Australia, the UN and terrorism

In the context of the ongoing debate within Australia about how to respond to the threat of terrorism, the Federal Parliament’s Joint Committee on Intelligence and Security has been reviewing the power (under the 1995 Criminal Code) to proscribe organisations as terrorist organisations.

The UN Association has made a submission, and this article is based on the points made in the submission.

Greater awareness of the dangers of acts of terrorism has led many countries (including Australia) to seek more effective forms of prevention and security. As a result, the range of laws and regulations has expanded greatly, authorising more invasive action by law enforcement authorities. The human rights implications of these changes have still to be gauged fully, as nations balance the competing needs for security and justice.

The United Nations has been a vehicle for international efforts to meet the challenge of terrorism. It has set up numerous mechanisms, protocols, monitoring groups, and recommendations to assist member states.

On September 8, 2006 the UN General Assembly adopted a global counter-terrorism strategy to enhance consistency among nations, and a Plan of Action that includes the following aspects:

• measures to address the conditions conducive to the spread of terrorism;
• measures to prevent and combat terrorism;
• measures to build States’ capacity to prevent and combat terrorism and to strengthen the role of the UN system in this regard; and
• measures to ensure respect for human rights for all and the rule of law as the future basis of the fight against terrorism.

Part of the UN response has been to emphasise the importance of broadening dialogue across religious, ethnic, cultural and educational lines in order to resist extremist attitudes and intolerance. In addition, the UN has been clear that states should ensure that any measures taken to combat terrorism comply with their obligations under international law, in particular international human rights, refugee and humanitarian law (UN Security Council resolution 1624 in 2005).

The Australian Government has been an active supporter of moves against terrorism, both internationally and within its jurisdiction domestically, and has sought to engage the states and territories in the broader effort.

Many legislative and regulatory provisions have been made over the last few years. The Criminal Code 1995 has been amended to include detailed offences in relation to terrorist acts and organisations. Severe penalties ranging from ten years up to life imprisonment are mandated for offences such as (a) directing, (b) joining, (c) recruiting, (d) training, and (e) funding. Control orders can be obtained to monitor people suspected of associating with terrorist groups.

Section 102 of the Criminal Code 1995 focuses on terrorist organisations, and allows the Governor-General, on the recommendation of the Attorney-General, to make a regulation proscribing an organisation for two years on the basis that it is engaged in planning a terrorist act or advocates a terrorist act. There is provision for a request to be made to the minister to review the decision in any particular case, and for Parliamentary review by the Joint Committee. The Committee has undertaken several such reviews.

There are now about 20 organisations on the proscribed list. They are primarily groups with links to extremist Islamic movements. Some of the listed organisations are also listed by the United Nations as terrorist groups. Others are listed by the decision of the Australian Government, no doubt in consultation with like-minded nations like UK and Canada.

According to paragraph 2.2 in a report by the Joint Committee on April 25, 2006 reviewing a decision about listing the Kurdistan Workers Party, the criteria used by ASIO in selecting groups for listing include (a) engagement in terrorism, (b) ideology and links to other terrorist groups, (c) links to Australia, (d) threat to Australian interests, (e) proscription by the UN or like-minded countries, and (f) engagement in peace/mediation processes.

The Joint Committee’s report on the Kurdistan group recommended that the listing of the Kurdistan Workers Party be kept under active consideration taking into account (a) the number of Australians of Kurdish origin who may support the broad aims of the PKK without endorsing or supporting its engagement in terrorist acts, (b) whether it would be sufficient to proscribe the PKK’s military wing, and (c) the fluid state of moves towards ceasefires.

In a more recent report (December 2006) on the Review of Security and Counter-Terrorism Legislation, the Joint Committee recommended that (a) the Australian Government appoint an independent person of high standing as an Independent Reviewer of terrorism law in Australia; (b) the Independent Reviewer be free to set his or her own priorities and have access to all necessary information; (c) the Independent Review report annually to Parliament; and (d) the Intelligence Services Act 2001 be amended to require the PJCIS to examine the reports of the Independent Review tabled in the Parliament.

All this needs to be seen in the context of the ongoing detention of an Australian citizen - David Hicks - without trial at Guantanamo Bay at the behest of the US Government and with the support of the Australian Government. This case represents the dangers of anti-terrorism processes that appear to compromise Australia’s commitment to ensuring that human rights principles, endorsed repeatedly in UN resolutions on terrorism, are upheld.

UNAA recognises the importance of seeking ways to prevent terrorist acts occurring. At the same time it is concerned to ensure that the rights of all people in Australia are adequately protected. Overall, UNAA believes that the law should err on the side of sustaining rather than restricting established human rights affirmed in the various international instruments to which Australia is a party.

The response to threats posed by groups that engage in terrorist acts needs to be global, underpinned by widely accepted standards of assessment and protection of rights. The United Nations is the best vehicle for that response.

The Australian Government has a responsibility to ensure that decisions made under its anti-terrorism laws and regulations are based on comprehensive evidence and are fair and reviewable. The Parliament should have a major role in this, and there is room for additional and more independent checks.

Accountability for decisions on potentially controversial matters such as proscribing terrorist organisations should be transparent, and processes to challenge decisions should be easily accessible and publicised. Given the severity of penalties imposed on those with links with terrorist organisations, it is essential that great care be taken to ensure that convictions under the Criminal Code are just and appropriate to the crime. To this end, judicial discretion should be encouraged and timely appeal or review guaranteed.

In its submission UNAA recommended that:

• the Australian Government’s approach to counter-terrorism policies should be guided by the framework of response established through the United Nations system;
• the listing of organisations as terrorist organisations should follow as closely as possible the United Nations assessment of such organisations;
• independent research should be commissioned about the impact of the legislation and regulations on the Australian community;
• the idea of an Independent Reviewer of Terrorism, as proposed by the Joint Parliamentary Committee on Intelligence and Security (December 2006), should be adopted as a way of enhancing the operation of the current legislation. Such a Reviewer could also have responsibility for ensuring that the Australian Government responds in line with UN resolutions to cases of the detention of its citizens overseas (e.g. David Hicks); and
• Judges should be given discretion in the imposition of sentences under the parts of the Criminal Code that relate to terrorism offences.