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Monday, 8 March 2004
Page: 21009

Senator ELLISON (Minister for Justice and Customs) (6:29 PM) —I think it is inappropriate to go into operational detail here because of the fact that this is a matter which could be the subject of proceedings. But can I say that the question of a hostile act in a foreign country is one which depends on that foreign country.

Sitting suspended from 6.30 p.m. to 7.30 p.m.

Senator ELLISON —Before the break I was in the process of replying to an inquiry from Senator Brown in relation to the Crimes (Foreign Incursions and Recruitment) Act 1978. Senator Brown had asked why it was not possible to prosecute Mr Hicks and/or Mr Habib under that legislation. As I stated earlier, that act provides:

(1) A person shall not:

(a) enter a foreign State with intent to engage in a hostile activity in that foreign State; or

(b) engage in a hostile activity in a foreign State.

Firstly, in relation to that offence, you would have to make out that the activity complained of was a hostile activity in that foreign state. If that foreign state was a sponsor of terrorism and that person was engaged in training with that terrorist organisation, that foreign state, if it be a rogue state—and I am putting this in a general sense—might well not regard that as a hostile activity. Subsection (4) of the same section says:

(4) Nothing in this section applies to an act done by a person in the course of, and as part of, the person's service in any capacity in or with:

(a) the armed forces of the government of a foreign State; or

(b) any other armed force in respect of which a declaration by the Minister under subsection 9(2) is in force.

Again, the defence is raised in relation to that. It could well raise the spectre of the alleged terrorist training being part and parcel of the armed services of Afghanistan at the time. You have to remember that the Taliban's was an oppressive regime—I am sure that by no means would Senator Brown regard it otherwise—and al-Qaeda more than existed there; it existed in that state with the sponsorship of that state. It could well be open to anyone who was training with al-Qaeda to raise a number of defences. I have cited some aspects of the legislation which I believe are relevant to the consideration of a prosecution under the Crimes (Foreign Incursions and Recruitment) Act 1978. I said I would not go into operational detail—and I will not—but I just point out to the committee those aspects of this legislation that Senator Brown has referred to which really do complicate matters. The relevant legislation is really the counter-terrorism legislation which relates to the membership of a designated terrorist organisation. That is really the relevant legislation which, of course, was not in place when the alleged activities occurred.