George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Hansard source

Again, we discussed this last night. There are certain objective criteria about whether or not an organisation is a terrorist organisation that is declared under the Criminal Code. Basically, to put it as simply as I can, it has to engage in terrorist conduct. The advice to the Australian government from ASIO is that the PKK in some aspects of its operations does so. The fact that the PKK is an enemy of ISIL—which it is—and the fact that we and the PKK may be, to put it crudely, on the same side in fighting ISIL in the Middle East, as we are, is not a complete description of the PKK's activities.

As I said—I think last night—Senator Lambie, I think we should trust the judgement of the intelligence specialists in making these judgements. Let me repeat again the point I also made last night: that fighting in a foreign civil war—for example, a person engaged as an irregular with the PKK in the region known as Kurdistan, which the Kurdish people of course regard as a state—would be in breach of a provision which is now going to be section 35 of this bill but was originally introduced into Australian law in 1979 by an act called the Crimes (Foreign Incursions and Recruitment) Act.

Because of the very sorts of issues that you raise, Senator Lambie, a judgement was made to include in that legislation an unusual provision which says that no prosecution under this law can be made without the consent of the Attorney-General. So it is not merely the Commonwealth Director of Public Prosecutions who has to form a view about whether a prosecution should be brought because the elements of the offence are satisfied to the criminal standard, but also the Attorney-General, as the publicly answerable minister of government, who must also assume personal responsibility for allowing that prosecution to go ahead. In other words, the Attorney-General has a veto over whether that prosecution should proceed. Such provisions are not unique to our law, but they are very unusual, and their unusualness reflects the fact that there are the sorts of judgements that have to be made—moral judgements as well as legal judgements—in a case like the one you have drawn my attention to.