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Thursday, 29 May 2003
Page: 15396

Mr WILLIAMS (Attorney-General) (9:49 AM) —I move:

That this bill be now read a second time.

The terrorist attacks on the United States on September 11, 2001 signalled a terrifying new phase in international terrorism.

And they marked the beginning of what has become known as the war against terrorism.

Just 13 months later, the terrible reality of this war was brought home to Australia with a bomb attack on Bali, a favourite destination of Australian holiday-makers.

Recent bomb blasts in Saudi Arabia and Morocco have killed an estimated 66 people, including at least one Australian.

Another Australian was killed by a suicide bomber in Iraq.

Terrorism is clearly not an abstract phenomenon, and not one from which any country is isolated.

In recent months we have witnessed major developments in the war against terrorism.

Key al-Qaeda figures have been captured, the brutal regime of Saddam Hussein has been dismantled and the criminal proceedings against those alleged to be responsible for the bombings in Bali have commenced.

But there is no doubt that the war against terrorism is ongoing.

Australia did not ask for this war.

We did not ask for Australians to get caught up in terrorist attacks in the United States, in Bali, in Saudi Arabia and elsewhere.

But they were.

Australians have been killed and others have been seriously injured in terrorist attacks.

Terrorism is a very real threat to world peace and it is a real threat to Australia's national security.

The safety and security of the Australian community and Australian interests is a top priority of the government.

It is a responsibility this government takes very seriously.

Our response to the threat of terrorism has been comprehensive and wide ranging.

And it is a task that is ongoing.

In the current environment, complacency is not an option.

As part of our comprehensive approach to the new security environment, the government developed a package of strong counter-terrorism legislation, the bulk of which was passed by the parliament in July last year.

Included in that legislation were amendments to the criminal code allowing the listing of terrorist organisations, subject to certain strict conditions, including the requirement that the terrorist organisation be identified as such by the United Nations Security Council.

The requirement that Australia wait for the UN Security Council to agree with our own assessment of what constitutes a threat to Australians and Australian interests before we can act was an amendment insisted upon by the opposition.

The government argued at the time that this potentially created problems where Australia identifies threats by terrorist organisations that do not interest members of the UN Security Council.

UN lists are limited to organisations with links to al-Qaeda and the Taliban.

Australia is currently in the unsatisfactory position that we cannot act independently of the United Nations to list a terrorist organisation posing a threat to Australia and Australian interests.

Other countries can decide for themselves which terrorist organisations pose a threat to their citizens and to their interests and act accordingly.

In fact we know of no other country whose power to list terrorist organisations is linked to the United Nations.

But, thanks to the opposition, Australia cannot act independently of the United Nations Security Council.

We cannot list the terrorist wing of Hezbollah because it has not been formally identified as a terrorist organisation by the UN Security Council.

Yet we have advice from ASIO that there is evidence that this organisation engages in terrorist activity and has the capacity to do so globally.

Indeed the US, the UK and Canada have all listed the terrorist wing of Hezbollah as a terrorist organisation under their laws.

The government has moved quickly to list the terrorist organisations under our laws.

However, the Security Council has only ever operated as a mechanism for identifying terrorist organisations linked to the Taliban and al-Qaeda, under resolutions 1267 and 1333.

As is the case with the terrorist wing of Hezbollah, we cannot list a terrorist organisation that has not been formally identified as a terrorist organisation by the UN Security Council.

Of course, where there is a connection to al-Qaeda we can approach the United Nations to identify an organisation as a terrorist organisation.

We did this in the case of Jemaah Islamiah.

Beyond that, our current legislative arrangements constrain our ability to act in our national interest and to independently list a terrorist organisation, thereby attracting the full weight of the criminal law.

The current mechanism has proved to be unworkable.

This is particularly anomalous given that the Hezbollah External Security Organisation has been listed by the Minister for Foreign Affairs under the Charter of the United Nations Act as a terrorist entity, the assets of which must be frozen in Australia.

It is clear that we must have the capacity to independently assess and act on threats to Australians and Australian interests without waiting to see if the rest of the world agrees.

The Criminal Code Amendment (Terrorist Organisations) Bill will amend part 5.3 of the Criminal Code Act 1995 by removing the requirement for there to be a relevant Security Council decision in place before we can list organisations as terrorist organisations for the purpose of our domestic criminal law.

The bill gives to us independence to make our own decisions about our national security and the application of our criminal laws.

It allows us to list terrorist organisations based on the advice of our intelligence agencies and an assessment of our national interest and security needs.

And it allows us to de-list organisations that cease to meet the definition of a terrorist organisation.

The bill retains a number of important safeguards on the exercise of the listing power.

Importantly, to list an organisation as a terrorist organisation in regulations, the Attorney-General must make a deliberate and reasoned decision that an organisation is engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act before listing that organisation as a terrorist organisation.

That decision will be subject to the Administrative Decisions (Judicial Review) Act 1977, which provides an important safeguard on the exercise of this discretion.

And any regulation is subject to disallowance by parliament.

Further, the bill preserves the requirement that the regulations listing a terrorist organisation cease to have effect on the second anniversary of the day on which they take effect.

This is in addition to the obligation imposed on the Attorney-General to de-list organisations when he or she is no longer satisfied that the organisation meets the criteria for defining a terrorist organisation.

If passed, this bill will allow us to move quickly to list those organisations that, notwithstanding the absence of a Security Council decision, should be appropriately identified as terrorist organisations under Australian law.

This bill is further evidence of the government's continuing commitment to taking all appropriate action to ensure that terrorist threats are dealt with effectively and expeditiously.

And it is clear that Australia needs to have this independence.

But the opposition has indicated that it will not support the first bill.

In such circumstances, the government is introducing a second bill, the Criminal Code Amendment (Hizballah) Bill 2003 that will allow the terrorist wing of Hezbollah to be listed in regulations, provided the statutory criteria for listing are met.

We are introducing this second bill because we recognise the need to take swift action—that is why we proposed the amendments to the opposition and the states and territories some two months ago.

The simple fact is that we cannot wait for the opposition to wake up to the problems they created and support our first bill.

As a result of the second bill, the Hezbollah terrorist wing will be listed as a terrorist organisation for the purpose of the Criminal Code provided that the Attorney-General is satisfied that the organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act, whether or not the terrorist act has occurred or will occur.

If the Attorney-General is so satisfied, a public statement to that effect will be issued.

Appropriate regulations will be made and gazetted with effect from the date of that announcement.

Any such announcement will be widely publicised in both print and electronic media.

And that announcement will only be made after consideration of available, relevant intelligence that satisfies the Attorney-General that the criteria for listing an organisation as a terrorist organisation have been met.

The opposition has admitted that their UN listing process is flawed by acknowledging the inability to list the terrorist wing of Hezbollah.

However, the opposition has also indicated that it will not support a move to make us independent of the United Nations Security Council processes.

In an attempt to cover up its mistake, the Leader of the Opposition has announced his intention to introduce legislation specifically listing Hezbollah as a terrorist organisation directly in the legislation.

This is despite knowing that their so-called solution is constitutionally uncertain.

As I informed the House yesterday, our legal advice is that the opposition's proposal gives rise to constitutional uncertainty.

That should clearly be avoided in such important legislation.

Singling out organisations by name in legislation, without mechanisms to overcome constitutional concerns, could invite challenges to validity on potentially wider grounds than simply lack of power.

This constitutional uncertainty could undermine future prosecutions of terrorists and that is something the government simply will not accept.

Our legal advice is to the effect that our second bill will not give rise to the same constitutional uncertainties that plague the opposition's proposal.

This bill is intended to be complementary, not an alternative, to the first bill.

Together, they create a legislative framework that deals with the immediate issue of the security threat represented by the terrorist wing of Hezbollah, and the longer term issue of how Australia can act independently of the Security Council in relation to our domestic criminal laws.

While we welcome the opposition's indication that it will support the government's Hezbollah specific bill, the opposition has indicated that it will continue to obstruct passage of our first bill.

The government intend to vigorously pursue passage of our first bill.

The opposition's position on our first bill ignores the longer term problem that we will not be able to act quickly or effectively if other terrorist organisations come to light that pose a potential threat to Australia but have not been listed by the United Nations Security Council.

It does not solve the longer term problem created by the opposition's UN linked listing provisions.

That is why we are forced to proceed with two bills.

This is a serious matter of national security.

The government will not allow the opposition's obstinance to paralyse us and prevent what must be done to ensure the safety and security of Australia and Australia's interests.

We trust that the opposition will wake up to the problems they created and support our first bill.

I call on the opposition to put politics aside and support both government bills in the interests of the security of Australia.

I commend the bill to the House. I present the explanatory memorandum to the bill.

Debate (on motion by Mr Melham) adjourned.