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4 March 2022

Hamas listed in full as a terrorist organisation

On 17 February 2022 Home Affairs Minister Karen Andrews announced that the Government would list Hamas in its entirety as a terrorist organisation under the Criminal Code. Until then only its military wing, the Izz al-Din al-Qassam Brigades, had been listed, first in November 2003. The new listing, covering Hamas' political branch as well, took effect on 4 March 2022, in line with the UK, the US and Israel.

Andrews said: "There is no place in Australia for their hateful ideologies" and "It is vital that our laws target not only terrorist acts and terrorists, but also the organisations that plan, finance and carry out these acts." The ABC reported that people convicted of terrorist organisation offences, including membership, recruitment, training or fundraising, face up to 25 years' imprisonment.

The Executive Council of Australian Jewry called the decision "overdue but very welcome". The Australia Palestine Advocacy Network said it "strongly disagrees", warning it would worsen suffering for Palestinians.

What the submissions said

Parliament's Joint Committee on Intelligence and Security reviewed the listing in 2022. Of the twelve submissions, one supported it and eight opposed it or raised serious concerns. The quotes below are taken word for word from the submissions themselves.

In support

The Executive Council of Australian Jewry said it "agree[d] entirely" with the listing and the Minister's reasons (Committee report).

Australian Federation of Islamic Councils (AFIC), which calls itself "the peak body for Australian Muslims", in a submission authorised by its president Dr Rateb Jneid (Submission 9):

  • "In its entirety, including the civilian social services arm of Hamas, Hamas cannot be properly characterised as a terrorist organisation."
  • "The proposed listing appears to be politically motivated rather than based on evidence of Australians' best interests."
  • "Australians may begin to fear donating to Palestinian causes, out of a concern that they may inadvertently be connected to Hamas as the governing administrator for Gaza."

AFIC added that it "does not seek to support or attack either of the parties to the conflict".

Australian Friends of Palestine Association (AFOPA), Adelaide, signed by Paul Heywood-Smith QC (Submission 6):

  • "Hamas was within its rights to resist Israeli aggression and to do so with deadly violence, including by the use of rockets, the only form of resistance left open to it."
  • "Hamas is not a terrorist organization."
  • "Hamas has the right in international law to resist the crime of apartheid being carried out in its historic home."

AFOPA's submission also quoted former UN Special Rapporteur John Dugard: "if either side is to be designated as 'terrorist' it is the State of Israel rather than Hamas".

Australia Palestine Advocacy Network (APAN) (Submission 11):

  • The earlier 2021 review "is akin to a court case where only the prosecution, and not the defence was heard, effectively a Kangaroo Court."
  • "There is no evidence that any money raised for governance or humanitarian work is diverted to the Qassam Brigades."
  • "The designation of the entirety of Hamas therefore could appear to criminalise the entirety of the population of Gaza".

Palestine Israel Ecumenical Network (PIEN), a Christian network, signed by its president Helen Rainger (Submission 5):

  • Hamas' actions are "a regrettable, but tragically inevitable consequence of Israel's occupation of Palestinian land".
  • The listing "is biased and unnecessary and should be revoked forthwith."
  • "If the French resistance … was appropriate at that time in the face of the German occupation, Palestinian resistance – including by Hamas in Gaza – is also appropriate in the face of the Israeli occupation and violence."

Friends of Sabeel Australia, a Christian group, signed by its president the Revd Dr Gregory C. Jenks (Submission 4):

  • "This submission should not be misunderstood as expressing support for Hamas, and particularly its historical commitment to armed struggle."
  • "It is possible that no charity registered in Australia will be able to direct funds towards the Al Ahli Arab Hospital or other similar NGOs in Gaza."
  • It urged the Committee "to disallow the listing of the whole of Hamas as a terrorist organisation and to restrict that listing to the al-Qassam Brigade."

Professor Ben Saul, Challis Chair of International Law, University of Sydney (Submission 8):

  • "Hamas 'in its entirety' likely meets the statutory criteria for listing", and "there is ample evidence that Hamas uses violence to compel Israel for a political purpose."
  • "It does not meet the most important criterion – a threat to Australia".
  • "Australia's simplistic approach of banning Hamas, irrespective of addressing the structural conditions conductive to its violence, is unjustifiable and counter-productive."

Associate Professor Tristan Dunning and five other academics (Submission 12):

  • "Indubitably, the Qassam Brigades have committed numerous atrocities throughout their history, including the targeting of civilians."
  • "Armed resistance against foreign occupation (including the siege of Gaza), moreover, is legitimate under international law".
  • "In brief, Hamas is no threat to Australia."

The Government's own statement of reasons said there were "no known direct links between Hamas and Australia", noting an Australian-American dual national was killed in a 2001 suicide bombing attributed to Hamas' Brigades in Jerusalem.

The Committee found the Government "was within its powers" to list Hamas, and that the concerns raised "do not negate the statutory basis or legality" of the decision. It recommended the Government engage with the Palestinian-Australian community and aid groups so people understand the limits of the offences, including the exemptions for family contact and humanitarian aid.

The Government did not formally respond to the 2022 report until April 2026, more than three years later. It accepted both recommendations, "noting that Government agencies do not provide legal advice to private citizens", and that "with the passage of time, it is a matter for the Committee whether a briefing is of assistance".

More sources:

Source: ABC News, Hamas to be listed as a terrorist organisation (17 Feb 2022)
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