Preliminary Pages
Foreword
Combating international terrorism has become a high priority
for national governments since the tragic loss of thousands of innocent lives
in the terrorist attacks by Al Qa’ida on the US in 2001. Over the past five
years terrorist violence has claimed hundreds more lives in attacks in Bali, Jakarta, Madrid and London. These events have signalled an increased threat to
Australian interests, and several prosecutions for alleged terrorist activity
are currently before the courts.
The power to list a ‘terrorist organisation’ under the
Criminal Code was one element of a package of reforms adopted in 2002. Australia has listed nineteen organisations but so far proscription has not been an element
in any of the prosecutions for terrorist organisation offences. No listed
entity has applied to the Minister to be de-listed or sought judicial review in
the courts. Despite this, it was evident throughout the inquiry that some
sectors of the community continue to have concerns about the impact of
proscription and, in particular, the breadth of terrorist organisation
offences. Several witnesses called for reform that would see proscription
transferred to the judiciary or a new advisory panel to advise the Minister on
possible listings.
The Committee considers that the current model of executive
regulation and parliamentary oversight provides a transparent and accountable
system that is consistent with international practice. However, there is
clearly room to improve the public information available about the implications
of listing and data on the application of the new terrorism laws. The
appointment of an Independent Reviewer would make a significant contribution to
those efforts.
The Hon David Jull MP
Chair
Membership of the
Committee
Chair
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The Hon David Jull MP
|
|
Deputy
Chair
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Mr Anthony Byrne MP
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|
Members
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Mr Stewart McArthur MP
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Senator Alan Ferguson (until
14 August 2007)
|
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The Hon Duncan Kerr SC MP
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Senator the Hon Robert Ray
|
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Mr Stephen Ciobo MP
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Senator the Hon John Faulkner
|
|
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Senator Fiona Nash
|
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Senator the Hon Sandy Macdonald (from 17 August 2007)
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Committee Secretariat
Secretary
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Mr Stephen Boyd
(from
4 June 2007)
Ms Margaret Swieringa
(till
1 June 2007)
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Inquiry
Secretary
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Ms Jane Hearn
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Executive
Assistant
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Mrs Donna Quintus-Bosz
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Terms of reference
Under Section 102.1A (2) of the Criminal Code Act 1995
(Cth) the Parliamentary Joint Committee on ASIO, ASIS and DSD has the
following function:
(a) to review, as soon as
possible after the third anniversary of the commencement of this section, the
operation, effectiveness and implications of subsection
102.1(2),(2A),(4)(5)(6)(17) and (18) as in force after the commencement of this
section;
(b) to report the
Committee’s comments and recommendations to each House of the Parliament and
the Minister.
List of abbreviations
AAT
|
Administrative Appeal Tribunal
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ADJR
|
Administration Decisions Judicial Review Act 1977
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AFP
|
Australian Federal Police
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AGD
|
Attorney-General’s Department
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AMCRAN
|
Australian Muslim Civil Rights
Advocacy Network
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ASIO
|
Australian Security Intelligence
Organisation
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ATA (No.2)
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Anti-Terrorism Act No.2 2005
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ATRAC
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Australian Tamil Rights Advocacy Council
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COAG
|
Council of Australian Governments
|
Committee
|
Parliamentary Joint Committee on Intelligence and Security
|
Criminal Code
|
Criminal Code Act 1995
|
DIAC
|
Department of Immigration and Citizenship
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DPP
|
Director of Public Prosecutions
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DFAT
|
Department of Foreign Affairs and
Trade
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EM
|
Explanatory Memoranda
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ESO
|
External Security Organisation
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FCLC (Vic)
|
Federation of Community Legal
Centres (Victoria)
|
FRLI
|
Federal Register Legislative
Instruments
|
HREOC
|
Human Rights and Equal
Opportunity Commissio
|
ICCPR
|
International Covenant on Civil
and Political Right
|
IGA
|
Inter-Governmental
Agreement on Counter-Terrorism
Laws
2004
|
IGIS
|
Inspector-General of Intelligence
and Security
|
IISCA
|
Islamic Information and Support
Centre of Australia
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IS Act
|
Intelligence Services Act 2001
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LCA
|
Law Council of Australia
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LTTE
|
Liberation Tigers of Tamil Eelam
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NSW CCL
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New South Wales Council of Civil
Liberties
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PIJ
|
Palestinian Islamic Jihad
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PKK
|
Kurdistan Workers Party
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RCOA
|
Refugee Council of Australia
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SAD
|
Security Appeals Division
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SLRC
|
Security Legislation Review Committee
|
UNHCR
|
United Nations High Commissioner
for Refugees
|
UNSC
|
United Nations Security Council
|
UNSCR
|
United Nations Security Council
Resolution
|
List of recommendations
3 The implications and community impacts of
proscription
Recommendation 1
The Committee recommends that:
n the
Attorney-General’s Department develop a communication strategy that is
responsive to the specific information needs of ethnic and religious
communities;
n there be direct
consultation on the management of visa security assessments between the
Australian Intelligence Security Organisation, the Inspector General of
Intelligence and Security and the UN High Commission for Refugees.
4 Selection of Entities
Recommendation 2
The Committee recommends that the criteria ‘ideology and links
to other networks and groups’ be restated so that:
n the link between acts
of terrorist violence and the political, ideological or religious goals it
seeks to advance is clearly expressed; and
n links to other
networks and groups that share the same world view is identified as a separate
criteria.
5 Procedural Issues
Recommendation 3
The Committee recommends that the mandate of the Committee to
review the listing and re-listing of entities as ‘terrorist organisations’ for
the purpose of the Criminal Code be maintained.
Recommendation 4
The Committee recommends that the Government give
consideration to reverting to the initial legislative approach of postponing
commencement of a listing until after the disallowance period has expired.
The Committee recognises that the Attorney-General should, in
exceptional cases, retain the power to begin the commencement of a listing on
the date the instrument is lodged with the Federal Register of Legislative
Instruments where the Attorney-General certifies that there are circumstances
of urgency and the immediate commencement of the listing is required for
reasons of national security.
6 Other Issues
Recommendation 5
The Committee recommends that strict liability not be applied
to the terrorist organisation offences of Division 102 of the Criminal Code.
Recommendation 6
The Committee recommends that:
n a regulation listing
an entity should cease to have effect on the third anniversary of the date it
took effect.
n the Government
consult with the Committee on streamlining the administration of proscription
to enable periodic review of multiple listings during the parliamentary cycle.
Recommendation 7
The Committee:
n recommends that the
Attorney-General’s Department be responsible for the publication of
comprehensive data on the application of terrorism laws.
n reiterates that an
Independent Reviewer be established to monitor the application of terrorism
laws, including the use of special police and intelligence powers, on an
ongoing basis. In addition, that the Independent Reviewer report annually to
the Parliament and the responsibility for examining those reports be conferred
on the Committee.
n recommends that the
application of the proscription power be included in the review of counter
terrorism laws scheduled for 2010 under the auspices of the Council of
Australian Governments.