Banning extreme-right terrorist organisations: The issues at stake

ANDREW ZAMMIT • April 10, 2021

The Australian government’s recent decision to proscribe the far-right extremist group Sonnenkrieg Division as a terrorist organisation followed months of public debate about the merits of banning such groups. The debate continues, focusing on whether the government has should ban more extreme-right groups.

To help make sense of the debate, this post explains several issues that have not been sufficiently addressed so far.

First, Australia has multiple options, outlined below, for banning various groups as terrorist organisations: executive  proscription, financial sanctions, and the judicial approach. However, the debate has tended to focus only on the most severe option, executive proscription. Second, there is a crucial difference between banning groups for engaging in terrorism and banning groups for advocating terrorism. Third, comparisons between Australia’s approach and other Five Eyes countries can be misleading, as “banning” can mean different things in different legal contexts.

A few disclaimers about where I personally stand in this debate. I do not have legal training, so I am writing this post not as a legal expert but as someone who has closely observed the application of Australian counter-terrorism laws for over a decade. My own position is one of strong agreement that far-right violent extremism poses a deadly terrorist threat in Australia, that it has posed this threat for a long time, and that the government can and should do more to tackle the threat.

However, we should also be wary of reaching for the most severe powers without being completely clear about the key issues at stake: What sort of terrorist track record does a given group actually have? What sort of track record would cross a threshold where a ban is a justifiable response? And if a group’s track record does cross a chosen threshold, what is the most appropriate option for banning it, in light of the consequences that the different options have in Australia’s specific legal context?

Australia’s legal options for banning groups as terrorist organisations

When the Australian government seeks to ban a group posing a perceived terrorist threat, it has three options.

One option is executive proscription. This is when the Governor-General lists a group as a terrorist organisation under Part 5.3 of the Criminal Code, following a decision by the Minister for Home Affairs, based on advice from the Australian Security Intelligence Organisation (ASIO). There are currently 26 proscribed organisations. 25 have a jihadist orientation, and the other is the Kurdistan Workers Party (PKK). Sonnenkrieg Division will be the 27th (at the time of writing this has not officially come into effect).

A group can be proscribed if the Minister for Home Affairs is satisfied that it is either “engaged in preparing, planning, assisting or fostering the doing of a terrorist act” or “advocates the doing of a terrorist act.” Once proscribed, it is a criminal offence to be a member of the organisation, or in certain circumstances to associate with members. Around eight people in Australia have been convicted for their involvement with proscribed organisations, mainly Islamic State.

A second option is financial sanctions. This is when the Minister for Foreign Affairs lists “persons or entities” under Part 4 of the Charter of the United Nations Act 1945, or the Charter of the United Nations (Dealing with Assets) Regulations 2008. This is to fulfil Australia’s “counter-terrorism targeted financial sanctions obligations” under United Nations Security Council Resolution 1373 (passed shortly after the 9/11 attacks) and Resolution 2235 (passed in 2015 in response to the rise of Islamic State).

There are over 100 organisations, and many more individuals, subjected to these sanctions. These not only include jihadist groups but a range of other organisations that have engaged in terrorism, such as the Ulster Defence Association, the Real Irish Republican Army, Aum Shinriko, Kahane Lives, the Liberation Tigers of Tamil Eelam (LTTE), the Revolutionary Armed Forces of Colombia and Shining Path.

Banning a group in this manner is a milder option than executive proscription. There are no specific offences for being a member or associate of an organisation subjected to these sanctions. However, it is a criminal offence to “to use or deal with the assets of listed persons or entities, or to make assets available to them”. Three people in Australia were convicted of this in 2010 for providing over $1 million to the LTTE, and one of these individuals also pleaded guilty to sending electronic equipment that was used to build improvised explosive devices.

A third option is the judicial approach. This is when the prosecution in a criminal trial proves that a group of people constitute an organisation that is “directly or indirectly engaged in preparing, planning, assisting or fostering the doing of a terrorist act”.

The legal penalties are severe, but the judicial approach is a milder option than executive proscription, for several reasons. First, the terrorist nature of the group must be proven in court beyond reasonable doubt. In contrast, individuals charged for being members of an executively proscribed organisation have no opportunity to argue in court that the group is not a terrorist organisation. Second, the judicial approach does not allow for a group to be deemed a terrorist organisation solely for advocating terrorism, some sort of direct or indirect engagement is required. Third, the judicial approach does not criminalise association with the group in question, whereas the executive proscription option does criminalise some forms of association.

Nine people in Australia have been convicted of being members of a terrorist organisation based on this judicial approach. All were members of Abdul Nacer Benbrika’s terrorist cell in Melbourne disrupted by Operation Pendennis in 2005.[1]

Of these three options, executive proscription, financial sanctions, and the judicial approach, the media commentary on the prospect of Australia banning extreme-right groups has focused primarily on executive proscription. This risks conveying a misleading impression of the options available.

 Australia’s implicit threshold for executive proscription

One argument often made in the debate is that the executive proscription powers could be used to ban extreme-right groups for advocating terrorism, and that Australia has demonstrated a double standard by reserving these powers only for groups associated with Islam.

There is some truth to this. As noted above, the powers are indeed broad, allowing proscription if the Minister for Home Affairs is reasonably satisfied that the group is “engaged in preparing, planning, assisting or fostering the doing of a terrorist act” or simply “advocates the doing of a terrorist act”.

Hundreds of groups could fit those criteria, so the implicit threshold for executive proscription (that is, the threshold used in practice) has been much higher than the explicit legal threshold.

Of the 26 organisations proscribed until recently, all have been groups with substantial military capabilities and clear history of involvement in multiple terrorist attacks. Most are affiliates of Islamic State and al-Qaeda, whose terrorist track records are not in serious doubt. They are not groups that simply advocate terrorism, they are large-scale insurgent organisations that have successfully perpetrated many acts of terrorism among other violent tactics.

This distinction is important, because much of the debate has been premised on the idea that proscribing extreme-right groups would rectify a double standard. This argument can be compelling if restricted to groups directly comparable to those already proscribed: that is, extreme-right groups with substantial military capabilities and clear terrorist track records, potentially including the Russian Imperial Movement and various incarnations of Atomwaffen and The Base (which have Australian connections).

Yet some of the extreme-right groups focused on throughout the debate are not directly comparable, as they have advocated terrorism but not actually perpetrated terrorist attacks.

Proscribing extreme-right groups for advocating terrorism would not rectify a double standard. It would lower the implicit threshold used for proscribing organisations.

This might be worthwhile. It could be argued that the “leaderless” nature of many violent extreme-right groups requires lowering the implicit threshold for proscription, as these groups tend not to have central leaders claiming responsibility for attacks in the manner that Islamic State does. However, it is important to be clear that this is not simply a matter of restoring balance, it is a matter of entering new territory.

For example, judging by the Statement of Reasons given for each organisation, the Sonnenkrieg decision appears to be the first time that Australia has proscribed a group for advocating terrorism without also being “directly or indirectly engaged in, preparing, planning, or assisting in or fostering the doing of a terrorist act”.

This does not mean that the decision is unjustified. Sonnenkrieg Division is a foreign-based organisation, its advocacy of terrorism is unambiguous, and some of its members have been convicted for preparing acts of terrorism. Yet we should be wary of further lowering the implicit threshold for the use of executive proscription, as it may have unanticipated consequences in terms of civil liberties, political misuse and practical effectiveness.

The power to criminalise membership of (and some types of association with) a group, because a government minister concludes that it advocates terrorism, may be justified in various cases. The Sonnenkrieg decision certainly appears reasonable. However, this power should not be treated as the only option available to rectify a possible double standard, as it sometimes has in the debate so far.

How Australia compares with other Five Eyes countries

Another argument often made in the debate is that “Canada, New Zealand, the United States and the United Kingdom have all listed right-wing extremist organisations as terrorist groups” and that, until the Sonnenkrieg decision, Australia stood out as the exception.

This is again has some truth to it, yet it risks being misleading as each country has different legal contexts.

For example, Canada recently declared the Proud Boys to be a terrorist organisation, along with other extreme-right groups such as Atomwaffen Division, the Base, and the Russian Imperial Movement. Canada had earlier banned groups such as Combat 18 and Blood & Honour. This led to commentaries suggesting that Australia automatically should follow suit, again pointing to the fact that Australia’s 26 proscribed organisations (at the time) were all associated with Islam.

However, banning an organisation in Canada has much less severe consequences, as it is not actually a crime in Canada to be a member of a terrorist organisation. Canada's Public Safety website explicitly states that it “is not a crime to be listed”. Instead, it is a criminal offence to “knowingly participate in or contribute to, directly or indirectly, any activity of a terrorist group” but only if the participation is intended to “enhance the ability of any terrorist group to facilitate or carry out a terrorist activity.”

This is radically different to Australia, where it is a crime to be a member of (or sometimes associate with) a proscribed organisation. In contrast, Canada’s decision to ban the Proud Boys does not mean that all Proud Boy members in the country now face imprisonment.

Therefore, when Canada bans a group as a terrorist organisation, it is closer to Australia’s application of financial sanctions under the Charter of the United Nations Act 1945 than to Australia’s executive proscription powers. Indeed Canada’s list of banned terrorist organisations more closely resembles Australia’s list of sanctioned organisations (see the left-hand column of this document) than Australia’s list of proscribed organisations (see the right-hand column of the same document).

Comparisons to the United States can be similarly misleading. For example, the one extreme-right organisation that the United States has banned, the Russian Imperial Movement, is not actually listed as a Foreign Terrorist Organization (the closest comparable US list to Australia’s list of proscribed organisations). It has instead been listed as a Specially Designated Global Terrorist, which is a trade sanctions measure. This is again a milder form of banning that is more comparable to Australia’s financial sanctions option than the executive proscription option.

Comparisons to New Zealand can again be misleading, as New Zealand has not banned any extreme-right group as a terrorist organisation, though they have deemed the Christchurch murderer to be a terrorist entity.

More accurate comparisons can be made with the United Kingdom, which has banned a number of extreme-right groups under proscription powers at least as severe as Australia’s, where membership is a crime in itself.

Indeed the UK’s laws go even further than Australia’s, making it an offence to “express an opinion or belief that is supportive of a proscribed organisation, reckless as to whether a person to whom the expression is directed will be encouraged to support a proscribed organisation” or to “wear clothing or carry or display articles in public in such a way or in such circumstances as to arouse reasonable suspicion that the individual is a member or supporter of a proscribed organisation”. The UK laws also do not allow for the judicial approach, which may partly explain its resort to more severe measures.

In short, Australia, the UK, the US, New Zealand and Canada all have highly different counter-terrorism laws, with the result that “banning” an organisation can mean many different things. Arguments that Australia should use its executive proscription powers to ban a particular group because another Five Eyes country has banned the group, without taking the different contexts and potential consequences into account, can be highly misleading and lead to inaccurate comparisons that cause confusion rather than progress meaningful debate.

Conclusion

Given the rapid escalation of the threat of extreme-right terrorism both in Australia and globally, the debate over whether to ban certain extreme-right groups is necessary.

However, throughout the debate some commentary has focused on the executive proscription powers without noting other options for banning groups as terrorist organisation, or focused on ideological differences between the groups Australia has and has not proscribed without noting other important differences (including whether a group has actually perpetrated acts of terrorism), or drawn comparisons with other Five Eyes countries without noting the different legal contexts.

When this happens, the debate clouds some of the the key issues at stake and instead serves as a proxy for whether the Australian government takes the extreme-right threat seriously. The implied assumption is that the more extreme-right groups a government bans, the more seriously it takes the threat.

There are indeed many ways the Australian government can, and should, do more to tackle far-right extremism. At a bare minimum, these could include speaking clearly and transparently about the threat, no longer watering down parliamentary condemnations of far-right extremism, properly monitoring hate crimes and supporting broader anti-racism initiatives.

However, the power to ban groups as terrorist organisations should be used extremely carefully, and the public debate should be based on clear understandings of what it entails.

[1] These nine individuals are Abdul Nacer Benbrika, Aimen Joud, Fadl Sayadi, Abdullah Merhi, Ahmed Raad, Ezzit Raad, Amer Haddara, Izzydeen Atik and Shane Kent.