Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I move:

That the Criminal Code Amendment Regulations 2005 (No. 14), as contained in Select Legislative Instrument 2005 No. 298, specifying the Kurdistan Workers Party (PKK) as a terrorist organisation, and made under the Criminal Code Act 1995, be disallowed.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

It’s been a long day.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Yes, it has Senator Ludwig. I thank the clerk for reading out the business item. This is a motion to disallow the move by the Attorney-General to ban, in December last year, the Kurdistan Workers Party as a purported terrorist organisation. It is a difficult question and I should say at the outset that we need a mechanism for banning organisations that would create terror in our community. There was always going to come a point when there would be considerable debate about what is, or who is, or who is not, a terrorist organisation.

The Kurdistan Workers Party is globally known as representing the Kurdish people in Iraq, Turkey and Iran, and I should state at the outset that it is my belief that the Kurdish people deserve their day and their opportunity to become an independent nation, Kurdistan, if they wish to. But that is not the point here. The point is that there has been a proscription of an organisation and that has caused a great deal of concern amongst the many Australians who have Kurdish origins, and other community organisations.

A review of the move by the parliament’s joint intelligence committee subsequently supported the listing but called on the government to keep it under active consideration. The committee said that the government should take into account, firstly, 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; secondly, whether it would be sufficient to proscribe the PKK’s military wing, the Kurdistan Freedom Brigade—Hazen Rizgariya or HRK—which was referred to in the Attorney-General’s statement of reasons; and, finally, the fluid state of moves towards possible ceasefires. That refers to moves towards a peaceful outcome of what has sometimes been violent confrontation between the Turkish authorities and the PKK in Turkey.

I will be looking and listening to find out whether the government has in particular looked at whether it would be sufficient to proscribe the military wing, because that would be a much easier matter for us to be dealing with today. The PKK is much more than its military wing. It is a political organisation and it has an enormous reputation for also supplying a lot of social wherewithal for the Kurdish people as well as being a political alternative for their aspirations.

The Greens do not think that the government should have the power to ban organisations by listing them as terrorist organisations per se. That should be in the hands of the parliament, or at least a court, and should be appellable. The definition of terrorism and the criteria used at the moment could encompass Nelson Mandela’s African National Congress or the East Timor freedom movement. Listings are based on secret advice from ASIO which cannot be tested in open court or viewed by the Australian public. Listings are more often about what the Bush administration wants rather than what is in the separate and different national interests of this nation. The government’s own Sheller review of the terrorism laws recommended that a fairer and more transparent process should be devised for proscribing an organisation as a terrorist organisation, yet we have not had a response to that from the government.

Many Australians will remember the great controversy over the referendum banning the Communist Party half a century ago. The Australian people opted not to ban the party but instead to endorse basic liberty, freedom of speech and democratic rights of association in this country. The Kurdistan Workers Party should not be banned in toto. It is an encompassing organisation, as I have said. What is very poignant and very important to understanding the concern about the proscription by the government is that it was done after the visit here of the Turkish Prime Minister to discuss a trade deal and was very clearly in response to political pressure from the Turkish government, against the aspirations of the Kurdish people within Turkey. Many refugees who have fled Turkey because of their support for self-determination and for the PKK and who now live in Australia could be criminalised by this ban. Will evidence they have provided to the government to get themselves refugee status now potentially be used to put them under watch or to prosecute them?

Mr Howard says that the Kurds in Iraq are an important part of the new government, but here we are proscribing, at his behest, the Kurds across the border in Turkey and calling them terrorists. It is a double standard and it is something that should be dealt with much more clear-headedly than simply leaving it to the Attorney-General to proscribe an organisation after the visit of the Turkish Prime Minister. Recently, there have been prospects for peace in Turkish Kurdistan, and Australia should be a broker for that peace and should not be taking sides. We should be pursuing human rights and not putting trade in the way of resolution of conflict and the re-emergence of the human rights of all citizens in that region.

A large range of Kurdish and Australian community and legal organisations have asked the Greens and other parties to move this disallowance motion. This is an opportunity for the Senate to share their concerns. No evidence has been brought forward—and I would be interested to see that if the government has it—that the PKK poses any threat to Australia’s domestic national security. Groups who opposed this proscription include the National Association of Community Legal Centres, Liberty Victoria, the Australian Muslim Civil Rights Advocacy Network, the Federation of Community Legal Centres (Victoria), SAVE Australia Inc., the New South Wales Combined Community Legal Centres Group, the Brotherhood of St Laurence, the Refugee Advice and Casework Service, and the Civil Rights Network. Also opposing this proscription are the Australian Kurdish Association, the Anatolian cultural centre, the Kurdistan Women’s League of Australia, the Kurdish Resource Centre, the Australian Kurdish Youth Association, the Kurdish Association of Victoria and the Western Australian Kurdish cultural centre. So there is a great deal of concern and disquiet in the ranks of people who are studying this matter, not least those of Kurdish origin who are part of the Australian community. We believe that the proscription should be disallowed and, as I have said, we think the government should come back with a much more confined proscription, if it must, and argue that before the Senate.

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

I have listened to what Senator Brown has said on this disallowance motion. He has made a number of unsubstantiated allegations. Many of those allegations were inquired into by the Parliamentary Joint Committee on Intelligence and Security. He has made a number of allegations about process. He has made a number of allegations about unsubstantiated reasons as to why there was a listing. I just want to go through a couple of the processes for Senator Brown, so that he can understand that the committee investigated this organisation thoroughly, as it has all of the 19 organisations that have been proscribed by the Australian government.

I think it is important that Senator Bob Brown understands the process by which these and other organisations were listed or proscribed. The following process took place. An unclassified statement of reasons which detailed the case for the listing of the organisation was prepared by ASIO and endorsed by DFAT. The Chief General Counsel, Henry Burmester QC, provided written confirmation on 14 November 2005 that the statement of reasons was sufficient for the Attorney-General to be satisfied on reasonable grounds of the matters required under section 102.1(2) for the listing by regulation of an organisation as a terrorist organisation. The director-general for security, Mr Paul O’Sullivan, wrote to the Attorney-General on 23 November 2005 outlining the background, training activities, terrorist activities and relevant statements of the organisation. A submission was provided to the Attorney-General on 30 November which included copies of the statements of reasons from ASIO for proscribing the organisation, advice from the Chief General Counsel in relation to the organisation, regulations and federal executive council documentation. The Attorney-General signed a statement confirming that he was satisfied on reasonable grounds that the organisation was an organisation directly or indirectly engaged in preparing, planning, assisting or fostering the doing of a terrorist act, whether or not the act has occurred or will occur.

The Attorney-General wrote to the Prime Minister on 2 December 2005 advising of his intention to list the PKK as a terrorist organisation. The Attorney-General advised the Leader of the Opposition of the proposed listing of the PKK as a terrorist organisation by letter on 2 December, and he was offered a briefing in relation to the listing. On 9 December 2005, the Prime Minister wrote to the premiers of the states and chief ministers of the territories advising them of the decision to list the PKK as a terrorist organisation. All states and territories agreed to the listing of the PKK on the following dates: South Australia and the Northern Territory on 13 December; New South Wales, Queensland, ACT and Victoria on 14 December; and Tasmania and Western Australia on 15 December. The Attorney-General wrote to the chairman of the Parliamentary Joint Committee on ASIO, ASIS and DSD, as it was then known, on 2 December, advising of his decision to list the PKK as a terrorist organisation. The Governor-General made the regulation on 15 December. The regulation was lodged with the Federal Register of Legislative Instruments on 16 December. A press release was issued on 15 December, and the Attorney-General’s Department national security website was updated.

Senator Bob Brown has made a number of suggestions. Amongst the suggestions he made was that this is what President Bush wanted. Can I tell you, Australia is not the only country that has listed the PKK. We considered in detail the possibility of perhaps proscribing just the military wing. But we were advised that it was impossible to do that, because it was impossible to separate the activities of the organisation. I do not know that the PKK can be proscribed by the PKK! And I do not know that many members of the European Union could be considered close acolytes of President Bush, yet they have proscribed the PKK, along with the United Kingdom and Canada. It is not as though we are the only ones going out on a limb. In fact, the PKK has been listed by the UK, Canada, the United States and the European Union.

Why has the PKK been listed? The statement of reasons for listing details terrorist activities involving the PKK over the past few years, including bombings in July and October 2005. There is a history of activity by this organisation, and it was included in the statement of reasons provided. Let me list some examples. The PKK has been involved in indiscriminate bombings in public, including the following incidents in 2005. There were several bomb attacks in July 2005, including a bomb attack on a passenger train in Bingol province which was followed by a small-arms attack on a second train that was sent to assist; this resulted in the deaths of six people, with 12 injured. There was a bomb attack in Cesme which injured 15 people. There was an explosion on a bus in Kusadasi which killed five people, including one British and one Irish citizen.

Since the PKK was listed under the Criminal Code on 15 December 2005, the following further attacks have occurred. There was a suicide bombing on 9 March 2006 which killed three people; an explosion in Istanbul which killed only one person; a bus attack on 2 April this year which killed several people; and a bomb attack on 12 May intended for a local politician which killed four children. So I think that the record or history of the PKK, or of the attacks that can be attributed to it, indicate that the government was right to proceed with the listing of this organisation. As is the case with the other listings that we have made, we have always looked as far as possible into whether there is any other way. Knowing the effect that listing the PKK has on people of Kurdish origin in the Australian community, if there was another way of doing it, we would do it. But we cannot. Recent events suggest that we have to be more vigilant than ever.

Senator Brown also mentioned the criteria that the Attorney-General uses. The Attorney-General may or may not have used the six criteria which ASIO uses, and which the parliamentary joint committee has adopted as being the criteria for listing. The six criteria were referred to in the report from 29 May by Mr Duncan Kerr. They were initially provided to the PJC by the Director-General of ASIO as part of a confidential exhibit. The criteria are not a legislative requirement under the Criminal Code. They are there as a guide. The only criteria that the Attorney-General is required to be satisfied about are under subsection 102.1(2) of the Criminal Code. It is in Australia’s national interests to be proactive and list organisations that are directly or indirectly engaged in preparing, planning, assisting or fostering the doing of a terrorist act. The listing process ensures that Australia is well placed to prevent terrorist acts occurring in Australia and to discourage any of these organisations from obtaining any sort of a foothold in Australia.

He also mentioned the Turkish Prime Minister’s visit to Australia in 2005 and suggested that that visit influenced the government’s decision to list the PKK as a terrorist organisation. The process for listing any terrorist organisation under this section of the Criminal Code is lengthy and is not done in haste. The government considered the listing over many months prior to the visit in December by the Turkish Prime Minister, and the visit of the Turkish Prime Minister did not influence the government’s consideration. This process had been under consideration for a considerable time. The only criterion that the Attorney-General took into account was that set out in section 102.1 of the Criminal Code. In fact, this was a question that I think I can say the PJC was concerned about and we did ask questions, and we found no evidence that the Turkish government had influenced the proscription timetable.

The statement of reasons setting out the case for listing the PKK noted that the PKK’s membership is approximately 5,000—that was some of the information provided to us—based in northern Iraq and south-east Turkey. It also has a large support base in Europe, which no doubt accounts for the European Union’s decision to proscribe the organisation. The PKK’s funding is believed to come from criminal activity including extortion and smuggling and from fundraising within the Kurdish diaspora worldwide.

The Criminal Code that we have in place provides that the regulation listing an organisation as a terrorist organisation sunsets in two years after it is made. I think it is an important provision of the legislation because it means that within two years, if it can be proven or it can be seen that there is no longer a requirement for an organisation such as the PKK to be listed, then that will be reviewed—and it must be reviewed every two years. In the case of the PKK, this regulation will sunset on 15 December 2007, which is only some 18 months from now. This listing will be reviewed at that time. However, before then, under the relevant section of the Criminal Code, an individual or an organisation may apply to have the organisation delisted within that period. So there are lots of provisions and safeguards in this bill that make sure that if proscription takes place like this it can be reviewed. There are a number of grounds which can be used for a delisting application. However, if the Attorney-General receives information which results in him ceasing to be satisfied that the PKK is an organisation which satisfies the criteria, he must make a declaration to that effect.

I do not want to go back over it, but Senator Bob Brown commented in detail and asked: why not proscribe only the PKK’s military wing? In circumstances where ASIO has information that only part of an organisation is directly or indirectly engaged in preparing, planning, persisting or fostering the doing of a terrorist act, that part only of the organisation will be proscribed. However, in the case of the PKK, that simply was not the case—in spite of the information that you might have received from the various organisations. I noticed that you listed a number of organisations that are opposed to the listing of the PKK; amongst those you listed are a number of organisations that are opposed to listing of any organisation. I can tell you that when we as the joint committee review any listing—and we have reviewed a number of listings now—the same organisations write in every time telling us that they do not believe in the proscription regime or giving reasons why particular organisations that are proscribed should not be proscribed in any way.

It is not an easy task, I would inform Senator Brown. It is not easy for any of us on the Parliamentary Joint Committee on Intelligence and Security to make some of the decisions we have to make. Some of the decisions we find quite easy, where they are very obvious. Some of them are less obvious and some of them are difficult. But, certainly, on a personal basis and as a member of that committee I would always err on the side of caution when it comes to terrorist organisations. I would err on the side of caution in protecting the Australian population and, indeed, in today’s climate, the worldwide population, from the activities of terrorist organisations. Some of those terrorist organisations glorify death while in fact the rest of the world believes in the sanctity of life.

Debate interrupted.