An organisation may be found to be a terrorist organisation under the Criminal Code through a finding by a court as part of the prosecution of a terrorist organisation offence or by being ‘listed’ by the Commonwealth Government under the Criminal Code Regulations. Courts can only consider whether an organisation is a terrorist organisation during a prosecution for a terrorist organisation offence. It is not the role of the courts to consider this as a stand-alone matter. In contrast the listing process enables identification of terrorist organisations as a separate matter to any offences.
That process provides "a mechanism for the Government to identify terrorist organisations and put the organisation and members of the public on notice that the organisation is a terrorist organisation under Australian law". The expectation is that such notification will assist people to "avoid engaging in activities such as becoming a member of or providing support or money to a terrorist organisation". That avoidance is important because Division 102 of the Criminal Code features an offence of directing the activities of, being a member of, recruiting for, providing training to, receiving training from, providing funds to, receiving funds from or providing support to a terrorist organisation. It is an offence to associate with a member of a listed terrorist organisation in certain circumstances where such association intentionally provides support to that organisation. Listing can also provide the basis for establishing the fact that an organisation is a terrorist organisation in a criminal proceeding.
'Proscription of Organisations in UK Counter-Terrorism Law' by Sofia Marques da Silva & Cian Murphy in Legal Aspects of EU Sanctions (Intersentia 2012) comments that
The UK has a history of proscribing organisations in the name of national security – with Irish Republican organisations the most well known example. The Terrorism Act 2000 provided new powers of proscription. Since the attacks on September 11 2001 the focus of proscription has been on organisations related to Islamist extremism. This paper will examine the legal framework for the proscription of organisations in the UK and how it has been used. It will consider the process by which proscription is imposed and the means by which it can be challenged. The most common use of proscription today is against organisations that, though dangerous, do not necessarily pose a threat to UK national security. The paper argues that proscription can enshrine in criminal law foreign policy choices of the UK government so as to criminalise support for causes whose illegitimacy is, at the very least, open to contest.The authors conclude -
Although proscription is indeed a blunt tool it suits the toolbox of a militant democracy.Such a tool may have made sense when faced with paramilitary groups such as the IRA which, at times, represented a real and significant challenge to the state’s effective territorial control. In ‘Free Derry’, for example, neither the Royal Ulster Constabulary nor the British Army could exercise effective control between 1969 and 1972. The threat to British control of parts of Northern Ireland was very much a real one. It is merely unhelpful hyperbole to suggest that the same threat exists today. Indeed the form of organisation against which proscription is said to be useful – those ‘that have some sort of formal organisation, that have bank accounts, that have offices’ - do not fit the images of the post-September 11 public enemies of the either a disparate network of terrorists or a self-radicalising lone wolf. Today’s threats do not come in uniform and their bank accounts are targeted by financial surveillance and asset-freezes rather than mere criminalisation.
Proscription also fits with the post-September 11 paradigm – but it need not do so. The parody of law in contemporary proscription is to be found in the absence of effective review of listing decisions and the restricted system of review of delisting decisions. Even if these aspects were improved proscription would remain the subversion of law for political ends. The system is potent and can effectively incapacitate domestic organisations that ‘glorify’ terrorism and overseas revolutionaries. Of course, the conclusion that proscription is political is neither original nor controversial - all law that seeks to afford special powers to the state because of the political motivation of suspects necessarily involves the legal system in politics.
In the recent case of Maryam Rajavi the High Court conducted judicial review of the Home Secretary’s decision to refuse entry to the UK to Maryam Rajavi, a dissident Iranian politician invited to address Parliament. The High Court concluded, reluctantly, that the Home Secretary’s decision was lawful. Stanley Burnton LJ declared in closing that the Home Secretary ‘is accountable for her decisions legally and politically ... she has shown that her decisions are lawful. Her political accountability, for the wisdom or otherwise of her decisions, is to Parliament’.90 It is this joint review, by Parliament and the courts, that is necessary to examine decision of the Government which involve not only law, but also politics-as-law. The delisting of the People’s Mujahedin Organisation of Iran may have been brought about by judicial review but there was also a concerted political campaign involved. If a system of proscription is to be retained it must be reformed to ensure that organisations do not need the heirs of Cicero to ensure they are heard.