Duncan Kerr (Denison, Australian Labor Party) Share this | Link to this | Hansard source

In late April federal parliament’s Joint Committee on Intelligence and Security, formerly known as the Joint Committee on ASIO, ASIS and DSD, tabled a report that has far-reaching significance and implications for the civil rights of thousands of Australians. The report was a review of the government’s December 2005 decision to list the Kurdistan Workers Party, the PKK, as a terrorist organisation. The Criminal Code Act 1995 makes membership or support of any organisation listed as such a criminal offence and imposes severe penalties.

The majority of the committee members supported the listing of the PKK as a proscribed organisation, though its concern in relation to this matter is reflected in its further recommendations that the government keep the matter under review and that the government consider the number of Australians who support the PKK’s broad aims without endorsing any terrorist activity and whether it might be sufficient to ban only the PKK’s military wing, the Kurdistan Freedom Brigade. It also asked the government to take into account the fluid moves towards ceasefires between the PKK and the government of Turkey.

There are about 5,000 Australians of Kurdish origin. Notwithstanding the committee’s careful qualifications, the ban on the PKK potentially exposes many of those thousands of Kurdish background to imprisonment because belonging to the PKK now carries with it a 10-year jail term. Just associating with the PKK in terms defined by the code carries a three-year jail term. Many of those affected could be people who have lived perfectly ordinary lives in Australia and who have had nothing to do with terrorism but who identify the PKK as their party, in the sense that they support it as a legitimate national liberation movement fighting for the freedom of the Kurdish people.

The joint committee does not normally divide on partisan lines. In the past, the committee has been able to reach unanimous opinions. But in this case that was not possible. As a result I joined in a minority report with Senator Faulkner, which recommends that the government reassess this listing.

Australia lists 19 organisations under the code, including the PKK. But in no other case has there been reason to believe that the banning of an organisation could catch a large number of Australians or infringe their civil rights. The organisations that have been banned have been terrorist groups pure and simple, such as al-Qaeda, or the military—that this, the ‘terrorist’—wings of larger organisations such as Hamas and Hezbollah.

In evidence the Attorney-General’s Department agreed that it was relevant for the committee to consider the practical impact of imposing severe criminal penalties on large numbers of Australian residents who support what they see as a national liberation struggle. In the past Australians have seen themselves free to support such national liberation struggles in the case of South Africa. And I note more recently some support for the Karen people fighting against the regime in Burma. But in this instance no government agency could give the committee any information about the number of people who might be caught who support the PKK. There was no evidence at all that a ban on the PKK would directly benefit Australia’s national security. There was no evidence of any terrorist activity by the PKK or members of the Kurdish community in Australia.

This country already has strong laws that criminalise conduct involving terrorism. For example, sending money out of Australia to aid the PKK would already be prohibited, just as it is already an offence for an Australian to serve an organisation that seeks to overthrow a foreign government by force. The PKK has not targeted Australians overseas. This is not to suggest that Australians visiting Turkey could not become victims of the conflict, but that risk is similar to that which might face a tourist in many other troubled regions of the world where governments face armed opposition groups.

The joint committee had previously adopted criteria submitted by ASIO to guide decisions regarding the proposed listing of terrorist organisations. The criteria were designed to justify discrimination between organisations that have resorted to the use of political violence and that should be listed as terrorist organisations and those—the larger majority—that should not be. The Australian parliament relies on the joint committee to ensure that the quite extraordinary legal step of making it a crime to support or belong to an organisation is not taken inappropriately. The joint committee has published in its reports the criteria suggested to it by ASIO. It has adopted those criteria. There has been no rationale put forward in this case to justify a departure from the policy that ASIO itself identified in earlier hearings. No member of the committee has asserted, and the government does not dispute, that the current listing does not meet those criteria.

The importance of this parliamentary oversight is magnified when one contrasts it with the legislation under the UK Terrorism Act 2000. There, where the Secretary of State declines to delist an organisation which has been proscribed, there is an opportunity for an appeal to the Proscribed Organisations Appeal Commission and for a further review of any decision of that body by a court of law in respect of mistakes of law. No such process applies in the Australian parliament and so the parliament depends on the review undertaken by its own parliamentary committee. In this regard, too, I am particularly concerned, given that when this legislation was introduced into the parliament the explanatory memorandum made it clear that the majority of organisations which resort to political violence would not be proscribed—it would be an exception rather than the rule and there had to be some link to Australia. It may well be that this is not only inappropriate in relation to its policy outcomes but also unlawful. That, however, will be determined if the matter is ultimately the subject of prosecution by a test case that emerges.

Sadly, the question that we now face is whether or not many persons of Kurdish background might find themselves the subject of such prosecution. Let me just identify the range of potential offences for people who support the aims of the PKK. Firstly, there are membership offences. Membership includes informal membership. That means that any person who is associated with the group in such a way that an outsider would see them as being a member may be caught up and seen to be part of that organisation. There is no doubt that many people in the Kurdish community go to community events where portraits of Ocalan, the leader of the PKK, appear and where the PKK flag is present.

Those who are organising those events may find themselves under suspicion of being members of the PKK, because informal membership is not a defined term; it is a question of fact. Thus, an Australian of Kurdish descent who behaves as if they are a member of the PKK may find themselves in that situation. It leaves a lot of grey. Those who are organising such events may be seen as de facto members. The only way that such people can remove themselves from that suspicion is if they take what are called ‘all reasonable steps’ to cease their membership. Because they bear the burden of proof, those steps would need to be pretty clear. It might require severing all links with particular friends or community groups that could be associated with the PKK.

Secondly, there are recruitment offences. If you bring people into the organisation there are even more draconian provisions—up to 25 years in prison. Fundraising is already a criminal offence in relation to sending money overseas, but under this particular provision it risks 15 years of imprisonment. Then there are the lesser association offences. To ‘associate’ simply means to meet or communicate with someone. To be subject to that criminal offence you need only meet or communicate two or more times. Thus, if someone from a Kurdish background talks to or meets with someone more than once whom they know to be a member, formal or informal, of the PKK, they may be at risk of three years imprisonment. To be fair, there are lots of exceptions. The offence defined excludes contacts for family or religious purposes and a number of other purposes and the person must intend their association with the PKK to give the organisation support, for example, to continue to exist. But mere attendance at a public celebratory event probably could meet that test.

I am concerned that this matter takes the proscription of organisations too far beyond the intention of the parliament, beyond the terms of the explanatory memorandum, and that enforcement of those laws could be far-reaching and disastrous, not just for peaceful individuals who could unwittingly be caught up in terrorism trials but more broadly for the relations between civic groups and government. (Time expired)

Debate (on motion by Mr Neville) adjourned.