James Paterson (Victoria, Liberal Party) Share this | Hansard source

I present the report of the Parliamentary Joint Committee on Intelligence and Security, Review of the re-listing of Hizballah's External Security Organisation as a terrorist organisation under the Criminal Code. I seek leave to speak to the report.

Leave granted.

I thank the Senate and, in particular, the whips for facilitating the committee's statutory requirement to table this report within the 15-day disallowance period. The committee's review examines the minister's decision to list this organisation. Section 102.1A of the Criminal Code provides that the committee may review a regulation which lists or relists an organisation as a terrorist organisation and report to both houses of parliament before the end of the applicable 15-day sitting disallowance period. The report I am presenting today serves this purpose and is being presented within the required period. Hizballah's external security organisation has been listed as a terrorist organisation under the Criminal Code since 2003. Regulations that specify an organisation as a terrorist organisation cease to have effect on the third anniversary of the day which they take effect. Organisations can be relisted, provided that the minister is satisfied on reasonable grounds that the organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act, or advocates the doing of a terrorist act.

Hizballah's ESO has been relisted six times since 2003, and this will be the seventh time. Each time the relisting of Hizballah's ESO has been reviewed, it has been supported by the committee, as it has been in this case. In examining the evidence that has been provided, the committee is satisfied with the listing processes and consider that they have been followed appropriately for this organisation. There is a long history of attacks around the world attributed to the ESO, including the 2012 bombing of an Israeli tourist bus in Bulgaria, which killed six people. Last September, a dual Australian-Lebanese citizen was convicted in absentia for his role in this attack. Given this, the committee is in no doubt that the government's decision to relist the ESO under division 102 of the Criminal Code is appropriate and finds no reason to disallow the regulations.

However, the committee was concerned by the decision to, at this stage, only relist Hizballah's ESO. In its last review of the relisting of Hizballah, in 2018, the committee recommended that the government consider extending the listing to include the military wing of Hizballah. In this report, the committee goes a step further. We recommend that the government consider listing Hizballah in its entirety as a terrorist organisation. We do so based on the expert evidence received by the committee that the distinction that we currently draw between Hizballah's ESO and the rest of Hizballah is arbitrary.

Dr Matthew Levitt, a world-renowned expert on Hizballah, told the committee that there is no plausible intellectual case to distinguish between the ESO and the rest of Hizballah, who he described as a 'singular, unitary organisation'. As he noted, it is a distinction that Hizballah itself explicitly rejects. In his submission, Dr Levitt quoted Naim Qassem, the Deputy Secretary of Hizballah:

Hezbollah has one single leadership, and its name is the Decision-Making Shura Council. It manages the political activity, the Jihad activity, the cultural and the social activities...Hezbollah’s Secretary General is the head of the Shura Council and also the head of the Jihad Council, and this means that we have one leadership, with one administration.

Australia's position listing only the ESO as a terrorist organisation is increasingly isolated internationally. Twenty-two countries and two regional organisations list them in their entirety, including: our Five Eyes allies, such as the United Kingdom, the United States and Canada; like-minded countries, such as Germany, Austria, Switzerland and Japan; and Arab countries and groupings, including the United Arab Emirates, Bahrain, the Gulf Cooperation Council and the Arab League. Other like-minded jurisdictions, such as the European Union, France and New Zealand, at least extend their listing beyond the ESO to include the military wing.

The military wing has in the past provided training and operational support for other organisations prescribed as terrorist entities by Australia, such as the Palestinian Islamic Jihad and Hamas' al-Qassam Brigades. Given this evidence, the question for the committee was: should Australia continue to persist with the fiction that the ESO is a discrete entity within Hizballah? There are practical reasons that we should not. One case of concern to the committee was that of Ali Haidar, a New South Wales man convicted of violent offences who escaped being classified as a high-risk terrorist offender, as sought by police, because a judge said it was not clear that his express support for Hizballah was for the External Security Organisation or simply the political wing. Justice Davies noted:

The Commonwealth accepts that Hezbollah maintains a militia and that it had deployed forces in Syria to assist the Syrian regime. Notwithstanding, the Commonwealth did not list Hezbollah as a terrorist organisation. In my opinion, it would introduce confusion into the area of anti-terrorism if the Court were to reach a different conclusion …

As the deputy commissioner of the Australian Federal Police, Ian McCartney, told the committee, if an organisation is not listed as a terrorist entity by the federal government it does make it more difficult for them to investigate and prosecute someone for terrorism offences, because they are also required to prove beyond reasonable doubt that an organisation is a terrorist organisation.

The committee does acknowledge that if its recommendation to broaden the listing of Hizballah is accepted by government there will be practical implications for some agencies. We do not lightly dismiss the evidence we received about these challenges, including in a classified hearing. However, based on the evidence we received in both classified and public hearings, we believe that these challenges can be mitigated if carefully implemented. In particular, the committee was comforted by the statement by ASIO director-general Mike Burgess at our public hearing that 'listing the entire organisation would not impact ASIO's ability to do its job'.

The committee was also informed by the experience of the United Kingdom in its listing process for Hizballah. Like Australia, for many years the UK listed only the External Security Organisation. But in 2008 it widened its listing to include the military wing, and in 2019 it did so to all of Hizballah. The UK home secretary who made that decision, Sajid Javid, said at the time:

There have long been calls to ban the whole group with the distinction between the two factions derided as smoke and mirrors.

Hezbollah itself has laughed off the suggestion that there is a difference. I have carefully considered the evidence and I am satisfied that they are one and the same, with the entire organisation being linked to terrorism.

…   …   …

This Government have continued to call on Hezbollah to end its armed status; it has not listened. Indeed, its behaviour has escalated; the distinction between its political and military wings is now untenable. It is right that we act now to proscribe this entire organisation.

Crucially, in evaluating the UK's decision to do so in retrospect in 2020 Javid also said:

The relationship with Lebanon is as strong as ever. The international development program we have, we had to recalibrate some of them, stop one or two of them and invest in others, that work continues.

Having carefully considered all the evidence presented to it, the committee has recommended that the Australian government extend the listing of the ESO to the entire organisation of Hizballah. The committee has also recommended that the Department of Home Affairs and other relevant agencies provide the committee with a classified briefing on its response to this recommendation within three months of the tabling of this report. This is to ensure that the three-year listing period does not elapse before further investigation of this matter.

Finally, the committee would like to thank members of the community and international experts who made submissions to this inquiry and gave evidence at a public hearing. The evidence they provided was compelling and was very helpful in guiding the committee's decision in this matter. I would also like to thank my fellow members of the committee for the diligent and considered way they approached this inquiry on a tight deadline. The PJCIS is rightly recognised for its bipartisan approach to national security issues, and this inquiry is a perfect example of how powerful that can be in the service of the national interest. I commend the report to the Senate and seek leave to continue my remarks later.