High Court grapples with how to identify “member” of Islamic State

Following a one-day hearing, the High Court will clarify whether IS “supporters,” including those that consume their propaganda, are IS “members” for the purposes of the criminal law.

The question has arisen from the prosecution of a 25-year-old, Zainab Abdirahman Khalif. Zainab downloaded hundreds of files relating to IS and was in regular contact with a group of suicide bombers in Kenya. She was arrested on her way to Turkey, with the alleged intention to cross the border into Syria.

This evidence was accepted at jury trial and Zainab was found guilty of membership of a terrorist organisation. That conviction was quashed by the South Australian Supreme Court which believed the trial incorrectly interpreted the offence, failing to prove that Zainab undertook a membership process required for admission within the organisation’s structure.

The appeal to the High Court today contended that ordinary notions of “membership” do not apply to IS, and if someone is answering a call to live in their territory, this is sufficient. The defence argued that the law intends to distinguish between those that adopt the ideology of an organisation or who live in a society governed by an organisation, and those embedded within the organisation’s structure itself. This approach, says law Professor Mark Nolan, “would implicate fewer people as being guilty of other offences, citing a need to limit who could be convicted of the offence of intentionally recruiting members of a terrorist organisation, or associating with members of a terrorist organisation.”

Felicity Gerry QC believes, “this is another case where the scope of the Defence Power and its use by government is being tested.” The offence is a strict liability offence attracting a 10-year penalty. Zainab has already served two and a half years in prison. The High Court will provide its decision tomorrow.