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Wednesday, 16 June 2004
Page: 23968

Senator FERGUSON (5:58 PM) —On behalf of the Parliamentary Joint Committee on ASIO, ASIS and DSD, I present the following reports of the committee: Review of the listing of the Palestinian Islamic Jihad (PIJ) and Annualreport of the committee's activities 2002-03. I move:

That the Senate take note of the reports.

I seek leave to incorporate my tabling statement in Hansard.

Leave granted.

The statement read as follows—

On 10 March 2004, the Parliament amended the sections of the Criminal Code relating to the listing of terrorist organisations. The amendments provided a role for the Parliamentary Joint Committee on ASIO, ASIS and DSD in reviewing each listing within a disallowance period of 15 sitting days of the making of the regulation. The intention of the review powers in the amendment was to give greater transparency to the process of the listing, to provide parliamentary oversight and so to allay fears that too much power was concentrated in the hands of the Minister as set out in the original Bill. The passage of this and related bills is illustrative of many of the issues relating to all security legislation—the tension between security and civil liberties and between executive and parliamentary and judicial power. The debate over the listing powers took place over a period of two years and the Bill went through three iterations. These are outlined in the report being tabled today.

While the Act provides for a review by the Committee, it does not specify the nature of the review. The Committee considered the possible approaches it might take very seriously. It looked at international comparisons, sought views from ASIO and the Attorney-General's Department, considered the other review mechanisms available and the intentions of the Parliament insofar as they can be gleaned from the debates over the Bill during its passage. It considered the consequences of any listing for individuals caught up in the banning of an organisation and the principles of natural justice that underpin any review mechanism.

The Committee decided that it would conduct a review on both the process and the merits of a listing.

The review would be conducted as much as possible within the framework of normal parliamentary committee processes, while noting that some evidence may be classified and would need to be dealt with accordingly. Listings will be advertised, submissions received and, where appropriate, hearings held. The Committee has asked the Government to provide a comprehensive set of information on both the arguments for the specific listing and the procedures used to make the regulation as soon as possible. As the Committee notes in its report:

Given the severity of the penalties and the principles of natural justice, it seems prudent for the Committee to adopt a course of action that is as rigorous as possible. The Committee's obligation to report to the Parliament prior to the end of the disallowance period offers the only opportunity for an accused entity to test, through an independent reviewer, the validity of the listing on both the procedures and the merits. Beyond this period there can only be reviews on the basis of process. Moreover, since the Parliament is able to disallow a regulation, the Parliament should have the clearest and most comprehensive information upon which to make any decision on the matter. Where classified material is involved, the Parliament will rely heavily on the judgement of the Committee.

This report is the first review under the Act. There appeared to be no doubt that the organisation under review, the Palestinian Islamic Jihad, had committed numerous and deadly acts against civilians and fitted the definition of a terrorist organisation under the Act.

However, the Committee wished to make a number of comments on the listing.

The Committee noted that there was no connection between this organisation and Australia—no membership, no funding. While the Act does not specify that there should be an Australian linkage, it is the Committee's view that, in making a selection among the numerous organisations world wide that would fit the definition of a terrorist organisation, the Government should give weight to such a connection. The Minister has recognised that it is within his discretion to do so and has suggested that it is an important factor in his thinking.

In selecting an organisation for listing, a second factor that the Committee believes is important is whether the activities of the organisation extend beyond the particular dispute in which it is engaged, whether it constitutes an armed struggled based on local grievances and whether the solution to the underlying problem is best found in peace processes, rather an intervention on what might be perceived as one side of the dispute. The Committee would urge the Government to consider such factors in any future selections. In this respect, the Committee believes that consultation with the Department of Foreign Affairs should be an important part of the process.

On process, the Committee would like to see more comprehensive information presented to it on the procedures used by the agency and the department in the making of the regulation—the level, timing and nature of the consultations. This information should be presented to the Committee in the most timely fashion possible.

Given the serious consequences attached to listing, it should not be taken lightly. We should not waste the capital of anti-terrorist legislation.

I commend the report to the Senate.

Question agreed to.