Kerry Nettle (NSW, Australian Greens) Share this | Hansard source

I rise to support this disallowance motion, moved by Senator Brown on behalf of the Greens. This motion would overturn the government’s ban on the Kurdish Workers Party, which was listed by this government as a terrorist organisation on 15 December last year following the visit to Australia of the Turkish Prime Minister. As Senator Brown outlined yesterday in his comments, the Greens are very concerned about the arbitrary power that has been given to the Attorney-General to label and ban organisations as terrorist organisations. We have expressed our concerns in the parliament about the proscription regime on many occasions. These concerns are not just expressed by the Greens; we share our concerns with the government’s own Sheller review, the report of the body that was appointed to review terrorism legislation brought in by this government, including the proscription power. The government’s own Sheller review suggested that a fairer and more transparent process should be devised. Some members of the group—and this is certainly a view that the Greens hold—believe that only a court should be able to list an organisation, rather than the political appointment of whoever is the Attorney-General of the day.

The Sheller review said that the laws appear to have a disproportionate effect on human rights and could be subject to administrative law challenge. It also said that no sufficient process is in place that would enable persons affected by proscription to be informed in advance that the Attorney-General is considering proscribing an organisation and to answer the allegation that that organisation is a terrorist organisation.

That deficiency in the process of proscription, highlighted by the government’s own Sheller review, comes into play when talking about this particular proscription. We have heard many members in the chamber speak about the impact of this legislation on the Kurdish community in Australia. As the government’s own Sheller review highlights, there is no process by which the Kurdish community in Australia could be aware that the Attorney-General had intended to list the PKK as a terrorist organisation—as he did following the visit of the Turkish Prime Minister on 15 December last year. Hence we come to all of the problems that were raised in the minority report of the Joint Committee on Intelligence and Security that looked into this matter and that have been raised by a number of senators. In fact, I think all senators who have spoken on this issue in this chamber have raised that very issue.

As others have said, this is so extraordinarily important because of the vast numbers of members of our community who are members—including informal members—of or associated with a listed organisation who can then become liable to serious prosecution because of the proscription. As others have outlined, some of those penalties are significant. The penalties include a maximum of three years imprisonment for associating with members or informal members of a proscribed organisation.

Senator Carr was speaking previously about the Kurdish Association of Victoria. I am sure that there are members of that organisation who see the PKK as their party, as is quoted in the minority report looking into this matter. They would probably fall outside the category of the three years imprisonment, but there is 10 years imprisonment for informal membership of a proscribed organisation and 25 years for other sorts of intentional involvement. So we are talking about between three and 25 years imprisonment, depending on the level of association that people have with this particular organisation.

I will get onto my particular concerns that relate to the refugee community in Australia. There are members of the Kurdish community who are Australians and who have been given refugee status in this country on the basis of their membership of the PKK. So Australia has accepted that because somebody was a member of the PKK they should be afforded refugee status here in Australia, and there are many of those people. What this banning and labelling of the PKK as a terrorist organisation does is allow the government—which has all of the information about the Australian members of our community who are members of the PKK and, because of that, refugees here—to charge those people with being members of a proscribed terrorist organisation. That is what this proscription does; it allows the government to target those refugees who were given status on the basis of membership of the PKK and charge them with terrorism offences that can lead to between three and 25 years imprisonment. I am sure that, were any government members to choose to speak on this issue and defend their position—or, indeed, members of the opposition, which is also supporting this proscription—they would say, ‘Oh, that won’t happen.’ The difficulty for me is that I am aware of instances, not in relation to the Kurdish community but to other proscribed organisations, when it has happened.

I refer people to the matter of Izhar ul-Haque, a young medical student studying at my old university, the University of New South Wales. He was charged with being involved in the activities of Lashkar-e-Taiba, which was a proscribed terrorist organisation. Lashkar-e-Taiba was proscribed after Izhar ul-Haque had returned from his overseas trip and was back studying at university. His case is an example of an organisation being proscribed a terrorist organisation after an individual’s alleged involvement with them. The government chose to retrospectively charge him with terrorist offences, with years of imprisonment associated with them, because of an alleged involvement with an organisation that they later proscribed as a terrorist organisation.

Izhar ul-Haque spent much time in Supermax in Goulburn prison. He was a young university student locked up, and it had a significant impact on his ability to interact with people. When he came out of prison he sat in his bedroom with the door shut, refusing to interact with other people at all. These are the circumstances of this young medical student who was charged by the government retrospectively after they had labelled the organisation he was alleged to have associated with as a terrorist organisation. They went back and proscribed it and then charged Izhar ul-Haque.

My concern is for the refugees in Australia who are refugees on the basis of their membership of the PKK. This banning allows them to be charged with terrorist offences that have imprisonment terms of between three and 25 years. There is an example out there for everyone to look at of the government doing precisely that—charging people with terrorism offences due to their association with a proscribed organisation that was not proscribed by the Australian government at the time of their alleged offence but was subsequently proscribed by the Australian government. As I said before, these are concerns that a vast number of members of our community have raised.

I started my comments by talking about the concerns that the Greens have around this general proscription regime. Similar concerns were raised by Victorian Legal Aid in their submission to the Parliamentary Joint Committee on Intelligence and Security inquiry into this particular proscription. They said:

... we submit that banning organisations is undemocratic. The proscription power breaches the fundamental principle of criminal law that guilt is attributed to individuals on the basis of their own individual actions in causing harm or damage. The proscription power imposes criminal liability by association on whole groups and on those who associate with them. It therefore imposes criminal liability on individuals who may have no proven or provable connection to violent acts that threaten the safety of the public.

No wonder we are hearing concerns from members of the Kurdish community in Australia, which Senator Carr and others have pointed out in the minority report. I will get onto some other implications as we proceed. Victorian Legal Aid continue in their submission:

We are also concerned that this proscription is inconsistent with Australia’s international obligations under the International Covenant on Civil and Political Rights, most notably those obligations relating to freedom of association (Article 22). The listing power places a greater restriction on the right to freedom of association than is necessary in a democratic society to maintain national security.

These are the concerns that the government’s own Sheller report raised as well, and hence their concerns with the proscription regime as it operates.

Many people over many years have expressed support for self-determination in Turkish Kurdistan. The broad scope of the terrorism laws combined with this proscription could catch many of those people in the net of the terrorism laws, as I have outlined. Senator Carr has spoken about his life membership of the Kurdish Association of Victoria and I have mentioned the many members of that association and a number of other Kurdish associations around Australia who are greatly concerned about this proscription because they know and understand the law. Not all of them are aware of the consequences of the three to 25 years maximum imprisonment that they may face if they identify with this organisation—and remember it is the organisation that allowed them to come to this country.

I move to that issue and express the concerns of the Refugee Council of Australia, which has said that the listing of the PKK will adversely affect Kurds who seek asylum in Australia in the future and also those who have been accorded refugee status in the past. They express concern about:

... the implications of the listing of the PKK under the Code for bona fide asylum applicants or visa holders of Kurdish origins who may be caught by the inclusion of this organisation on the list of proscribed organisations—which in historical terms given the history of the Kurdish struggle and the Turkish government’s suppression—

the PKK—

... might with the passing of time evolve into one like the ANC, PLO or Fretlin all of whom are now legitimate representatives or governments of nation states.

They express concern for people who have been granted asylum here on the basis of their membership of the PKK. They also talk about their concerns for any future refugee or asylum seeker from Kurdistan coming to Australia. They say:

Proscription of the PKK would disproportionately affect asylum seekers in a way that they would not be under current ‘serious crimes’ provisions in the Refugee Convention. Current laws require an investigation of the circumstances behind an individual’s past activities and assessment of whether there are ‘serious reasons to consider’ a person comes within the Exclusion provisions of the Refugee Convention. Simple proscription of an organisation fails to take account of such complex circumstances and could place asylum seekers at risk of being unfairly denied refugee status and returned to a situation of danger contrary to the non-refoulement provisions of Article 33 of the Refugee Convention.

They go on to say:

It can also be argued this step will impact adversely on offshore humanitarian applicants who have only distant links with the PKK such as elderly parents but who may have discreetly assisted the children’s political actions.

They talk here about the possibility of members of the Kurdish community in Australia—Australian citizens—who wish to bring their elderly parents here. If their elderly parents have had informal association with the PKK, if they are members of the PKK or are involved with them, the concern raised by the Refugee Council of Australia is that they may be denied refugee status here on the basis of this government’s proscription of the PKK as a terrorist organisation. They go on to say:

There is in the Council’s view a serious risk that thorough individual assessments in future cases will be replaced by a blanket refusal of claims invoking the proscription provisions together with the character provisions in the Migration Act for any Kurdish asylum seeker with actual or imputed links to the PKK.

So they raise their concerns about whether this proscription will lead to the Australian government refusing to grant asylum to Kurdish asylum seekers who may have had some association, however weak it may have been, with the PKK.

The consequences of this banning are vast. The consequences that I have raised today are not all dealt with by the joint committee that looked into this matter. That is why we see in the recommendations a request for the government to reassess this. That is why the Greens have moved this disallowance motion, because the impact of this proscription on the present Australian Kurdish community, and on the future Australian Kurdish community in terms of asylum seekers coming from the Kurdish community to Australia, has not been considered. And if it has been considered by the government then the government, with the support of the opposition, appear to have made the decision, ‘That’s okay, we’ll go ahead.’

This is despite ASIO and the government making it clear, as the government senator who spoke on this matter did yesterday, that the PKK poses no threat to Australians. Despite having made it clear that there is no activity going on here in Australia, the government, with the support of the opposition, intends to proceed with this labelling of the PKK as a terrorist organisation, with all the subsequent consequences that I have talked about in relation to the Kurdish community here in Australia and their family members who may wish to come to Australia.

The PKK are one side of an ongoing civil conflict in Turkish Kurdistan—a conflict that has seen tens of thousands of people, mainly civilians, lose their lives. Human Rights Watch has said in one of its many reports on the conflict that the Turkish government have, in the course of the conflict with the PKK, also committed serious violations of international human rights and humanitarian law, including torture, extrajudicial killings and indiscriminate fire. Many who died were unarmed civilians caught in the middle between the PKK and security forces, targeted for attack by both sides.

Precisely because of these activities occurring, the Australian government has made very correct and accurate decisions in the past to grant members of the Kurdish community asylum here in Australia, on the basis of not only their membership of but their association with the PKK. The government has all of that information because it is the basis on which those people were granted entry to Australia. What this proscription does is to allow the government to use that information to charge people with terrorist offences.

I hope that that does not happen. But when I look at the example of Izhar ul-Haque, for whom that did happen, I am greatly concerned for the Kurdish community, for those Australian citizens who are now open to imprisonment of between three and 25 years for associating with members or informal members of the PKK. The consequences are just astounding, and it is important that senators vote in support of freedom of association by supporting this disallowance motion by the Greens regarding the labelling of the PKK as a terrorist organisation. Do so for the Australian Kurdish community; do so for the principle of the freedom of association; and do so because of the concerns that the government’s own review of these proscription powers has raised. Do so because of the concerns raised in the minority report of the committee that looked at this matter. It is important that senators vote today in support of freedom of association. (Time expired)