Hamas’ court bid to overturn its Australian terror listing

Hamas, the militant Palestinian group that launched the October 7 attacks on Israel, has urged the Australian government to remove its listing as a terror organisation in court documents filed as it embarked upon a ceasefire agreement with the Netanyahu government.

Hamas argued in Federal Court filings lodged this month that the terror listing has breached international law, impeded ceasefire negotiations, exposed its negotiators to assassination and provided legal cover for Israeli attacks that have killed tens of thousands of Palestinians in Gaza.

The nation’s peak Jewish body said it was outraged by the bid for Hamas to be delisted, arguing the court documents “make for extraordinary reading and they reveal something chilling about our country”.

The documents were filed as part of a court case brought by Indigenous activist and radio host Robbie Thorpe, who argues the Hamas terror designation limits freedom of political communication in Australia by chilling discussion of Palestinian strategies to resist Israeli occupation.

The Hamas-led October 7, 2023, attacks killed an estimated 1200 people in Israel and triggered a ferocious response from Israel that was labelled a genocide by a United Nations independent commission of inquiry.

Hamas has claimed responsibility for many high-profile terror attacks in Israel, but its listing was contested because of its nature as a political party and governing authority as well as a militant organisation.

In an October 15 filing, Hamas said the proscription of the entirety of the group, including its political and governing wing, had led to the relatives of Hamas members and the Palestinian people in Gaza more broadly to be regarded as terrorists or terror supporters.

Hamas’ request to intervene was five days after a ceasefire brokered by US President Donald Trump came into effect.

“The ongoing proscription purports to declare as unlawful the armed struggle of the Palestinian people for liberation from unlawful occupation of the Occupied Palestinian Territories, contrary to international law,” Hamas said in the document.

Describing itself as part of “a national army of the Palestinian people”, Hamas said it had been deprived of the opportunity to provide evidence of how the terror listing undermines Palestinian sovereignty and self-determination.

Thorpe, the uncle of independent senator Lidia Thorpe, said that Western nations’ designation of Hamas as a terror group had been used by Israel to justify its fierce conduct in Gaza.

“The government should take them off the list,” he said. “Australia is not in a position to judge what terrorism is.”

The Commonwealth is contesting the court case.

The Hamas request for an interlocutory application, lodged by Thorpe’s lawyer Daniel Taylor, was refused by the court.

Taylor said that the application was provided to him by Hamas’s political bureau, which is based in Doha, Qatar.

Taylor said there was a lot of “propaganda” about Hamas’ activities on October 7, 2023, and that it was unfair for Australia to brand one side of the Hamas-Israel war as a terror group.

He said Hamas intends to file a subsequent application to the Federal Court and to lodge a formal request with the government to be removed from the terror register.

The Morrison government listed the entirety of Hamas as a terror organisation in 2022 with Labor’s support, joining the United States, United Kingdom, Canada and other nations. Previously, only its armed wing, the Al-Qassam Brigades, was designated as a terror group in Australia.

The terror listing prohibits Australians from providing financial support to Hamas, joining the organisation or recruiting for it.

Executive Council of Australian Jewry co-chief executive Alex Ryvchin said: “Since October 7, we have seen public expressions of support for Hamas as an organisation and specific support for its invasion of Israel and the horrors that accompanied it.

“Now we can see that even as a ceasefire and peace plan was being implemented, and the full terror of their crimes both against Israelis and the people of Gaza was becoming apparent, there were Australians doing Hamas’s bidding.”

Ryvchin continued: “The fact that any Australians would put their names to a document aimed at lifting Hamas’s terror status and asserting its so-called rights should shock and alarm all of us.”

Home Affairs Minister Tony Burke, who is responsible for administering the terror list, said in a July letter that he was satisfied Hamas continued to meet the legislative threshold for being designated a terrorist organisation.

“Specifically, I am satisfied that Hamas continues to directly or indirectly engage in, preparing, planning, assisting in or fostering the doing of a terrorist act and that Hamas continues to advocate for the doing of terrorist acts,” Burke wrote to Taylor.

“Examples of this conduct include that on 7 October 2023, Hamas-led militants conducted a series of co-ordinated terrorist attacks on Israel where a significant number of individuals were killed, including an Australian. In addition, a significant number of individuals were injured or taken hostage ...”

A spokesman for Burke declined to add to his submissions to the court.

Robbie Thorpe argued on radio in October 2024 that Hamas and Lebanese militant group Hezbollah – also a listed terror group in Australia – “are exercising a moral and legal duty of armed resistance to genocide” and that the terror designation is unconstitutional.

Lidia Thorpe, who has labelled Israel’s conduct in Gaza as a genocide, was contacted for comment. She is not a party to the case.

Israel denies that its conduct in the war in Gaza – which killed more than 71,000 people according to the Hamas-run Gaza Health Ministry – has constituted a genocide.

The 2022 listing of Hamas as a terror organisation had bipartisan support but was vigorously debated at the time because the group has both political and military wings.

Ben Saul, an international law expert at the University of Sydney and a special rapporteur for the United Nations, described the original move to designate Hamas as a terror group “broad and excessive”.

Saul argued the move meant that anyone who works for the Hamas government in Gaza – including street sweepers, teachers and nurses – could be considered as terrorists under Australian law and could criminalise Australians providing support to Palestinian friends and family.

“That sends a very strong deterrent message not to get involved in supporting ordinary people in Palestine,” he said.

The Australia Palestine Advocacy Network opposed the terrorist designation as “targeted bigotry” that would undermine the peace process.

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