Robert Ray (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

At the outset, may I say that I strongly support having a proscription regime in place in Australia. I noted from Senator Bob Brown’s speech last night that he, in principle, does not oppose the proscription regime but would rather it have a different construction—I do not think I am misleading the chamber in that. I point out that the Parliamentary Joint Committee on Intelligence and Security will be reviewing the proscription regime in 2007. Already, parts of that regime have been looked at by the Sheller report, so we will be looking at the Sheller recommendations—especially those to do with association—and all other aspects of the proscription regime in 2007.

When the regime was set up, the main defensive mechanism against an unfair proscription occurring was to make it a disallowable instrument in the two houses of parliament. One would have less confidence now that, if the government made a mistake, it would in fact be disallowed, given the government’s majority. However, I want to assure this chamber that the Parliamentary Joint Committee on Intelligence and Security takes it duties seriously when assessing the Attorney-General’s proscription activities. It is absolutely essential that these be rigorously examined. We have never got ourselves into a situation where we have become just a bunch of Uncle Toms agreeing with everything that security agencies want to do. The examination of each one of these proscriptions is quite vigorous and quite detailed.

So far, 19 organisations have been listed in Australia. I note for the record that that is far fewer than in the United Kingdom, the United States, the European Union, Canada and even the United Nations. As a government, a parliament and a country, we have made fewer proscriptions than most like-minded countries.

Unfortunately, this debate is often misinformed. ASIO and the Attorney-General use six broad criteria, for which they give reasons, for proscription of an organisation. But I must say that they are not mandatory. The definition of the organisation as a terrorist organisation is the crucial element here. Nevertheless, ASIO and the Attorney-General report back here on six criteria to keep the parliament and the committee informed as to why decisions have been made.

Overall, there are two essential elements of terrorism that we have to address. The first is finance. Most terrorist organisations rely on finance from people who, on many occasions, do not understand that the money is going towards terrorist activity. Terrorism and terrorist organisations cannot exist without finance. The second element is that in most cases they cannot exist without the sponsorship of other nations. Terrorists have to train somewhere. There are still several regimes on this globe that allow terrorist training within their ranks. Those are the countries that have to be isolated and punished if we want to get rid of the scourge of terrorism. Very stringent measures have been taken to cut off the flow of funds to terrorist organisations. We have carried separate legislation in this parliament. We have the ability to freeze the accounts of terrorist organisations, and that has been done fairly vigorously.

I have no doubt at all that the PKK is a terrorist organisation. I refer senators to page 17 of our report, where we list some of the most recent efforts of the PKK—and I am talking about in the last two years. I was in Kusadasi last year just two days before they set off a bomb on a minibus. That bomb killed five people. These people were not the soldiers or the oppressors; they were five innocent people, two tourists and three others, going about their way of life, and they were blown up for the cause.

It is sometimes argued that proscribing the PKK is using too broad a brush and that just its military wing should be banned. But so far it has been impossible to disentangle the various elements of the PKK to allow such a course of action. This is an organisation that has many front organisations and many interwoven organisations and subgroups right throughout it. It has been impossible to this date for the Australian government to disentangle them as we did with Hamas and its military wing—we did not ban the general Hamas movement. We have, however, asked the government to continue to try to examine that particular area, and I am hopeful that they will.

A further consideration in not proscribing an organisation is whether they are engaged in a genuine peace-building process. In other words, a pre-emptive proscription may well be seen as isolating a particular group and disrupting their participation in the peace process. It is one of the reasons over the last few years, I suspect, that the Tamil Tigers have not been proscribed. They were involved with the Norwegians and the Sri Lankan government in a dialogue trying to bring about a peaceful settlement of the dispute in Sri Lanka. There is no doubt that the PKK, up until around 2003, had entered a peace-building process with the Turkish government. But that period clearly ended in 2003, and terrorist activities resumed.

I think that in his speech Senator Brown implied that the proscription of the PKK was in some way a response to lobbying by the Turkish government. In evidence before the Parliamentary Joint Committee on Intelligence and Security, it came out for the first time—and there is no denying this—that the Turkish government on two occasions approached the Australian government to proscribe the PKK. The most notable occasion was when Prime Minister John Howard visited Gallipoli. He was certainly requested by the Turkish authorities to proscribe PKK. So the committee went back and examined when the first moves got underway to proscribe the PKK and found that they predated either of the two approaches, which I think were in December 2004 and April 2005. We found that it went back another 12 months before that.

So we have no evidence available to us that any lobbying efforts on behalf of the Turkish government influenced the actions of the Australian government and, in turn, the Attorney-General, Mr Philip Ruddock. It is also true that in the last few weeks the Turkish ambassador has been active, writing to MPs and urging us to maintain the ban on the PKK. But I can honestly say that none of those views had arrived when the committee put down its report, nor did they have any influence whatsoever on the committee. There is no denying, of course, that human rights in Turkey are often violated. But, to most of us, the solution to these problems will never be aided or assisted by terrorist acts of violence against innocent individuals.

Many of the organisations that oppose the PKK being proscribed make the point that there are many Kurds in Australia who are refugees who want to continue their links to an organisation they perceive as trying to right the wrongs in their homeland. I have to say that I very strongly support paragraph 2.67 of the Parliamentary Joint Intelligence and Security Committee’s report, entitled Review of the listing of the Kurdistan Workers’ Party (PKK), which states:

Australia has obligations under international law to protect refugees. However, those granted refugee status in Australia have obligations to comply with Australian law. Past associations cannot be used to justify funding and support of terrorist organisations.

I mentioned earlier that there have been 19 proscriptions. In every case, the Parliamentary Joint Intelligence and Security Committee has supported those listings and has not recommended disallowance in this chamber or in the other place. Yet on this occasion, it should be said for the record, our report was more qualified than the other 18 were. I will read to the chamber the recommendations that appear on page 33 of the committee’s report, because they are more qualified than any of the other recommendations. I hope that in the spirit of bipartisanship in which the committee unanimously made them—that is, four Labor, four Liberal and one National Party member all agreed to these recommendations—the government will at least absorb and consider them. They read as follows:

The Committee supports the listing.

However it also recommends that the matter be kept under active consideration and requests, in that process, that the Government take into account:

~        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;

~        whether it would be sufficient to proscribe the PKK’s military wing, the Kurdistan Freedom Brigade (Hazen Rizgariya Kurdistan HRK) referred to in the Attorney’s Statement of Reasons; and

~        the fluid state of moves towards possible ceasefires.

Those three points were the unanimous view of the committee. The committee did, however, divide seven to two, with two of the committee asking the government to reassess the listing and the other seven asking the government to maintain the listing. Nevertheless, the entire committee agreed with those three points.

The opposition has addressed these matters in its party room and has decided to support the government’s listing of this particular organisation. There are members of the Labor Party who have qualifications about that. Whilst they may not oppose the listing, they worry about the ramifications. It is good that this occurs. It is excellent that this sort of consideration is given. This chamber was never intended as a rubber stamp and neither is the party room. We have to give consideration to all points of view wherever possible. But, whilst it is not as clear-cut and decisive as some of the other proscriptions, what this ultimately comes down to is that, deep down, the PKK continues to be a terrorist organisation that murders innocent individuals—and, whatever the faults and whatever the provocation of the Turkish regime, that cannot be justified.

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

This is a debate about the listing of an organisation, and perhaps it is worth going back to what that listing does. We are debating a disallowance motion moved by Senator Bob Brown in respect of the listing of the Kurdistan Workers Party, the PKK. In this area some guidance has been provided by the Parliamentary Joint Committee on Intelligence and Security, which released a report in April 2006.

It is worthwhile outlining the process that is undertaken in a listing. What happens is that a review is conducted under section 102.1A of the Criminal Code Act 1995. Section 102.1A provides that the Parliamentary Joint Committee on Intelligence and Security may review a regulation specifying an organisation as a terrorist organisation, for the purposes of paragraph (b) of the definition of ‘terrorist organisation’ in section 102.1 of the Criminal Code, and may report the committee’s comments to each house of parliament before the end of the applicable disallowance period.

We are at the point where we have the committee report and Senator Bob Brown has sought to disallow the instrument. It is worth adding that this is the 19th organisation to be listed under this legislation over the last two parliaments. The committee has diligently conducted six reviews. Some of those were of multiple listings or groups, and 16 organisations were relistings of organisations originally listed under previous legislative arrangements.

I will turn to the organisation we are discussing today. The Kurdistan Workers Party, or PKK, which is also known as the People’s Congress of Kurdistan, among other aliases, was proscribed as a terrorist organisation in December 2005. The PKK is now listed as an organisation that, directly or indirectly, is engaged in preparing, planning, assisting in or fostering the doing of a terrorist act, whether or not a terrorist act has occurred or will occur, or an organisation that advocates the doing of a terrorist act, whether or not a terrorist act has occurred or will occur. While the PKK is not listed as a terrorist organisation with the United Nations at this time, it is proscribed in Canada and in the United States, where it was listed as Kongra-Gel, or the KGK, with an explanation that it was formerly known as the PKK. The PKK is listed in the United Kingdom and in the European Union, with the exception of Norway, which is mediating in the dispute. All Australian states and territories have agreed to the listing of the PKK.

Despite what has gone before, Senator Bob Brown has moved that the Criminal Code Amendment Regulations 2005 (No. 14), as contained in Select Legislative Instrument 2005 No. 298, specifying the Kurdistan Workers Party as a terrorist organisation, be disallowed. The majority of the Parliamentary Joint Committee on Intelligence and Security support the listing of the PKK. To give some indication of the legal issues here, in the Criminal Code Act 1995 there are seven main offences with respect to proscribed terrorist organisations. They are: directing the activities of a terrorist organisation; membership of a terrorist organisation; recruiting for a terrorist organisation; training a terrorist organisation or receiving training from a terrorist organisation; getting funds to, from or for a terrorist organisation; providing support to a terrorist organisation; and associating with a terrorist organisation.

Such terrorist related offences are obviously among the most serious crimes that can be perpetrated. Dealing with crime and responding effectively to national security dangers is an area where Labor is and will continue to be ever vigilant. We do not have to be reminded of the recent terrorist shocks in UK and US aviation. The London, Mumbai and Madrid rail attacks are clearly in everybody’s mind. Also, we are approaching the second anniversary of the Beslan massacre in Russia. Clearly, this is an area where Australia has to be vigilant and look at the issues.

In the current debate we are considering the process of listing, the parliamentary oversight and the disallowance procedure, which allows the matter to be brought forward for debate here. We are called upon to consider the PKK. Conducting an assessment of this nature is always difficult. Much of the intelligence on the PKK is of an operational nature. Page 21 of the report by the joint committee goes to that very point. It says:

... the PKK’s participation in the political process does not decrease the group’s relevance to security so long as militants continue to plan and conduct terrorist attacks.

The majority report of the joint committee requested that the government keep this listing under active consideration. The minority report called on the government to reassess the PKK listing.

The proscription of an organisation is a serious decision that Labor knows the joint committee give careful consideration to. On the advice of the joint committee report, the PKK should be listed as a terrorist organisation. Labor supports that position. Labor shares the concern raised by all members of the committee that there needs to be careful consideration of this listing and requests that, in that process, the government take into account the following points. Firstly, it should take into account the number of Australians of Kurdish origin who may peacefully support the broad aims of the PKK without endorsing or supporting its engagement in terrorist acts. Secondly, it should consider whether it would be sufficient to proscribe the PKK’s military wing, the Kurdistan Freedom Brigade, referred to in the Attorney’s statement of reasons. Thirdly, the government should consider the fluid state of moves towards possible ceasefires.

Labor urges the government keep this matter under active scrutiny to ensure that security implications are met in a way that does not place innocent people in jeopardy of prosecution. This would seem to Labor to be a fair and reasonable request. On that basis, Labor opposes the disallowance motion moved by Senator Bob Brown and calls for the active consideration of the listing of the Kurdistan Workers Party as a terrorist organisation, taking into consideration the advice of the committee.

When you turn to the particular process that has preceded this issue, it is worth looking at the report of the Parliamentary Joint Committee on Intelligence and Security, because the government’s procedures are outlined at 1.9 of the report:

In a letter sent to the committee on 25 January 2006, the Attorney-General’s Department informed the Committee that it had adhered to the following procedures for the purpose of the listing:

an unclassified Statement of Reasons was prepared by ASIO, and endorsed by DFAT, dealing with the case for listing the organisation.

Chief General Counsel, Mr 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 matter required under section 102.1(2) for the listing by regulations 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 2005 including …

I will not go into the details of that submission, but it provided a statement of reasons from ASIO. Having considered the information provided in the submission, the Attorney-General signed a statement confirming the aforementioned matters. The Attorney-General then wrote to the Prime Minister, on 2 December 2005, advising of his intentions to list the PKK as a terrorist organisation. The Attorney-General also wrote to the Leader of the Opposition on 2 December 2005 about the proposed listing of the PKK as a terrorist organisation and offered a briefing on the matter.

The matter was brought to the attention of all states and territories. The Attorney-General wrote to the Chair of the Parliamentary Joint Committee on ASIO, ASIS and DSD—as the committee was known then—on 2 December 2005 and advised of his decision to list the PKK as a terrorist organisation. The Governor-General made the regulation on 15 December 2005. The regulation was lodged and a press release was issued at that time.

Following that, we had the report, the recommendations and then the opportunity to have a debate here as well. It is worth while outlining all the procedural matters and steps that have been taken to get to this point and for this matter to be finally determined here. That is an area where Senator Brown has taken a different view from Labor and the government, but I do agree with Senator Brown that we can at least have, in this chamber, this debate about the regulation. Labor sought hard to ensure that this opportunity would be available. Be that as it may, in this instance Labor does support the majority recommendation and does not support the disallowance motion by Senator Brown.

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

This is an important debate, as Senator Ludwig just indicated, and it is pleasing that thus far we have been able to conduct it in a measured way. There is always the opportunity for cheap political points and for people who express concerns about listings like this to be basically smeared as being supporters of terrorism and things like that. It is pleasing that this debate has not descended to that sort of puerile level.

What we need to remember is not just the impact on people in Turkey who are affected by actions of the PKK or the aims and goals of the PKK and their supporters in Turkey but also the impact on Australians. Listing an organisation in this way, as the PKK has been, has the potential to impact on Australians, including, in my view, Australians who are, in all meaningful senses of the word, innocent of any genuine attempt to support what might be seen as terrorist acts.

There is no doubt that the PKK has been and, in some circumstances, continues to be involved in, supporting of or linked to actions that can reasonably be described as terrorist activities. The labels ‘terrorism’ and ‘terrorist’ are somewhat fluid—and I will not get into that debate now, beyond acknowledging that they are subjective terms in some circumstances. But clearly there has been politically motivated violence carried out by the PKK in Turkey, and to that extent there is understandable concern about being seen to support those acts.

I want to emphasise that a report has been done into this by the Parliamentary Joint Committee on Intelligence and Security. The committee has had the opportunity to review the evidence. I make the point again, as I often do, that that committee does not, by law, have any members from the crossbenches; it does not have any minor party or Independent members on it. So we are completely dependent on the views of the major parties—and the major party members who are on that committee—to assess any of the evidence. I think that is unfortunate.

Whilst there is a valid argument about proportionality, and one could say that there are not enough crossbench members in both houses to justify a position in proportional terms, I would also point out that this committee, of all the committees in the parliament, is—by definition and understandably—the most secretive. It is the least open, so there is less opportunity than is the case for any other committee for people outside of the committee to view what is going on. If ever there were a valid argument that a committee should have a diversity of representation on it, it would be for that committee. I once again express my dissatisfaction with that arrangement. I again request that, the next time the relevant legislation comes up for amendment, that situation be remedied—even if it is at the expense of cross-party representation on some of the other standing committees. It is a situation where evidence is presented in camera by groups like ASIO and others, and we have no alternative other than to rely on the judgements of the members of the committee, which they present by way of a report.

As has already been outlined in this debate, the report contained a minority view from two Labor members, which is very unusual—I do not know if it is unprecedented, but it is certainly extremely unusual. Senator Ray, as a longstanding member of that committee, outlined the details in his contribution. As is usually the case—not always but usually—Senator Ray’s contribution was very measured and balanced with regard to the issues—not that I am saying I agreed with all his conclusions. The points made in the minority report by Mr Duncan Kerr and Senator Faulkner cause concern. It should be emphasised that listing an organisation has potentially serious consequences for Australians. It does not just mean that we are making some judgement that a particular organisation overseas is a bunch of bad people—that we are making some official statement that they are bad guys or something like that; it has particular significant, specific legal consequences, and that is why it should not be done lightly and why it should be fully justified.

As Senator Ray pointed out, the majority report was less definitive and conclusive than usual. There was more of a flavour of wanting an eye kept on this one. That whole flavour of being less definitive than usual causes me and the Democrats some concern because we are talking about basic rights here—the basic rights of Australians, and others, of course. Paragraph 1.13 of the minority report says:

... the Joint Committee received nothing by way of evidence or submissions that would justify a conclusion that the proscription—

of the PKK—

would have any direct positive security benefits for Australia.

It goes on to say:

Australia already has strong laws to criminalise actual conduct involving terrorism.

... Actions giving direct assistance to any acts of terrorism are already unlawful.

So refusing to make these listings does not mean that people can get away with directly supporting terrorist acts and organisations and get off scot-free. It is already unlawful. That is one of the issues around the whole concept of listing. There has been some suggestion that you need special offences for terrorism that otherwise do not apply, when of course there are already many laws regarding supporting, facilitating or conspiring to be part of acts of violence of whatever sort, and those laws already exist separate to this listing. That also must be emphasised.

The minority report goes on to say:

Sending money out of Australia to aid the PKK is already prohibited and it is already an offence under Australian domestic law for any Australian to serve an organisation seeking to overthrow a foreign government by force. No Australian has been charged with such existing offences.

So, what proscription does is to take a further step and create a criminal offence for a person belonging or giving any support to the PKK, disconnected from the need to prove any act of or support for terrorism. Of course, the problem is that the PKK is a lot more than just a bunch of criminals conducting terrorist acts. There certainly is that element, but you cannot disconnect that from the wider aims of many of the Kurdish people in that region for greater rights.

This is not a matter of taking sides in the dispute between Kurdish people in Turkey and the Turkish government; it is a matter of recognising that there are legitimate differences of opinion about the rights of the Kurdish minority in that region and that people have a legitimate right to hold those views. They do not have a legitimate right to conduct violence to promote those views. That is where the distinction lies. In some cases, it is impossible to carve out a neat dividing line between the two, and that is the problem that has arisen here.

The bigger problem is that there is a significant Kurdish community in Australia—and it must be emphasised that they have contributed very positively to Australia—and also a very significant Turkish community. The Kurdish people come from a region which covers not just Turkey but also parts of Iraq, Iran and Syria. It should be noted that whatever criticisms of constraints of the rights of Kurdish people in Turkey are or have been in the past—certainly my understanding is that circumstances now have improved from what they were in the past—the oppression and persecution of Kurds was far worse in the previous regime in Iraq and is far worse in the current regime in Iran.

The fact is that many Australians of Kurdish background, who are positive and constructive members of the Australian community, nonetheless identify with and support the broad aims of the PKK inasmuch as they see it supporting greater rights for the Kurdish people living in Turkey. The problem with listing the PKK is that many of these people who simply see themselves as broadly supportive of the PKK in a general sense—without necessarily approving of its violent actions—could get caught up by the laws of Australia that come into force as a result of this listing. That is a concern to me, and certainly that is a concern expressed in the minority report. Perfectly innocent Australians, in all meaningful senses of the word ‘innocent’, could be deemed to be criminals and guilty of criminal offences simply by virtue of being supportive, in a very general sense, of the PKK in that they view it as fighting for greater freedom for Kurdish people in Turkey. That to me is a serious concern. From the whole report, not just the minority report, it does not appear that those potential consequences were taken into account by the government when making this listing.

I want to take the opportunity, even though it may be seen as slightly tangential to the issue, to stress that this is not about taking sides. I have spoken a few times before in this chamber about modern-day Turkey. The position I am taking is not anti-Turkey in any way. I have met with the Turkish ambassador and have visited Turkey. I strongly support them in their efforts to become part of the European Union and I think the actions of some current European countries in resisting that are not helpful. I think they are undesirable in a global sense, let alone in a regional sense, over there.

There are certainly issues with regard to human rights and freedom of speech that Turkey needs to improve on. But Turkey’s history is very different to Australia’s and I think people need to be a bit more conscious of the very significant challenges that Turkey has to face. The world can look very different when your neighbours are countries like Iran, Iraq, Syria and some of those to the east of Turkey. Also, Turkey has a history, being at that bridge between East and West, of having people at various times over many years trying to carve it up and dole bits out as spoils of war. It is not surprising that it has a different view of the world and different concerns and sensitivities.

Every country to some extent is a prisoner of its history and has difficulty in facing and confronting some of its flaws. Australia certainly has that in its inability to confront the reality of its own history over the last couple of hundred years and the serious human rights abuses that have been perpetrated. We also have a very severe problem in acknowledging the reality that our modern-day prosperity has in many ways been built on the oppression and slaughter of the Indigenous people of this country.

So I am not in any way seeking to lecture Turkey about their need to resolve some of their human rights issues and their difficulties with confronting some of their actions of the past, whether towards Kurdish people, Armenians or others. I simply state these issues as a matter of fact and also point out that the position that I and the Democrats are taking on this issue is not in any way taking sides or in any way an anti-Turkey position. It is motivated totally by our concern about the human rights consequences for Australians and the potential for innocent people to be inappropriately caught up in the provisions of Australian law and also by the concerns which go through the full aspects of the committee report about the lack of solidity of some of the evidence put forward by the government to justify this particular act. When in doubt on an issue that has such a serious effect and the potential to catch innocent people in its provisions, I think one should err on the side of protecting the rights of Australians.

I also emphasise once again that it is already illegal in Australia to directly support terrorist acts by the PKK or anybody else and it is an offence to provide money directly out of Australia to the PKK or to serve an organisation seeking to overthrow a foreign government by force. Those things are already against the law. In that circumstance, unless there are very strong and indisputable arguments for imposing further criminalising offences, I do not believe, whilst there is doubt, that such action should be supported. I do not think this action would impact one way or the other on increasing the safety of people in Turkey, including the many Australians, of course, who visit Turkey. I would strongly encourage those who have not visited to go not just to Gallipoli but to many other parts of what is a truly fascinating country. It is simply a matter of whether this is an appropriate use of provisions in Australian law. I and the Democrats do not believe that it is, based on the evidence available to us via the relevant report of the parliamentary committee.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister for Housing and Urban Development) Share this | Link to this | Hansard source

I support the Labor Party’s position on this disallowance motion. The positions that have been outlined by Senator Ray and Senator Ludwig have highlighted that we will not be supporting this disallowance motion. However, we are concerned about a number of matters that relate to the questions that have been raised and highlighted by the Parliamentary Joint Committee on Intelligence and Security in its report Review of the listing of the Kurdistan Workers’ Party. I noted the remarks of Senator Ferguson yesterday and Senator Ray and Senator Ludwig today. I particularly note that the joint committee unanimously recommends:

... that the matter be kept under active consideration and requests, in that process, that the Government take into account:

• 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;
• whether it would be sufficient to proscribe the PKK’s military wing—

and the fluid state of the current peace negotiations, or what pass for peace negotiations, with the Turkish state.

I also note the minority report of Senator Faulkner and Mr Duncan Kerr, where they highlight a number of concerns. I specifically draw attention to the fact that this committee mainly works on a unanimous basis; in fact, all of the reports that I have seen from this committee have been unanimous except for this one. It is rare indeed for people on this committee to come back to the parliament with reports indicating a difference of view. This is one occasion where that has occurred.

Senator Ferguson drew our attention to the criteria that have been raised with regard to the listing of the PKK. The minority report draws to our attention that ‘no evidence was placed before the committee that the proposed listing meets the criteria as submitted by ASIO’. Clearly there is a difference of view between members of the committee on whether that matter of criteria has been addressed, and one can only presume that the emphasis should be placed on the words no evidence ‘has been presented’. Senator Ray draws our attention to the fact that these are not mandatory criteria in any event, that they are matters of judgement and, as a consequence, the majority of the committee has taken the view that the action of the government is justified in that regard.

There is also the argument put about the nature of the conflict in Turkey which I think is clearly abhorrent. The fact that 30,000 people have been killed in a civil war is something that no-one could possibly see any virtue in. I read in the CIA’s latest report that there are somewhere between 350,000 and one million people being displaced in the south-west of Turkey. That is something that no-one could take any pleasure in at all. The fact that human rights abuses in Turkey are very, very well documented is something that no-one could take any pleasure in whatsoever.

Turkey is a very interesting country—it is aggressively secular. It is a country, however, that seeks to impose a secular view of its politics to the point where people cannot wear a headscarf, and where the question of national unity is seen to be so important that the teaching of languages other than mainstream Turkish is regarded as a political offence. Certainly that was the case up until very recently, and there is some considerable concern still being expressed about those matters. Anyone who expresses a view about the Armenian genocide is in serious legal trouble, as we have seen recently with the case of prominent intellectuals within Turkey. We have seen that there have been questions raised about the nature of the judiciary, so there are a whole range of issues that need to be addressed. Clearly in those circumstances there are very strongly held views in this country.

My concern, however, is specifically with matters that go to issues of Australians. I have indicated before in this chamber that I have been associated with the Kurdish community in Victoria as a senator for many years. I did not seek, but was awarded, life membership of the Kurdish Association of Victoria. I have worked with the community in my suburb in Melbourne for a very great length of time. Contrary to popular opinion, very few of the community are actually in the Labor Party itself—very, very few indeed—but there are some people who are. I do know this community quite well and I have sought to assist it in terms of migration, social security and all the other work that all of us do on behalf of constituents.

Recently the president and committee of the Kurdish Association approached me to express very deep concern about the implications of this proscription. Ismail Guneser has been in this country for well over 40 years and he expressed a very strong view to me that one of the things that led him to come here was the ability to express your view about political matters. He was deeply disturbed at the prospect that he may be arrested and jailed for carrying a sign. That may well be one of the consequences of this particular proscription. I have pointed out to the association that in my view the proscription of the PKK and its associated entities does not directly affect the Kurdish Association of Victoria because the association is neither proscribed nor listed as an entity of a proscribed organisation. I am concerned, however, that in all the speeches so far from members of the joint parliamentary committee the position has been put that it has been impossible to disentangle the social work of the PKK from its military wing. That is very disturbing, given that it will be an offence under these proscriptions for people to be associated with the PKK and that its social work cannot be distinguished from its military work.

In all the years I have been associated with the Kurdish community in Victoria I have always been impressed with the work they do with regard to Australian citizenship. At their functions there is usually a member from the Democrats; Senator Allison has been at the offices in Pascoe Vale on many occasions. I have seen members of the Liberal Party represented at these functions. I, of course, have been there on many occasions. During these functions you get an opportunity to view the social work and the educational and cultural activities of the community. In all my involvement I have never heard any member of the community express support for illegal activities. I defy any other member of this chamber who has visited or participated in these functions to confound that view.

I also take the view that it is the right of all Australians of Kurdish descent to defend human rights and, in fact, to defend Kurdish national aspirations. I think it is appropriate that people are able to express views about the Kurdish identity and aspirations, and they may not necessarily see that that is the same thing as being directly associated with the PKK. I have sought legal advice on this matter. The legal advice I have received is that the proscription of the PKK also extends to a person who might be regarded and described as an informal member. That means that someone who is involved with other people who he or she knows are members of the PKK may themselves be suspected of being a member of the PKK and therefore become liable for up to 10 years imprisonment as a result of this informal membership. People who are considered formal or informal members of the PKK and who recruit someone else may also be liable to sentences of up to 25 years imprisonment, and members involved in fundraising on behalf of the PKK or an associated organisation risk 15 years in prison. You can understand that members of the Kurdish community are concerned, given the nature of the proscription laws in this country.

But, given that you cannot disentangle association from membership, formal and informal, it does raise certain questions. There are matters that go to the issue of communications with persons who are known to be or are suspected of being associated with the PKK and who might be involved in such activities on two or more occasions. They are liable for three years imprisonment under this proscription.

These are all matters that are clearly open to interpretation. There may be exemptions under the proscription in defence of such activities because of family or religious contact. Given that most of the Kurds I know are extraordinarily secular in their attitudes, it is unlikely that there would be too many religious circumstances, but circumstances could arise where that would occur. These, of course, may well ultimately have to be determined in an Australian court of law. However, it poses some very difficult issues for people who are concerned with the welfare of the Kurdish community and have taken the view that protesting about human rights is something that they should do in a public way.

As I understand the situation, no evidence of illegality in Australia has been presented. There may well be such evidence, but I am not aware of it and the committee was not aware of it, and no evidence has been put before us with regard to the activities of members of the Kurdish community in this country. There are very strong laws in existence in this country for illegal activity, and there ought to be, as far as I am concerned. That is not in question. If people wish to engage in armed conflict, there are inevitably consequences that flow from that. However, this question also applies to dual citizens who get themselves involved in the armies of other countries, and that obviously occurs, as we have seen in recent times. There is a question about the relationship between human rights abuses and the activities of state organisations that also ought to be borne in mind in these circumstances.

It seems to me that the minority report of Duncan Kerr and Senator John Faulkner raises matters that require attention. There is clearly a case for the government to consider this position very carefully and, as has been pointed out to the chamber, there are circumstances arising where that can occur. I trust that that opportunity will be taken. There are clearly matters that require much more careful attention than would otherwise be the case. Given the qualified nature of the report, as Senator Ray has pointed out, I think it is something that we should view with great interest and ensure that it occurs.

The Socialist International recently met in northern Iraq with various political representatives with regard to the Kurdish question. In a circular distributed on 16 June, they make this point:

Conditions for the political representation of Kurds and their enjoyment of other rights remained limited and inhibiting. Cooperation among different political groups was perceived as a positive step in furthering their rights. It was highlighted that the only way to protect and foster the rights of the Kurdish people remained in the political arena and in advancing and deepening democracy without resorting to any form of violence.

That is clearly a view that I support. There are circumstances in Turkey that require urgent reform, and I trust that progress will be made in that regard. I am not aware, however, of anybody in this country, in terms of the work of the Kurdish Association of Victoria, who is actually proposing to break the law or has sought to break the law. I trust that that is the position, and I know that they have very good relationships with the security forces and are well known to them. They come down for a cup of tea on a regular basis. Certain intelligence units in Victoria have made themselves accessible and widely known, so I presume that if there was evidence of breaches of the law then action would have been taken. Nonetheless, it has to be highlighted that there are very large numbers of Australians who are very concerned about the consequences of proscriptions of this nature, and I know that historically there have been circumstances when this type of legislation, this type of proscription, has been abused.

I was recently in Berlin and had the opportunity to have a tour with the President of the Reichstag’s office. I was shown some new exhibits that are on public display in the renovated Reichstag building. One part of that building is an excavated tunnel that used to run under the square between the Reichstag and the Reichsminister’s house, which is now the parliamentary dining room. That is now on public display, as is part of the excavated tunnel. It is on display because, in Germany, there is yet to be an official acknowledgement of who started the Reichstag fire. It is widely believed that the Reichstag fire was started by people associated with the Reichsminister, Hermann Goering, and that the perpetrators of that fire moved from the Reichsminister’s official residence through this tunnel to set fire to the Reichstag. Of course, it was the burning of the Reichstag that led to the various declarations of states of emergency and the various emergency laws when the fascists seized total power in Germany. Those circumstances led to the arrest of people who were described in every instance as terrorists—the Jews and various other groups that the government did not like.

I am not suggesting for a moment that this is the situation, but I use it as an example to highlight that it is very important that we keep a close watch on these issues, particularly when citizens’ human rights and civil liberties are at stake. We need to be highly conscious not only of the right to security of all Australians, which should be at the forefront of our thinking, but also of ensuring that in the pursuit and defence of that right to security we do not sacrifice other rights and make mistakes about the way we seek to secure the people of this country from threats of political violence.

Kerry Nettle (NSW, Australian Greens) Share this | Link to 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)

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

The Greens’ position on this matter is very similar to that of Norway. We should be facilitating peace rather than taking a side in what is undoubtedly a very nasty civil war that is taking place in eastern Turkey. As contributors to the debate have pointed out, it has led to the loss of some 30,000 lives. There has been a great deal of inhumanity involved, and that applies to both sides. One of the things that we need to deal with in assessing such matters is the behaviour of governments as well as that of organisations, having regard to community disagreement with government.

I repeat the personal view that the Kurdish people should have their right to self-determination. But, that aside, how much better it would be if Australia were taking not the EU position but the Norwegian position, which is that we should be not taking sides but facilitating peace and an outcome which is going to bring peace within Turkey and satisfaction to both the Turkish government and the Kurdish people. The difficulties with proscription of the PKK in Australia have been well canvassed in this debate. I did not bring this disallowance motion without some concern, I can tell you, because it is very easy for a debate simply to become one of who is soft and who is tough on terrorism. What we all have to be strong on is achieving peace beyond proscriptions like this. It is incumbent upon the Australian government to be taking an active role in helping both sides in Turkey to achieve peace, and I have heard nothing about a contribution being made there during this debate—nothing whatever. I would be much prouder of this debate were I hearing that Australia was moving to emulate the very active peace pursuit of Norway, which of course is involved not just in Turkey but also in Sri Lanka and elsewhere in the world where there are huge intractable problems and where the government, on one side, loses civility, and the people on the other side become branded as terrorists, although terror comes from both sides of those debates. There is a strong feeling within the Australian community that knows about this issue that proscription is not the way to go.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

Senator Abetz interjecting—

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

I am sorry, I did not hear that interjection, but the senator opposite ducked his opportunity to contribute to this debate. It is a healthy thing for us to debate issues like this. The government has the power of proscription. The Attorney-General has got that power but it needs to be checked by a proper debate in the parliament. We maintain that that power should come from the parliament and not the executive, but that is not the way things are in this country.

It would have been a very different matter had this been a proscription of the military wing of the PKK, but it is not. It is a proscription of the whole of the PKK, which means the representation of the Kurdish people in Turkey. It is a political organisation. It has a very vigorous social justice component to it. The Kurds are fighting against, amongst other things, not just the repression of their aspirations for self-determination but the repression of their language. Can you imagine what it is like to be in a community where your culture is effectively repressed? One needs to look at the history of Ireland to see what that does to a community and how a community reacts to that. But the Turkish authorities have proscribed the Kurds from teaching their children their own language. Ought not Australia to be saying to the government of Turkey that that cannot be justified, no matter what the rights and wrongs of this dispute are? It is not permissible in a modern functioning democracy which values plurality and the rights of its citizens.

No wonder people react to that. We do not support violence, but you have to understand where violence comes from. Very often it comes from repression, loss of language, loss of culture and denial of rights, so there is a lot to be put right in Turkey. This is a sledgehammer proscription, which would have been much better handled if the concentration had been on the military operations of the PKK and not on all components of the PKK, as is occurring here. Let us hope that Norway has the success that Australia is not setting out to achieve. That will be much more important than any debate we can have in this chamber.

I listened to this proscription carefully and I valued Senator Ray’s contribution and the contribution of other members of the opposition. There is a very healthy divergence of opinions within the opposition ranks, which itself must be honoured, particularly when it is brought into a debate like this. This is an extraordinarily difficult issue and it is important that it gets debated here. The government has the numbers, of course, to override any change that debate may make to the impact of this proscription, and we will see that in action shortly. Nevertheless, I am proud to have brought this disallowance motion to the chamber and I thank everybody who took part in the debate. It has led to a better understanding of the difficulty of the issue and the fact that it might not be the right decision that is being made here today. The government is charged with a very heavy responsibility in reviewing that decision in the next 24 months to see that it does not simply keep the proscription going but rigorously reviews what is happening in Turkey, to see that the best outcome can occur there, and assesses feelings within the Australian community. We are talking here about many more than 100,000 people who have a Kurdish background in our community. We are talking about a whole range of issues that have caused the legal community and community organisations to express their concern about this proscription. So I hope the government will review this proscription genuinely, and I thank all those who took part in this debate.

Question put:

That the motion (That the motion (Senator Bob Brown’s) be agreed to.) be agreed to.