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

This report by the Joint Committee on Intelligence and Security, which covers agencies like ASIO and DSD and the like, was tabled earlier this week. It is a review of the relisting of four different organisations as terrorist organisations under Australian law.

I should emphasise at the start, as I usually do when speaking to reports from this committee, that it does not have any crossbench members on it. By law it is a statutory committee and the law states the make-up of the committee which does not allow the inclusion of any crossbench MPs, which I think is unfortunate. However, as I have also regularly said, I think the committee does quite a good job. It is chaired by Mr David Jull and has among its members Senator Ray, Senator Faulkner and Senator Ferguson—very experienced people. Senator Nash is also a member. Broadly speaking, within the constraints of what they can do, they do a good job.

Every time the Attorney-General wishes to list or relist an organisation as a terrorist organisation for the purposes of the Criminal Code, that requires this committee to review it. I have to say that the committee’s reports are giving me growing concern. It is no secret that the Democrats were uncomfortable with some aspects of the so-called antiterror laws that passed through this place that enabled terrorist organisations to be proscribed, or organisations to be proscribed as terrorist ones. It is quite a significant law and it does mean that people who may have contact with some of those organisations for potentially quite innocent purposes could end up in extremely serious trouble and with very restricted opportunities to defend themselves under the law. So it is quite a serious act to list organisations.

The committee has in its last few reports continually voiced what I would see as quite significant disquiet with the inadequacy of the process that is involved and the inadequacy of their ability to properly do the job of reviewing this. I would particularly draw attention to the fact that the committee as a whole does not recommend that the regulations relisting these organisations as terrorist organisations be disallowed. That is of course part of another of the problems with the constraints on debate in this area with the new political correctness we get from the Howard government these days: even voicing concern about the listing of a terrorist organisation is likely to get you labelled as a friend of terrorists and those sorts of things, rather than simply being seen as someone who is voicing concerns about the adequacy of the law, its effectiveness and whether or not it actually ensures that proper safeguards are in place.

I draw attention to the other recommendation in the report, which is ‘that the committee renews its request that the Attorney-General and ASIO incorporate the criteria ASIO has provided for determining which organisations should be listed in future statements of reason’. This is a repeated request from this committee that the Attorney-General and ASIO ensure that, in providing their statements of reasons to the committee about why an organisation should be listed or relisted, they incorporate in that statement of reasons the criteria ASIO uses for determining whether or not that organisation is a terrorist organisation. It would seem to be a pretty straightforward thing to do, yet it is repeatedly not done and it has not been done again with regard to these organisations.

The committee furthermore requests that the Attorney-General and ASIO provide the committee with a set of criteria outlining under what circumstances an organisation will not be relisted. We also have the problem that once an organisation is listed it is actually extremely difficult for them to become delisted. The listing has to come up for renewal every few years and obviously they can be not relisted then. But, again, it would seem quite simple to ask what criteria are used in that circumstance, particularly because of some of the specifics of the organisations here.

This is a unanimous report, I would emphasise again, and one from very experienced government MPs on both sides of the chamber. The committee report, for example, states that it is worth noting that during the private hearing the committee discussed the process of discrimination between choosing those organisations which are selected for proscription and those which are not. Some committee members noted that they continue to be unconvinced as to the robustness of the process. That is a pretty worrying sign, as far as I am concerned, for what is a very important area of law that is not terribly accountable or transparent. It was noted that while some organisations which seem to be now concentrating their activities locally—that is, locally in their area overseas—and seem to have no links to Australians or Australian interests are proscribed, but others which do have membership in and links to Australia have not been proscribed.

The committee has advised the Attorney-General’s Department that it would be preferable from the committee’s perspective to see arguments about the activities of the organisation in the period since the last listing. What we had was ASIO coming forward with material that justified the listing the first time around, but nothing new. There was no new material about why we should be continuing to list this organisation as a terrorist organisation, particularly when there was no evidence that they are even active at all. In the case of one of the organisations, evidence was provided quite specifically suggesting that the organisation was basically no longer operational, yet they have still been relisted.

To give another example, the committee reiterated its previous concerns, the concerns that it first expressed back in March 2005, about a lack of adequate community consultation with regard to the listings. One press release from the minister saying what he was doing does not constitute community consultation. People in the community can be directly affected, quite seriously affected, by listings or relistings of organisations.

Again, the report notes that the committee has never resolved to its satisfaction through continuing discussion with ASIO how the criteria for listing might logically be applied—a fairly fundamental issue, I would have thought. In previous reports, in order to make greater sense of the decision-making process, the committee asked the government to address the criteria in future statements of reasons—something the government has continually not done. The committee received evidence that at least one of the organisations has become much less active in the last two years, to the point where the Australian Strategic Policy Institute—a very well respected analytical institute—has stated that the group can be considered to be essentially defunct. Why are we relisting an organisation that seems to be essentially defunct?

This was touched upon a bit further in chapter 2 of the report, and this is where it does get almost into Monty Python territory. At a private hearing relating to these relistings—as mentioned in paragraph 2.6—the committee specifically sought information about the activities of the group since the last relisting. In response to that request, ASIO told the committee that where there is a lack of available new evidence regarding any organisation this does not necessarily mean that they are not still active or dangerous. According to ASIO, a lack of ‘evident activity’ may mean that the organisation is preparing for a future act of terrorism. So under this sort of criteria the fact that they are not doing something is being taken as a potential indication that they might be going to do something. Surely we have got a more robust criterion than that for trying to assess whether or not an organisation should be listed and proscribed as a terrorist organisation under these very serious and major powers. It certainly is true that the fact that an organisation may not be active for a certain period of time—or visibly active—does not necessarily mean that they are not still dangerous. But surely we should have to rely on some sort of evidence, some sort of ongoing material, some sort of clear application of the criteria, beyond just saying that the fact that we cannot see them doing anything might just mean that they are planning to do something. We must be able to do better than that.

These are very serious powers. When the Senate did agree to pass laws to give these powers to the Attorney-General to allow organisations to be listed, with a whole range of extra and more draconian powers that kicked in along with it, it was on the understanding that this committee could properly scrutinise the exercise of those powers and, particularly, properly scrutinise the reasons why particular organisations would be listed. This is at least the third report from this committee that I think could reasonably be said to be voicing quite strong disquiet about the inadequacies of the process and of the information that has been provided to the committee. Most of the work this committee does is in secret, for starters. I think it sends a very strong signal that this process is less than ideal. (Time expired)

Question agreed to.