Federal Court of Australia

Thorpe v Commonwealth of Australia [2026] FCA 113

ORDERS

THE COURT ORDERS THAT:

1.    The fourth further amended originating application dated 18 January 2026 is dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

HILL J:

A.    introduction

1    The Applicants seek judicial review of a decision by the Second Respondent (the Minister), made under s 102.1(4) of the Criminal Code in the Schedule to the Criminal Code Act 1995 (Cth), not to delist Hamas as a “terrorist organisation”. This bare description reveals that this proceeding relates to matters of considerable public controversy. As Rangiah J stated in Lattouf v Australian Broadcasting Corporation (Penalty) [2025] FCA 1174 at [4]:

Following the attack on Israel by Hamas on 7 October 2023 and Israel’s invasion of the Gaza Strip, the Israel/Gaza war quickly became the most covered, contested and controversial news story in the world. A state of hostility developed between supporters of each side. In Australia, there were heated rallies and protests, and each side conducted widespread campaigns of vilification, doxxing and cancelling on social media and in other forums.

2    A great deal of the Applicants’ arguments seek to engage with the situation in Gaza, and in particular whether Israel is committing genocide. As will become apparent, the legal issues in this proceeding are much more confined, and it is no part of this Court’s role to enter into these matters of public debate.

3    For the following reasons, the application is dismissed with costs.

4    Applicants’ materials: The Applicants have filed extensive materials, including the following:

    The Second Applicant has filed several affidavits, and has filed three “Tender Bundles” of more than 800 pages of international material, such as orders of the International Court of Justice (ICJ); cases of the International Criminal Court (ICC) and other materials relating to ICC proceedings; and United Nations reports into Gaza dated between June 2024 and September 2025.

    An affidavit of Dr Tim Anderson affirmed on 19 September 2025, who purports to give evidence on the difference between terrorism and legitimate resistance.

    An affidavit of Maung Zarni affirmed on 20 September 2025, who states he is an expert in genocide, who purports to give evidence on whether Hamas is a terrorist group, and whether the ongoing “proscription” of Hamas as a terrorist organisation is in breach of Australia’s obligations under the Convention on the Prevention and Punishment of the Crime of Genocide [1951] ATS 2 (Genocide Convention).

    An affidavit of Ms Lamia Lounici affirmed on 4 December 2025, who provides an Arabic transcription and English translation of a video recording of a speech given by Ismail Haniyeh on 7 October 2023.

5    At the hearing, the Second Applicant filed an affidavit by him affirmed on 10 February 2026, which annexed two documents from Hamas about Operation Al-Aqsa Flood dated January 2024 and December 2025, and a statement from Dr Marzouk on the legal character of Hamas. The affidavit and first annexure were received subject to relevance, and the third annexure was received as a submission (under s 136 of the Evidence Act 1995 (Cth)). The second annexure was not admitted, as a document that post-dates the Minister’s decision cannot be relevant to the legality of the Minister’s decision, which is assessed at the time of the decision.

6    Respondents’ materials: The Respondents filed a Court Book containing the documents before the Minister, and his decision and statement of reasons. The Commonwealth filed affidavits from AGS lawyers to establish non-contentious matters (such as service of a notice of a constitutional matter, and the fact that no other applications were made for de-listing Hamas within the relevant 12-month period).

B.    Background

B.1    Procedural history

7    First originating application (Apr 2025): In April 2025, the Applicants filed an originating application seeking declarations that various public remarks they had made supportive of Hamas in October and November 2024 could not constitute offences against s 102.8 of the Criminal Code (associating with terrorist organisations), because (it was said) those statements were protected by the constitutional implied freedom of political communication. That aspect of the proceeding has fallen away in the latest version of the originating application.

8    Amended applications (Jul and Oct 2025, Jan 2026): In a series of amended originating applications filed 25 July 2025, 21 October 2025 and 18 January 2026, the Applicants seek to challenge a decision made by the Minister on 15 July 2025, refusing an application by the Second Applicant for Hamas to be delisted as a terrorist organisation. The Second Applicant had made that application in three emails sent to the Minister dated 18, 23 and 25 August 2024.

9    The fourth amended originating application seeks the following relief:

1.    Declaration that the decision of the Minister for Home Affairs [the AFP Minister] made 15th July 2025, refusing the application made by the Second Applicant on 18th, 23rd, and 25th August 2024 under s.102.1(17) for the delisting of Hamas from the list of proscribed terrorist organisations was affected by jurisdictional error.

2.    Declaration that the Minister for Home Affairs failed to re-consider consider according to law the application made by the Second Applicant on 18th, 23rd, and 25th August 2024 under s.102.1(17) for the delisting of Hamas from the list of proscribed terrorist organisations.

3.    Declaratory relief under the Administrative Decisions (Judicial Review) Act 1977 [(Cth)] ss.5, 6, and 7 that the Minister for Home Affairs failed to consider according to law the application made by the Second Applicant on 18th, 23rd, and 25th August 2024 under s.102.1(17) for the delisting of Hamas from the list of proscribed terrorist organisations.

10    The fourth amended originating application contains 24 grounds, including constitutional arguments. On 23 January 2026, the Respondents issued a notice of constitutional matter under s 78B of the Judiciary Act 1903 (Cth). None of the State or Territory Attorneys-General sought to intervene (noting that the Commonwealth is already a party).

11    Hamas intervention application (Oct 2025): On 15 October 2025, the Second Applicant filed an interlocutory application on behalf of Hamas for Hamas to be granted leave to intervene in the proceeding, supported by an affidavit of Dr Marzouk (Head of International Relations and Legal Office in the Political Bureau of the Islamic Resistance Movement) affirmed on 7 October 2025. I refused that application on 21 October 2025.

    The evidence did not establish that Hamas was a juridical entity capable of being a party to legal proceedings. As will become apparent, the bare fact that a body is listed as a terrorist organisation does not mean that the body is a juridical entity recognised by law: the Criminal Code defines “organisation” broadly to include unincorporated associations, and the relevant offences attach to people connected with the organisation, not the organisation itself.

    Further, I was not satisfied that the arguments that Hamas wished to raise (set out in Dr Marzouk’s affidavit) would be useful and different from the contribution of the Applicants (cf r 9.12(2)(a) of the Federal Court Rules 2011 (Cth)), as they sought to advance matters that went only to the merits of the Minister’s decision, and were not relevant to the issues in this Australian judicial review proceeding.

12    Second Hamas intervention application (Feb 2026): On 10 February 2026, the Second Applicant filed a second interlocutory application on behalf of Hamas for Hamas to be joined as an intervener, with its participation to be limited to the issue of procedural fairness owed to Hamas in the de-listing decision of 15 July 2025. At the hearing, the Applicants did not press this application, in light of the concession by the Respondents (correctly made) that the Applicants had standing to argue that procedural fairness had been denied to Hamas.

B.2    Minister’s decision

13    The Minister sent the Second Applicant a cover letter dated 15 July 2025, which attached a “Decision Record: 25 August 2024 Hamas De-Listing Application”, also dated 15 July 2025.

14    Legislative framework; matters taken into account: The Decision Record set out the legislative framework under s 102.1(16) and (17) of the Criminal Code, and stated that “[i]n considering the application to delist Hamas as a terrorist organisation in the context of the relevant statutory factors under the Criminal Code, [the Minister] considered”:

•    matters raised by the applicant in their emails from 18, 23 and 25 August 2024 (Attachment A); and

•    the legislative threshold for listing an organisation as a terrorist organisation under the Criminal Code, namely that I am satisfied on reasonable grounds that the organisation:

o     is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act; or

o     advocates the doing of a terrorist act; and

•    information relating to Hamas’ actions and statements since the Criminal Code (Terrorist Organisation—Hamas) Regulations 2022 [the Hamas Regulations] were made on 3 March 2022.

•    recent statements by the Australian Government about Hamas’, their actions and statements.

15    Minister satisfied as to Hamas and terrorist acts: The Minister then gave reasons for being satisfied that Hamas is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act; and that Hamas advocates the doing of a terrorist act.

16    Engaged in, preparing etc a terrorist act: On the first of these matters, the Minister stated that the majority of Hamas’ terrorist acts have been conducted by the Brigades. Public statements made by Hamas’ political leaders acknowledge and support the terrorism-related activities of the Brigades. Since 2005, Hamas terrorist attacks have primarily consisted of small-arms, rocket and mortar fire at Israeli communities in the vicinity of Gaza.

17    The Minister then listed examples of Hamas engaging in, preparing or planning terrorist acts between 20 June 2023 and 1 October 2024, which included the following:

•    On 7 October 2023, Hamas-led militants conducted a series of coordinated terrorist attacks on Israel, known as Operation Al-Aqsa Flood. This resulted in the deaths of an estimated 1,200 individuals, injuring more than 5,400 others, and the abduction of 253 hostages. Nationals from at least 35 countries, including Australia, were killed, injured, or taken hostage in the attack.

…

As of June 2025, Hamas continues to hold 50 hostages captive in Gaza who were taken as part of the 7 October attacks. The bodies of 49 hostages have been recovered since 7 October.

18    The Minister stated that, on the basis of these examples, he was satisfied that Hamas is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act.

19    Advocates the doing of a terrorist act: The Minister stated that Hamas’ leadership and media outlets often praise, promote and encourage terrorist attacks conducted by its own Brigades and other violent extremist organisations and lone-actor attacks. The Minister listed three examples from 2023 and 2024, which included the following:

•    On 7 October 2023, as part of the ongoing ‘Operation al-Aqsa Flood’:

o     Hamas released a video of the Brigades Commander Mohammed Deif calling for Palestinian and ‘resistance’ groups in the region to honour jihad and to take part in the ‘liberation of al-Aqsa Mosque’.

o     Hamas leader Ismail Haniyeh made a speech on 7 October inciting people to join the attack on Israel as part of the ‘…ultimate jihad, the outcome of which can only be victory or martyrdom’ and to kill Israelis whether they are settlers or soldiers.

o     Haniyeh further issued a statement that calls on people everywhere ‘to stand in this just battle in defending al-Aqsa’.

20    The Minister stated that, on the basis of these examples, he was satisfied that Hamas advocates the doing of a terrorist act.

21    Response to matters raised in the de-listing application: The Minister then set out his response to the matters raised by the applicant (the Second Applicant to this proceeding) as reasons for de-listing Hamas as a terrorist organisation.

22    Inclusion of non-military wing of Hamas: First, the applicant contended that the non-military wing of Hamas should never have been listed as a terrorist organisation. The Minister stated that, following the 7 October 2023 attacks, Ismail Haniyeh, then the leader of Hamas’ Executive Committee, delivered a televised endorsement of the attacks, outlined the objectives of the attacks and spoke of the actions of the Brigades as part of the Hamas’ broader organisation and goals. The Minister stated that, while there are aspects of Hamas which relate to the civil function of Palestine, the Minister considered that there was sufficient information available which demonstrated that Hamas is one organisation and that it was appropriate for the listing to continue to include both its military and non-military wings.

23    Validity of original decision to list Hamas as a terrorist organisation: Second, the applicant stated that the original decision to list Hamas in its entirety was affected by jurisdictional error as it did not consider that Hamas is exercising a right of armed resistance against an illegal occupation. The Minister stated that it would be for a court to determine whether the initial listing was affected by jurisdictional error. However, the Minister noted that the Explanatory Statement to the Hamas Regulations described Hamas’ ideology, views on Israel and strategy of armed resistance.

24    Hamas is exercising a right of armed resistance; right and duty to resist genocide: Third and fourth, the applicant contended that the Minister should consider de-listing Hamas as a terrorist organisation because Hamas was exercising a right of armed resistance against an illegal occupation; and because Hamas was exercising a right and duty to resist genocide.

25    In each case, the Minister stated that he had considered the point and, noting the 7 October 2023 Hamas-led attacks on Israel, the Minister was satisfied that Hamas continues to meet the legislative threshold to be listed as a terrorist organisation.

26    Hamas is the elected government of the Palestinian people: Fifth, the applicant contended that the Minister should consider de-listing Hamas as Hamas is the elected government of the Palestinian people.

27    The Minister noted that Australia does not recognise a Palestinian state, so Hamas is not the government of a recognised State. The Minister then stated that he had considered the point and, noting the 7 October 2023 Hamas-led attacks on Israel, the Minister was satisfied that Hamas continues to meet the legislative threshold to be listed as a terrorist organisation.

28    Israel and Hamas are engaged in armed conflict: Sixth, the applicant contended that the Minister should consider de-listing Hamas as Israel and Hamas are engaged in an armed conflict.

29    The Minister stated that he considered the examples of Hamas’ actions described above in his reasons “to be terrorist acts and [the Minister did] not consider those incidents to have been undertaken legitimately as part of armed conflict”. On that basis, the Minister was satisfied that Hamas continues to meet the legislative threshold to be listed as a terrorist organisation.

30    Israel’s policies and actions are genocide and war crimes; Australian Government made complicit: Seventh and eighth, the applicant contended that the Minister should consider de-listing Hamas in the context of Israel’s policies and actions; and because listing Hamas makes the Australian Government complicit in and supportive of Israel’s policies and actions.

31    In each case, the Minister stated that “this matter does not go to whether the actions of Hamas are terrorist activities or to determining whether Hamas continues to meet the legislative threshold for listing as a terrorist organisation under the Criminal Code”. The Minister then stated that, “[e]ven if this matter was a relevant consideration, noting the 7 October 2023 Hamas-led attacks on Israel, [the Minister was] satisfied that Hamas continues to meet the legislative threshold to be listed as a terrorist organisation”.

32    Other matters: The Minister had regard to the joint statement by the Prime Minister and the Minister for Foreign Affairs in January 2025 that “Australia remains unequivocal in our condemnation of Hamas’ atrocities on 7 October, and its ongoing acts of terror. There must be no role for Hamas in the future governance of Gaza. Any future Palestinian state must not be in a position to threaten Israel’s security”.

33    Decision: The Minister concluded that he was satisfied that Hamas continues to meet the legislative threshold to be listed as a terrorist organisation under the Criminal Code.

34    Statement of Reasons (Attachment A): The briefing to the Minister included a document titled “Statement of Reasons: Listing Hamas as a terrorist organisation under the Criminal Code Act 1995” (Attachment A to the brief). This document analyses whether Hamas satisfied the statutory criteria in s 104.1(4)(b) and (17) of the Criminal Code.

35    Details of the organisation: The Statement of Reasons contains a section headed “Details of the organisation”, which included the following.

    Hamas is an ideologically and religiously-motivated violent extremist organisation. In 2006, Hamas participated in the Palestinian election and in 2007, overthrew the Palestinian Authority, seizing control of Gaza. The Minister states:

Hamas has since been the governing body in Gaza, largely responsible for the administration and provision of government services, including health, education and security, to Gaza’s inhabitants.

    Hamas does not recognise Israel as a sovereign state. Its overarching goal is to “liberate Palestine” by establishing an independent Palestinian state—comprising Gaza, the West Bank and Israel—and destroying Israel as a political entity in the process. Hamas supports a strategy of armed resistance in pursuit of its goals.

    Hamas is formally a hierarchical movement, and its Executive Committee is its supreme decision-making body.

    The Izz al-Din al-Qassam Brigades were officially established in 1991 as the paramilitary wing of Hamas. The Brigades undertake military activity on behalf of Hamas and have adopted terrorist tactics in their efforts to defeat Israel, including indiscriminate rocket attacks, suicide attacks, bombings, shootings and kidnappings against Israeli military and civilian targets.

    Hamas’ leadership has historically stated that there is no neat separation between the organisations’ political and paramilitary components. The Minister set out various statements from the political leaders of Hamas, which “indicate that while the Brigades retain a degree of operational independence, Hamas’ political leadership remains actively involved in the Brigades’ activities”.

36    On membership, the Statement of Reasons stated that the total size of Hamas is difficult to determine. Estimates for the Brigades previously ranged from several thousand to up to 30,000 fighters, with the current size unclear. The Minister stated that the “proportion of members assigned to normal military and security duties, and those involved in planning terrorist attacks is unknown”.

37    On financing, the Statement of Reasons stated that the proportion of funds Hamas has allocated to the terrorism-related activities of the Brigades is difficult to determine. While Iran is known to fund the Brigades, Hamas’ funding comes from a range of official and private sources. The Statement of Reasons stated that funds and donated goods directed towards the social service wing of Hamas are used to fund the Brigades, either by the taxation of funds and goods moving through their borders, or because this aid allows Hamas to divert the funding that would have been spent on providing those services to be spent on terrorism.

38    Terrorist acts; advocacy: The Statement of Reasons then discussed whether Hamas had directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act; and whether Hamas had advocated the doing of a terrorist act. This discussion is substantially the same as in the Decision Record, summarised above.

39    Other considerations: The Statement of Reasons then addressed:

    Links to Australia and threats to Australian interests.

    Listings by likeminded countries or the United Nations. This noted that Hamas has been designated as a terrorist organisation or entity in the United States, United Kingdom, Canada, New Zealand and the European Union.

    Engagement in peace or mediation processes. This referred (among other things) to negotiations between Hamas and Israel from November 2023 and throughout 2024, and an agreement for a ceasefire and exchange of hostages announced in January 2025 (but noted that attacks on Gaza recommenced in March 2025, indicating an end to the ceasefire).

40    Status of Statement of Reasons: Although this Statement of Reasons was not provided to the Second Applicant, I consider that it is relevant when assessing the Minister’s reasons for the decision under review.

    The decision page of the briefing to the Minister indicates that the Minister noted this document. That is, it can be inferred that the Minister had regard to this document. The document is titled “Statement of Reasons”, and provided additional and relevant information on the legislative threshold for listing an organisation as a terrorist organisation under the Criminal Code, which was one of the “Matters taken into account” listed by the Minister: see [14] above.

    The Decision Record sent to the Second Applicant is not a formal reasons for decision, and (as the Commonwealth notes) was not provided pursuant to any statutory obligation to provide reasons. Accordingly, this is not a case where the decision-maker was required to record in a statement of reasons every relevant finding on fact and law: cf the obligation in Administrative Review Tribunal Act 2024 (Cth), s 105, read with definition of “statement of reasons” in s 4. Accordingly, the Minister is not confined to the four corners of the Decision Record, but may use other documents that were considered by the Minister to explain what his reasons for decision were.

B.3    Issues in the proceeding

41    Summary of Applicants’ arguments: The Applicants’ grounds of review are in the nature of submissions, and are lengthy, complex and overlapping. The arguments raised by those grounds can be summarised as follows:

(1)    There is said to be a constitutional restriction on Commonwealth legislative power (whether the external affairs power or the defence power) that prevents a Commonwealth law from empowering a decision on whether to de-list an organisation as a terrorist organisation that is contrary to Australia’s international obligations, particularly those relating to genocide. For example:

•    This limit is said to require, in a situation of international armed conflict, requiring the provision of minimum judicial guarantees and individual penal responsibility (Ground 1AA).

•    It is also said that the Minister was constitutionally required to make a decision in accordance with Australia’s international obligations to prevent genocide or incitement to genocide, which means the Minister committed an error of law by treating those obligations as irrelevant to the statutory task (Ground 1A).

•    The Applicants also contend that the Minister’s decision not to de-list Hamas breaches the separation of powers, and refer to the principle in The Australian Communist Party v The Commonwealth [1951] HCA 5; (1951) 83 CLR 1 (Communist Party Case).

(2)    In the alternative, it is said that there is an implied statutory limit on the Minister’s power, which requires that any decision on whether to de-list an organisation as a terrorist organisation be made in accordance with Australia’s international obligations, particularly those relating to genocide (see Ground 12; see also Ground 1A). It is said the Minister erred by treating these international obligations as irrelevant.

•    An aspect of this argument is that Div 102 must be interpreted consistently with Div 268 of the Criminal Code, which contains offences relating to genocide (see Ground 1A(d)). The Applicants also refer here to the Charter of the United Nations Act 1945 (Cth) (UN Charter Act) and the Geneva Conventions Act 1957 (Cth).

•    It is also said that the Minister erred by failing to assess Hamas’ sovereign immunity as the governing body of an autonomous region or self-governing territory, for the purposes of the Foreign States Immunities Act 1985 (Cth) (see Ground 1A(h)).

(3)    It is said that the Minister failed to consider (or unreasonably rejected) various arguments put by the Second Applicant; such as: the continuing listing of Hamas in its entirety exposes every Palestinian to extra-judicial killing by Israel, and incites genocide (Grounds 1J, 1K, 1 and 2), and interferes with the capacity of Hamas to engage in negotiations to end the conflict with Israel (Ground 1A(e)); that the Palestinian people have the right to defend themselves against genocide, and have a recognised right to armed struggle for liberation (Grounds 3, 6 and 11).

•    At the hearing, the Applicants also contended that it was legally unreasonable of the Minister not to have considered highly relevant documents in the public domain; in particular, a January 2024 Hamas document which sets out Hamas’ narrative about Operation Al-Aqsa Flood (referred to by the Minister as the 7 October 2023 attacks); and a July 2024 report of the Special Rapporteur to the Human Rights Council on the situation of human rights in Gaza.

(4)    It is said the Minister failed to accord procedural fairness to the Second Applicant or to Hamas (Ground 1C). The Applicants refer particularly to the Minister’s taking into account the security of Israel (Ground 1D), and taking into account a statement by the Australian Prime Minister and Foreign Minister about Hamas (Ground 1P).

(5)    It is said that the Minister’s decision is affected by bias (both actual and apprehended), because there was no consideration of Israel’s actions (Grounds 1A(h), 1F, 1N). It is also said that the failure to consider the actions of Israel is a breach of the Racial Discrimination Act 1975 (Cth) (RDA) (Ground 1A(d)(ii)).

(6)    It is said that the Minister took into account false allegations, particularly allegations that: the late political leader of Hamas, Ismail Haniyeh, had called for the killing of Israeli civilians in October 2023 (when it is said he did not do so); that Hamas in November 2024 called on Palestinians to increase their involvement with these ongoing terrorist attacks, without (it is said) considering the context that Gazans were under a state of genocide, requiring armed self-defence (Ground 1E, 10). The Applicants also contend that it was incorrect for the Minister to designate all taken to Gaza as “hostages” (when, it is said, some were Israeli soldiers and therefore prisoners of war), and all people killed on 7 October 2023 as being killed as a result of Hamas’ attacks (when, it is said, some were killed by Israeli soldiers) (Grounds 1Q, 1R, 7 and 8). In a related argument, it is said to be unreasonable for the Minister to consider examples of Hamas’ conduct without acknowledging that there was a state of non-international armed conflict at the time of each of these events (Ground 9).

(7)    The Minister’s decision is said to be so overly broad as to be legally unreasonable because, by treating Hamas in its entirety as a terrorist organisation, the decision purports to criminalise under Australian law every Gazan resident who voted for Hamas, and every government employee (including street sweepers) (Grounds 1A(i), 1L, 12(i)). The Applicants contend in written submissions that the Minister’s lack of knowledge about the proportion of Hamas members assigned to normal military and security duties, and those involved in planning terrorist attacks, is not an excuse “for overly broad classifications”. The Applicants’ written submissions contend further that the Minister’s decision is legally unreasonable because it carries an implicit demand that Hamas and other Palestinian resistance factions cease armed self-defence.

(8)    The Minister is said to have failed to apply the Australian Government’s protocol for listing terrorist organisations, by failing to consider that the United Nations does not list Hamas as a terrorist organisation, and by failing to consider Hamas’ engagement in negotiations and commitment to cease-fire agreements, and the personal inviolability of Hamas negotiators, (Ground 1A(f) and (g)).

(9)    The Applicants’ written submissions also contend that the Minister erred by deciding that the statutory task did not involve any consideration of whether Hamas as a whole was an “organisation”.

42    Applicants’ standing: A preliminary issue is the standing of the Applicants to bring this application for judicial review. Generally, applicants for judicial review must establish that they have a real or sufficient interest in obtaining the relief sought: see Hobart International Airport Pty Ltd v Clarence City Council [2022] HCA 5; (2022) 276 CLR 519 at [32] (Kiefel CJ, Keane and Gordon JJ), [65] (Gageler and Gleeson JJ), [79] (Edelman and Steward JJ); Unions NSW v New South Wales [2023] HCA 4; (2023) 277 CLR 627 at [16] (Kiefel CJ, Gageler, Gordon, Gleeson and Jagot JJ), [50] (Edelman J). However, a distinctive feature of s 102.1 of the Criminal Code is that there is no requirement that the applicant for de-listing have any connection to the relevant organisation: s 102.1(16) simply provides that “an individual or an organisation (which may be the listed organisation)” may apply for the de-listing of an organisation as a terrorist organisation.

43    Here, the Second Applicant was the person who applied for Hamas to be de-listed as a terrorist organisation, whose application prompted the decision under review. This fact gives him a sufficient interest in determining whether the Minister’s decision was lawfully made, because if the decision is invalid then his application for Hamas to be de-listed is yet to be lawfully finalised: see Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10; (2023) 279 CLR 1 at [62] (Kiefel CJ, Gageler and Gleeson JJ), [289] (Jagot J).

44    The First Applicant contends that he has standing to challenge the Minister’s decision because, as an elder of the Gunnai Kernoth Krautungalung, he owes a moral obligation and owes traditional obligations to the people of Palestine to stop the genocide that he says is caused by the continued listing of Hamas as a terrorist organisation. Given the Second Applicant has standing, it is not necessary to rule on the standing of the First Applicant: see, by analogy, Williams v Commonwealth of Australia [2012] HCA 23; (2012) 248 CLR 156 at [112] (Gummow and Bell JJ) (the intervention of State Attorneys-General under s 78A of the Judiciary Act 1903 (Cth) meant that it was unnecessary to consider the plaintiff’s standing to challenge the validity of spending under a Commonwealth funding agreement).

C.    legislative framework

C.1    Criminal Code, Div 102 (terrorist organisations)

45    Division 102 of the Criminal Code (terrorist organisations) is contained within Part 5.3, dealing with terrorism. Section 102.1 sets out definitions, including that of “terrorist organisation”, while the remainder of Div 102 sets out offences relating to terrorist organisations, such as directing the activities of a terrorist organisation (s 102.2), membership of a terrorist organisation (s 102.3), training involving a terrorist organisation (s 102.5), and providing support to a terrorist organisation (s 102.7).

46    “Terrorist organisation” (s 102.1(1)): “Terrorist organisation” is defined in s 102.1(1) to mean:

(a)    an organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act; or

(b)    an organisation that is specified by the regulations for the purposes of this paragraph … .

47    By s 102.1(2), before the Governor-General makes a regulation for the purposes of para (b) of this definition, the “AFP Minister” (i.e. the Minister administering the Australian Federal Police Act 1979 (Cth): see the definition in s 100.1(1)) must be 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.

48    The AFP Minister must also arrange for the Leader of the Opposition in the House of Representatives to be briefed before regulations of that type are made (s 102.1(2A)).

49    “Terrorist act” (s 100.1): The term “terrorist act” is defined in s 100.1 to mean “an action or threat of action where”:

(a)    the action falls within [s 100.1](2) and does not fall within [s 100.1](3); and

(b)    the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and

(c)    the action is done or the threat is made with the intention of:

(i)    coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or

(ii)    intimidating the public or a section of the public.

50    Action falls within s 100.1(2) if it has certain effects; for example, it causes serious harm that is physical harm to a person; or causes serious damage to property; or causes a person’s death (s 100.1(2)(a) to (c)).

51    Action falls within s 100.1(3) (that is, is not a terrorist act) if it (a) is advocacy, protest, dissent or industrial action; and (b) is not intended to have specified effects (such as causing serious harm that is physical harm to a person).

52    In the case of Hamas, the focus of para (c) of the definition of “terrorist act” is the coercion etc of the government of a foreign country, or part of a foreign country; that is, acts that occur overseas. By s 102.9, the offences in Div 102 have extended geographical jurisdiction under s 15.4 of the Criminal Code, meaning that the offence applies whether or not the conduct constituting the alleged offence, or a result of that conduct, occurs in Australia.

53    Hamas Regulations: The Hamas Regulations provide that “the organisation known as Hamas” is specified for the purposes of para (b) of the definition of terrorist organisation (reg 5(1)). Regulation 5(2) lists other names by which Hamas is known, including Islamic Resistance Movement (reg 5(2)(d)).

54    The Hamas Regulations were made in March 2022. The Explanatory Statement to those regulations states that the Minister for Home Affairs was satisfied on reasonable grounds that the organisation known as Hamas is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act, and advocates the doing of a terrorist act (as required by s 102.1(2)). In coming to this position, the relevant Minister took into consideration unclassified information provided by the Department of Home Affairs, set out in a “Statement of Reasons” reproduced in Attachment C to the Explanatory Statement. That Statement of Reasons is headed “Listing of Hamas as a terrorist organisation under the Criminal Code Act 1995” and is very similar in structure and content to the Statement of Reasons provided to the Minister in the briefing here: see [34]-[39] above. The Explanatory Statement states that the relevant Minister provided that information to the Leader of the Opposition (cf s 102.1(2A)).

55    AFP Minister no longer satisfied of precondition(s) (s 102.1(4)-(4B)): The effect of s 102.1(4)-(4B) is that regulations specifying an organisation to be a “terrorist organisation” cease to have effect if the AFP Minister is no longer satisfied of the relevant precondition(s) to listing an organisation.

56    Section 102.1(4) provides:

(4)    If:

(a)    an organisation is specified by regulations made for the purposes of paragraph (b) of the definition of terrorist organisation in this section; and

(b)    the AFP Minister ceases to be satisfied of either of the following (as the case requires):

(i)    that the organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act;

(ii)    that the organisation advocates the doing of a terrorist act;

the AFP Minister must, by written notice published in the Gazette, make a declaration to the effect that the AFP Minister has ceased to be so satisfied.

57    The regulations, to the extent that they specify the organisation to be a terrorist organisation, are taken to cease to have effect on the day that the AFP Minister ceased to be satisfied, as specified in the declaration (s 102.1(4A)-(4B)).

58    De-listing application (s 102.1(16)-(17)): Section 102.1(16)-(17) makes the following provision for individuals or organisations to apply for an organisation to be de-listed as a “terrorist organisation”.

59    By s 102.1(16), s 102.1(17) (which obliges the AFP Minister to consider a “de-listing application”) applies if:

    an organisation (the “listed organisation”) is specified in regulations made under para (b) of the definition of terrorist organisation; and

    an individual or an organisation (which may be the listed organisation) makes an application (the “de-listing application”) to the AFP Minister for a declaration under s 102.1(4), on the grounds that there is no basis for the AFP Minister to be satisfied that the listed organisation (i) is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act; or (ii) advocates the doing of a terrorist act (as the case requires); and

    the AFP Minister did not receive an application from any individual or organisation in relation to the listed organisation during the 12 months ending when the AFP Minister receives the de-listing application.

60    Section 102.1(17) provides that the AFP Minister must, as soon as practicable after receiving the de-listing application, consider whether the listed organisation:

(a)    is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act; or

(b)    advocates the doing of a terrorist act;

as the case requires.

61    The note to s 102.1(17) states that, if the AFP Minister ceases to be satisfied of either of these matters (as the case requires), the AFP Minister must make a declaration under s 102.1(4) in relation to the listed organisation.

62    Protocol for listing terrorist organisations: The Australian Government has a “Protocol for listing terrorist organisations” set out on the Australian National Security website. The protocol states that the legislative criteria for making regulations listing organisations as terrorist organisations (i.e. the matters in s 102.1(2))) are “mandatory requirements”.

63    The protocol then states that Australian Government policy is that non-legislative factors “should also be taken into account where possible in determining whether an organisation should be listed”, and that agencies “may also give regard to a range of other factors” (that is, non-legislative factors) to guide and prioritise the selection of organisations for consideration. The protocol states that the key non-legislative factors include:

•    the organisation’s engagement in terrorism

•    the organisation’s ideology

•    links to other terrorist groups

•    links to Australia

•    threats to Australian interests

•    listing by the United Nations or like-minded countries

•    engagement in peace or mediation processes.

C.2    Constitutional basis of Div 102

64    As noted, Div 102 of the Criminal Code is part of Pt 5.3. The constitutional basis for the operation of Pt 5.3 is set out in ss 100.2 and 100.3.

65    Operation in a referring State (s 100.3(1)): By s 100.3(1), the operation of Pt 5.3 in a “referring State” (as defined in s 100.2) is based on:

    the legislative powers that the Commonwealth Parliament has under s 51 of the Constitution (other than s 51(xxxvii)); and

    the legislative powers that the Commonwealth Parliament has in respect of matters to which Pt 5.3 relates because those matters are referred to it by the Parliament of the referring State under s 51(xxxvii) of the Constitution.

66    The note to s 100.3(1) states that the State reference for the purposes of s 51(xxxvii) “fully supplements the Commonwealth Parliament’s other powers by referring the matters to the Commonwealth Parliament to the extent to which they are not otherwise included in the legislative powers of the Commonwealth Parliament”.

67    Matters referred: By s 100.2(1), a State is a “referring State” if its Parliament has referred the matters in s 100.2(2) and (3) to the Commonwealth Parliament for the purposes of s 51(xxxvii) of the Constitution “(a) if and to the extent that the matters are not otherwise included in the legislative powers of the Parliament of the Commonwealth (otherwise than by a reference under [s] 51(xxxvii) of the Constitution); and (b) if and to the extent that the matters are included in the legislative powers of the Parliament of the State”.

68    The referred matters are:

    the matters to which the referred provisions relate, to the extent of making laws with respect to those matters by including the referred provisions in the Criminal Code (s 100.2(2)). The “referred provisions” are defined in s 100.2(6) as “the provisions of Part 5.3 of this Code as inserted by the Criminal Code Amendment (Terrorism) Act 2002, to the extent to which they deal with matters that are included in the legislative powers of the Parliaments of the States”.

    the matter of terrorist acts, and of actions relating to terrorist acts, to the extent of making laws with respect to that matter by making express amendment of Pt 5.3 or Ch 2 (general principles of criminal responsibility) of the Criminal Code (s 100.2(3)).

69    These matters have been referred to the Commonwealth by the States: see for example Terrorism (Commonwealth Powers) Act 2002 (NSW) s 4; Terrorism (Commonwealth Powers) Act 2003 (Vic) (Victorian Reference Act) s 4. The Explanatory Memorandum to the Victorian Reference Act explains the purpose of these references of power as follows:

The Commonwealth Constitution does not give the Parliament express powers to regulate terrorist acts. It derives the authority to make such laws from a patchwork of constitutional powers. …

The patchwork of existing Commonwealth constitutional powers supporting these terrorism offences is extensive and complex but may result in unforeseen gaps in their constitutional support. The States may eliminate doubts about the extent of the Commonwealth’s constitutional power to enact the terrorism offences by referring matters to the Commonwealth Parliament.

70    Legislative history of s 102.1: The initial version of Div 102 of the Criminal Code was inserted as part of a new Pt 5.3 by the Security Legislation Amendment (Terrorism) Act 2002 (Cth) (2002 Security Act), Sch 1 item 3. This version of Pt 5.3 was enacted in reliance on the Commonwealth’s legislative powers.

71    A new version of Pt 5.3 (including Div 102) was inserted by the Criminal Code Amendment (Terrorism) Act 2003 (Cth) (2003 Amendment Act) Sch 1 item 1, relying on references of power from the States. (Section 100.2(6) of the Criminal Code refers incorrectly to this as a 2002 Act, but the version of Pt 5.3 enacted by this 2003 Act matches the text set out in the Schedule to the Victorian Reference Act.) The extrinsic materials state that many provisions (including Div 102) are re-enacted in the same terms as inserted by the 2002 Security Act: see Explanatory Memorandum to the Criminal Code Amendment (Terrorism) Bill 2002 (Cth) at [18].

72    The text of s 102.1 of the Criminal Code inserted by the 2003 Amendment Act has since amended: see particularly the amendments to s 102.1 made by Criminal Code Amendment (Terrorist Organisations) Act 2004 (Cth) (2004 Amendment Act), Sch 1 items 1-3; the Anti-Terrorism Act (No.2) 2005 (Cth), Sch 1 items 11-16; and the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Act 2023 (Cth) (2023 Amendment Act) Sch 4 items 1-4, 6-14. The applicable reference of power by the States is therefore the “amendment reference” in s 100.2(3) of the Criminal Code.

D.    CONSIDERATION

73    In this application for judicial review of the Minister’s decision, the only role of the Court is to determine whether the Minister’s decision was lawfully made. The Court does not decide whether the Minister’s decision was correct or otherwise on the merits: Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 at 35-36 (Brennan J).

D.1    Identifying the statutory task

74    It is therefore necessary to identify the particular statutory task. By s 102.1(16), an applicant in a de-listing application applies for a declaration “under [s 102.1](4)” in relation to the listed organisation. By s 102.1(17), after receiving the de-listing application, the AFP Minister considers whether the listed organisation (a) is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act; or (b) advocates the doing of a terrorist act (as the case requires).

75    That is, s 102.1(17) defines the matters to be considered by the AFP Minister when dealing with a de-listing application, but the power that is actually exercised on the application is s 102.1(4) (as indicated by the note to s 102.1(17)). The immediate significance of this point is that the power in s 102.1(4) turns on the satisfaction of the AFP Minister; namely, whether the AFP Minister continues to be satisfied of the matters in s 102.1(4)(b). Accordingly, the matters in s 102.1(4)(b) (the criteria for deciding whether to de-list a listed organisation) are not jurisdictional facts that a court determines for itself: see Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55 at [42] (Spigelman CJ); Anvil Hill Project Watch Association Inc v Minister for the Environment and Water Resources [2008] FCAFC 3; (2008) 166 FCR 54 at [21] (the Court).

76    I note that the statutory test in s 102.1(2) for making a regulation specifying that an organisation is a “terrorist organisation” turns on whether the AFP Minister is “satisfied on reasonable grounds” of certain matters, whereas the statutory test in s 102.1(4) for making a declaration that brings that regulation to an end turns on whether the AFP Minister is “satisfied” of those same matters. In practice, there may not be a significant difference between these tests, because any satisfaction of the AFP Minister under s 102.1(4) must be reasonably formed. The legal reasonableness of an administrative decision is assessed at the time of the decision, on the circumstances known to the decision-maker: see DVO16 v Minister for Immigration and Border Protection [2021] HCA 12; (2021) 273 CLR 177 at [21] (Kiefel CJ, Gageler, Gordon and Steward JJ); Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 271 CLR 550 at [26] (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ).

D.2    Arguments based on international obligations

77    Many of the Applicants’ arguments rest on the proposition that certain international obligations (particularly treaties directed at preventing genocide and dealing with international humanitarian rights) constrain the decision whether to de-list an organisation; either as a constitutional limit on legislative power, or as a statutory limit on the making of a decision under s 102.1(4): see points (1) and (2) of the summary of the Applicants’ arguments in [41] above. For the following reasons, neither the constitutional nor the statutory version of that proposition can be accepted.

78    International obligations do not impose constitutional limit on de-listing decision: First, it is well-established that there is no constitutional limit that would prevent the Commonwealth from enacting legislation that is inconsistent with Australia’s international obligations.

    In Polites v The Commonwealth [1945] HCA 3; (1945) 70 CLR 60, the Commonwealth made national security regulations which provided for the compulsory enrolment of aliens in Australia’s armed forces. The plaintiff argued that the law was invalid, because it was contrary to a rule of international law that aliens cannot be compelled to serve in the military forces of a foreign State. The High Court rejected that argument, and held that the Commonwealth may legislate on matters within its legislative powers in breach of international law: Polites at 69 (Latham CJ); see also 74 (Rich J), 75-76 (Starke J), 78 (Dixon J), 79 (McTiernan J), 81 (Williams J). In other words, it is open to the Australian Parliament to make laws which are inconsistent with international law or international treaties: Matson v Attorney-General (Cth) [2021] FCA 161 at [168] (White J); see also Doumit v Commonwealth [2005] FCAFC 166; (2005) 144 FCR 298 at [11] (the Court).

    It is true that the external affairs power extends to enacting laws that implement treaty obligations, and a Commonwealth law would not be supported by the treaty-implementation aspect of the external affairs power if the law contained significant provisions which are inconsistent with the terms of the treaty: G Global 120E T2 Pty Ltd v Commissioner of State Revenue (Qld) [2025] HCA 39 at [49] (the Court). However, the existence of treaty obligations does not prevent the Commonwealth from enacting a law under another aspect of the external affairs power (such as with respect to matters geographically external to Australia) that is inconsistent with those treaty obligations: see Horta v The Commonwealth [1994] HCA 32; (1994) 181 CLR 183 at 195 (the Court).

79    Accordingly, to the extent that the Applicants contend that the Criminal Code could not validly authorise a decision on a de-listing application that was inconsistent with Australia’s obligations under treaties or customary international law, those arguments must be rejected. In addition to the points set out above, the provisions of Pt 5.3 are supported by a reference of power from the States: see section C.2 above. The fact that these provisions could be supported by a reference of power, if required, provides even less reason to confine the power to enact s 102.1 of the Criminal Code by reference to international law. In short, Australia’s international obligations do not provide a constitutional constraint on the Minister’s decision whether or not to de-list Hamas.

80    No breach of the separation of powers: It is convenient to deal at this point with the other aspect of the Applicants’ constitutional argument, that the Minister’s decision is said to breach the separation of powers. That argument must also be rejected.

    First, the listing of Hamas as a terrorist organisation (and the decision not to de-list it) does not, by itself, make anyone guilty of a criminal offence. As the Commonwealth submits, the prescription of Hamas as a terrorist organisation merely establishes one element of the offences in Div 102 of the Criminal Code, by identifying the relevant “terrorist organisation”. It remains for a court to find, in a prosecution for an offence against Div 102, that an accused committed the offence, for which the existence of a terrorist organisation is one element: see, by analogy, Kuczborski v Queensland [2014] HCA 46; (2014) 254 CLR 51 at [234]-[235] (Crennan, Kiefel, Gageler and Keane JJ) (rejecting an argument that a State law usurped the judicial process).

    Second, there is no breach of the principle in the Communist Party Case. That principle means that the connection between a law and Commonwealth legislative power cannot depend solely on the opinion of the Parliament or the Executive, but must always be subject to review by the courts. That is, the Parliament cannot “recite itself into power”. But in no sense is the Parliament or the Executive reciting itself into power in this case: the making of regulations to prescribe an organisation as a terrorist organisation requires the AFP Minister to be satisfied on reasonable grounds about the objective matters set out in s 102.1(b); and a decision whether or not to de-list requires the AFP Minister to be satisfied as to those same matters, as required by s 102.1(4)(b). The AFP Minister’s satisfaction in both cases is subject to review by the courts.

81    International obligations are not a statutory limit on the de-listing decision: Turning to the Applicants’ statutory arguments, Australia’s international obligations (particularly those relating to preventing genocide) do not provide a statutory constraint on the power to decide whether to de-list an organisation either. As explained below, there is no requirement to interpret the relevant provisions of the Criminal Code consistently with these international obligations, and these international obligations are not mandatory considerations that the Minister was required to consider and apply when making a de-listing decision under s 102.1.

82    International obligations and statutory interpretation: The first potential statutory means by which international obligations might constrain the power to de-list an organisation under s 102.1 is if the relevant provisions of the Criminal Code were required to be interpreted in accordance with those international obligations. For example, the Applicants contend that the Minister here erred by failing to interpret the term “terrorism” in accordance with international law.

83    Generally, statutory provisions should be interpreted, as far as their language permits, to be consistent with international law, particularly where a provision seeks to give effect to matters of international law: Kingdom of Spain v Infrastructure Services Luxembourg sàrl [2023] HCA 11; (2023) 275 CLR 292 at [16] (the Court); Royal Embassy of Saudi Arabia Cultural Mission v Saleh [2025] FCAFC 184 at [25]-[26] (Raper J, with Rangiah and Lee JJ agreeing). However, international law obligations do not displace the actual text used, so there is no room for the interpretive principle if the statutory language used is sufficiently clear: see Cheedy on behalf of the Yindjibarndi People v State of Western Australia [2011] FCAFC 100; (2011) 194 FCR 562 at [105]-[107] (the Court) (ss 38 and 39 of the Native Title Act 1993 (Cth) are not read down by reference to Art 27 of the International Covenant on Civil and Political Rights (ICCPR)); see also Hopkins v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 33; (2020) 275 FCR 42 at [31]-[32] (the Court) (the meaning of “person” in s 501CA(4) of the Migration Act 1958 (Cth) is not read down by reference to Art 12(4) of the ICCPR).

84    In this case, the interpretative principle is not engaged, because there is no relevant constructional choice that could be informed by international obligations. As noted, the AFP Minister’s task in a de-listing application is to consider the two matters listed in s 102.1(4)(b) and (17), which concern whether the organisation has been engaged in etc, or advocating, a “terrorist act”. Terrorist act is defined in s 100.1, and contains three elements: see [49]-[52] above. None of those elements refer to, or rely on, international law. And, as already explained, there is no constitutional imperative to interpret these provisions in conformity with international law, because the provisions can be supported by the defence power and the reference power (and the geographically external aspect of the external affairs power), whether or not they are consistent with international treaties: see [78]-[79] above.

85    The Applicants’ arguments are contrary to R v Lelikan [2019] NSWCCA 316; (2019) 101 NSWLR 490 (Lelikan (NSWCCA)), which was a sentencing appeal from a conviction for membership of a terrorist organisation, being Partiya Karkerên Kurdistanê (PKK).

    The sentencing judge in that case had received evidence from an expert in counter-terrorism that the characterisation of the PKK as a terrorist organisation was highly contentious in international law. The PKK understood itself to be a party to armed conflict with Turkey, and unilaterally bound itself to act in accordance with international humanitarian law: Lelikan (NSWCCA) at [61]. The PKK is comprised of several political manifestations, some legislative and others executive in function: Lelikan (NSWCCA) at [64].

    On appeal, Bathurst CJ (with Bell P and Davies J agreeing) held that the Criminal Code does not draw any distinction between terrorist organisations by reference to the merits of the organisation. The ideology of an organisation is a matter for the legislature in considering whether to declare that the organisation in question is a terrorist organisation: Lelikan (NSWCCA) at [122]. Bell P added that “[v]alue judgments as to the ideology and motivations of a particular terrorist organisation are quintessentially a matter for the executive government”, and that a court exercising federal criminal jurisdiction “is not equipped and is ill-suited to making an assessment of such matters”: Lelikan (NSWCCA) at [155]. I add that, in my view, that observation extends to all courts, including this Court conducting judicial review proceedings.

    Bathurst CJ held that the history of an organisation might be relevant to the objective seriousness of the membership offence against the Criminal Code: Lelikan (NSWCCA) at [119], referring to Benbrika v The Queen [2010] VSCA 281; (2010) 29 VR 593 (Benbrika (VCA)) at [155]-[157] (the Court). But it was not relevant to the objective seriousness of the offence that the PKK had made the commitment to international humanitarian law. Nor was it relevant that the expert considered that the conflict between Türkiye and the Kurds is “classified as a non-international armed conflict”, within the meaning of the Geneva Conventions: Lelikan (NSWCCA) at [125]. Equally, it was not relevant that the classification of the PKK as a terrorist organisation was contentious in international law: Lelikan (NSWCCA) at [137].

86    It is apparent from this reasoning in Lelikan (NSWCCA) at [125] and [137] that the definition of “terrorist act”, and the offence of membership of a “terrorist organisation”, operate according to their terms. Questions of international law do not inform the interpretation of those provisions. That point emerges even more clearly from the first instance judgment, where the sentencing judge observed that Australian law does not expressly incorporate international humanitarian law into the Criminal Code, and that an attempt to reform the Criminal Code so as to exclude conduct regulated by the law of armed conflict was rejected in 2006: R v Lelikan (No 5) [2019] NSWSC 494 at [72].

87    The approach to interpreting Div 102 of the Criminal Code can be contrasted with the interpretation of Div 268 (dealing with genocide, crimes against humanity, war crimes etc). Unlike Div 102, Div 268 was plainly intended to be interpreted consistently with the relevant international obligations. The extrinsic materials inserting those offences state that these offences are based closely on the way that the International Criminal Court crimes are defined in the draft text of the Elements of Crimes. Because of the international nature of the crimes that are set out in this Division, and the nature of the international obligations that they reflect, it was necessary to define some of these crimes by referring to standards set in the relevant international instruments: see Explanatory Memorandum to the International Criminal Court (Consequential Amendments) Bill 2002 (Cth) (ICC Consequential Amendments Bill), p 3. There is nothing comparable in the text or context of Div 102 of the Criminal Code.

88    I deal below with the Applicants’ arguments that Div 268 impliedly limits the powers to list and de-list an organisation under s 102.1 of the Criminal Code.

89    International obligations and mandatory considerations: The second potential statutory means by which international obligations might constrain the power to de-list an organisation is if those obligations were mandatory relevant considerations that were required to be taken into account when making a de-listing decision under s 102.1.

90    The matters that a decision-maker must take into account when making a decision are determined by construing the relevant statute. The matters may be stated expressly, or may be determined by implication from the subject-matter, scope and purpose of the Act: Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40; (1986) 162 CLR 24 at 39-40 (Mason J).

91    Here, the matters that the AFP Minister must consider when dealing with a de-listing application are set out in s 102.1(17), which are the same matters as are applied when making a decision under s 102.1(4). As just discussed, there is no requirement to interpret those provisions in accordance with international law (in particular, Australia’s international obligations relating to genocide). Equally, there is nothing in the subject-matter, scope and purpose of Div 102 of the Criminal Code that would, by implication, make these international obligations mandatory relevant matters that must be considered. At most, these international obligations might be considerations that the AFP Minister could consider, but is not required to consider.

92    In this respect, the analysis is the same as in Singh v Minister for Home Affairs [2020] FCAFC 7; (2020) 274 FCR 506, where the appellant argued that Australia’s international obligations under the Convention on the Rights of the Child [1991] ATS 4 were mandatory relevant considerations in considering whether there were “compelling reasons” not to apply the usual requirements for a partner visa under migration legislation: see Singh at [26], [46]. The Full Court (Derrington J, with Logan and Reeves JJ agreeing) rejected this argument.

    In Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184; (2017) 256 FCR 235 at [22]-[23], the Full Court held that, in the absence of any express provision, un-enacted international treaty obligations were not mandatory relevant considerations which, if not considered, would attract judicial review for jurisdictional error: Singh at [48].

    Further, there was no requirement to construe the relevant regulations consistently with Australia’s international obligations, because there was no relevant ambiguity in the statutory provision: Singh at [58], and the cases cited.

93    The position is the same here. It is true that Australia has given some legislative effect to its obligations under the Genocide Convention, by enacting the criminal offences in Div 268 of the Criminal Code. However, as discussed next, those provisions operate quite separately from the provisions in Div 102 of the Criminal Code, and do not, by implication, limit the powers to list and de-list an organisation as a terrorist organisation. The relevance of Singh and Kaur is that international law obligations (whether under a treaty or customary international law) are not mandatory relevant considerations unless they are prescribed to have that nature under domestic legislation: Kolora v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1583 at [102] (Thomas J), referring to NRFX v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 187; (2023) 300 FCR 582 at [156] (Derrington J, with Downes J agreeing); see also Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582 at [29], Kiefel CJ, Keane, Gordon and Steward JJ). And as just explained, nothing in Div 102 makes international obligations (including those relating to genocide) a mandatory relevant consideration.

94    I consider in section D.3 below the effect of the Second Applicant raising Australia’s international obligations as reasons why Hamas should be de-listed.

95    It is convenient at this point to deal with two of the Applicants’ arguments that are connected with international obligations.

96    Div 268 does not limit s 102.1: First, the Applicants contend that Div 102 of the Criminal Code must be interpreted consistently with Div 268, which contains offences relating to genocide and other matters. It may be accepted that the Criminal Code should be interpreted as a whole. However, it is quite a different thing to say that Div 268, by implication, limits the power to list and de-list terrorist organisations under s 102.1. For the following reasons, that argument must be rejected.

97    Anthony Hordern principle: There is a principle of statutory construction that “[w]hen the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power”: Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1 at 7 (Gavan Duffy CJ and Dixon J). This principle applies when the statute in question “confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power”: Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566 at [59] (Gummow and Hayne JJ).

98    Nystrom illustrates that the Anthony Hordern principle does not apply merely because there is an overlap in the practical operation of two statutory provisions: in that case, ss 200 and 501 of the Migration Act conferred distinct and cumulative powers to cancel the visa of a non-citizen. Similarly, in Azimitabar v Commonwealth of Australia [2024] FCAFC 52; (2024) 303 FCR 282 at [75] (the Court), the relevant Minister’s powers under the Migration Act to establish an immigration detention centre and to authorise another place for immigration detention were held to be distinct and cumulative. And in Charlie v State of Queensland [2025] FCAFC 55; (2025) 309 FCR 345 at [56]-[58] (the Court), ss 6(1) and 203 of the Land Act 1962 (Qld) conferred distinct and cumulative powers on the Governor in Council and the relevant Minister to grant a special lease, respectively, even if those powers could overlap in their factual operation.

99    Divisions 102 and 268 have different subject matters and purposes: The position is even clearer here. Divisions 102 and 268 of the Criminal Code deal with distinct subject matters, and were enacted at different times with different objectives. The Explanatory Memorandum to the ICC Consequential Amendments Bill explains the purposes of Div 268 as follows (p 1):

This Bill amends the Criminal Code Act 1995 (Criminal Code) to:

•    create offences in Australia that are the equivalent of the crimes of genocide, crimes against humanity and war crimes in the International Criminal Court Statute, so that Australia retains the right and power to prosecute any person accused of a crime under the Statute in Australia rather than surrender that person for trial in the International Criminal Court;

•    …

100    Nothing in the text or the purposes of Div 268 suggests that those provisions were intended, by implication, to limit or affect the powers to list and de-list organisations under s 102.1 of the Criminal Code. The Applicants sought to make something of the fact that the Minister stated in the Decision Record that he considered that the examples of terrorist acts by Hamas were not “undertaken legitimately as part of armed conflict”, which is said to introduce notions of international law. However, the reasons given by the Minister in responding to points made in the de-listing application cannot affect the proper construction of the Criminal Code.

101    The Applicants contend that an “organisation” in Div 102 (and thus a terrorist organisation) must be interpreted to be no broader than an “organised armed group” in s 268.70 of the Criminal Code (which provides that the war crime of murder does not apply to members of an organised armed group). However, there is no reason in the context or history of the provisions (set out above) that suggests that these two quite different phrases must be interpreted harmoniously.

102    In a related point, the interpretation of “organisation” in Div 102 is not affected by the definition of “foreign country” in the Dictionary to the Criminal Code, which includes in para (c) “a territory outside Australia that is to some extent self-governing, but that is not recognised as an independent sovereign state by Australia”. The Criminal Code distinguishes between a foreign country and the government of a foreign country (see for example para (c) of the definition of terrorist act), so there is no contradiction between saying that Hamas is an “organisation” and that Gaza is a “foreign country”.

103    Exercise of Div 102 powers could not amount to conduct contrary to Div 268: The Applicants submit more generally that it cannot be supposed that Div 102 would authorise the AFP Minister to exercise the power to list and de-list an organisation under Div 102 in a manner that would otherwise constitute an offence against Div 268.

104    It is very much to be doubted whether the power to list or de-list an organisation could ever have that effect. The act of listing an organisation as a terrorist organisation could not itself constitute any of the acts that constitute offences under Div 268 (such as genocide by killing, or by causing serious bodily or mental harm: see ss 268.3 and 268.4). Nor could the listing of an organisation somehow be ancillary or connected to the commission of genocide offences by someone else.

    It is true that the Criminal Code contains an incitement offence (in s 11.4), and that the Applicants contend that Australia listing Hamas as a terrorist organisation encourages the genocide of Palestinians by Israel (as considered further below). However, the act of listing Hamas as a terrorist organisation could not in law amount to “incitement” by the Minister for others to commit genocide within s 11.4, because conduct only amounts to incitement if the person intends that the offence incited be committed (s 11.4(2)). Nothing in the materials before the Court provides any support for the notion that the Minister here intended that genocide offences be committed. It is therefore not necessary to examine whether the Applicants’ proposition about the effect of the Minister’s decision is correct as a matter of fact.

    A similar analysis applies to the Applicants’ arguments about complicity (see the intent requirement in s 11.2(3)) and conspiracy (see s 11.5(2)(b)).

105    No limit from UN Charter Act or Geneva Conventions Act: For similar reasons, the UN Charter Act and Geneva Conventions Act do not limit the power to list or de-list an organisation under Div 102 of the Criminal Code: those Acts only implement Australia’s international obligations in specific respects. They do not contain any relevant limit that would confine the power in s 102.1 for the purposes of the Anthony Hordern principle.

106    The Applicants also contend that the UN Charter Act shows that any “political” action can only be taken through that Act (such as imposing sanctions), and that the power in Div 102 can only be exercised for criminal law purposes. This supposed distinction between “political” and “criminal” purposes cannot be maintained, and in any event the provisions of the UN Charter Act do not enable any such distinction to be drawn, so as to confine the application of Div 102 of the Criminal Code.

107    No limit implied from Foreign States Immunities Act: Second, the Applicants contend that the Minister erred by failing to assess Hamas’ sovereign immunity as the governing body of an autonomous region or self-governing territory, for the purposes of the Foreign States Immunities Act. (This argument arises out of the Minister’s statement that Palestine is not a State recognised by Australia: see [27] above.)

108    The Foreign States Immunities Act relevantly provides that, subject to that Act, a “foreign State” is immune from the jurisdiction of Australian courts in a “proceeding” (defined in s 3 to exclude a prosecution for an offence) (s 9); and that the property of a foreign State is not subject to any process or order of the Australian courts for the satisfaction or enforcement of a judgment, order or arbitration award (s 30).

109    It can be seen that the Foreign States Immunities Act deals with wholly different subject-matter from Div 102 of the Criminal Code. There is no relevant limitation in the Foreign States Immunities Act that could impliedly limit the powers in Div 102 for the purposes of the Anthony Hordern principle. Nor is foreign state immunity a mandatory consideration that must be considered when exercising the power to list or de-list a terrorist organisation: there is nothing in scope, purpose or object of Div 102 that would make foreign state immunities a matter that must be considered. And any international obligations underlying the Foreign States Immunities Act do not confine Div 102 either, for the reasons set out earlier.

110    Not necessary to decide whether decision inconsistent with international obligations: The conclusions set out above mean that it is not necessary to engage with the Applicants’ various arguments that the Minister’s decision is inconsistent with Australia’s international obligations. Even if there was any inconsistency, it would not invalidate the Minister’s decision.

111    One consequence of this conclusion is that the evidence sought to be adduced by the Applicants to demonstrate that the Minister’s decision was contrary to international law is not relevant.

D.3    Whether any failure to consider/unreasonable rejection of Applicants’ arguments

112    The Applicants contend that the Minister failed to consider (or, alternatively, unreasonably rejected) certain matters that were raised in the Second Applicant’s de-listing application: see point (3) set out in [41] above. For example, the Second Applicant contended that the continued listing of Hamas in its entirety exposes every Palestinian to extra-judicial killing by Israel, and incites genocide.

113    Is there an obligation to consider matters raised in de-listing application? On the failure to consider aspect of this argument, there is a threshold issue whether the AFP Minister is under a legal obligation to consider the matters raised by a person in a de-listing application.

114    There is no express obligation on the AFP Minister to consider the matters raised by a person in a de-listing obligation: to the contrary, the only matters that the AFP Minister is expressly required to consider are set out in s 102.17(a) and (b) (which are the same matters as are applied when making a decision under s 102.1(4)). Nor can any such obligation to consider any other matters raised by an applicant for de-listing be implied.

    The statutory context is very different from Plaintiff M1 (relied on by the Applicants). Plaintiff M1 considered s 501CA(4) of the Migration Act, which applies when a person’s visa has been cancelled, and the Minister has invited the person under s 501CA(3) to make representations on whether (relevantly) there is “another reason” why the cancellation of the person’s visa should itself be revoked. In that context, there is plainly an obligation to consider any representations received: see Plaintiff M1 at [22]-[24] (Kiefel CJ, Keane, Gordon and Steward JJ). A person’s representations set out the case by reference to which the decision-maker assesses whether there is “another reason” to revoke the visa cancellation: Plaintiff M1 at [22]. And the cancellation decision affects the person making the representations individually.

    In the case of a de-listing application, it is true that an application for de-listing and the AFP Minister’s decision concern the same subject-matter: an application is made by an individual or organisation on the grounds that there is no basis for the AFP Minister to be satisfied of certain matters (s 102.1(16)(c)), and (if the 12-month time precondition is satisfied) the AFP Minister then considers those same matters (see s 102.1(17)). However, there is no requirement in s 102.1(16) that the applicant for de-listing have any particular connection to the organisation: the application may be made by “an individual or an organisation (which may be the listed organisation)” (emphasis added). Given that feature, any arguments made in the de-listing application could not constitute the “case” that the AFP Minister is required to consider, unlike the position with s 501CA. For that reason, s 102.1(18) clarifies that s 102.1(16) and (17) do not limit the matters that may be considered by the AFP Minister for the purposes of s 102.1(4). That is, s 102.1(17) requires the AFP Minister to independently consider whether he or she continues to be satisfied of the matters in s 102.1(4). (And, as explained below, the power to de-list is not subject to any duties of procedural fairness.)

115    The legislative history supports the view that the AFP Minister is not required by s 102.1(16)-(17) to consider matters raised in the de-listing application. When s 102.1(4) and (17) were first added by the 2004 Amendment Act (Sch 1 items 3-4), s 102.1(17) provided that the Minister “must consider the de-listing application” (emphasis added). By contrast, the current version of s 102.1(17) (inserted by the 2023 Amendment Act, Sch 4 item 13) provides that the AFP Minister must consider, as soon as practicable after receiving the application, whether the listed organisation satisfies the matters in s 102.1(17)(a) and (b). That change in language confirms that the AFP Minister addresses the statutory criteria, not the application as such. Further, the 2023 Amendment Act introduced a requirement that the AFP Minister is not required to consider any more than one de-listing application in a 12-month period (see s 102.1(16)(d)). That amendment also draws attention away from the content of the particular application, and towards the AFP Minister making his or her own independent assessment of whether the organisation continues to meet the relevant criteria.

116    For these reasons, the AFP Minister is not under any obligation of the kind in Plaintiff M1 to consider the matters raised in an application for de-listing. The AFP Minister may choose to consider and respond to matters raised by the person in the de-listing application, as occurred here. And it would ordinarily be prudent for the AFP Minister to do so, given that the application will be contending that there is no basis for the AFP Minister to be satisfied of the requisite matters. However, the only matters that the AFP Minister is required to consider are the matters set out in s 102.1(17), not the applicant’s arguments as to those matters.

117    Accordingly, it is not necessary to consider whether the Minister in this case failed to consider any of the matters raised by the Second Applicant in the de-listing application: any failure to do so would not invalidate the Minister’s decision.

118    Unreasonable rejection? The Applicants submit, in the alternative, that it was legally unreasonable for the Minister to reject these arguments raised by the Second Applicant. That submission must also be rejected: if there was no legal obligation on the Minister to consider the arguments raised in a de-listing application (as set out above), it cannot be legally unreasonable for the Minister not to accept those arguments either.

119    In addition, an assessment of the legal reasonableness of the Minister’s decision requires close attention to be given to the scope, purpose and objects of the particular statutory power: Minister for Immigration and Border Protection v Haq [2019] FCAFC 7; (2019) 267 FCR 513 at [31] (Griffiths J, with Gleeson J agreeing), [98]-[101] (Colvin J, dissenting in the result); see also Palmer v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 154; (2024) 306 FCR 156 at [116] (Derrington and Hespe JJ). Here, it must be kept in mind that Australia’s international obligations (including those relating to genocide) do not inform the interpretation of the power to de-list a terrorist organisation under s 102.1(4) and (16)-(17), nor are they mandatory considerations that must be considered: see section D.2 above. Once that is appreciated, most of the Applicants’ arguments as to why the Minister’s decision is unreasonable fall away.

120    Failure to consider relevant documents? At the hearing, the Applicants raised a new argument: that the Minister failed to consider readily available, centrally relevant documents before making his decision. This argument focused on two documents in particular:

    One document was the January 2024 Hamas document annexed to the Second Applicant’s 10 February 2026 affidavit, which set out Hamas’ narratives about Operation Al-Aqsa Flood. Mr Taylor states in his affidavit that this document was widely reported in Israel and in Western media. This document was not provided to the Minister with the de-listing application in August 2024.

    The other document was the report of the Special Rapporteur to the Human Rights Council of the United Nations dated 1 July 2024, titled “Anatomy of a genocide”. This document was one of the documents sent to the Minister by the Second Applicant in the de-listing application.

121    With the first of these documents, the legality of an administrative decision is generally assessed on the basis of the materials before the decision-maker, and an applicant for judicial review cannot seek to adduce fresh material to show that the decision-maker made an error of fact: see Minister for Immigration and Border Protection v Tesic [2017] FCAFC 93; (2017) 251 FCR 23 at [48]-[55] (the Court); Coates-Kelly v New Zealand [2022] FCAFC 131; (2022) 294 FCR 422 at [51] (the Court). The Applicants would need to identify a legal basis on which the Minister would be obliged to consider that document. There can be instances where a failure to obtain information is legally unreasonable, but that is usually confined to the situation when there has been “a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained”: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [25] (the Court); DXF22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 75 at [50] (the Court).

122    What is a “critical fact” is assessed by reference to the statutory task; namely, whether the Minister was satisfied that Hamas continued to meet the statutory criteria in s 102.1(4)(b) and (17). Here, Hamas’ narrative about the October 2023 attacks is not something that the Minister was required to consider in forming a judgment about whether Hamas meets those statutory criteria (in the sense that it would be legally unreasonable not to consider that narrative); the characterisation of events as “terrorist acts” involves contestable judgments on which minds may reasonably differ, and the choice of factual material to consider is largely a matter for the AFP Minister. As discussed below in considering bias, the power in s 102.1 does not require the AFP Minister to be “neutral” as between the two sides in an overseas conflict.

123    The second document (the Special Rapporteur report) was provided to the Minister. As already explained, however, the Minister was not bound to consider any material provided with the de-listing application. Further, the Minister was not required to consider documents about the current situation in Gaza, and Israel’s actions, to perform the statutory task (in the sense that it would be unreasonable to make a decision without considering them). The statutory criteria turn on the actions of the organisation in question, i.e. Hamas. The choice of factual material is largely a question for the AFP Minister: see, by analogy, AVJ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1056 at [36] (O’Bryan J), referring to NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] (the Court).

124    Separately, as the Commonwealth submits, the Court should be cautious before concluding that material was not considered by the Minister. It is true that the Minister’s reasons do not mention these documents, and reaches conclusions inconsistent with these documents. However, the Applicants do not show that material was ignored simply by pointing out that it was not mentioned by the Minister, because the Minister was not obliged to give comprehensive reasons for the decision: Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 at [25] (French CJ, Bell, Keane and Gordon JJ); CAQ17 v Minister for Immigration and Border Protection [2019] FCAFC 203; (2019) 274 FCR 477 at [119]-[120] (Derrington and Steward JJ).

D.4    Whether any failure to accord procedural fairness in deciding the application

125    The Applicants contend that the Minister failed to accord procedural fairness to the Second Applicant or to Hamas: see point (4) in [41] above. The threshold issue is whether the Minister owed duties of procedural fairness before making a decision on a de-listing application under s 102.1 of the Criminal Code (and if so, to whom). To be clear, these arguments concern the hearing rule aspect of procedural fairness: the Applicants’ arguments relating to bias are considered below.

126    Implication of procedural fairness duties – general principles: The principles for determining whether a statutory power attracts procedural fairness obligations were summarised as follows in Disorganized Developments Pty Ltd v South Australia [2023] HCA 22; (2023) 280 CLR 515 at [32]-[34] (Kiefel CJ, Gageler, Gleeson and Jagot JJ) (see also Badari v Minister for Territory Families and Urban Housing [2025] HCA 47; (2025) 100 ALJR 30 at [17], [36] (the Court)).

    The existence of a duty to afford procedural fairness is a question of statutory construction.

    There is a strong common law presumption that a statutory power which is capable of having an adverse effect on legally recognised rights or interests is impliedly conditioned on the observance of procedural fairness. If the relevant power directly affects the rights or interests of a particular individual, the presumption operates unless clearly displaced by the particular statutory scheme.

    However, powers that affect individuals in an undifferentiated way from the general public may not attract an obligation of procedural fairness. The courts distinguish between a decision which directly affects the person individually and one which simply affects her or him as a member of the public or of a class of the public.

127    Determining whether a statutory power affects individuals in an undifferentiated way from the general public (so that procedural fairness does not apply) requires close attention to the statutory power in question and the rights and interests that may be affected by its exercise. It is relevant whether the power is exercised by reference to broad questions of public interest: see Berih v Homes Victoria (No 4) [2025] VSC 169 at [103] (Richards J); Castle v Director General State Emergency Service [2008] NSWCA 231 at [7] (Basten JA); see also OzEpulse Pty Ltd v Minister for Agriculture Fisheries and Forestry [2007] FCA 1601; (2007) 163 FCR 562 at [60] (Emmett J).

128    These issues, particularly the nature of the statutory power, were considered in Abramov v Minister for Foreign Affairs (No 2) [2023] FCA 1099; (2023) 183 ALD 231. In that case, the Autonomous Sanctions Regulations 2011 (Cth) conferred discretionary power on the Minister (by reg 6) to make legislative instruments designating a person for Russia under reg 6(a), and declaring a person for the purposes of reg 6(b) (preventing them from travelling to Australia), but only if the person met a criterion referable to Russia in the table in reg 6. The relevant criterion was that the Minister was satisfied that the person “is, or has been, engaging in an activity or performing a function that is of economic or strategic significance to Russia”: see Abramov (No 2) at [17]-[18].

129    Justice Kenny held in Abramov (No 2) that the Minister was not under any duty to provide procedural fairness to the applicant in that case before making instruments under the Sanctions Regulations which made the applicant a “designated person” for Russia and “declared” for the purposes of reg 6.

    The question whether the power conferred by reg 6 is exercisable only in accordance with the principles of procedural fairness was a question of legislative construction: Abramov (No 2) at [213]. In that case, it could be inferred from the subject-matter, scope and purpose of the Autonomous Sanctions Act 2011 (Cth) and the nature of the regulation-making power that the Act excluded procedural fairness obligations in making provision for the prescription of persons, as in reg 6: Abramov (No 2) at [215]. That was so, even though designation and declaration of a person under reg 6 had the capacity to affect a person’s rights and interests adversely and directly, as an individual: Abramov (No 2) at [218].

    One factor tending against procedural fairness was the fact that the power to designate and declare persons was conferred on the Minister personally, and was non-delegable: Abramov (No 2) at [216]. The Minister was also required to table the instrument in Parliament, and thus was subject to Parliamentary scrutiny: Abramov (No 2) at [217].

    The imposition of autonomous sanctions is designed to implement Australia’s foreign policy. A decision whether to impose sanctions is not made solely by reference to matters specific to the individual but requires consideration of information of very different kinds. In considering the exercise of discretion, the Minister may take into account “political” considerations touching Australia’s relations with other countries and Australia’s foreign policy: Abramov (No 2) at [219].

    Procedural fairness was inapposite in the context of a power that is primary intended to give effect to Australia’s foreign policy. The effect on the designated person is subordinate to this primary purpose: Abramov (No 2) at [220].

    Finally, a requirement to provide advance notice to a person of a decision would give rise to the possibility that the person would take steps to frustrate the effect of the proposed sanctions: Abramov (No 2) at [221]-[222], [224]. The need for coordinated action with other countries in serious situations, including in response to instances of aggression threatening global security, also weighed against a duty to provide an opportunity to be heard before designation: Abramov (No 2) at [225].

130    De-listing decision under s 102.1 does not attract procedural fairness duties: Applying these principles to s 102.1 of the Criminal Code, the existence of a duty to afford procedural fairness is a question of statutory construction; that is, is determined by reference to the statutory scheme, separate from the facts of any given case. The following features of s 102.1 and related provisions establish that the power to de-list an organisation as a terrorist organisation does not attract any duties of procedural fairness.

131    Nature of statutory questions tends against procedural fairness: The most important feature is the subject-matter of the power. The AFP Minister has a power and duty to make a declaration under s 102.1(4) if the AFP Minister ceases to be satisfied of the matters in para (a) and (b) (relating to a “terrorist organisation” and a “terrorist act”). One element of the definition of “terrorist act” in s 100.1 is that the action is done or threat is made with the intention of “coercing, or influencing by intimidation”, an Australian or foreign government, or government of part of Australia or a foreign country, or intimidating the public or a section of the public (see para (c)).

132    An assessment of whether an organisation’s activities have the necessary intimidatory or coercive effect on a government overseas (or on the public) involves contestable value judgments, touching on Australia’s relations with foreign countries: cf Abramov (No 2) at [219]-[220]. Further, an “organisation” is defined broadly, and extends to organisations that combine association with polity: R v Abdirahman-Khalif [2020] HCA 36; (2020) 271 CLR 265 at [47] (Bell, Keane, Nettle and Gordon JJ), referring to Islamic State. That again shows how a decision whether to list or de-list an organisation may implicate Australia’s foreign relations.

133    In addition, the matters to be considered under s 102.1(4) and (17) also concern national security, which is a matter that may reduce procedural fairness obligations (even when otherwise owing) to nothingness: see Leghaei v Director-General of Security [2007] FCAFC 37; (2007) 241 ALR 141 at [51], [54] (the Court); Sagar v O’Sullivan [2011] FCA 182; (2011) 193 FCR 311 at [72] (Tracey J); Imad v Director-General of Security [2024] FCAFC 138; (2024) 305 FCR 523 at [104] (the Court).

134    In summary, the matters raised in a de-listing application are not matters of individual concern, but are matters that affect the general public touching on Australia’s foreign relations and national security. The nature of the statutory questions to be considered in a de-listing application strongly tend against this being a matter on which procedural fairness is required.

135    Practical difficulties in providing procedural fairness: Second, it is difficult to see how any duty of procedural fairness could be given effect in any sensible manner: cf Castle at [6]. The obvious persons or bodies that could in theory be notified would be the applicant for de-listing, or the terrorist organisation itself. But there are serious practical difficulties with either of these approaches.

136    The Applicants contend that it was both practicable and necessary to provide procedural fairness to Hamas before making a decision on the de-listing application. It must be remembered that the existence of procedural fairness obligations is assessed as a matter of statutory construction; that is, by reference to the legislative scheme, rather than the facts of any individual case. Considering the issue at that level, it can be accepted that the terrorist organisation would have an interest in the outcome of a de-listing application. However, in many cases there are very likely to be some very considerable practical problems in finding a suitable point of communication: a terrorist organisation is likely to function in secrecy, with little formality, without any list of members or officers: see Abdirahman-Khalif at [49]. In addition, requiring correspondence with an organisation that the Australian Government has previously determined to be a terrorist organisation about its activities would raise grave national security concerns. That factor strongly tends against any interpretation of s 102.1 that would require procedural fairness to be provided to the organisation.

137    The Applicants contend that the national security factor is circular, because without procedural fairness the government might not be properly informed as to whether an organisation really is a threat to national security. However, that argument goes only to the merits of the government’s assessment. The Applicants cite CPCF v Minister for Immigration and Border Protection [2015] HCA 1; (2015) 255 CLR 514 at [306]-[307] (Kiefel J) (and also [119] (Hayne and Bell JJ)), who held that often a maritime officer would not know whether it was safe for a person picked up in Australia’s contiguous zone to be taken to a place (as required by the statute) without asking the person first. Here, the AFP Minister is considering a different statutory inquiry, which can reasonably be answered without asking the organisation itself.

138    For completeness, notifying the applicant for de-listing might be possible (at least in those cases where the power is exercised on an application), but it would not achieve any rational purpose in the legislative scheme.

    As noted, s 102.1(16) provides for a de-listing application to be made to the AFP Minister by “an individual or an organisation (which may be the listed organisation)”. That is, the applicant may or may not have a connection to the listed organisation, and may or may not have any particular knowledge of the matters to be considered on that application. Further, the application does not provide the “case” for de-listing that needs to be addressed (unlike Plaintiff M1). Accordingly, there is no coherent reason why procedural fairness would be provided to the applicant, simply because they are the applicant. That understanding of the nature of a de-listing application is confirmed by the extrinsic materials, which state that the AFP Minister will inform an applicant for de-listing of the outcome of the Minister’s consideration “[a]s a matter of practice, where possible”: Revised Explanatory Memorandum to the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023 (Cth) (2023 Explanatory Memorandum) at [389].

    In any event, the power in s 102.1(4) may be exercised on the AFP Minister’s own motion, without any application for de-listing. That is, although there is provision in s 102.1(16)-(17) for an application to be made for the AFP Minister to consider exercising the de-listing power, s 102.1(4) imposes a stand-alone obligation, independent of any application, for the AFP Minister to de-list an organisation if he or she is no longer satisfied of the relevant matters in respect of that organisation. That interpretation is confirmed by extrinsic materials: the 2023 Explanatory Memorandum notes, when discussing the new 12-month limit on making de-listing applications in respect of an organisation, that the AFP Minister “retains the ongoing obligation to make a declaration to de-list an organisation if the Minister ceases to be satisfied the requisite legislative test is met” (at [387]).

139    As an aside, there is no contradiction between this conclusion that an applicant for de-listing is not owed duties of procedural fairness, and the earlier conclusion that the fact that the Second Applicant applied for de-listing gave him standing to bring this application for review: see [43] above. The requirements for standing, and for being owed duties of procedural fairness, are distinct. For example, in Davis, the High Court held that the appellants had standing to seek relief, even though they were not owed duties of procedural fairness in relation to the relevant power: Davis at [62]. The same is true here.

140    Other matters: Two other matters point against the de-listing power in s 102.1 of the Criminal Code attracting procedural fairness obligations.

141    The first matter is that the criteria for making a “de-listing” declaration in respect of an organisation are the same as a precondition for the making of regulations that specify an organisation as a “terrorist organisation”: see Criminal Code s 102.1(2). There is even less reason to suppose that procedural fairness would attach to the AFP Minister’s initial formation of a state of satisfaction as the precondition for the exercise of delegated legislative power. And the AFP Minister’s function under s 102.1(4) is not a “review” of that decision, but rather a safeguard to ensure that the ongoing prescription of an organisation remains appropriate: see 2023 Explanatory Memorandum at [380]. In other words, the function of the facility to make a de-listing application is not to provide procedural fairness after the event (unlike, say, the scheme of mandatory cancellation under s 501(3A) of the Migration Act, and consideration whether to revoke that cancellation under s 501CA). And the effect of the AFP Minister’s decision under s 102.1(4) of the Criminal Code is to terminate the effect of a legislative instrument (s 102.1(4B)). This statutory context adds weight to the view that the listing and de-listing of organisations under s 102.1 is not a matter of individual concern, requiring procedural fairness, but a decision that affects the public more generally.

142    The other relevant matter is that the power to make a declaration under s 102.1(4) (read with s 102.1(16)-(17)) is conferred on the AFP Minister, with no provision for that power to be delegated. That provides some indication that procedural fairness is not required: Abramov (No 2) at [216]. Further, there is a requirement to notify the AFP Minister’s decision in the Gazette (s 102.1(4)), thus emphasising that the decision is one affecting the public generally.

D.5    Whether failure to consider actions of Israel amounts to error

143    The Applicants contend that the Minister’s decision is affected by bias (both actual and apprehended), because there was no consideration of Israel’s actions; and contend further that the Minister’s failure to consider the actions of Israel is a breach of the RDA: see point (5) in [41] above. These arguments arise out of the Minister’s statements that the actions of Israel do not go to whether the actions of Hamas are terrorist acts, or to determining whether Hamas continues to meet the legislative threshold for listing as a terrorist organisation under the Criminal Code: see [31] above. The Applicants also point to the Minister’s statements that “[t]here must be no role for Hamas in the future governance of Gaza”, and that “[a]ny future Palestinian state must not be in a position to threaten Israel’s security”: see [32] above.

144    Bias arguments: I accept that the power to de-list an organisation under s 102.1 of the Criminal Code is subject to the rule against bias (even though that power does not attract the hearing rule aspect of procedural fairness).

145    Apprehended bias – general principles: It is convenient to focus on arguments of apprehended bias, because that is a less demanding test for the Applicants. The following points are well settled:

    The test of apprehended bias is whether a fair-minded and appropriately informed lay observer might reasonably apprehend that the decision-maker might not bring a fair, impartial and independent mind to the determination of the matter on its merits. That is, “bias” involves an apprehension that the decision-maker might make a decision other than on its legal and factual merits: Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 41; (2022) 288 FCR 218 at [35]-[36] (the Court); see also QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 279 CLR 148 at [37]-[38] (Kiefel CJ and Gageler J).

    Although the same test applies to courts and administrative bodies (including Ministers), the application of the test takes account of the nature of the decision-maker, and has regard to the applicable statutory provisions, the nature of the inquiries to be made and the particular subject matter with which the decision is concerned: Chen at [37]. In the case of Ministers in particular, an assessment of whether there is a reasonable apprehension of bias takes account of a Minister’s political role, responsibility and accountability: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [63] (Gleeson CJ and Gummow J), see also [141] (Kirby J), [187] (Hayne J); DeBattista v Minister for Planning and Environment [2019] NSWCA 237 at [76] (Emmett JA, with White and McCallum JJA agreeing).

146    Bias assessed in light of the statutory task: Accordingly, any assessment of bias must be informed by the statutory task before the Minister. That is because the legal meaning of “bias” is making a decision otherwise than on the legal and factual merits of the matter; that is, a deviation from the true course of decision-making: see Jia Legeng at [183] (Hayne J).

147    Nothing in s 102.1 of the Criminal Code requires the AFP Minister to consider the acts of Israel when deciding whether Hamas continued to meet the statutory criteria in s 102.1(4) and (17). To the contrary, those criteria concern the activities of the organisation alone. And, contrary to the Applicants’ arguments, any obligations under international law for Australia to take a position of “neutrality” in the conflict between Israel and Hamas would not constrain the AFP Minister’s decision-making process under s 102.1, for the reasons explained in section D.2 above. (It is therefore not necessary to determine whether the Applicants’ characterisation of international law is correct.) As the Commonwealth submits, the context of Div 102 is quite different from an inter partes dispute, when it is necessary for a decision-maker to listen to both sides. Nothing in the Criminal Code prevents the AFP Minister, as a member of the government of the day, from taking a position on a conflict occurring overseas: there is no legal requirement that the AFP Minister take a position of “neutrality”.

148    Accordingly, once the nature of the Minister’s task is understood, none of the matters raised by the Applicants go any way towards establishing even an apprehension of bias in a legal sense (that is, the Minister making a decision other than on the factual and legal merits), let alone actual bias. The matters raised by the Applicants show only that they take a very different view on the merits as to how the Minister should have approached the decision.

149    The Applicants also submitted (citing CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76) that an apprehension of bias may arise when a decision-maker is in receipt of highly prejudicial information. It was said that the allegation against Ismail Haniyeh (that he called for the killing of Israeli civilians as well as soldiers) fell into that category. However, the crucial feature of the information in CNY17 was that the information was not just highly prejudicial, but also irrelevant to the statutory task: CNY17 at [91]-[92] (Nettle and Gordon JJ), [141] (Edelman J). It cannot be said that the statements attributed to Hamas’ leader at the time were irrelevant to the Minister’s task here.

150    Breach of the RDA? For similar reasons, the Minister’s decision did not involve any breach of the RDA. The statutory task under the Criminal Code required the Minister to consider the activities of Hamas, the relevant organisation, and whether those activities continued to meet the statutory criteria in s 102.1(4) and (17). There is nothing in the Minister’s reasons to suggest that the decision was “based on” race, colour, descent or national or ethnic origin (cf RDA s 9(1) and (1A)).

151    The Applicants contend that the Minister’s decision was contrary to s 10 of the RDA. Their argument is that, “by reason of” the Minister’s decision, a human right (the right to life) is enjoyed to a more limited extent by Palestinian people than by people of other races, colours or national or ethnic origin. That is because (it is said) the designation of Hamas in its entirety as a “terrorist organisation” exposes Palestinian people in Gaza in the civil wing of Hamas to being killed as terrorists, whereas people of other races do not face killing if they are civilians or non-combatants. That argument cannot be accepted.

    It may be accepted that, in assessing whether a law has an effect that engages s 10, the Court looks to the practical operation and effect of the law, and is concerned not merely with matters of form but with matters of substance: Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 at [115] (Gleeson CJ, Gaudron, Gummow and Hayne JJ); Maloney v The Queen [2013] HCA 28; (2013) 252 CLR 168 at [76] (Hayne J), [204] (Bell J), [305], [338] (Gageler J).

    However, the causal requirement in s 10 (that the unequal enjoyment is “by reason of … a law”) requires a direct relationship between the practical operation of the law and differential enjoyment of human rights: Maloney at [338] (Gageler J). That direct relationship must be established by admissible evidence: see Fisher v Commonwealth of Australia [2023] FCAFC 106; (2023) 298 FCR 543 at [102] (the Court).

152    The Applicants have not established any direct relationship between the practical operation of Australia continuing to designate Hamas in its entirety as a terrorist organisation under and for the purposes of Australian law, and the killing of people in the civil wing of Hamas. There is also an issue whether any differential treatment in the enjoyment of the right to life was associated with race or ethnicity (or an attribute associated with that race or ethnicity); in particular, whether the fact that Hamas is both a governing body in Gaza and an organisation committed to the destruction of Israel by military means can be disentangled from questions of race or ethnicity: cf Fisher at [132] (noting that a difference in life expectancy between Aboriginal and non-Aboriginal Australians reflects social disadvantage rather than something intrinsic to Indigenous people).

D.6    Whether the Minister took account of false allegations

153    The Applicants contend that the Minister took into account false allegations when making the decision: see point (6) in [41] above. The relevant allegations (said to be false) are:

    that the late political leader of Hamas, Ismail Haniyeh, had called for the killing of Israeli civilians in a speech given on 7 October 2023 (when it is said he did not do so);

    that Hamas in November 2024 called on Palestinians to increase their involvement with these ongoing terrorist attacks, without (it is said) considering the context that Gazans were under a state of genocide, requiring armed self-defence;

    the Minister designated all taken to Gaza as “hostages” (when, it is said, some were Israeli soldiers), and all people killed on 7 October 2023 as being killed as a result of Hamas’ attacks (when, it is said, some were killed by Israeli soldiers).

It is also said to be legally unreasonable for the Minister to consider examples of Hamas’ conduct without acknowledging that there was a state of non-international armed conflict at the time of each of these events.

154    Legal unreasonableness and fact-finding – general principles: The Applicants’ arguments set out above concern the Minister’s fact-finding. It may be accepted that there is an implicit requirement that the AFP Minister’s power to de-list an organisation under s 102.1 of the Criminal Code must be exercised reasonably. However, the threshold for establishing legal unreasonableness is high, and it is not a finding lightly made. The question is whether it was open to the decision-maker to engage in the process of reasoning in which they did engage and to make the findings they did make on the material before them: see CMP25 v Minister for Immigration and Multicultural Affairs [2025] FCAFC 199 at [25] (the Court), and the cases cited. Mere strong disagreement with factual reasoning does not establish jurisdictional error: Mailau v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 12 at [75] (Colvin and Halley JJ); CKL21 v Minister for Home Affairs [2022] FCAFC 70; (2022) 293 FCR 634 at [65] (the Court).

155    Arguments that certain findings of fact were made in error (as with the arguments here about false allegations) are most readily analysed through the principles of illogicality and irrationality. In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 289 FCR 21, the Full Court summarised the principles relevant to illogical or irrational decision-making as follows (citations omitted):

[33]     The characterisation of a decision (or a state of satisfaction) as legally unreasonable because of illogicality or irrationality is not easily made: ... .

[34]     The task in assessing illogicality is not an exercise in logical dialectic. “Not every lapse of logic will give rise to jurisdictional error. A Court should be slow, although not unwilling, to interfere in an appropriate case”: ... . It is the ascertainment, through understanding the approach of the decision-maker and characterising the reasoning process, of whether the decision (or state of satisfaction) is so lacking a rational or logical foundation that the decision (or relevant state of satisfaction) was one that no rational or logical decision-maker could reach, such that it was not a decision (or state of satisfaction) contemplated by the provision in question. Some lack of logic present in reasoning may only explain why a mistake of fact had been made which can be seen to be an error made within jurisdiction. ... [T]he evaluation of whether a decision was made within lawful boundaries is not definitional, but one of characterisation and whether the decision was sufficiently lacking in rational foundation, having regard to the terms, scope and purpose of the statutory source of power, that it cannot be said to be within the range of possible lawful outcomes.

[35]     Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds: ... , such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.

See also XRZG v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 131; (2024) 305 FCR 349 at [64]-[65] (the Court).

156    The cases indicate that, in order to constitute a jurisdictional error, the Applicants need to show that any illogicality in the Minister’s reasoning was in respect of a matter that was important to the ultimate decision, whether that is put in terms of being “critical” or “not immaterial”: VRRQ v Minister for Immigration and Multicultural Affairs [2025] FCA 983 at [108]-[109] (Button J); Ba v Minister for Immigration and Multicultural Affairs [2025] FCA 1239 at [70] (Neskovcin J).

157    In Abramov (No 2) at [173], Kenny J posed the test as whether any errors of fact “were of such magnitude and of such an importance to the [task] the Minister was required to perform that the Minister failed to perform that task”. That statement was made in the context of what her Honour found to be a legislative power: see Abramov (No 2) at [97]; however, the analysis of errors of fact and jurisdictional error in Abramov (No 2) at [171]-[180] does not appear to depend on whether the decision was legislative, rather than administrative, in nature. And the test posed by Kenny J is supported by AVJ17 at [32] (O’Bryan J), and the cases cited. In Abramov (No 2), Kenny J concluded that an admitted error of fact about the applicant in that case (whether he was chairman of a certain body at the time of the decision) was not of such a magnitude and importance to the Minister’s task that it could be said that the Minister had failed to perform that task: Abramov (No 2) at [184].

158    The allegations that the Applicants contend are false (which were relied on by the Minister in his reasons) can be analysed in light of these principles.

159    Whether Ismail Haniyeh had called for the killing of Israeli civilians: The first allegation is that Hamas leader Ismail Haniyeh made a speech on 7 October 2023 inciting people to kill Israelis whether they are settlers or soldiers. The relevant statement in the Minister’s Decision Record is that Mr Haniyeh “incit[ed] people to join the attack on Israel as part of the ‘…ultimate jihad, the outcome of which can only be victory or martyrdom’ and to kill Israelis whether they are settlers or soldiers” (emphasis added): see [19] above.

160    Applicants’ translation of Haniyeh speech: The Applicants have filed an affidavit of Ms Lounici, a NAATI Certified Arabic-English Interpreter and Translator. She has prepared a “Video-Recorded Arabic Transcription and English Translation of Ismail Haniyeh’s Speech delivered on 7 October 2023”, prepared from a video accessible at a link embedded in her affidavit. The Applicants contend that nothing in the speech, as translated by Ms Lounici, could be taken as an incitement “to kill Israelis whether they are settlers or soldiers”, and that therefore the statement to this effect in the Statement of Reasons is false. The Commonwealth has not sought to put on its own evidence to contradict the evidence of Ms Lounici.

161    Does the evidence establish that the statement is incorrect? Although Ms Lounici’s evidence is not contradicted, some caution needs to be expressed about whether Ms Lounici’s translation does indeed establish that this statement in the Minister’s reasons is incorrect, to use a neutral term. Translation (like interpretation) is not a simple word-matching exercise, but a difficult and sophisticated art, meaning that a perfect and singularly correct translation does not exist: see DVO16 at [5]-[6] (Kiefel CJ, Gageler, Gordon and Steward JJ). Further, the statement in the Minister’s reasons does not purport to be a direct quote from the speech (unlike the immediately preceding statement about jihad), meaning this statement is the Minister’s understanding of what was meant by things said in the Haniyeh speech. That factor further reduces the extent it could be said there has been a clear “error” by the Minister. I note that Ms Lounici states that she has given the linguistic meaning only of Qur’anic verses quoted in the speech, and that these verses may contain multiple layers of linguistic and theological meaning.

162    This error would not invalidate the Minister’s decision: Even assuming in the Applicants’ favour that this statement in the Minister’s reasons (that the Haniyeh speech incited people “to kill Israelis whether they are settlers or soldiers”) was in error, it does not follow that the Minister’s decision is invalid. Abramov (No 2) illustrates how it is necessary to analyse the erroneous statement, and determine its place in the Minister’s reasons. The issue is whether the impugned statement (assuming it was in error) was a “critical step” in the Minister’s reasons, or an error of such importance that it could be said that the Minister had not performed the statutory task under s 102.1: see [156]-[157] above. That requires an examination of the statutory task, and the Minister’s chain of reasoning.

163    The relevant statutory criterion was whether Hamas “advocates the doing of a terrorist act” (s 102.1(4)(b)(ii), (17)(b)). The Minister found (relevantly) that “Hamas leadership … often praise, promote and encourage terrorist attacks conducted by its own Brigades …”. The Minister then referred to statements made by Hamas about attacks conducted on three different dates, including 7 October 2023; and referred in turn to three statements made by Hamas about the 7 October 2023 attacks, including the statements by Mr Haniyeh set out in [159] above. The Minister concluded that “[o]n the basis of these examples, I am satisfied that Hamas advocates the doing of a terrorist act”.

164    Read in context, the examples referred to by the Minister are illustrations of an intermediate finding (that Hamas’ leadership often praise, promote and encourage terrorist attacks conducted by its own Brigades), and that intermediate finding is the basis on which the Minister was satisfied that Hamas meets the advocacy criterion. I note that the definition of “advocates” includes the organisation directly or indirectly counsels, promotes, encourages or urges the doing of a terrorist act (s 102.1(1A)(a)).

165    Accordingly, the critical step in the Minister’s reasoning is the intermediate finding about Hamas’ leadership identified in [164] above, rather than the individual examples. Accordingly, even if the particular impugned statement were incorrect (such that there was no probative basis for the Minister to think that particular statement had been made), there would still be ample material in the remainder of the examples given in the Minister’s reasons to support the intermediate finding. That in turn means that any error of fact by the Minister as to this statement would not mean that the decision was invalid. As with Abramov (No 2), the error here (even if established) would not be of such magnitude and importance that there was a failure to perform the statutory task: see Abramov (No 2) at [184]-[185].

166    In reaching this conclusion, I am conscious that it is no part of the Court’s role to re-make the merits of the Minister’s decision in the guise of determining whether an error of fact was critical. However, the discussion of materiality in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 does not preclude the Court from concluding, on an objective analysis, that a particular error of fact was not critical to the reasoning: see for example Dayadaya v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1284 at [105], read with [95]-[96] (Meagher J).

167    Any error as to advocacy limb would not invalidate Minister’s decision? The Commonwealth submitted more generally that any error in the Minister’s decision on whether Hamas continued to satisfy the “advocacy” limb (s 102.1(4)(b)(ii)) would not invalidate the Minister’s decision, because the Minister was satisfied that Hamas satisfied the other limb (s 102.1(4)(b)(i)). That is, on the Commonwealth’s interpretation, if the original listing decision was made on the basis that the AFP Minister was satisfied of both of the matters in s 102.1(2)(a) and (b), then the AFP Minister may only make a declaration under s 102.1(4) (leading to the organisation being de-listed) if the Minister ceases to be satisfied of both of those matters. The Commonwealth’s interpretation is supported by the evident purpose of s 102.1, but it is difficult to reconcile with the language of s 102.1(4), which is:

[if] the AFP Minister ceases to be satisfied of either of the following (as the case requires) … the AFP Minister must … make a declaration to the effect that the AFP Minister has ceased to be so satisfied. (emphasis added)

168    Given my other conclusions, it is not necessary to reach a final view on this argument.

169    Other examples do not establish legal unreasonableness: The other matters raised by the Applicants do not involve any clear assertions of error: instead, the complaint is that the Minister has made a finding without considering the whole context. These other matters are:

    The Minister states that Hamas in November 2024 called on Palestinians to increase their involvement with these ongoing terrorist attacks, without considering the context that Gazans were under a state of genocide, requiring armed self-defence.

    The Minister designated all taken to Gaza as “hostages” (when, it is said, some persons were Israeli soldiers and thus prisoners of war), and all people killed on 7 October 2023 as being killed as a result of Hamas’ attacks (when, it is said, some were killed by Israeli soldiers).

    The Minister considered examples of Hamas’ conduct without acknowledging that there was a state of non-international armed conflict at the time of each of these events.

170    The first and third of these matters only show that the Minister did not consider as relevant matters that the Applicants contend are relevant. As explained in section D.2 above, neither of these matters (which are sourced in international law) constrained the Minister’s de-listing power under s 102.1 or were mandatory matters that the Minister was required to consider.

171    The second of the matters shows only that the Minister did not refer to factual qualifications that the Applicants contend should have been made. It was open for the Minister to conclude that the 7 October 2023 attack resulted in Hamas taking a substantial number of hostages, and that a large number of people were killed in the attack (which was instituted by Hamas).

172    In summary, these additional matters raised by the Applicants (set out in [169] above) only demonstrate strong disagreement with the Minister’s reasons. That is not sufficient to establish legal unreasonableness.

D.7    Whether the Minister’s decision is otherwise legally unreasonable

173    The Applicants contend that the Minister’s decision is so overly broad as to be legally unreasonable because, by treating Hamas in its entirety as a terrorist organisation, the decision purports to criminalise under Australian law every Gazan resident who voted for Hamas, and every government employee (including street sweepers). The Applicants contend that the Minister’s lack of knowledge about the proportion of Hamas members assigned to normal military and security duties, and those involved in planning terrorist attacks, is not an excuse.

174    The Applicants contend further that the Minister’s decision is legally unreasonable because it carries an implicit demand that Hamas and other Palestinian resistance factions cease armed self-defence: see point (7) in [41] above.

175    Is the decision unreasonably overbroad? Two points may be accepted relevant to the Applicants’ argument that the Minister’s decision has the effect of criminalising anyone who provides support for the government functions of Hamas:

    It is true that the offences in Div 102 do not have a statutory geographical limit on their application: these offences apply, whether or not the conduct constituting the alleged offence, or a result of that conduct, occurs in Australia (see s 102.9, read with s 15.4).

    It can also be accepted for present purposes that a disproportionate exercise of a statutory power may be legally unreasonable on the basis that it exceeds what, on any view, is necessary for the purpose it serves: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [30] (French CJ).

176    However, even accepting these points, it does not follow that the Minister’s decision in this case was legally unreasonable.

177    Minister’s reasoning has evident and intelligible justification: The Minister gave the following reasons for considering the position of Hamas as a whole, and not separating between the military and non-military wings, in the part of the Decision Record responding to the de-listing application.

    The Minister stated that, while there are aspects of Hamas that relate to the civil function of Palestine, the Minister considered that “there is sufficient information available which demonstrates that Hamas is one organisation and that it is appropriate for the listing to continue to include both its military and non-military wings”. The Minister referred here to the televised statements of Mr Haniyeh after the 7 October 2023 attacks, which “outlined the objectives of the attacks and spoke of the actions of the Brigades as part of [] Hamas’ broader organisation and goals”.

    Separately, the Minister also stated that it would be for a court to determine whether the original decision to list Hamas in its entirety was affected by jurisdictional error.

178    The Statement of Reasons attached to the Minister’s briefing contained the following further relevant statements:

    Since Hamas seized control of Gaza in 2007, it has been the governing body in Gaza, largely responsible for the administration and provision of government services, including health, education and security, to Gaza’s inhabitants.

    The proportion of Hamas members assigned to normal military and security duties, and those involved in planning terrorist attacks, is unknown. The proportion of funds that Hamas has allocated to the terrorism-related activities of the Brigades is difficult to determine.

    Funds and donated goods directed towards the social service wing of Hamas are used to fund the Brigades, as Hamas is able to use genuine humanitarian assistance as a funding stream.

179    As stated above, I consider that this Statement of Reasons is relevant when interpreting the Minister’s decision record: see [40] above. These additional matters inform the Minister’s assessment that it was “appropriate” for the listing to include both the military and non-military wings of Hamas. In making that assessment, the Minister was plainly aware that Hamas is largely responsible for the provision of government services in Gaza. The Minister’s reasons contain an evident and intelligible justification for continuing to list Hamas as a whole as a terrorist organisation, even though Hamas performs governmental roles as well.

180    Other points raised by the Applicants: The points raised by the Applicants do not establish any legal unreasonableness in the Minister’s decision.

    The Applicants contend that a lack of knowledge (about what proportion of members are assigned to terrorist attacks) is no excuse for an overly broad classification. (That lack of knowledge appears in the Statement of Reasons attached to the Minister’s briefing: see [36] above.) However, legal reasonableness is generally assessed on the basis of the circumstances known to the decision-maker; that is, on the material before them: see [76], [154] above. As noted, a failure to obtain information may sometimes amount to legal unreasonableness, if there has been a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained: see [121] above. It cannot be said that this information about Hamas involves an obvious inquiry, or that this information is easily obtained.

    Although the geographical reach of the offences in Div 102 is broad, the elements of those offences are such that it is most unlikely that a government employee in Gaza could be committing an offence against Australian law. In particular, these offences require that a person know that the organisation is a “terrorist organisation” (or at most is reckless as to whether the organisation is a terrorist organisation): see for example s 102.7(1)(c), (2)(c) (providing support to a terrorist organisation). Further, there are obvious practical limits on the extent to which Australia would seek to impose its criminal law on persons outside Australia who are not Australian citizens and who have no other connection with Australia. This theoretical possibility raised by the Applicants does not render the Minister’s decision legally unreasonable, given the reasons advanced by the Minister for treating Hamas as a single entity.

    Finally, as the Commonwealth submits, it does not follow from the Minister’s acceptance that Hamas provides some government services that the Minister accepted that Hamas conducts “legitimate military functions”. To the contrary, the Minister found that the examples of violent conduct referred to in the Decision Record were not undertaken legitimately as part of armed conflict: see [29] above.

181    Is the Minister’s decision an unreasonable demand to cease self-defence? The Applicants also contend that the Minister’s decision carries an implicit demand that Hamas and other Palestinian resistance factions cease armed self-defence, which is said to be legally unreasonable. Neither step in this argument can be accepted.

182    First, a decision to list or not to de-list an organisation under s 102.1 cannot fairly be characterised as any sort of “demand” on the organisation, whether express or implicit. It is true that the listing does expose people connected to the organisation to potential criminal liability under Australian law. However, the purpose of the provisions in Div 102 is to protect the community by disabling those who might go on to commit terrorist acts: see R v Benbrika [2009] VSC 21; (2009) 222 FLR 433 at [7]-[8] (Bongiorno J), referring to Lodhi v The Queen [2007] NSWCCA 360; (2007) 179 A Crim R 470 at [79] (Spigelman CJ, with Barr and Price JJ agreeing). That is, these provisions and the listing of organisations as terrorist organisations have a protective purpose. In no real sense does the Minister’s decision purport to make any demands of Hamas.

183    Second, the Applicants’ characterisation of Hamas’ activities as “armed self-defence” involves contestable judgments about matters going to Australia’s foreign relations, which the Minister did not accept: see [29] above. As already explained, the character of these activities under international law is not a matter that affects the domestic legal bounds of the power to de-list an organisation under s 102.1 of the Criminal Code. In such a highly contested area, it cannot be said that the Minister’s assessment that Hamas continued to meet the relevant statutory criteria was so beyond the range of possible outcomes that it was legally unreasonable. The Applicants’ arguments merely demonstrate an emphatic disagreement with the merits of the Minister’s decision.

D.8    Other arguments (application of protocol; whether Hamas is an “organisation”)

184    The Applicants’ remaining arguments can be dealt with briefly.

185    No reviewable error in application of protocol: First, the Minister is said to have failed to apply the Australian Government’s protocol for listing terrorist organisations (summarised in [62]-[63] above), by failing to consider that the United Nations does not list Hamas as a terrorist organisation, and by failing to consider Hamas’ engagement in negotiations and commitment to cease-fire agreements, and the personal inviolability of Hamas negotiators: see point (8) in [41] above.

186    The protocol does not purport to be binding on decision-makers: the non-legislative factors (expressly contrasted with the “mandatory” legislative factors) are described in the protocol as matters to which agencies “may also give regard”. Further, it is clear from the Statement of Reasons provided to the Minister that he did have regard to the topics of “Listings by likeminded countries or the United Nations” and “Engagement in peace or mediation processes”, as set out in the protocol: see [] above. There was no legal obligation on the Minister to consider as part of these topics the specific matters raised by the Applicants.

187    No error in treatment of Hamas as an “organisation”: Second, the Applicants contend in their written submissions that the Minister erred by deciding that the statutory task did not involve any consideration of whether Hamas as a whole was an “organisation”: see point (9) in [41] above. The Applicants contend that the Minister incorrectly treated the Hamas Regulations as determinative of whether Hamas was an “organisation”, and that it was necessary for the Minister to determine whether Hamas was an “organisation”, and whether its military and non-military wings formed one “organisation”.

188    To be clear, the relevant part of the Minister’s reasons was responding to a different argument: that the original designation of Hamas in its entirety was invalid, because there was no consideration of the fact that Hamas is exercising a right of armed resistance against an illegal occupation. The Minister stated, correctly, that it would be for a court to determine whether the original listing was affected by jurisdictional error (that is, legally valid): see [23] above.

189    In any event, there are two separate reasons for rejecting the Applicants’ argument:

    First, the statutory question in a de-listing application is whether an organisation that is specified by regulations continues to meet the statutory criteria in s 102.1(4)(b) and (17). Those criteria relate to the activities of the listed organisation. And if the AFP Minister ceases to be satisfied of those matters in relation to the listed organisation, the consequence is the AFP Minister makes a declaration that has the effect of terminating the regulations that specify that organisation (s 102.1(4B)). These provisions require the AFP Minister to focus on the “organisation” specified in the regulations (here, Hamas as a whole), and whether that organisation continues to meet the relevant criteria.

    Second, the Minister in this case was provided with substantial information about the details of Hamas in the Statement of Reasons attached to the briefing: see [35]-[37] above. That information can be taken to have informed the Minister’s finding that it remained appropriate to list Hamas in its entirety: see [177]-[179] above. Accordingly, the Minister made all necessary findings to establish that Hamas in its entirety is an “organisation”, as defined in s 100.1. I note that the term “organisation” is defined broadly in s 100.1, and that whether or not there is an organisation in a given case involves questions of fact and degree: Benbrika (VCA) at [86].

e.    conclusions

190    For these reasons, the application for review of the Minister’s decision not to de-list Hamas under s 102.1(4) of the Criminal Code must be dismissed.

191    Costs: The remaining issue is costs. The ordinary rule is that the successful party is entitled to his or her costs: Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164 at [25] (the Court).

192    The mere fact that proceedings can be said to have been brought in the public interest, and otherwise than for the personal or financial gain of the applicant, does not of itself justify a departure from the usual order awarding costs in favour of the successful party. However, the costs discretion must be exercised having regard to all relevant facts and circumstances connected with the litigation: GMS24 v Commonwealth (No 2) [2025] FCAFC 197 at [5] (the Court). It may be appropriate to make no order as to costs if the issue concerns the exercise of statutory power and raises matters of high public importance about which there is substantial public controversy, and in respect of which it might be said there was reasonable merit: see Environment Council of Central Queensland Inc v Minister for the Environment and Water (No 2) [2024] FCAFC 97 at [64] (Colvin and Horan JJ). That is particularly so if the judgment provides clarity about the nature and content of statutory powers: Environment Council of Central Queensland at [29] (Mortimer CJ).

193    In this case, the situation in Gaza and the conduct of Israel is a matter of high public controversy. However, as explained, the legal issues in this proceeding are much narrower. I do not think the Applicants’ arguments in this case could be said to be substantial and substantive: cf Environment Council of Central Queensland at [49] (Mortimer CJ), [71] (Colvin and Horan JJ). To the contrary, the Applicants’ arguments rose no higher than assertion in key matters; in particular, the Applicants sought to rely heavily on international legal materials, without providing any real analysis of how those materials would confine the legal power to de-list an organisation under the Criminal Code.

194    In the circumstances, there is no reason to depart from the usual position as to costs.

Associate:

Dated:    19 February 2026