Review of the merits of the re‑listing
3.1
This chapter reviews the merits of the re‑listing of the Kurdistan Workers’ Party (PKK) under section 102.1(2) of the Criminal Code. The Committee reviewed the Government’s procedures of the re‑listing in Chapter 1 of this report and, as commented in that chapter, the Committee is satisfied that appropriate procedures were followed in this case.
3.2
In reviewing the merits of this re-listing, the Committee has taken into account the Minister for Home Affairs’ Explanatory Statement, ASIO’s Statements of Reasons, submissions from community stakeholders and other publicly available information.
3.3
As noted in Chapter 1, the Committee expects that the evidence must demonstrate a continuation of the requisite activities to satisfy these legislative tests established under the Criminal Code for the Committee to support the regulation. That is to say, according to principles of procedural fairness, a re‑listing should not occur with reference only to historic acts which fall outside of the period since an organisation was last proscribed.
The legislative criteria for listing an organisation
3.4
For an organisation to be listed as a terrorist organisation under the Criminal Code, the Minister for Home Affairs must be satisfied on reasonable grounds that the organisation:
is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act, or
advocates the doing of a terrorist act.
3.5
The doing of a terrorist act includes the doing of a specific terrorist act, the doing of more than one terrorist act and, the doing of a terrorist act, even if a terrorist act does not occur.
3.6
To assist the Minister in that decision, ASIO prepares a Statement of Reasons. The Statement seeks to address both these legislative criteria, and the following non‑legislative factors:
ideology and links to other terrorist groups or networks,
threats to Australian interests,
proscription by the United Nations Security Council or like-minded countries, and
engagement in peace/mediation processes.
3.7
The Statement of Reasons is based on publicly available information and is, ‘to the Australian Government’s knowledge, … accurate, reliable and has been corroborated by classified information’.
3.8
The Committee was first advised of ASIO’s evaluation process, including its use of non‑legislative factors, in 2005. As has been the approach in past reviews, the Committee has used these criteria to assess the appropriateness and adequacy of the evidence provided.
3.9
The Committee first considered the listing of the Kurdistan Workers’ Party (PKK) as a terrorist organisation in April 2006, and has reviewed each subsequent re‑listing of the organisation (June 2008, November 2009, October 2012 and October 2015). In each case, the Committee has supported the listing and re‑listing of the PKK as a terrorist organisation. The listing under the Criminal Code has been strongly opposed by the Kurdish community in Australia on each occasion.
Summary of the Explanatory Statement and Statement of Reasons
3.10
The PKK was formally established by Abdullah Ocalan in 1978 at which time it was primarily committed to the creation of an independent Kurdish state in south-eastern Turkey, Syria and Iraq. However, in response to the evolving political environment in Turkey, the PKK’s objectives have changed over time and the organisation now calls for:
autonomy for Kurds within Turkey,
the rights of Kurds living in Turkey, and
the right to maintain a Kurdish ethnic identity.
3.11
The Statement of Reasons asserts that the PKK aims to ‘monopolise Kurdish political power, including by attacking the interests of rival Kurdish political parties’. The exact membership of PKK is unknown. The organisation draws on logistical support from Kurdish communities in south-east Turkey, Syria and Iran. A large diaspora in Europe provides support to the organisation.
3.12
The Statement of Reasons identifies 23 synonyms for the organisation.
Legislative criteria
3.13
The Statement of Reasons asserts that the PKK is directly or indirectly engaged in preparing, planning, assisting in or fostering the doing of terrorist acts, and as a result, satisfies the legislative criteria of a terrorist organisation.
3.14
Although a ceasefire was brokered between the PKK and the Government of Turkey in July 2015, hostilities and attacks resumed in late 2015. The Statement of Reasons provides that since the resumption of hostilities, the PKK’s activities have been largely focussed in Turkey’s south and east. In 2016, the scale of PKK attacks increased when the group started using more vehicle‑borne improvised explosive devices, and expanded their areas of operation to include urban centres in Turkey, including in Ankara and Istanbul. The PKK’s activities have mostly consisted of bombings, armed assaults and attacks against infrastructure.
3.15
Although the group’s activities significantly decreased in 2017, the Statement of Reasons notes that sporadic attacks continue. The Turkish authorities have disrupted a number of ‘advanced‑stage’ plots, including uncovering large quantities of explosives and firearms. For example, on 13 December 2017, Turkish police disrupted a planned attack on the Organisation of Islamic Cooperation summit in Istanbul. Police found a minibus filled with 60 kilograms of explosives in Istanbul and detained at least 11 suspects.
3.16
In addition, the Statement of Reasons lists six attacks for which responsibilities has been claimed by, or are reliably attributed to, the PKK since the Committee last reviewed the re‑listing of the organisation in 2015. In the most recent act, the PKK claimed two Turkish soldiers were killed in a PKK operation in Hakkari province in March 2018. The Statement of Reasons does not specify if any attacks resulted in civilian casualties or injuries.
Non-legislative factors
3.17
The Statement of Reasons advises that the organisation does not have links with other terrorist organisations that are proscribed in Australia.
3.18
With respect to the PKK’s links to Australia, the Statement of Reasons notes that in July 2016, one Australian was charged with being a member of the PKK and the matter remains before the courts. No further information on the matter is provided in the Statement.
3.19
The Explanatory Statement provides that the PKK ‘present[s] a threat to the security of Australia and often seek[s] to harm Australians and our democratic institutions’. However, the Statement of Reasons comments that ‘in line with its objectives and associated ideology, the PKK primarily conducts attacks against Turkish Government and security force targets and has not directly targeted Western interests’. In a latter section, the Statement of Reasons provides the following description of how the PKK represents a threat to Australian interests (emphasis added):
While the PKK directs attacks against Turkish Government and security force targets, attacks by the group have treated civilian bystanders as acceptable collateral. In later‑2015 and 2016, there was an increase in the scale of PKK attacks, with an expansion of the group’s areas of operation to include urban areas across Turkey, including metropolitan centres in the country’s west, and cities popular with tourists on Turkey’s Aegean and Mediterranean coast.
3.20
As noted above, in listing the various attacks that have been claimed by or reliably attributed to the PKK, the Statement of Reasons does not list any civilian casualties.
3.21
The PKK is listed as a proscribed terrorist organisation by the United States, Canada, United Kingdom and New Zealand. Each of these countries apply a different legislative threshold which enliven different offences and differing restrictions on contact with organisations. In Canada, the listing of an organisation as a terrorist organisation is reviewed every two years, where in New Zealand the designation is reviewed every three years. Contrastingly, the United Kingdom and the United States do not have a set review period through the application of an expiry of the proscription, though different avenues for review are available.
3.22
The PKK has not been listed as a terrorist organisation by the United Nation’s Security Council, or listed for the purposes of the Security Council’s Sanctions list. However, the organisation was listed by the then Minister for Foreign Affairs under section 15(1) of the Charter of the United Nations Act 1945 on 10 November 2016. That listing gives effect to Australia’s broader obligations on addressing terrorism financing.
3.23
As has been the practice of previous listings and re‑listings, the Statement of Reasons does not detail or reason how non‑legislative factors are considered to support the re‑listing.
Stakeholder concern
3.24
In all previous reviews of the listing and re‑listing of the PKK as a terrorist organisation, the Committee received submissions from Kurdish community organisations opposing the listing. In this review, the Committee received submissions from the Kurdish community, law firms engaged on behalf of Kurdish community associations and an academic. All recommended the Committee disallow the regulations listing the PKK as a terrorist organisation under the Criminal Code.
3.25
The arguments advanced by these stakeholders included:
the re‑listing was founded upon unreliable foreign intelligence;
the re-listing was not consistent with a proper assessment of core non‑legislative factors;
the Minister failed to consider the political context of the organisation’s activities, and that the conflict is a non‑international armed conflict governed under international humanitarian law; and,
the impact of the re‑listing on the Kurdish community in Australia and infringement of the implied constitutional right of freedom of political communications.
3.26
Each is examined below.
Unreliable foreign intelligence
3.27
A number of stakeholders questioned the reliability of foreign intelligence provided by the Turkish Government if used in the Minister’s decision. For example, Australians for Kurdistan (AFK) stated that ‘the accuracy, reliability and impartiality of any information provided by the Turkish state on the question of the PKK’s record or armed action and related matters is highly questionable’.
3.28
Similarly, Stary Norton Halphen (a law firm submitting on behalf of the Kurdish Democratic Community Centre of Victoria and the Democratic Kurdish Community Centre of NSW), submitted:
Turkey is not a reliable source of information about the PKK. Pro‑Kurdish groups within Turkey are political rivals of the Turkish government, which has a history of using terrorism allegations and charges as a means to restrict the right of Kurdish people in Turkey to political association and participation. Further compounding concerns about the credibility of information derived from Turkish intelligence agencies is the fact (previously acknowledged by the PJCIS) that the Turkish Government has staged PKK attacks.
3.29
At a public hearing, Dr Vicki Sentas added to this context, advising that official figures from Turkey indicate 40,000 people have been prosecuted for offences of membership or otherwise supporting a terrorist organisation, namely the PKK, between 2009 and 2013.
3.30
In its submission, Stary Norton Halphen noted differences between the Statement of Reasons prepared in 2015 for the organisations re‑listing in that year, with the current Statement of Reasons. The firm highlighted that the 2015 Statement did not address the funding sources of the PKK but the 2018 Statement identifies fundraising through ‘legitimate sources’—fundraising from the Kurdish diaspora—as well as criminal activity including narcotics smuggling and extortion. Similar comments were made regarding differences in the two Statements on recruitment matters. The firm concluded that such ‘significant differences … should properly raise concerns for the PJCIS about the quality of the information being relied upon by the Australian Government in listing the PKK’.
3.31
Dr Sentas also questioned whether information was provided by the Turkish Government which assisted in the Minister’s consideration of the 23 pseudonyms or additional names to which the PKK is also known. Dr Sentas highlighted the inclusion of TAK/Kurdish Freedom Falcons/Kurdish Liberation Hawks and asserted that the Turkish Government ‘characterises the TAK to be a PKK front that targets civilians in bombings on behalf of the PKK so it can plausibly deny responsibility’. However, the relative control that the PKK exerts over these other bodies is contested by security experts.
Not consistent with proper assessment of non-legislative factors
3.32
As previous reviews by this Committee have noted, the statutory criteria for listing an organisation as a terrorist organisation, are broad. This was noted by participants in this review of the re‑listing of the PKK. Stary Norton Halphen commented that although ‘many groups [are] capable of satisfying the definition’, the non‑legislative factors considered by the Minister serve to limit the expansive definition and the Minister’s powers to proscribe organisations. Similarly, Dr Sentas submitted:
Because only a select number of organisation of the many more that meet the statutory criteria have been listed, the decision to proscribe on the basis of section 102.1 [of the Criminal Code] is necessarily one that is limited by relevant considerations and reasonable grounds. The non‑statutory criteria are important considerations that ought to be applied to limit which organisations are listed, in order to ensure that listing meets the legislative objective of protecting Australia’s security.
3.33
Stakeholders highlighted three non-legislative factors that, in their collective view, were not properly considered in the Statement of Reasons. These include: ideology, links to Australia and threat to Australia, and engagement in peace or mediation processes. All are separately examined below.
Ideology
3.34
The first non‑legislative factor addressed was the PKK’s ideology, where the submissions broadly argued that the PKK is a ‘secular organisation that … has requested a degree of ethnic autonomy and the enjoyment of basic human rights’. Dr Sentas, an expert in the ideology of the PKK, advised:
What we see across the Kurdish south-east is that democratic autonomy and democratic confederalism in practice, in the form of what are known as people's assemblies. At the level of the village, the town and the region, we have this participatory form of involvement by all aspects of Kurdish society. This is why both ideologically and in structure and in culture the boundaries and the limits of the PKK are very unclear. I know that the committee is well versed in the distinction between a military wing and a political wing, yet the boundaries of the PKK and its complexity go well beyond there being two wings. With the ideological shift to democratic autonomy, we saw participation at a very grassroots level, and that continues today. That's precisely the form of participatory governance that we saw the Turkish state prosecuting with the so-called KCK operations, which coincided in Turkey with 2005.
3.35
Noting this ideology, both Stary Norton Halphen and the AFK observed that coalition forces in Syria entered into ‘de facto alliance with the PKK’, and that the Kurdish ideology was one that the coalition was willing to partner with to achieve ‘shared … democratic ideals for what the future of the Middle East would look like’.
3.36
Stary Norton Halphen sought to contrast these objectives with other organisations listed under the Criminal Code which are ‘Islamist, calling for an Islamic State or the imposition of Sharia law through violence. The ideology is anti‑democratic, anti‑western and anti‑Australian with a focus on gross violence against civilians’. AFK similarly advocated for a contrast between the PKK which is ‘clearly not of the extremist nature typically associated with terrorist organisations’.
3.37
At the public hearing, Stary Norton Halphen expanded on these points:
I'd say most, if not all, organisations on the list have an ideology that is oriented towards gross violence against civilians. That's particularly true of the Islamic State. All of the Islamic State theology, ideology, propaganda and written material promotes and encourages gross violence not only as a means but as an end to the establishment of a caliphate in Iraq and Syria and beyond. That echoes many of the objectives of the other Islamist organisations that are proscribed. Violence is not part of PKK ideology... Any aspect of violence is contextual to the political scene in Turkey and is defensive to it, in our respectful submission, and that portrays a marked difference from other organisations listed. We'll say this also: for many of the organisations on the list, part of their ideology is the destruction of Western values—Australian values and Australian interests—and that does not in any way form part of the ideology, mandate, thinking, philosophy of the PKK.
Links to Australia and threats to Australia
3.38
The second non‑legislative factor discussed by stakeholders was links to Australia and threats to Australian interests. The question of the PKK’s links to Australia or its threats to Australian interests have been examined in previous reviews of the organisation’s proscription. However, Stary Norton Halphen noted that for the first time, the Minister’s Explanatory Statement positions the PKK as a domestic ‘security threat’ to Australians and Australian democratic institutions. At a public hearing, witnesses for Stary Norton Halphen commented that the threat to Australians and Australian democratic processes ‘was not borne out in the evidence listed and relied upon’.
3.39
Stary Norton Halphen reflected on this change, commenting:
The Minister provides no basis for his view that the PKK presents a threat to the security of Australia, and that it ‘often’ seeks to harm Australians and Australia’s democratic institutions. … Nothing in the Explanatory Statement or Statement of Reasons provides support to such statements. … [The] Statement of Reasons … notes only that one Australian has been charged with being a member of the PKK. Importantly, this prosecution relates to conduct in 2013 in Turkey. The absence of any risk posed by the PKK to Australia was confirmed by the Supreme Court of New South wales at the successful application for bail in that case.
3.40
AFK similarly questioned the assertion in the Explanatory Statement, commenting that ‘the PKK has never sought to harm Australians or Australian interests and has in addition never sought to bring its armed campaign in any form to Australian shores’.
3.41
Dr Sentas argued that the absence of direct threats to Australian interests ‘takes the listing beyond the objects of the legislation [the Criminal Code]’. Dr Sentas further commented that ‘deterring political violence anywhere in the world regardless of the existence of a threat to Australian security, is not the legislative intent of the Australian proscription regime’.
3.42
On this basis, Stary Norton Halphen sought to distinguish the role that terrorism offences play in deterring the activities of terrorist organisations who operate in Australia, as opposed to organisations based and operating overseas. In the firm’s view, the latter should be the provenance of foreign incursions offences contained in Part 5.5 of the Criminal Code. Part 5.5 of the Criminal Code sets out a range of offences for activities directed at the overthrow of a foreign government by force or violence or the intimidation of civilian populations. This includes military activity, training, fundraising and other forms of dissent. Stary Norton Halphen submitted that ‘the terrorist organisation offences do not greatly add to the foreign incursion regime for groups based overseas’. However, they extend serious criminal penalties to ‘association’ and ‘membership’.
Engagement in peace or mediation processes
3.43
The final non‑legislative factor considered by stakeholders was the PKK’s engagement in peace or mediation processes. The submission from Stary Norton Halphen advised that the PKK is the only organisation of those organisations listed as terrorist organisations to have entered unilateral ceasefires and conducted formal peace negotiations supported by the international community. The firm noted that the Committee’s report on the review of the first organisation to be listed under the Criminal Code commented that proscriptions can hinder peace negotiations, which the firm noted has been argued in later academic works on the PKK.
3.44
Consequently, Stary Norton Halphen recommended that the Committee have regard to the fact that ‘de‑listing the PKK may facilitate further engagement with the peace process’. AFK echoed many of these points, and further advised the Committee that the PKK initiated previous peace processes and was ‘prepared to enter into a ceasefire … to pursue a real opportunity at a negotiated peace’.
3.45
Similarly, Dr Sentas advised the Committee that the proscription of entities like the PKK has been found to:
exacerbate conflicts by encouraging state repression of civil society generating additional grievances to fuel the conflict;
marginalise the legal right to self-determination and fail to protect oppressed minorities;
impede confidence-building with listed actors and inside mediators by denying their political status and generating asymmetry;
criminalise third party mediation and negotiation support and cause third parties to withdraw or substantially alter the scope and effectiveness of their peace building work; and
criminalise civil society groups connected to armed actors whose engagement with the armed actor is essential for encouraging their participation in negotiations.
Political context of activities and application of international humanitarian law
3.46
In its submission, Stary Norton Halphen advocated that the broader political context of the PKK’s activities must be considered in the re‑listing of the organisation under the Criminal Code. It referred to reports by the United Nations and Human Rights Watch, as well as decisions of the European Court of Human Rights, which have found numerous human rights violations and military attacks against Kurdish communities in Turkey by the Government.
3.47
Dr Sentas argued that ‘Turkey’s escalated military offensive from 2015 against the Kurds in the south-east of the country, provides a critical context for the Committee’s deliberations’. Dr Sentas referenced the decision of the Permanent People’s Tribunal on Turkey and the Kurds, which found that Turkey had committed war crimes in the cities of Cizre, Sirnak, Nusaybin and Diyarbakir. Dr Sentas was of the view that continuing to list the PKK as a terrorist organisation ‘contributes to an environment where Turkey’s state crimes are given tacit approval as a counter‑terrorism measure’.
3.48
These points were broadly echoed by AFK who argued that the listing of PKK as a terrorist organisation is ‘wrong in fact and in law’, commenting that the PKK is not involved in terrorism, but engaged in armed conflict with the Turkish national state.
3.49
These matters were further explored at the public hearing, where the Committee sought legal expertise on the application of international humanitarian law (also known as law of war or law of armed conflict) and whether a criminal prosecution regime could be displaced.
3.50
Pre‑eminent international bodies have held that the conflict in Turkey should be classified as a non‑international armed conflict, and in such conflicts, international humanitarian law applies. Significantly, European law provides that international humanitarian law ‘eclipses’ terrorism law, and successive European courts have dismissed terrorism charges—including membership charges—on this basis.
3.51
Two criteria need to be assessed in order to answer the question as to whether a situation of armed violence amounts to a non-international armed conflict. First, the level of armed violence must reach a certain degree of intensity that goes beyond internal disturbances and tensions. In light of the frequency of attacks by the PKK and government armed security forces, the number of casualties and the number of displaced persons affected by violence, the Geneva Academy concludes that the required degree of intensity was ‘arguably reached from August 2015 onwards’. This is within the period of review of the proscription since the PKK was last listed under the Criminal Code.
3.52
The second criteria that must be satisfied to meet the definition of a non‑international armed conflict and therefore engage international humanitarian law, is that in every non-international armed conflict, at least one side to the conflict must be a non-state armed group. The non‑state armed group must exhibit a certain level of organisation which is assessed with reference to a series of indicative factors. This includes the existence of a command structure and disciplinary rules, the ability to procure, transport and distribute arms, the ability to plan, coordinate and carry out military operations and the ability to negotiate and conclude agreements such as ceasefire agreements.
3.53
The Geneva Academy concludes that the PKK satisfies this definition and references, among other factors, its sustained military operations not only in Turkey, but also in Iraq against Islamic State. Government forces are presumed to satisfy the criteria of organisation.
3.54
Stary Norton Halphen explained that as a result of its classification as a non‑international armed conflict, international humanitarian law may be engaged and apply to the activities that form part of that conflict. More specifically, the firm advised the Committee that, through the application of international humanitarian law, ‘many of the terrorist acts [could be re‑cast] as legitimate military targeting under [international humanitarian law]’. Dr Sentas made similar representations.
3.55
The matter of whether international humanitarian law would apply to eliminate a criminal prosecution remained an open question through the discussion at the public hearing. However, Stary Norton Halphen did note that despite whether the conflict is a non‑international armed conflict and whether international humanitarian law is engaged, the Crown would not be prevented from laying a charge of terrorism in a domestic court. The firm also advised that there is no defence of the presence of a non‑international armed conflict to a criminal charge in Australia.
Impact on Kurdish communities and implied freedom of political communication
3.56
It is estimated that there are 15,000 to 20,000 Australians of Kurdish origin who may be impacted by the listing. At a public hearing, representatives of the Kurdish communities in Australia discussed the impact of the re‑listing in their advocacy for Kurdish peoples in Turkey, in the following terms: ‘people are scared because they think they are being monitored, that they're being watched… [and they] really feel [that] our freedom, our liberty, has been taken away [compared with the rights other Australian communities enjoy]’.
3.57
The co‑Chair of the Democratic Kurdish Community of New South Wales advised the Committee that the re‑listing ‘absolutely’ reduces the political rights as Australian citizens of Kurdish origin:
As a community, it makes it very difficult for us, because you don't know where, actually, you're crossing the border or something. Without mentioning PKK on any political solution, it's meaningless to a lot of Kurds, because the PKK shares the same values of any Kurds that have been suffering from the oppressions of the states. Practising the collar, wearing the collar, is also, like, criminalised any Kurdish people. So, when it comes to the parliamentarians, it's very difficult. … When we speak to ordinary Australians they know about the PKK—how they supported the Yazidis in Iraq, in Sinjar. They know what the PKK is fighting for and that they're fighting against the ISIS. All these things people know about it, but unfortunately when it's come to the Australian law the PKK is listed and we can't really continue our conversations, so we don't know what we're doing and criminal law isn't always helpful.
3.58
The Committee received advice from numerous submitters on the links that many Kurds (both in Turkey and among the diaspora) have with the PKK. For example, Dr Sentas advised the Committee that the PKK is,
… comparable to no other non‑state armed actor, both in structure, culture or politics… [but] also reflects an idea and an aspiration for Kurdish identity and democratic freedom that has evolved through the economic, cultural socio‑political dynamics of the conflict itself. The PKK is intricately woven through Kurdish political identity, historic and contemporary social relations and is also central to understanding the Kurdish diaspora’s connection to the PKK.
3.59
Such cultural affinities can be particularly important in the context of offences for informal membership of, and association with, a terrorist organisation listed under the Criminal Code. Indeed, Dr Sentas argued that the difference between supporting Kurdish independence and the political objectives of the PKK may be ‘semantic’. Dr Sentas explained:
[Under the Criminal Code] it is an offence to intentionally provide support or resources that directly or indirectly helps a terrorist organisation engage in planning, preparing, assisting or fostering the doing of a terrorist act. The difference between supporting the political objectives of the PKK and support deemed to ‘indirectly foster a terrorist act’ may be semantic.
3.60
At the public hearing, Dr Sentas explained how the application of terrorism law collides with the Kurdish communities’ understanding of the limits of the PKK and its synergies with broader Kurdish political objectives.
These offences are directed towards associations, supports, affiliations, which require at their core, because of the definition of a terrorist act, an engagement with some kind of politically motivated violence. That's the link to the politically motivated violence, the hostile acts engaged in by the PKK. What that means for the Kurdish community is engaging through platforms like, for example, the Kurdish National Council, which is a very legitimate pan-Kurdish, multinational coming-together congress of Kurds who are concerned with democracy, with the peace process. The Australian representatives would find themselves potentially falling foul of the association offences or even the membership offences. … There are two things there: it's the breadth of the elements of those subsidiary offences and the breadth of the PKK and the boundaries of the PKK which put Kurds in Australia at real risk of criminalisation.
3.61
In this context, Stary Norton Halphen also submitted that the proscription of the PKK would have a ‘chilling effect’ on political communication (and association) by Kurdish Australians in Australia. The firm noted that the listing of the PKK under the Criminal Code enlivens criminal offences for a range of interactions with a proscribed entity, including membership and association.
3.62
Significantly, and although the definition of ‘terrorism’ in the Criminal Code excludes advocacy, protest or dissent which is not intended to cause serious harm, death or public health or safety risk, these protections are not afforded to membership offences. Stary Norton Halphen explained:
Membership offences under the Code include informal membership. … This calls into question whether, and at what point, peaceful anti‑government dissent against Turkey by Kurdish groups in Australia is an offence under Australian law. Arguably, the exemptions … are not sufficiently robust to protect against advocacy, protest or dissent as an integer or complete proof or informal or passive membership.
3.63
Consequently, the firm argued that in the absence of the parallel exemptions for membership and association offences, any prosecution of the offences engages Australians implied right to political communication as found under Lange v Australian Broadcasting Corporation. The firm submitted:
The terrorist organisation offences … extend serious criminal penalties to ‘association’ and ‘membership’. These offences are damaging to the Kurdish diaspora in Australia as they collide with international human rights obligations and the implied freedom of political communication protected under the Commonwealth Constitution. … The impact on the ability of Kurdish Australians to communicate about political matters freely is not justified in circumstances where (among other things) there is no demonstrated risk to Australia. The concerns about the PKK are entirely unconnected to life here in Australia, and yet Kurdish Australians are left in the position of being unable to freely communicate their political ideas and beliefs in Australia.
3.64
Stary Norton Halphen emphasised that ‘given the importance of the PKK in the history of the Kurdish peoples’ struggle for autonomy, it is difficult (if not impossible) to disentangle support for the rights and autonomy of the Kurdish people from support for the PKK and its leaders’. The firm further noted that a ‘corollary of the Australian Government’s reliance on foreign intelligence services is that it relies upon their conception of the boundaries of this organisation’.
Agencies’ response to stakeholder concerns
3.65
The Committee raised the concerns reported by stakeholders with agencies at the private hearing. As would be expected, the Committee does not detail the matters that we discussed at a private hearing.
3.66
However, the significance of the substantive concerns raised by the Kurdish community indicated that a public response was required. The Committee therefore has published all answers to questions taken on notice by those agencies present at the private hearing.
3.67
First, the Committee sought clarification on the apparent inconsistencies in the public Statement of Reasons regarding the threat presented by the PKK to Australia. The Department of Home Affairs advised:
Turkey is a popular destination for Australians. While the PKK directs attacks against Turkish government and security force targets, civilian bystanders are treated as acceptable collateral. In 2016, the scale of PKK attacks increased when the group started using more vehicle borne improvised explosive devices, and expanded its area of operations to include urban centres in Turkey, including Ankara and Istanbul. This has directly increased the threat to civilians – including tourists in Turkey – of being incidentally harmed in attacks aimed at others. The PKK continues preparing and planning terrorist attacks in Turkey and Australians could be injured in such attacks.
3.68
Second, the Committee sought clarification from agencies at the private hearing on the application of the terrorism offences under the Criminal Code on the ability of Kurdish Australians to engage freely with their political rights. The Department of Home Affairs advised the Committee of the impact of the re‑listing:
To the extent that criminal offences may apply to conduct related to the PKK, the offence provisions in the Criminal Code are appropriate and targeted. Australia’s terrorist organisation offences are limited in their application to membership, association, providing support, recruiting, directing activities, providing funding, and training for the PKK.
Australian law does not criminalise support for other, non-violent, Kurdish civil society independence movements or political parties who support Kurdish rights and aspirations for independence or autonomy. Australia’s terrorist organisation offences (including the offence of associating with a terrorist organisation) were introduced in 2004. These offences have been drafted carefully to ensure they do not criminalise actions that do not contribute to terrorism.
3.69
Further, the Department addressed specific concerns with respect to the implied freedom of political communication, advising that the offence of associating with a terrorist organisation contains a range of important exceptions and expressly states that the offence does not apply so as to limit any constitutional doctrine of implied freedom of political communication. The Department also sought to clarify that, with respect to the offence of supporting a terrorist organisation, an individual must intend to provide support to the organisation, which would help that organisation to engage in terrorist activities.
3.70
The Committee also used the private hearing to discuss broader matters raised in the public submissions regarding the purpose of the listings regime. The Committee has elected to publish the answer to a question on notice regarding the purpose of the listing regimes, in light of evidence of alternative pathways to prosecuting terrorist organisation offences.
3.71
At the public hearing, witnesses from Stary Norton Halphen advised that the absence of a listing would not limit a court from finding that an organisation met the definition of a terrorist organisation:
There are two ways in which you can prove a terrorist organisation in Australia, as you are aware. There's the listing mechanism, but there's also proof in court. The repeal of this particular listing is not going to create the conditions for Australians to go serve with violent armed groups. Prosecuting in that second way is still open if the Crown decides that a particular organisation at a particular time based on credible, reliable, admissible evidence meets the definition of a terrorist organisation. It's that avenue that will remain and it's that avenue that's best to approach militant Kurdish groups, because it requires a much more intellectual, rigorous and confined assessment of what a particular group is doing at a particular time, rather than 15 different acronyms for groups that spin off each other and is based on intelligence which has been problematic for over a decade.
3.72
The Committee sought clarification from the Department on these matters of law, which broadly confirmed Stary Norton Halphen’s evidence. The Department advised that under Australian law, there are two ways that an organisation may be identified as a terrorist organisation. First, the Minister may proscribe an organisation in regulations under section 102.1 of the Criminal Code—the subject of this Committee’s review.
3.73
The second avenue is through a court making a finding that an organisation satisfies the same statutory definition of a terrorist organisation as is required under the proscription regime. The Department explained that the Crown, as part of a prosecution for a terrorist offence, can prove beyond reasonable doubt that the organisation meets the definition of a terrorist organisation (that an organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act) under section 100.2 of the Criminal Code.
3.74
In providing this advice, the Department cautioned that the listing regime can assist the prosecution to prove the existence of a terrorist organisation, for the purposes of proving a terrorist organisation offence. Further, the Department advised that the offence for associating with a terrorist organisation requires that organisation to be listed in regulations, and the alternative pathway of the Crown satisfying the statutory definition is not available for this specific offence.
3.75
Beyond these questions of alternative legal pathways, the Department advised that the listing process is a mechanism for the Australian Government to send a ‘clear message to the public that the Australian Government does not condone the actions of groups that use terrorism to achieve their political, religious or ideological objectives’. The Department reiterated previous advice that the listing regime is also a mechanism for the Australian Government to ‘provide notice to the organisation and the community that certain interactions … with those organisations are criminalised’.
Committee comment
3.76
In making the following comments and recommendations, the Committee first acknowledges the Kurdish people’s desire for autonomy and to maintain a Kurdish ethnic identity in Turkey. The Committee has unique obligations to the Parliament and the Australian community. The Committee receives both public and classified material in its considerations of a range of proposals and scrutinises each proposal and its process through the evidence—both classified and unclassified—that are presented to it.
3.77
With respect to listings under the Criminal Code, the Committee is tasked with ensuring that the Australian Government has followed the appropriate procedures and that each organisation meets the legislative definition of a terrorist organisation. This review is therefore limited to a consideration of the procedures and reasoning.
3.78
The listing of the PKK as a terrorist organisation under the Criminal Code generally engages debate on significant matters. The Committee acknowledges that the Criminal Code contains a broad definition of a terrorist organisation. As the Committee noted in its first report reviewing a proscription under the Criminal Code, the policy reasons for a listing can include:
the encouragement of other nations in the fight against terrorism and terrorist funding,
the stigmatising and isolating of terrorist organisations, and
heightening public awareness about particular organisations.
3.79
Indeed, the latter was emphasised by the Department of Home Affairs in this review. The Department commented that Australia’s listing process provides a mechanism for the Australian Government to ‘identify terrorist organisations, and provide notice to the organisation and the community that certain interactions with those organisations are criminalised under Australian law’. Further, the terrorist organisation offences are designed to limit support for terrorist organisations which would allow them to ‘flourish and enhance their ability to commit acts of violence. These offence provisions send a clear message to the public that the Australian Government does not condone the actions of groups that use terrorism to achieve their political, religious or ideological objectives’.
3.80
However, the Committee has some sympathy with the expert evidence provided by stakeholders that the Kurdish communities’ conception of the PKK is intertwined with complex notions of Kurdish identity, culture and political aspirations. The Committee appreciates that this broader conception of the PKK has given rise to some concerns that community to be concerned that engaging in general discourse in support of Kurdish autonomy and cultural rights could fall within the ambit of criminal offences. Whilst this is an understandable concern, the Committee notes that the Government’s stated objective of the listing regime is to provide clarity to the public.
3.81
The Committee notes that ASIO has engaged ‘regularly’ with Kurdish community centres, and the Committee has concluded that further engagements should be provided. The Committee also notes that Australian citizens of Kurdish origin feel constrained in the exercise of their political rights and freedoms as a result of an instrument that is designed to provide clarity.
3.82
The Committee is therefore of the view that Australian Government agencies should engage further with the Kurdish communities and provide specific advice on the conduct which may fall within the ambit of criminal conduct under the Criminal Code. The advice should also detail the types of communications that, in accordance with the implied right of political communication, would not engage provisions of the Criminal Code.
3.83
The Committee recommends that the Australian Government agencies engage further with Kurdish communities and provide specific advice on the conduct that would fall within the ambit of criminal conduct under the Criminal Code. The advice should also detail the types of communications that, in accordance with the implied right of political communication, would not engage provisions of the Criminal Code.
3.84
The Committee notes that questions remain regarding the application of international humanitarian law and the status of a non‑international armed conflict in the context of Australia’s listing regime. However, what is not in question is whether the status of a non‑international armed conflict affects the legislative test of a terrorist organisation. Despite this, the Committee is of the view that the status of a non‑international armed conflict should be given some consideration by government in its processes of submitting advice to the Minister for Home Affairs regarding the listing of an organisation under the Criminal Code.
3.85
The Committee recommends that in the development of any future listings or re‑listings under section 102.1 of the Criminal Code that may be considered, the Australian Government give consideration to the application of international humanitarian law in circumstances of international or non‑international armed conflicts, and that written advice be provided to the Parliamentary Joint Committee on Intelligence and Security to that effect.
3.86
The Committee notes the concerns raised regarding the provenance of intelligence that corroborates open source information provided in the Statement of Reasons. As was the case in the Committee’s first consideration of the listing of the PKK, the Committee has again found no evidence that representations by the Turkish Government affected the Minister’s decision to re‑list the PKK. In particularly, the Committee sought assurances about this matter and is satisfied with the processes followed.
3.87
However, the Committee observed that the Explanatory Statement and accompanying Statement of Reasons did not assist the community in its understanding of the re‑listing, nor how the organisation represents a threat to Australia. The information contained in those Statements indicated some inconsistencies in reasoning, and was not supported by clear open source information. As noted above, the Committee discussed these matters with agencies at the private hearing and identified that further information was required to be put on the public record to address the concerns of stakeholders.
3.88
The Committee is of the view that agencies must improve the quality of Explanatory Statements and Statement of Reasons it presents to the Parliament. These documents not only assist the Committee with its inquiries, but are significant in providing the Australian community with the clarity which underscores the listing regime.
3.89
Nonetheless, the Committee is satisfied that the PKK continues to engage in terrorism as defined in Australian law and notes that the Australian Government has responsibility for its citizens whether they be in Australia or around the globe. The Committee therefore supports the re-listing of the PKK as terrorist organisation under the Criminal Code and finds no reason to disallow the legislative instruments.
3.90
In reaching this conclusion, the Committee considered both the list of attacks referred to in the Statement of Reasons and the presence of Australians within the vicinity of PKK operations. The Committee particularly notes advice from agencies that the PKK approaches injuries to ‘civilian bystanders as acceptable collateral’.
3.91
However, the Committee notes the particularities of the PKK listing and seeks an updated regional briefing within 18 months.
3.92
The Committee recommends that, within 18 months of tabling this report, the Parliamentary Joint Committee on Intelligence and Security receive a regional briefing, either orally or in writing, by the Australian Security Intelligence Organisation regarding the activities that have been the subject of this re‑listing.
Mr Andrew Hastie MP
Chair
September 2018