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

I move Australian Greens amendment (1) on sheet 5165:

(1)    Clause 5, page 19 (lines 9 to 18), omit “:” and paragraphs (a) to (d) of the definition of financing of terrorism, substitute “an offence under Division 103 of the Criminal Code”.

This is an amendment that seeks to narrow the definition of ‘financing terrorism’ that is used in the legislation. For the Australian Greens one impetus for this amendment comes from the fact that we have long argued that the definition being used in earlier legislation was too broad because it did not require there to be a link to violence, and we do so again. We note also that there was a submission from Liberty Victoria to the Senate inquiry that looked into this piece of legislation which dealt with this issue.

If enacted, this bill will require financial institutions to take a range of measures to deal with the risk of financing terrorism. Under the bill it is defined to include conduct that amounts to:

a) an offence against section 102.6 or Division 103 of the Criminal Code ...

as well as:

(b) an offence against section 20 or 21 of the Charter of the United Nations Act 1945 ...

These offences, in particular those that are found in section 102.6 of the Criminal Code, are very broad. They capture conduct that goes far beyond the intentional funding of politically or religiously motivated violence. Under section 102.6 of the Criminal Code it is illegal to fund a terrorist organisation regardless of the use to which the funds are put. For example, giving money to the Tamil Tigers or to the Kurdistan Workers Party for the sole purpose of assisting their humanitarian activities is punishable by 25 years if the donor knows that the recipients of the fund are the Tamil Tigers or the Kurdish Workers Party.

The broad definition and offences of terrorism on which this bill rests are central to the danger of this bill. The risk that a customer might breach these offences is the trigger for a bank or another financial institution to forward information on that customer to the authorities. The Greens believe that narrowing the base of the offences and restricting them to the intention to support violence would not only limit the chances of discrimination under this legislation but also make any attempt to prevent terrorism financing within the terms of the bill’s framework more effective.

I would like to turn to some comments on this issue that were made in the submission by Liberty Victoria to the Senate committee looking into this legislation. I will give two examples of the way in which this broad definition of financing terrorism will impact on members of the community. One of them is from the Muslim community and the other is from the Tamil community. There was an article written in the Age on 29 November 2005 by Waleed Aly, who is from the Islamic Council of Victoria. He was talking about section 102.6 of the Criminal Code. He said:

This level of uncertainty in an offence this serious is deeply worrying. And for Australian Muslims, doubly so. Because charity is one of the five pillars on which Islamic practice is built, Muslims tend to be a charitable people. That is especially true at certain times of the Islamic year when charity is religiously mandated. Countless fund-raising efforts followed the tsunami and the Pakistan earthquake, and even in the normal course of events, Muslim charities regularly provide relief to parts of the Muslim world many other charities forget.

So he is talking about the broad definition of the financing of terrorism and the way in which it has the potential to impact on the activities of members of the Muslim community.

The other example that I want to point to, as I indicated, is about the Tamil Tigers. In their submission Liberty Victoria talk about the reach of the offences being well illustrated by the listing of the Tamil Tigers under the statute. The submission states:

Because this group has been listed under the Charter of United Nations Act 1945 ... it is a crime to in/directly provide funds to this organisation regardless of the purpose to which the funds are put.

They give an example:

For instance, donating to the—

Tamil Tigers—

for the exclusive purpose of assisting reconstruction in the wake of the tsunami disaster is illegal under this Act.

They go on to talk about the contribution made by a spokesperson for the Australian Tamil rights council at a forum organised by the Equal Opportunity Commission Victoria in partnership with the Institute for International Law and Humanities, the Melbourne Law School and the Federation of Community Legal Centres. The contribution by the spokesman from the Australian Tamil rights council that Liberty Victoria quote in their submission is this:

The impact of the (counter-terrorism) laws is very real and reverberated within the community after the November raids—

he is, of course, referring to the raids by the Federal Police on members of the Tamil community in Melbourne—

and its public reporting. Many Tamils contribute towards their community either through political or humanitarian means ... There is also a concern that donations for genuine humanitarian and cultural purposes may be caught by the wide ‘financing terrorism’ laws. Many Tamils in Australia make significant donations to Sri Lankan-registered NGOs, relatives and friends. Funds are raised in Australia for various clearly identified humanitarian projects in Sri Lanka including medical centres and health programs, child sponsorship, nutritional centres, resettlement and livelihood programs undertaken by Sri Lankan-registered NGOs and civil society groups that operate in LTTE-controlled areas. It is well-known that for over 20 years the minority Tamils of Sri Lanka have relied heavily on political support and contributions made by Tamil relatives overseas and humanitarian organisations to survive and meet their daily needs.

So both of these two examples raise the spectre of Australian Muslims and Australian Tamils being disproportionately subject to suspicious matters reporting, with personal financial information being passed on to AUSTRAC and other government agencies, as the Liberty Victoria submission outlines.

The concern of the Greens is that we want to be clear on how we define the financing of terrorism. Of course, we all agree to have legislation that outlaws the financing of terrorist organisations—that is a given—but what we are trying to do is to ensure that the legislation does precisely that and does not capture people who give money for the reconstruction effort in tsunami affected areas of Sri Lanka or earthquake affected areas of Pakistan. We want to ensure that people are able to contribute to their families, their friends, registered charities, child sponsorship, the building of hospitals and a range of other services in those areas. We want to ensure that people are able to contribute to reconstruction efforts in the wake of the tsunami and the damage caused by the Pakistan earthquake.

What we are trying to do in narrowing this definition is to say that, rather than ‘financing of terrorism’ in this piece of legislation relating to either section 102.6 or division 103 of the Criminal Code, the Australian Greens amendment seeks to make it clear that the definition we believe is appropriate is the narrower definition—that is, the one already provided in division 103 of the Criminal Code. The Australian Greens amendment seeks to narrow how we define the financing of terrorism in such a way that we address what this bill is seeking to address—that is, ensuring that we outlaw and ban the financing of terrorism. But how do we do it in such a way as to ensure that we are not throwing the net too wide, that we are not encompassing the charity activities of a number of Australians, particularly those of the Muslim or Tamil community who want to contribute to the rebuilding of their families’ homes, to hospitals, to other facilities in areas controlled by the Tamil Tigers, where Sri Lankan registered NGOs are operating, or in other Muslim parts of the community that may be impacted because of the broad definition of ‘terrorism’ that exists in the Criminal Code—in particular, in section 102.6 of the Criminal Code?

That is what the Australian Greens are seeking to do with this amendment. It is a very important amendment, because it is a way of providing a safeguard to say: ‘This bill is serious about stopping the financing of terrorism, but it also understands that we are going to narrowly define what this is. We are going to be clear in making sure that we capture the right people. We want to make sure that we don’t open the net really wide and catch the people who have been caught under current Australian financing of terrorism laws, such as the owner of the record store with the same name as the obscure Peruvian terrorist group the Shining Path. We don’t want to catch the Iranian restaurateur who, last week, had $25,000 of her account frozen by Westpac because they thought she might be financing terrorism when she made regular payments to buy dates in Iran.’

We want to ensure that those people are not caught up in the legislation, and that is why we are seeking to define the financing of terrorism so that it is quite clear that we are using existing Australian law to do so, rather than throwing the net wide and allowing innocent people to be caught by this legislation. None of us wants to see that—I am sure that nobody wants to see that occur. We have seen from the examples that it has already happened in Australia. People have been caught by that, and it has taken many months of wrangling for them to get access to their money. Everyone acknowledges that it was a mistake. The owner of the record store was clearly not financing terrorism—he just owned a record store—but it took him several months to get access to his funds. The implications for small business owners in Australia are very significant. So what we are trying to do is ensure that we are targeting the people we want to target and not catching other innocent Australians with this legislation. That is why we are moving this amendment. I commend the amendment to the Senate.