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Tuesday, 3 June 2003
Page: 15785


Mr MELHAM (5:17 PM) —The combined effect of the Criminal Code Amendment (Hizballah) Bill 2003 and the existing regime is to give Australia a workable framework for the naming of terrorist organisations. As the Leader of the Opposition has outlined, there will in effect be a two-tier system. The first tier allows an organisation to be declared a terrorist organisation by regulation made by the Governor-General. This will happen once the Attorney-General is satisfied that the organisation has been identified as a terrorist organisation by the Security Council of the United Nations. It also allows the listing of an organisation where a court finds it is:

... an organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not the terrorist act occurs).

This bill—in essence a Labor bill—provides the second tier. It allows a specific amendment to add a named organisation to the definition of `terrorist organisation' in section 102.1 of the Criminal Code Act.

Australian security and intelligence services have briefed the government and the Leader of the Opposition on the threat posed to Australia by the terrorist wing of Hezbollah. The UN Security Council has not listed Hezbollah, effectively leaving it beyond the reach of Australia's existing domestic regime, which resulted from extended negotiations last year. This bill permits the Attorney-General to include Hezbollah on the list of terrorist organisations for the purposes of the Crimes Act. It does this by defining Hezbollah in the principal act and by allowing a regulation to be made if the Attorney-General is satisfied that it is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act. This bill is very different from the general terrorist organisation legislation proposed by the government this week—and I will turn to that other bill shortly.

The Criminal Code Amendment (Hizballah) Bill 2003 places parliamentary consideration and democratic processes at the centre of any decision to declare any single organisation to be a terrorist organisation—with all the far-ranging legal consequence that implies. In stark contrast, the government's bill, theCriminal Code Amendment (Terrorist Organisations) Bill 2003would allow that decision to be made by one person—the Attorney-General—behind closed doors. It would allow the Attorney-General to make such a decision about any organisation. To have that kind of power exercised by one person, in secrecy, is not acceptable in a democratic society. We already have a framework for listing terrorist organisations. Labor believes the Hizballah bill strengthens that framework. The specific listing of Hezbollah under the procedures in the Hizballah bill is consistent with the double layer protection in the Criminal Code. Under the current regime, there must be a United Nations Security Council decision about a particular organisation, and a decision by the minister that the body which is subject to the United Nations Security Council decision is indeed a terrorist organisation, before a regulation can be made.

The Hizballah bill requires a decision by parliament that an organisation should be defined under the principal act, and that the minister be satisfied of terrorist action, before a regulation can be made making the organisation a terrorist organisation. In proposing this bill, the government has accepted that Labor's model got the balance right in equipping our democracy to fight terrorism without stripping our citizens of their civil rights.

The Hizballah Bill will not affect the safeguards that Labor insisted on in last year's amendments to the Criminal Code. It will not broaden the executive's power to proscribe organisations. It will not lower the bar as far as the burden of proof is concerned, nor will it reduce the threshold at which actions become open to prosecution under the law: support for the work or activities of a terrorist organisation or support, planning and financing of terrorism. In a focused and targeted manner, the bill adds one organisation to the list of recognised terrorist organisations.

Let us be absolutely precise about this organisation. It is the terrorist wing of Hezbollah. It is not the political party, not the charitable arm, not the organisation that funds hospitals, schools and child care for thousands in Lebanon. The terrorist wing of Hezbollah is the organisation link to lethal attacks on civilians in places from Lebanon to Argentina. The terrorist wing of Hezbollah meets every criterion for listing by the United Nations Security Council, and it is only the fraught politics of the Middle East which has kept it off that list. Under these circumstances, while Labor will continue to call on the government to act in international forums to find an international solution to this problem, we accept that it is necessary to follow the lead of other Western nations and include the terrorist wing of Hezbollah in our domestic listing of terrorist organisations.

In accepting the substance of the Leader of the Opposition's private member's bill and presenting it to the parliament under its own banner, the government has recognised that secret decisions behind closed doors are as fundamentally destructive of our democratic society as any act of violence. In our system of parliamentary democracy there are decisions that rightly belong in the hands of the executive, but the decision to list a terrorist organisation is not one of them. Parliament has an obligation to hold the executive accountable for its decisions. It has a duty to make sure that executive decisions are properly scrutinised. It has a duty to protect Australian citizens from excessive and inappropriate use of executive power. It is inappropriate, no matter what the safeguards, to allow one person in secret to proscribe an organisation by regulation. The government's second bill, the Criminal Code Amendment (Terrorist Organisations) Bill 2002, proposes once again to introduce the administrative proscription regime that was rejected last year by Labor. This is yet another example of the Howard government seeking to play wedge politics with this nation's safety and its democratic freedoms.

When the government discovered this problem, it did not make any attempt to have Hezbollah listed by the United Nations. It did nothing but make another tired attempt to reintroduce executive proscription. Its attempts to bring in executive proscription did not work last year, and such attempts are not going to work this year. Liberal Senator George Brandis, one of the AttorneyGeneral's backbench advisers on counter-terrorism legislation, very usefully summed up why executive proscription should be rejected. In an opinion piece in the Courier-Mail on 21 May 2002, he had this to say:

There are two simple reasons why the proscription of organisations provision is a bad idea. First, it is wrong in principle and, second, because it would be useless. It is not the role of the criminal law to ban organisations but to prevent crime. Organisations do not commit crimes—criminals do.

In the Prime Minister's own words, the proscription regime that was settled on last year `got the balance right'. So why is the government now trying to dismantle the whole deal? The simple answer is wedge politics. The Howard government is up to its old tricks of trying to drive a wedge between itself and us. In the case of Hezbollah, the Labor Party found a solution to the dilemma caused by the fact that it is not on the UN's list—a solution now adopted by the Howard government. In extraordinary circumstances such as those presented by the terrorist wing of Hezbollah, the system of automatically transferring the United Nations Security Council listing of terrorist organisations to Australia's domestic regime may not be sufficient.

Let me be absolutely clear. The best solution to this dilemma would be the listing of the Hezbollah terrorist wing by the United Nations Security Council. However, the Howard government is not interested in full and responsible participation in the international community through the United Nations Security Council. This government is not interested in increasing Australia's security. If it were, it might have made some efforts to have the Hezbollah dealt with on an international level and not just within Australia's borders. On the one hand, we are told Hezbollah poses a serious terrorist threat to Australia while, on the other hand, the Howard government refuses to take the most appropriate steps to counter it within the existing proscription regime.

However, Labor recognises, along with Senator Brandis and other government backbenchers, that proscription, no matter what the regime, is not itself a sufficient tool in the fight against terrorism. For organisations such as the Hezbollah terrorist wing, which has some longterm stability to its structure, the mechanism of proscription is one way to attack them. In an important sense, we are dealing here with ways of defining terrorist organisations—in other words, how to cast the net wide enough to catch the terrorists but without compromising the democratic freedoms that set us apart from the terrorists. That is why it is more useful to have in place a flexible and accurate approach that defines terrorists on the basis of the mischief we are trying to prevent—their involvement in work or activities supporting terrorism.

This approach already exists within the Criminal Code, thanks to Labor's amendments to the government's original counter-terrorism bills introduced last year. We do not accept and will not accept the government's general proscription bill. We will not put such potentially destructive power in the hands of one person. The government argues that only a regime of executive proscription can keep Australia safe. Its acceptance of Labor's proposals betrays that it knows that secret blacklists are not necessary. The Criminal Code Amendment (Terrorist Organisations) Bill 2002 will not improve Australia's security. Just like the government's proposals last year, this legislation will instead attack the freedoms we enjoy in a thriving democracy.

The Howard government argues that we can only be safe when we are no longer free. Not only is this not true, it is also dangerously wrong. Our liberties and our rights as citizens are fundamental to our system of democratic government and the rule of law. They are the very freedoms that the so-called war against terrorism is meant to protect. They are the freedoms that set us apart from the terrorists. They are the freedoms that are essential to Australia's national safety. The government's proposals to erode our freedoms and our rights will ultimately erode our security. Secret bans and clandestine decisions are contrary to Australian values. They are contrary to freedom and they are contrary to national security.

Labor supports the targeted, democratic and precise Criminal Code Amendment (Hizballah) Bill 2003. It complements the existing regime and creates a manageable and fair framework for the naming of terrorist organisations. Labor opposes the secretive Criminal Code Amendment (Terrorist Organisations) Bill 2003. It represents a full-frontal assault on our democratic freedoms and is little more than a cynical exercise in wedge politics. I urge the government to take seriously its responsibilities for national security and to stop playing wedge politics. I urge it to work with the opposition in a spirit of bipartisanship to come up with security policies and laws that really do protect not just our national security but also the very freedoms we cherish as a democracy.