George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Hansard source

I rise to support the remarks of Senator Faulkner. In the time available to me let me just make a couple of brief points. The Parliamentary Joint Committee on Intelligence and Security—on which both Senator Faulkner and I serve—has always acted in a bipartisan fashion in the discharge of its statutory functions and it has been entrusted by the national security agencies whom it oversees—including, and relevantly for the purposes of this report, ASIO—with a high level of confidence. So this is not a government recommendation; it is a committee recommendation which all members of the committee participate in.

I wanted to stress that point because I think it is very important that the public know that these decisions to either list or to extend the listing of organisations on the basis that they are engaged in terrorist activities are decisions that are not made lightly. They are made by the committee, fully informed by intelligence, and they are approached in an entirely nonpartisan way. They are decisions which are made under provisions of the Commonwealth Criminal Code—specifically section 102.1 of the Criminal Code—which were introduced by the Howard government.

It is significant, I think, that the initial listing or the decision to renew the listing of these various terrorist organisations has been made since the powers were enacted by the parliament under both governments. Al-Shabaab was initially listed as a terrorist organisation by the Rudd government in August 2009, and that decision had the support of the coalition in opposition. Hamas’s Izz al-Din al-Qassam Brigades was initially listed as a terrorist organisation in 2003 and has been relisted as a terrorist organisation now on five occasions—three times by the previous coalition government and now for the second time by the Labor government. The listing of the Kurdistan Workers Party was initially made in December 2005 by the Howard government, extended in September 2007 again by the Howard government, extended in September 2009 by the Rudd government and now extended under the Gillard government. The listing of Lashkar-e-Taiba was initially made in 2003 by the Howard government. That listing was three times extended by the Howard government and is now being extended for the second time by the Labor government. Finally, Palestinian Islamic Jihad was initially listed by the Howard government and it was relisted on three occasions by that government and is now for the second time being extended by the Labor government.

There is a very high standard or threshold of satisfaction required both by the Attorney-General and by the parliamentary committee before an organisation is listed as a terrorist organisation. I also want to stress the point—and I am sure Senator Faulkner would agree with me—that there is no element of political censorship in a decision to list an organisation as a terrorist organisation. The considerations involved concern the decision based upon intelligence shared with the committee that there is a genuine and well-grounded apprehension that the organisation is engaged in terrorist crimes or potentially engaged in terrorist crimes so that to allow that organisation to operate freely would be to give the sanction of the law to what amounts to a criminal conspiracy.

There have been a number of rather foolish things said in the last decade or so about the new powers initially introduced by the Howard government and continued largely in the same form by the Labor government about the effect of these powers on freedom of association.

The reality is, as we all know, that there is no right of free association and there is no right of free speech for the purpose of the prosecution and planning of a serious crime. The law of criminal conspiracy has been a part of the criminal law of Australia and the Anglo-Saxon legal system which we inherited as long as there has been a criminal law. The law of criminal conspiracy goes back before the Norman conquest in the English legal system. So listing organisations whose advertent, conscious, deliberate and studied purpose is to organise acts of criminal terrorism against our community is to do nothing more than, in a more modern and more sophisticated way, give effect to the same principles as have for a millennium persuaded communities that there should be a law against criminal conspiracy.

It is with great caution, as I said before, that this issue is approached, because whenever one talks about proscribing organisations one must immediately step back and consider the implications for freedom of association and freedom of speech. So the provisions under which these organisations have been proscribed are as narrowly drawn as possible so as to reassure Australians that this is about proscribing criminal conspiracy, specifically terrorism, not restricting freedom of speech or association.