Executive Proscription of Terrorist Organisations in Australia: Exploring the Shifting Border between Crime and Politics

Abstract

A core feature of anti-terror laws enacted throughout the world after the events of 11 September 2001 (9/11) has been the provision for executive proscription of terrorist organisations. This chapter examines the Australian provisions and their use since their enactment in 2002. It begins in Part I with a brief account of the background to the legislation. Part II examines in detail the legislative scheme governing the listing of terrorist organisations, including the concept of a 'terrorist act', the statutory criteria for listing organisations, the definition of an 'organisation', the listing procedure and the range of terrorist organisation offences. Part III focuses on the provisions in action, including the range of organisations currently listed, the reviews of listings undertaken by the Parliamentary Joint Committee on Intelligence and Security and controversies relating to the listing criteria and listing procedures. Part IV considers some of the actual and potential impacts of listing particular organisations. An important theme woven through the entire analysis is the play between two essential elements of terrorist legal discourse: the criminal and the political. Part V is devoted to an explicit consideration of this issue. I argue that in addition to endangering established legal principles, proscription laws distract from the need for political initiatives to address effectively the roots of violent political conflicts. Ironically, whilst enhancing the coercive powers of the executive they may inhibit recourse to the more flexible political and policy instruments (diplomacy, aid, trade) needed to safeguard national security interests.