Alan Ferguson (SA, Liberal Party) Share this | Hansard source

On behalf of the Parliamentary Joint Committee on Intelligence and Security, I present the report of the committee on its review of the relisting of al-Qaeda and Jemaah Islamiah as terrorist organisations and seek leave to move a motion in relation to the report.

Leave granted.

I move:

That the Senate take note of the report.

I present the report of the Joint Parliamentary Committee on Intelligence and Security on the relisting of al-Qaeda and Jemaah Islamiah as terrorist organisations. In a letter to the committee on 10 August 2006, the Attorney-General advised that he intended to relist both organisations prior to the lapsing of their current listing, as provided for in section 102.1(3) of the Criminal Code. The Attorney-General provided statements of reasons for both organisations, outlining his reasons for the relistings. Given the well-known position of these organisations, the committee decided against holding hearings and reviewed these decisions on the basis of the papers—that is, submissions from ASIO in the form of the statement of reasons and a procedural submission from the Attorney-General’s Department. In addition, the committee made extensive use of the open source material available on both organisations.

This review has raised a procedural question about the type of information presented by the Attorney-General in arguing for the continuation of a listing. It is the committee’s view that, on a relisting, it would be preferable to see arguments about the activities of the organisation in the period since the last consideration. Background information about the history of the terrorist activities of an organisation is useful, but the committee believes that the arguments for a relisting should concentrate on recent activities and information about what has changed since the last review, whether that be an increase or a decrease in terrorist activity. Over time information becomes stale. The relisting of an organisation is a fresh exercise of executive discretion, and the committee believes that there must, therefore, be a sufficient degree of currency in the evidence to warrant the use of the power.

In this report, the committee also wishes to reiterate two issues raised in previous reviews. The first relates to the manner in which information is provided in the statement of reasons. The legal test for the listing of an organisation is set out in the Criminal Code. The Attorney-General 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, whether or not the terrorist act has occurred or will occur. The committee noted in previous reviews the breadth of this definition and sought advice from ASIO as to why some organisations which fitted the definition have not been proscribed while others have. ASIO’s response was to provide the committee with a set of criteria which it used to determine which entities it sought to proscribe. These criteria are provided in the report.

The committee has found the criteria useful as a means of assessing the arguments provided by the government in each statement of reasons and, in previous reports, the committee has asked the government to address these criteria in future statements of reasons. This has not occurred to date. The request is repeated in this report. It is the committee’s view that a clearer exposition of the criteria would strengthen the government’s arguments, provide greater clarity and consistency in the evidence and therefore increase public confidence in the regime as a whole. It would greatly facilitate the committee’s review process if this change occurred.

The question of community information regarding these regulations also remains a difficulty. On these current regulations there was no attempt to inform the community beyond the Attorney-General’s press release. Perhaps, on organisations with the profile of these two organisations, this is not nearly as important as it might be in other cases.

On the substantive question of the threat posed by the organisations themselves, the committee has sought to consider each against ASIO’s criteria. It is notable that not all categories in the criteria are covered in the statement of reasons. In this review, the committee has sought to understand the current circumstances of each organisation. In each case, there are complex forces at work. Each organisation has been under considerable pressure and yet structural decline has not led to a lessening of the threat. However, it is unclear whether the threat comes directly from the organisation as such or from some wider and widening response to the war on terrorism.

The committee notes that all sources describe al-Qaeda as an organisation that is damaged and fragmented by the pressure that has been brought to bear on it since September 2001. Its capacity is now aspirational and ideological rather than material or advisory. However, all also argue that the influence of the organisation and its capacity to inspire jihadist activity have grown as a result of actions in the war on terrorism, particularly the war in Iraq. In particular, the Attorney-General’s statement of reasons quotes bin Laden who, in advocating terrorism, says that the bombings in Europe are revenge for invasion and occupation of Muslim lands. It is this capacity of al-Qaeda to inspire disconnected groups which remains a concern.

On Jemaah Islamiah, the picture is also a complex one. The International Crisis Group notes that, while there is an intersection and overlapping of personal networks, there are divisions over tactics among terrorist groups in Indonesia and that individuals often operate on their own. The International Crisis Group argues that there are numerous indications, including insufficient funds coming from outside, that the capacity of Noordin’s group, who were responsible for the latest bombings in Indonesia, remains limited, although ‘the troubling thing is that there seems to be no shortage of recruits’.

Jane’s, the intelligence analysts, judgement of JI confirms this view of the International Crisis Group. They note that perceptions of the threat posed by the group vary widely. However, they assess that JI’s role in regional violence ‘is almost certainly exaggerated’. They note that the group ‘rarely conducts any operations’ and that recent activities have not caused the level of damage their perpetrators may have expected. In Jane’s view:

JI appears to have shifted from the material to the ethereal—

and that—

... JI’s operational inertia in a target rich country, where it enjoys at least some material and considerable tacit support, remains a mystery.

The Australian Strategic Policy Group note that JI was never as structured and homogenous a group as some commentators have made out. Nevertheless, the committee notes that although there have been only two terrorist attacks attributed to JI or its affiliates in the period under review—the attack on the Australian Embassy in 2004 and at Bali in 2005—it accepts these attacks as clear cases of terrorism, bringing JI within the scope of the Criminal Code for prescription purposes. The committee does not recommend disallowance of the regulations relating to either al-Qaeda or Jemaah Islamiah. I commend the report to the Senate.