Australia is required by its counter-terrorism international obligations to have laws against terrorism financing. Australia is obliged to enact and administer laws which permit the authorities to identify and prevent the flow of funds to terrorists and terrorist organisations and to punish by criminal sanction those who finance terrorism.285
If the existence and administration of such laws were to bring about the successful disruption of terrorism funding flows, that ideal outcome would create “a hostile environment for terrorism, constraining overall capabilities of terrorists and helping frustrate their ability to execute attacks”.286 As recognized by the first Special Rapporteur on the Promotion and
Protection of Human Rights while Countering Terrorism, Martin Scheinin, “the need for preventive action is an important aspect of the fight against terrorism and the freezing of funds collected or used for terrorist purposes is an important aspect of these measures”.287
Australia is not free from terrorism financing activities. Prosecutions to date and investigations by agencies show there are individuals and organisations in Australia who would seek to finance terrorism both in Australia and abroad. Terrorism financing offences are investigated by the Australian Federal Police Terrorism Financing. Investigations Unit, a multi-agency team created in 2011 to focus specifically on all aspects of terrorism financing. ASIO investigates terrorism financing activity of security concern in accordance with its functions.
285 See eg 1373, 1267 and the Terrorism Financing Convention
286 FATF, Terrorist Financing, 29 February 2008, p4
287 Martin Scheinin, Report of the Special Rapporteur on the promotion and protection of human rights while countering
The conflict in Syria is a particular area of current concern in relation to terrorism financing. Australian Government agencies have expressed their concerns to the INSLM about the terrorism financing activities of members of the Australian community in relation to the conflict in Syria. ASIO submitted:-
Within Australia, numerous individuals are supporting the conflict in Syria. The type of support varies from fundraising to facilitation for individuals seeking to travel to Syria, as well as involvement in violence and harassment related to the conflict. Fundraising in support of the conflict has been particularly notable.288
The international flow of funds to terrorists and terrorist organisations is a key concern of the international community, with the Terrorism Financing Convention and UN Security Council decisions requiring parties to the Convention and Member States respectively to take actions to counter terrorism financing.
In its 2008 review of the United Kingdom’s terrorism financing measures, the European Union Committee of the House of Lords recognized that the financing of terrorism more often than not takes place in an international context and requires an international strategy for measures to be effective. The Committee quoted the EU Council of Ministers acceptance that “measures adopted solely at national or even Community level, without taking account of international coordination and cooperation, would have very limited effects”.289 The INSLM agrees with this
position.
A 2012 European Commission review of the information sharing arrangements for terrorist financing data between the European Union and United States (the Terrorist Financing Tracking Program (“TFTP”)) highlighted the value of coordinated global efforts to counter terrorism financing. The review found that in the Breivik case290:-
TFTP based information helped Norwegian and other European investigators including Europol to identify within hours the channels through which Breivik collected and moved the funds that he used for the preparation of his brutal attacks.
288 ASIO Submission to the INSLM’s Review of Terrorism Financing Legislation. The AFP expressed similar concerns to
the INSLM.
289 House of Lords European Union Committee, Money Laundering and the Financing of Terrorism Report, HL Paper
132–I (22 July 2009), quoting Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing (the third money laundering Directive), OJ L309 of 25 November 2005, recital 5.
290 Anders Behring Breivik was sentenced to 21 years imprisonment for violations of the Norwegian penal code §147
(terrorism), §148 (fatal explosion), and §233 (murder). On 22nd July 2011, Breivik bombed the Oslo Government
The more knowledge is gained on the financial patterns of such terrorists (“lone wolves”), the better are law enforcement and other authorities prepared to understand the thinking of such individuals and ultimately to prevent similar attacks. Based on the TFTP data collected in [the] context of the Breivik case, the Finnish authorities were able to arrest a person pursuing similar terrorist objectives before that person was able to put them in practice.291
For Australia’s terrorism financing laws to be effective, and to comply with international obligations, they must apply to the financing of terrorism wherever it occurs, regardless of where the terrorists or terrorist organisations are located, or where the putative terrorist act has occurred or is to occur. Currently, offences under the UN Charter Act require a closer connexion to Australia, meaning the terrorist asset freezing régime is somewhat less comprehensive in its effect on individuals and entities outside Australia.
As illustrated by the international statements noted in Appendix K, the position is not unambiguous in relation to the intended breadth of jurisdiction for the criminal laws required by international obligation to be enacted by Australia and other countries owing those obligations. On the one hand, there are clear descriptions of such laws with an explicit territorial nexus. On the other hand, there are equally clear references to the phenomenon of terrorism and its financing occurring regardless of national boundaries, this being the rationale for international agreement in order to combat that evil.
The INSLM recognizes that these materials can fairly be seen to justify any one of the extended geographical jurisdiction provisions in the Criminal Code292 being used for Australia’s
terrorism financing offences. A virtue of category D, being the widest and least qualified, is the removal of the possibility of any nexus complication impeding the prosecution of universally condemned conduct that has been investigated and is in the course of being prosecuted by Australian authorities. Its attachment to the Criminal Code terrorism financing offences was and remains appropriate and can be seen as promoting those laws’ efficacy. It can readily be conceded, of course, that the choice of category A (the narrowest extension) for the UN Charter Act terrorism financing offences’ extended geographical jurisdiction is unexceptionable in terms of Australia’s international obligations, and plainly wide enough in its effect to be appropriate.
291 European Commission, Report on the second joint review of the implementation of the Agreement between the
European Union and the United States of America on the processing and transfer of Financial Messaging data from the European Union to the United States for the purposes of the Terrorist Finance Tracking Program (October 2012) 2.1.7
However, this is to say that the available choice did not throw up a uniquely correct outcome or an obviously preferable outcome among categories A and D. The question of a consistency of approach applying to all of Australia’s terrorism financing offences is different – it is plainly preferable that the approach be consistent in the absence of any reason for a different approach. There are no such reasons. The simplicity of category D should therefore be attached to all of Australia’s terrorism financing offences’ extended geographical jurisdiction.293
This approach chimes with the capacity to proscribe an organisation under the Criminal Code or a person, entity or asset under the UN Charter Act without any connexion to Australia. The absence of a traditional jurisdictional connexion to Australia cannot be a reason for failing to list. To put it another way, the international project to counter terrorism, and its financing, connects everyone including the State actors in the international community. The legislative bases for proscription under both the Criminal Code and UN Charter Act do not require a connection to Australia, although information indicating links to Australia or threats to Australian interests may properly tend to prioritize consideration by ASIO of proscribing a particular group as a terrorist organisation under the Criminal Code.294