmed that the Department is both able to nominate organisations and can also move those nominations forward towards listing. When asked why the Department did not consider expanding the listing of Hamas during this relisting process Mr Feakes said it was only considering the relisting at that time.89

Committee Comment

3.87 The Committee finds that the Hamas Brigades meet the requirements for listing as a terrorist organisation under the Criminal Code, namely that this organisation:

 Is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act; and  Advocates the doing of a terrorist act.

3.88 As such the Committee supports the relisting of the Hamas Brigades as a terrorist organisation and finds no reason to disallow the legislative instrument.

3.89 The Committee is thankful to the stakeholders and community groups who made submissions to this review and found the evidence they provided supporting the expansion of the listing to the whole of Hamas very compelling.

3.90 In particular the Committee noted the violent rhetoric of the political leadership of Hamas, and how in many cases this goes beyond statements about armed struggle against the State of Israel to outright incitement of violence against Jewish people and very clearly meets the advocacy test set out in the Criminal Code.

3.91 The Committee is aware of the similarity between this relisting and the recently completed report on the relisting of Hizballah’s External Security Organisation where the Committee made a recommendation to the

88 Mr Feakes, DHA, Proof Committee Hansard, Canberra, 1 October 2021, p. 20.

89 Mr Feakes, DHA, Proof Committee Hansard, Canberra, 1 October 2021, p. 20.

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Australian Government to consider expanding the listing of Hizballah’s ESO to the whole organisation of Hizballah.90

3.92 The Committee notes the concerns raised by the Department of Foreign Affairs and Trade about security and operational matters which may have to change if the listing is expanded, however these concerns cannot take precedence over national security and Australia’s continuing fight against terrorism.

3.93 The Committee was not satisfied with the Department of Home Affairs’ explanation as to why it did not further investigate an expanded listing of Hamas before the relisting of the Hamas Brigades was due to expire.

3.94 As such it makes the following recommendation:

Recommendation 1

3.95 The Committee recommends that the Australian Government give consideration to extending the listing of Hamas’ Izz al-Din al-Qassam Brigades as a terrorist organisation to the entirety of Hamas.

3.96 Should the Australian Government accept this recommendation, the Committee acknowledges there will be some practical challenges for various agencies in implementing and adjusting to this decision. The Committee anticipates that if the Australian Government accepts this recommendation, it should examine how these challenges can be mitigated.

90 PJCIS, Report on the review of the re-listing of Hizballah’s External Security Organisation as a terrorist

organisation under the Criminal Code, June 2021, p. 23.

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4. The Kurdistan Workers' Party

Overview

4.1 This chapter examines the grounds for relisting the Kurdistan Workers’ Party (the PKK) both through the legislative criteria for relisting and non-legislative factors included in the Statement of Reasons prepared by the Department.

4.2 The Committee received submissions from interested stakeholder groups to this review arguing for and against the de-listing of the PKK and the impact this listing has on the diaspora Kurdish community in Australia.

4.3 These submissions, as well as the Committee’s previous reports and recommendations on the continued listing of the PKK are discussed in this chapter.

Background

4.4 Founded in 1978, the PKK is an ideologically motivated violent extremist organisation founded on a combination of Kurdish nationalism and Marxist-Leninist ideals. From the Statement of Reasons:

…the Kurdistan Workers’ Party’s nationalist ideology encompasses the rights of Kurds to maintain their Kurdish ethnic identity. Further to its nationalist objectives, the Kurdistan Workers’ Party aims to monopolise Kurdish political power, including by attacking the interests of rival political parties. However, the Kurdistan Workers’ Party primarily conducts attacks against the Turkish government and security forces.1

1 DHA, Submission 1, p. 75.

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4.5 The leader of the PKK is Abdullah Ocalan, who is currently serving a life sentence in Turkey. Beneath Ocalan, the PKK is led by a three member executive council made up of Murat Karaliyan, Cemil Bayik and Fehman Huseyin. Much of the day to day running of the PKK is done by Murat Karaliyan.2

4.6 The number of members of the PKK is hard to ascertain though it is thought that the majority of its militant members are based in northern Iraq. Members are recruited primarily from the Kurdish population in south-west Turkey though recruitment also occurs from diaspora Kurdish populations in Syria, Iraq, Iran and Europe.3

4.7 Funding for the PKK occurs through fundraising from Kurdish populations in Turkey and Europe though additional income may come from criminal activity such as extortion and the smuggling of narcotics.4

Legislative criteria for listing

4.8 The PKK’s targets are primarily Turkish authorities and infrastructure in south-east Turkey and it has claimed responsibility for a number of attacks in this area.

4.9 The Department’s Statement of Reasons provides the following examples of terrorist activities which the PKK can be reasonably assessed as being responsible for:

 On 12 September 2019 a roadside improvised explosive device killed seven civilians and injured 10 in the Diyarbakir province in south-east Turkey. The PKK took responsibility for this attack claiming it was ‘targeting spies’;  On 31 March 2020 the PKK took responsibility for the suicide bombing

of a gas pipeline in Agri Province, Turkey, claiming it had killed 30 Turkish soldiers during the attack; and  On 28 October 2020 the PKK took responsibility for the bombing which destroyed the Botas oil pipeline in Mardin province, Turkey. No injuries

or deaths resulted from this bombing.5

2 DHA, Submission 1, p. 75.

3 DHA, Submission 1, p. 75.

4 DHA, Submission 1, p. 75.

5 DHA, Submission 1, p. 76.

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4.10 The Statement of Reasons states that the PKK is ‘responsible for directly or indirectly engaging in, preparing, planning, assisting in or fostering the doing of terrorist acts.’6

Non-legislative factors

4.11 The PKK is not known to have any links with any other listed terrorist organisations though it is thought to maintain relationships with other ideologically aligned Kurdish extremist groups in Turkey, Iraq, Iran and Syria. It is hard to determine the degree of connection between the PKK and the Kurdish People’s Protection Units (YPG) based in Syria, though the Turkish Government makes no distinction between these two groups.7

4.12 The PKK does not currently pose a threat to Australia or Australian interests though Australians travelling or working in Turkey, Iraq or Syria could be harmed by PKK attacks.8

4.13 One Australian has been charged with being a member of the PKK. In 2019, Renas Lelikan plead guilty to being a member of the PKK and was sentenced to a three year Community Corrections Order by the NSW Supreme Court.9

4.14 Australia’s Five Eyes partner nations, the US, the UK, Canada and New Zealand all proscribe the PKK as a terrorist organisation under their own proscription regimes.10

4.15 At various stages throughout its history, the PKK has engaged in peace talks and ceasefires with the Turkish Government. The most recent ceasefire period from 2012 to 2015 saw a significant decrease in attacks from the PKK, though after the breakdown in peace talks in June 2015 this increased back to pre-ceasefire levels. In recent times the amount of attacks has dropped significantly.11

6 DHA, Submission 1, p. 76.

7 DHA, Submission 1, p. 76.

8 DHA, Submission 1, p. 76.

9 DHA, Submission 1, p. 76.

10 DHA, Submission 1, p. 76.

11 DHA, Submission 1, pp. 76-77.

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Previous reviews

4.16 The PKK was first listed as a terrorist organisation on 17 December 2005 and has been relisted in 2007, 2009, 2012 and 2015. It was most recently relisted on 4 August 2018.12 The Committee has continued to support the relisting of the PKK as a terrorist organisation.13

4.17 In its 2018 review of the relisting of the PKK, the Committee received several submissions from academics and community groups opposed to the listing of the PKK. They provided a number of arguments for their opposition for the listing which were:

 The impact of the listing and its continued relisting on the Kurdish community in Australia, including the infringement of the implied constitutional right to freedom of political communication;  That the Minister for Home Affairs had failed to consider the political

context for the PKK’s activities;  The basis of the relisting was unreliable intelligence; and  The relisting was inconsistent with a ‘proper assessment of non-legislative factors.’14

4.18 In its report on the review of the relisting, the Committee supported the relisting. However, it was sympathetic to the concerns of the Kurdish community and said:

…the Committee has some sympathy with the expert evidence provided by stakeholders that the Kurdish communities’ conception of the PKK is intertwined with complex notions of Kurdish identity, culture and political aspirations. The Committee appreciates that this broader conception of the PKK has given rise to some concerns that community to be concerned that engaging in general discourse in support of Kurdish autonomy and cultural

12 Australian Government, Australian National Security, ‘Kurdistan Workers’ Party’

viewed 10 September 2021.

13 See: PJCIS, Review of the listing of the Kurdistan Workers’ Party, April 2006; PJCIS, Review of the re-listing of the Kurdistan Workers’ Party, June 2008; PJCIS, Review of the re-listing of Hamas’ Brigades, PKK, LeT and PIJ as terrorist organisations, November 2009; PJCIS, Review of the Re-listing of Five Terrorist Organisations, September 2012; PJCIS, Review of the re-listing of Al-Shabaab, Hamas' Izz al-Din al-Qassam Brigades, Kurdistan Workers Party (PKK), Lashkar-e-Tayyiba and Palestinian Islamic Jihad as terrorist organisations, September 2015; PJCIS, Review of the re-listing of five organisations and listing of two organisations as terrorist organisations under the Criminal Code, September 2018.

14 PJCIS, Review of the re-listing of five organisations and listing of two organisations as terrorist

organisations under the Criminal Code, September 2018, p. 26.

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rights could fall within the ambit of criminal offences. Whilst this is an understandable concern, the Committee notes that the Government’s stated objective of the listing regime is to provide clarity to the public. 15

4.19 The Committee made three recommendations:

 Recommendation one: That the Australian Government agencies engage further with Kurdish communities and provide specific advice on the conduct that would fall within the ambit of criminal conduct under the Criminal Code. The advice should also detail the types of communications that, in accordance with the implied right of political communication, would not engage provisions of the Criminal Code;  Recommendation two: That the Australian Government give

consideration to the application of international humanitarian law in the case of armed conflicts when developing any future listings or re-listings of terrorist organisations under the Criminal Code and provide written advice of this to the Committee; and  Recommendation three: That the Committee receive a regional briefing

from ASIO, either written or orally, regarding the activities subject to the 2018 relisting within 18 months of the tabling of that report.16

4.20 The Australian Government accepted recommendations one and three and noted recommendation two.17

4.21 As part of this 2021 review, the Committee requested that the Department provide a supplementary submission detailing its actions in giving effect to recommendation one.18 It provided a list of its interactions with various Kurdish community groups since the 2018 review, reproduced in Table 4.1 below:

15 PJCIS, Review of the re-listing of five organisations and listing of two organisations as terrorist

organisations under the Criminal Code, September 2018, p. 43.

16 PJCIS, Review of the re-listing of five organisations and listing of two organisations as terrorist

organisations under the Criminal Code, September 2018, pp. 44-46.

17 Australian Government, Australian Government response to the Parliamentary Joint Committee on

Intelligence and Security report: Review of the re-listing of five organisations and listing of two organisations as terrorist organisations under the Criminal Code, July 2020.

18 DHA, Submission 1: 1, pp. 3-4.

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Table 4.1 Department of Home Affairs’ consultation with Kurdish community organisations

Date Community organisation Organisation location

10 October 2019 United Kurdish of New South Wales Sydney

8 November 2019 Kurdish Democratic Community Centre of Victoria Melbourne

16 April 2020 Federation of Democratic Kurdish Society - Australia Sydney

6 August 2020 United Kurdish of New South Wales Sydney

7 September 2020 Kurdish Lobby Australia Sydney

23 September 2020 Kurdish Democratic Centre of Victoria Melbourne

6 October 2020 Federation of Democratic Kurdish Society - Australia; Kurdish Democratic Centre of Victoria

Sydney, Melbourne

9 November 2020 Kurdish Democratic Centre of Victoria Melbourne

25 May 2021 Federation of Democratic Kurdish Society - Australia Sydney

Source: DHA, Submission 1: 1, pp, 3-4

4.22 The Department stated that its discussions with the Kurdish community have covered the continued listing of the PKK, but also other topics of concern to this community, such as the impacts of the COVID-19 pandemic.19 It stated further:

The Department noted Kurdish community views when considering re-listing of the PKK. With regards to the Kurdish community’s view that PKK’s activities should be governed by international humanitarian law, the Department notes the Australian Government’s longstanding view that

19 DHA, Submission 1: 1, p. 4.

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international humanitarian law does not prevent, and is not relevant to, the application of Australia’s domestic counter-terrorism legislation to acts of terrorism that occur within an armed conflict. 20

4.23 The Department has also published a fact sheet about terrorist organisation listings for the purpose of engaging with communities which is available on the National Security website.21 This fact sheet is reproduced as Attachment A to the Department’s supplementary submission.22

4.24 The Committee received information from the Kurdish community about its interactions with the Department after the 2018 report.

4.25 In its supplementary submission to the review, the Federation of Democratic Kurdish Society - Australia (the FDKSA) stated:

Following the publication of the PJCIS 2018 report, containing Recommendation 1, we expected to be approached formally by the Department of Home Affairs with specific written advice on conduct that would fall within the ambit of criminal conduct under the Criminal code. Such advice would have removed uncertainties, e. g. respect to fundraising, particularly for Kurdish communities subjected to attacks by the Turkish regime in Turkey, Iraqi Kurdistan and North and East Syria. But no such advice has been forthcoming.23

4.26 The FDKSA provided a list of its interactions with various Government agencies from March 2019 to July 2021. These agencies included the Australian Federal Police (AFP), ASIO and the Victoria Police.24

4.27 The FKDSA stated in it supplementary submission that it has not been ‘approached officially’ by the Department of Home Affairs in relation to recommendation one of the 2018 report.25

4.28 The FKDSA stated it had been in contact with a ‘Community Liaising Officer’ from the ‘Social Cohesion Division Victoria: Department of Home Affairs’ but none of its contacts with this person have involved discussing

20 DHA, Submission 1: 1, p. 4.

21 Available at

viewed 17 September 2021.

22 DHA, Submission 1: 1, pp. 5-6.

23 Federation of Democratic Kurdish Society - Australia (FDKSA), Submission 2: 1, p. 1.

24 FDKSA, Submission 2: 1, pp. 3-4.

25 FDKSA, Submission 2: 1, p. 1.

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the listing of the PKK, but instead have focused on the COVID-19 pandemic and ‘ongoing policies with her department.’26

4.29 The Kurdish Lobby Australia (KLA) (a Kurdish organisation that represents several other Kurdish community groups) provided the following information about its interactions with the Department since 2018:

Of all the Australian Kurdish organisations that are signatories to this letter, PUK [Patriotic Union of Kurdistan] Australia was contacted by ‘Community Engagement’, and the Federation of Democratic Kurdish Society - Australia holds regular meetings with the Federal Police and has twice met with ASIO after Turkey invaded north-east Syria in October 2019, but no Australian Kurdish organisation was been contacted by the Ministry of Home Affairs or any other Australian Government department regarding Recommendation 1, from the review in 2018.27

Stakeholder concerns

4.30 During the course of this review, the Committee received submissions from Kurdish community organisations about the impacts of the relisting on their community. The Australian Turkish Advocacy Alliance also made a submission to this review.

4.31 Both of the Kurdish community organisations urged the Committee to recommend against relisting the PKK as a terrorist organisation for a number of reasons, including:

 That the PKK does not meet the legislative threshold for listing as a terrorist organisation and its ideology is opposed to terrorism 28;  That the Turkish Government is guilty of various acts of aggression and human rights abuses against the Kurdish people and the PKK’s actions

should be viewed in the light of this ongoing oppression29;  That the delisting of the PKK has the potential contribute to peace and stability in the region30; and  That the continued listing of the PKK is traumatic for the Kurdish

diaspora in Australia and leads to discrimination.31

26 FDKSA, Submission 2: 1, pp. 3-4.

27 Kurdish Lobby Australia (KLA), Submission 6: 1, p. 2.

28 FDKSA, Submission 2, p. 1; KLA, Submission 6, pp. 2-3.

29 FDKSA, Submission 2, pp. 5-14; KLA, Submission 6, pp. 3-4.

30 FDKSA, Submission 2, p. 1; KLA, Submission 6, p. 5.

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4.32 The Australian Turkish Advocacy Alliance (ATAA) did not hold the same view. Its submission was strongly supportive of the continued listing of the PKK as a terrorist organisation and urged the Committee to not disallow the listing.32

4.33 All of these arguments are dealt with in more detail below.

The PKK does not meet the legislative threshold for listing

4.34 Both Kurdish community organisations provided evidence that the PKK does not meet the legislative threshold for listing as a terrorist organisation.

4.35 The FDKSA submission provided responses to the three terrorist activities listed in the Minister’s Statement of Reasons.

4.36 In relation to the 28 October 2020 attack by the PKK against the Botas oil pipeline, the FDKSA stated that no context or background is provided for that attack, and noted no deaths or injuries occurred as a result of this attack. The FDKSA claimed that this attack was a response to attacks by the Turkish Government on Kurdish villages in Turkey and Iraqi Kurdistan and provided a list of examples of these attacks.33

4.37 Regarding the 31 March 2020 suicide bombing which resulted in the deaths of over 30 Turkish soldiers the FDKSA stated ‘while all loss of life is regrettable, in this attack those who lost their lives were Turkish soldiers, not civilians.’34

4.38 In relation to the 12 September 2019 attack listed in the Statement of Reasons which resulted in the death of seven civilians, the FDKSA states that the PKK has not claimed responsibility for this attack though the Turkish Government has stated that the improvised explosive device used in the attack was placed by the PKK. It also states that in the months leading up to this attack the Turkish Government increased pressure on Kurdish politicians and pro-Kurdish groups as part of a crackdown on opposition groups within Turkey.35

4.39 Regarding the non-legislative factors which the Minister may give regard to in deciding whether to list an organisation as a terrorist organisation (for the

31 FDKSA, Submission 2, p. 15.

32 Australian Turkish Advocacy Alliance (ATAA), Submission 8, p. 1.

33 FDKSA, Submission 2, p. 4.

34 FDKSA, Submission 2, p. 4.

35 FDKSA, Submission 2, p. 5.

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full list of these factors see 1.14 above), the FDKSA and the KLA listed the following points:

 The PKK has been listed as a terrorist organisation by the other Five Eyes countries and many European nations. However, a 2020 court case from the Court Cassation, Belgium’s highest court found that the PKK was not a terrorist organisation but is a non-state party to a civil war;36  In regards to the case of Renas Lelikan, both Kurdish submissions

pointed to the judgement of Justice McCallum in the case of R v Lelikan (No. 5)37 and the Justice’s comments on the lack of threat posed by the PKK to Australia;38  The PKK has taken part in numerous unilateral ceasefires since the 1990s and was party to the 2013-2015 bilateral ceasefire with the Turkish Government. After the end of this ceasefire in 2015, the PKK has claimed it is willing to enter into an internationally monitored and mediated peace process;39 and  The PKK does not coordinate with other terrorist organisations and has acted in opposition to them many times in the past.40

4.40 Both Kurdish stakeholder group submissions also provided evidence that the ideology of the PKK is incompatible with terrorism. The FDKSA stated in its submission:

The philosophy and ideology informing the PKK is democratic confederalism, originally conceptualised by the US political philosopher Murray Bookchin and later adapted to the Kurdish culture and political experience by Mr Abdullah Ocalan. In summary, this is a system of democratic self-organisation with the features of a confederation based on the principles of autonomy, direct democracy, environmentalism, feminism, multiculturalism, self-defence, self-governance and elements of a sharing and solidarity economy. 41

4.41 The ATAA disagreed with all of these points. It stated in its submission:

The PKK is a particularly violent terrorist organisation which since its foundation in 1984, [has] been responsible for the deaths of more than 40,000

36 FDKSA, Submission 2, p. 15.

37 [2019] NSWSC 494.

38 FDKSA, Submission 2, p. 14; KLA, Submission 6, p. 2.

39 KLA, Submission 6, p. 2.

40 KLA, Submission 6, p. 2.

41 FDKSA, Submission 2, p. 2.

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people, mainly of Kurdish background. The PKK does not represent the Kurdish people or their rights. Most of its founders, some of whom survived brutal infighting over four decades, are Turkish leftists who cannot even speak the Kurdish language. 42

4.42 The ATAA also noted that the PKK has used and continues to use children as combatants, is in continued violent conflict with other Kurdish political parties in the region, and is funded by its illicit drug and people trafficking operations.43

4.43 The ATAA also provided quotes from members of its community who have been affected by the actions of the PKK. These included stories of family members who had been killed in military service during conflicts with the PKK as well as civilians who had been killed by terrorist acts:

My uncle…was killed in a bomb attack on the bus he was taking back home from work in February 2015. The death left my aunty a widow, needing to care for two children as a single mother and left two children…without a father. It was a massive blow for my mother and father living in Australia - to lose such a close relative and have a family torn apart was very saddening. It was especially hard for my father who is still impacted by it. The impact of that attack continues to reverberate through the lives of the victims it has left behind. 44

Actions of the Turkish Government against the Kurdish minority and the PKK

4.44 Both Kurdish community organisations submissions provided examples of alleged marginalisation of the Kurdish people in Turkey and the region as well as alleged attacks by the Turkish Government against the Kurdish people. The FDKSA states that these examples provide context for the actions of the PKK in the region.45

4.45 The FDKSA stated in its submission:

The persecution of Kurds in Turkey by the Turkish government takes several forms, including terrorist acts, destruction of cultural and natural heritage,

42 ATAA, Submission 8, p. 2.

43 ATAA, Submission 8, pp. 3-4.

44 ATAA, Submission 8, pp. 2-3.

45 FDKSA, Submission 2, p. 4.

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prohibition against cultural expressions such as speaking and teaching Kurdish language and political persecution. 46

4.46 The KLA made similar comments, connecting the PKK’s violence to the treatment of the Kurds:

[The] PKK’s armed struggle was born out of the Turkish state’s massacre, torture, incarceration, displacement, oppression and discrimination of Kurds…These crimes are on-going in Turkey, Syria and Iraq. Hence, Kurds in Turkey are not allowed to freely express their culture, be educated in their mother tongue, or even advocate for peace and basic human rights. For a period between 2009 and 2015 Kurds had the freedom to identify as Kurdish, speak Kurdish, publish and perform in Kurdish, and attend private Kurdish language classes. Since 2015, Kurds have been physically attacked in the street for identifying as Kurdish and/or speaking Kurdish, and have been imprisoned for performing or publishing in Kurdish. State authorities have closed down many Kurdish publishing houses, cultural organisations, charities and other non-government organisations. 47

4.47 In its submission the FDKSA provided examples of discriminatory attacks against Kurdish people in Turkey48, political persecution against political parties sympathetic to the Kurds and other religious and ethnic minorities in Turkey49, and military actions by the Turkish Government against Kurdish populations in Iraqi Kurdistan and North and East Syria.50

4.48 The ATAA did not directly dispute these arguments but stated that it was important to remember that the PKK is not representative of the Kurdish people and ‘the majority of the PKK’s victims have been the Kurdish people of Southeast Turkey…the best example of this is the current sit-in protests carried out by Kurdish mothers whose children had been abducted by the PKK as recruits in [the] mainly Kurdish town of Diyarbakir.’51

The PKK and peace and stability in the region

4.49 In its submission to this review, the KLA stated that delisting the PKK as a terrorist organisation would have a positive effect on peace and stability in

46 FDKSA, Submission 2, p. 5.

47 KLA, Submission 6, pp. 3-4.

48 FDKSA, Submission 2, p. 6.

49 FDKSA, Submission 2, pp. 6-8.

50 FDKSA, Submission 2, pp. 8-10.

51 ATAA, Submission 8, p. 4.

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the region. The PKK as a secular organisation has played a role in the fight against ISIL in Syria and Iraq in the past.52 The KLA stated:

Only by Turkey negotiating with Kurds and their political, civil, tribal and religious representatives, and their women and youth, will there be potential for mutually advantageous peace, stability and prosperity. Levers need to be applied to convince Turkey to change its 97-year trajectory. One unilateral lever is that governments can delist PKK as a terrorist organization, and support a peace process.53

4.50 The FDKSA made similar comments:

…negotiations with the Turkish government are essential to end its conflict with the Kurds, and de-listing of PKK would facilitate such negotiations. Australia could be in the vanguard for this process and play an important role in achieving peace, freedom and democracy for all in that region.54

Trauma and the Kurdish-Australian Diaspora

4.51 The FDKSA stated that the continued listing of the PKK as a terrorist organisation by the Australian Government is traumatic for the Kurdish community in Australia. In their submission they wrote:

The listing of PKK is traumatic for the Kurdish community and the most important issue affecting Kurds in Australia and [is] a human rights violation of Kurds as it leads to discrimination. To be listed among Islamist Jihadist groups is offensive, as PKK’s values are compatible with Australian values. The other listed groups tried to annihilate Kurds and Christians across the Middle East and violate the rights of women. That PKK, as a democratic and secular organisation promoting the rights of women (as PKK’s leader Abdullah Ocalan said: ‘A society can never be free without women’s liberation’) peace among all ethnic groups and religions is listed as a terrorist organisation pains us. 55

4.52 The FDKSA noted further that the continued listing of the PKK prevents Australian Kurds from expressing solidarity with ‘their freedom movement’ and also contributes to discrimination against Kurdish people in Australia.56

52 KLA, Submission 6, p. 5.

53 KLA, Submission 6, p. 6.

54 FDKSA, Submission 2, p. 1.

55 FDKSA, Submission 2, p. 15.

56 FDKSA, Submission 2, p. 15.

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Committee Comment

4.53 The Committee finds that the PKK meets the requirements for listing as a terrorist organisation under the Criminal Code, namely that this organisation:

 Is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act; and  Advocates the doing of a terrorist act.

4.54 As such the Committee supports the relisting of the PKK as a terrorist organisation and finds no reason to disallow the legislative instrument.

4.55 The Committee is strongly committed to the safety of all Australians, including those overseas, and the lack of a direct threat to Australians within Australia is not sufficient to prevent a listing of an organisation as a terrorist organisation. It is also important to remember that one purpose of terrorist organisation listings is to have a deterrent effect on people joining these kinds of organisations as well as having a symbolic value.

4.56 The Committee is thankful to the stakeholders and community groups who made submissions to this review both in support of and in opposition to the relisting and found the evidence they provided compelling. This relisting is a contentious matter with strongly felt opinions on both sides of the debate and the Committee appreciates the efforts of stakeholders to have the voices of their communities heard.

4.57 The Committee was concerned however that despite recommendation one of the Committee’s 2018 report into this relisting, and evidence provided by the Department of Home Affairs of its engagement with the Kurdish community in regards to this issue, there seems to be some misunderstanding from the Kurdish community about the purpose of the engagement and which area of the Department had provided the consultation.

4.58 The Committee is therefore of the view that the Department should continue to engage with the Kurdish community on the relisting of the PKK with a particular focus on providing advice on what conduct and communications would constitute criminal conduct under the Criminal Code.

Recommendation 2

4.59 The Committee recommends that Australian Government agencies continue to engage with the Kurdish community in relation to the listing of the Kurdistan Workers’ Party and provide advice on the conduct and

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communications which would fall under the ambit of criminal conduct of the Criminal Code.

4.60 The Committee would like to be kept advised of the Australian Government’s continuing engagement in this area and seeks a briefing on the relevant Department’s engagement with the Kurdish community within 18 months of tabling this report.

Recommendation 3

4.61 The Committee recommends that, within 18 months of tabling this report, the Parliamentary Joint Committee on Intelligence and Security receive a briefing, either orally or in writing, from the Department of Home Affairs on its continuing engagement with the Kurdish Community on the listing of the Kurdistan Workers’ Party.

Senator James Paterson Chair 12 October 2021

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A. List of Submissions

1 Department of Home Affairs

 1.1 Supplementary to submission 1

2 Federation of Democratic Kurdish Society

 2.1 Supplementary to submission 2

3 Australia/Israel & Jewish Affairs Council

 3.1 Supplementary to submission 3  Attachment 1

4 Foundation for Defense of Democracies

5 Zionist Federation of Australia

6 Kurdish Lobby Australia

 6.1 Supplementary to submission 6  Attachment 1  Attachment 2  Attachment 3

7 Executive Council of Australian Jewry

8 Australian Turkish Advocacy Alliance

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B. Witnesses appearing at a public hearing

Friday, 1 October 2021

Committee Room 2R1

Canberra

Foundation for Defense of Democracies

 Dr Jonathan Schanzer, Senior Vice President

Zionist Federation of Australia

 Dr Bren Carlill, Director of Public Affairs

Australia/Israel & Jewish Affairs Council

 Dr Colin Rubenstein, Executive Director  Ms Naomi Levin, Senior Policy Analyst

Executive Council of Australian Jewry

 Mr Peter Wertheim, co-CEO

Australian Security Intelligence Organisation

 Mr Mike Burgess, Director-General

Department of Home Affairs

 Mr Richard Feakes, First Assistant Secretary, Deputy Counter-Terrorism Coordinator  Mr David Chick, Assistant Secretary Counter-Terrorism Strategic Policy

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Department of Foreign Affairs and Trade

 Mr Roger Noble AO DSC CSC, Ambassador for Counter-Terrorism  Mr Marc Innes-Brown, First Assistant Secretary, Middle East and Africa Division

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C. Process for the 2021 relisting of five organisations under the Criminal Code

The Counter-Terrorism Strategic Policy Branch in the Department of Home Affairs (the Department) facilitates the process by which the Minister for Home Affairs is satisfied that an organisation meets the threshold for listing or re-listing as a terrorist organisation under the Criminal Code Act 1995 (the Criminal Code).

This includes coordinating whole-of-Government input to a written Statement of Reasons that assesses each organisation, and seeking the advice of the Australian Government Solicitor (AGS) in relation to these assessments. This information and advice is included in a submission to the Minister for Home Affairs to assist her in deciding whether an organisation meets the threshold for listing or re-listing under the Criminal Code.

The following process was undertaken for the purpose of re-listing al-Shabaab, Hamas’ Izz al-Din al-Qassam Brigades, Kurdistan Workers’ Party, Lashkar-e-Tayyiba and Palestinian Islamic Jihad as terrorist organisations:

1 On 9 March 2021, the Department commenced coordinating whole-of-Government input to Statements of Reasons outlining the case for re-listing al-Shabaab, Hamas’ Izz al-Din al-Qassam Brigades, Kurdistan Workers’ Party, Lashkar-e-Tayyiba and Palestinian Islamic Jihad.

2 On 12 May 2021, the Department provided the Statements of Reasons outlining the re-listing cases for al-Shabaab, Lashkar-e-Tayyiba and Palestinian Islamic Jihad to AGS.

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3 On 19 May 2021, the Department provided the Statements of Reasons outlining the re-listing cases for the Kurdistan Workers’ Party and Hamas’ Izz al-Din al-Qassam Brigades to AGS.

4 On 21 May 2021, AGS provided written advice to the Department in relation to whether it is open to the Minister to be satisfied of the legislative requirements to re-list al-Shabaab, Lashkar-e-Tayyiba and Palestinian Islamic Jihad as terrorist organisations.

5 On 1 June 2021, AGS provided written advice to the Department in relation to whether it is open to the Minister to be satisfied of the legislative requirements to re-list Hamas’ Izz al-Din al-Qassam Brigades and the Kurdistan Workers’ Party as terrorist organisations.

6 On 25 June 2021, the Department provided a submission to the Minister for Home Affairs advising her that it was open to her to be satisfied on reasonable grounds that the legislative criteria for re-listing al-Shabaab, Hamas’ Izz al-Din al-Qassam Brigades, Kurdistan Workers’ Party, Lashkar-e-Tayyiba and Palestinian Islamic Jihad as terrorist organisations under the Criminal Code were satisfied.

7 On 28 June 2021, the Department sought the Minister for Home Affairs’ approval of the Regulations and associated Federal Executive Council (ExCo) documents, for consideration by the Governor-General at the 22 July 2021 meeting of ExCo.

8 On 1 July 2021, having considered the information provided in the Department’s submission, including the Statements of Reasons, the Minister for Home Affairs was satisfied that the five organisations met the threshold for listing.

9 On 1 July 2021, the Minister for Home Affairs wrote to First Ministers on behalf of the Prime Minister, advising of her satisfaction that al-Shabaab, Hamas’ Izz al-Din al-Qassam Brigades, Kurdistan Workers’ Party, Lashkar-e-Tayyiba and Palestinian Islamic Jihad meet the threshold for listing, and attaching a copy of the Statements of Reasons. The letters requested that a response be provided by 21 July 2021, advising whether the First Minister approved of, or objected to, the proposed listings.

10 On 12 July 2021, the Minister for Home Affairs approved the Regulations and associated ExCo documents.

11 On 12 July 2021, the Minister for Home Affairs wrote to the Leader of the Opposition, advising of her satisfaction that al-Shabaab, Hamas’ Izz al-Din al-Qassam Brigades, Kurdistan Workers’ Party, Lashkar-e-

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Tayyiba and Palestinian Islamic Jihad meet the threshold for listing, attaching the Statements of Reasons and offering a briefing in relation to the organisations.

12 The Department received the following responses to the Minister for Home Affairs’ correspondence to First Ministers:

 Northern Territory - dated 13 July 2021  South Australia - dated 20 July 2021  Victoria - dated 20 July 2021  Tasmania - dated 20 July 2021  Western Australia - dated 21 July 2021  Australian Capital Territory - dated 23 July 2021  New South Wales - dated 26 July 2021

No objections were made to the re-listing of al-Shabaab, Hamas’ Izz al-Din al-Qassam Brigades, Kurdistan Workers’ Party, Lashkar-e-Tayyiba or Palestinian Islamic Jihad as terrorist organisations.

At the time of writing, no response had been received from the Premier of Queensland.

13 On 23 July 2021, the Governor-General made the Regulations.

14 On 26 July 2021, the Regulations were registered on the Federal Register of Legislation. The Regulations come into effect on 4 August 2021.

15 On 3 August 2021, the Minister for Home Affairs wrote to the Chair of the Parliamentary Joint Committee on Intelligence and Security advising of the re-listing of al-Shabaab, Hamas’ Izz al-Din al-Qassam Brigades, Kurdistan Workers’ Party, Lashkar-e-Tayyiba and Palestinian Islamic Jihad as terrorist organisations, and attaching the Regulations, the Explanatory Statements and the Statements of Reasons.

* This Appendix is a copy of information provided by the Department of Home Affairs in Submission 1 to this review. See Submission1, pp. 106-107.