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Thursday, 24 June 2004
Page: 31696


Mr GEORGIOU (3:56 PM) —I thank the Leader of the House for his information and I resume my contribution on the Anti-terrorism Bill (No. 2) 2004. These concerns and the people expressing them were marginalised by some, as naive and as underestimating the danger of terrorism and the imperative for sweeping security measures. However, ultimately—to the credit of our society and of our parliamentary system—fundamental objections to the initial proposals were examined seriously, not least by parliamentary committees, and very substantial amendments were made to the proposed legislation. These amendments included restoring the usual criminal burden of proof—that is, that the prosecution prove its allegations beyond reasonable doubt; limiting the definition of terrorist acts to those intended to cause or threaten serious harm to coerce or intimidate the government or the public in the pursuit of political, religious or ideological goals; and requiring intention, knowledge or recklessness for a person to be guilty of a terrorist offence.

It is important to note that the legislation introduced after September 11 did include reference to guilt by association. After considerable discussion, we did criminalise membership of a terrorist organisation, but in a significantly modified form. The association offence was restricted to people who are intentionally members of an organisation that they know to be a proscribed terrorist organisation. The current bill revisits this issue of association but goes even further than the proposals that were rejected in the past. This bill, and specifically the provisions relating to associating with terrorist organisations, raises fundamental challenges to the appropriate balance between freedom and security in Australian society. The bill criminalises associating with a member, director or promoter of a proscribed organisation. A proscribed organisation is one which is specified and actually regulated as a terrorist organisation, if the minister is satisfied on reasonable grounds that the organisation is directly or indirectly engaged in preparing, planning, assisting or fostering the doing of a terrorist act.

It is important to note that most terrorist organisations have various activities. The Australian government, in fairness, has sought to focus on the military wings of such organisations. Thus, for example, Australia has proscribed the Hezbollah external security organisation—in this it followed the United Kingdom. I note in passing that Jane's Islamic Affairs Analyst said:

Britain, Bush's strongest ally in the war against terrorism, put `Hizbullah's external security organisation' on its first-ever list of proscribed organisations in February 2001—a name which no-one in Lebanon had ever heard of before and which the London government apparently made up.

It is beyond doubt that the bill intends to cover multiple purpose organisations having a terrorist component. Under this bill, an individual who associates more than once with a proscribed organisation can be sentenced to three years in jail even though: the person did not know that it was a proscribed organisation—although there are literally hundreds of terrorist organisations only 17 of them are currently proscribed under the Criminal Code; the person associated with a promoter of a terrorist organisation—being the promoter of a terrorist organisation is not in itself a crime; the person did not intend to further or support any violent or illegal act but rather intended to support non-violent activities; the person had no more than two meetings or communications with a member, director or promoter of a terrorist organisation.

Let me give some examples of how such guilt by association would work. Firstly, say, for example, that a journalist writes in support of the non-violent activities of an organisation he knows is a proscribed terrorist organisation. The journalist thereby intends that his support will assist the organisation to continue to exist. This journalist is not guilty of any offence. If, however, an ordinary member of the public communicates twice with the journalist about the article and expresses agreement with the journalist's views, thereby providing support to the organisation's activities, I believe that that person can be found guilty of associating with a terrorist organisation and be liable to three years in jail. Of course, if the organisation were just a terrorist organisation and not a terrorist organisation proscribed by legislation, no offence would have been committed. I reiterate that paradoxically the journalist who writes in support of a proscribed terrorist organisation is not guilty of an offence as long as he does not associate with a member of the organisation on more than one occasion.

This brings me to my second illustration, which is pertinent to the issue of freedom of expression. A journalist who is briefed twice by a person he knows is a member of a terrorist organisation may write an article that supports the organisation's non-violent activities, intending thereby to assist the association to extend those activities. This has the effect of supporting the organisation. The journalist on this reading would then be liable for three years in jail for associating with a proscribed organisation.

This brings me to my third illustration. Say, for example, that a member of a proscribed organisation writes to a newspaper condemning the proscription of the organisation as undemocratic. Say that he is responded to twice in the newspaper's columns by a member of the public who agrees with the letter writer and advocates that the proscription be removed. The member of the public therefore knows that he is communicating with a proscribed terrorist organisation. Axiomatically, the letters provide support to the organisation because the writer wants the organisation to be unproscribed. In this view, he too is liable to three years imprisonment.

A final illustration was provided to me by the Attorney-General, who said that an example might be of a community leader who has considerable status. He or she may appear at a meeting next to a terrorist leader in a gesture designed to garner support for the terrorist organisation. The person may not have in mind helping the organisation engage in the terrorist act. The person may be supporting the organisation for other reasons—for example, political reasons or because the organisation has been generous to the poor. However, the appearance would be intended to support the organisation or assist the organisation to expand or continue to exist. But it is clear that the intention of this proposed legislation is that such a person would be liable to three years in jail, despite the fact that he merely shared a platform with a terrorist leader.

What of the cousin, the uncle, the schoolteacher, the caterer or the person who rents the hall to a member of a terrorist organisation, all of whom may have multiple contacts with a member, director or promoter but have no intention of promoting or furthering a terrorist act or any illegal activity? What of the religious leader, the social worker or the lawyer? There are a series of exemptions to the operation of the offence. I will run through them briefly in the time that is left to me, but suffice to say that they underscore the magnitude of the problems inherent in this bill rather than resolving them.

First, I turn to the exception for a close family member. The exception applies only to specific family members listed in the bill. It applies only when the association relates to a matter that could be reasonably regarded as `a matter of family or domestic concern'. Assuming that a wife or mother who does the cooking or housekeeping constitutes an associate for the purposes of the bill and undertakes these activities for a husband or son who is a member or promoter of a terrorist organisation, they are protected by the exemption. But the exemption relates only to a family or domestic matter. If the wife drives the husband to the court if he is on trial for a terrorist offence, is that a family or domestic concern or a culpable association? Is the wife guilty of association if her husband even discusses the organisation with her? Other people who may have close contact with members of a proscribed organisation may include an aunt, uncle, nephew, niece, mother-in-law or father-in-law. These people do not fall within the definition of a close family member—but I have to admit a same-sex couple does—and so they are not protected unless their behaviour is covered by another exemption. Does the bill make it a crime to communicate about family and domestic concerns if you cannot come within the definition of a close family member? If it does not, then why does the bill require such a heavily qualified exemption?

Secondly, there is the religious exemption. To fall within the religious exemption the association must occur in a place being used for public religious worship and occur in the course of practising a religion—for example, a church or mosque. However, what is the restraint on the definition of a place of `public' worship? Does this indicate that there are places of private worship which do not fall within the exemption?

Thirdly, the bill exempts association that is for the purpose of providing aid of a humanitarian nature. This might be consistent with a community leader discussing support for welfare activities but the explanatory memorandum says it is intended to apply to persons undertaking humanitarian aid. This suggests that it excludes those who are not directly involved in the delivery of aid and excludes those communicating about the welfare needs of particular populations.

Fourth, the legal advice and representation exemption applies where the association is only for the purpose of providing legal advice or representation and even then only in limited circumstances. For example, a lawyer whose association is only for the purpose of advising a client about existing or potential criminal charges would not be caught, but a lawyer associating with and advising a person about civil proceedings or royal commission proceedings does not appear to be covered. Discussions among people other than legal professionals about criminal proceedings or judicial review proceedings would not be protected. While the Criminal Code provides for organisations to be de-proscribed if they change their goals or activities, the exemption appears not to extend to legal representation to the minister to de-proscribe an organisation.

Finally, there is the implied freedom of political communication exemption. High Court decisions have established that there is a constitutionally protected implied right of political communication in Australia. The bill provides that this may be a defence. However, the implied freedom is not absolute, so it would be difficult for a person to ascertain whether their activities would be protected by this exemption, let alone to prove it—which they actually have to.

Earlier I remarked on the need to maintain the appropriate balance between freedom and security. The maintenance of the safety and security of our society and its citizens is fundamental to any government. The fight against terrorism is part of that fundamental obligation. But we also need to realise that part of what the terrorists are attempting to destroy are our democratic values, freedoms and institutions. We may on occasion need to qualify our civil liberties in the fight to defend our security. The plethora of anti-terrorist bills adopted by this parliament has shown that we are capable of doing so. When it becomes apparent that the cost in civil liberties and legal protections far outweighs any increase in security then the government has in the past been willing to rethink and to make changes.

It needs to be recognised, I believe, that the provisions of this bill relating to guilt by association do come at a high cost to our society. Any legislation creating an offence which has as its first leg a mere association with someone who is a member of a proscribed terrorist organisation, which criminalises free speech and which impedes questioning and debate of some government decisions once they are made, ought at the very least to make a very significant contribution to our national safety and security in order to be justifiable.

I do not think that the proposed offence of association does make such a contribution. Imprisoning someone for three years—someone who had no intention of assisting in a terrorist act, no intention to pursue illegal actions or purposes and whose behaviour would have been entirely permissible, had there been no meeting with a promoter, member or director of a proscribed organisation—is a most extreme case of guilt by association. I earnestly hope that the Attorney-General will consider the issues that have been raised in the course of this debate, and I know that he will, particularly in the context of the fact that this bill will apparently be the subject of public consultation and referral to the Senate Legal and Constitutional Committee.