Alan Ferguson (SA, Liberal Party) Share this | Link to this | Hansard source

On behalf of the Parliamentary Joint Committee on Intelligence and Security, I present the report of the committee on its review of the relisting of al-Qaeda and Jemaah Islamiah as terrorist organisations and seek leave to move a motion in relation to the report.

Leave granted.

I move:

That the Senate take note of the report.

I present the report of the Joint Parliamentary Committee on Intelligence and Security on the relisting of al-Qaeda and Jemaah Islamiah as terrorist organisations. In a letter to the committee on 10 August 2006, the Attorney-General advised that he intended to relist both organisations prior to the lapsing of their current listing, as provided for in section 102.1(3) of the Criminal Code. The Attorney-General provided statements of reasons for both organisations, outlining his reasons for the relistings. Given the well-known position of these organisations, the committee decided against holding hearings and reviewed these decisions on the basis of the papers—that is, submissions from ASIO in the form of the statement of reasons and a procedural submission from the Attorney-General’s Department. In addition, the committee made extensive use of the open source material available on both organisations.

This review has raised a procedural question about the type of information presented by the Attorney-General in arguing for the continuation of a listing. It is the committee’s view that, on a relisting, it would be preferable to see arguments about the activities of the organisation in the period since the last consideration. Background information about the history of the terrorist activities of an organisation is useful, but the committee believes that the arguments for a relisting should concentrate on recent activities and information about what has changed since the last review, whether that be an increase or a decrease in terrorist activity. Over time information becomes stale. The relisting of an organisation is a fresh exercise of executive discretion, and the committee believes that there must, therefore, be a sufficient degree of currency in the evidence to warrant the use of the power.

In this report, the committee also wishes to reiterate two issues raised in previous reviews. The first relates to the manner in which information is provided in the statement of reasons. The legal test for the listing of an organisation is set out in the Criminal Code. The Attorney-General must be satisfied on reasonable grounds that the organisation is directly or indirectly engaged in preparing, planning, assisting in or fostering the doing of a terrorist act, whether or not the terrorist act has occurred or will occur. The committee noted in previous reviews the breadth of this definition and sought advice from ASIO as to why some organisations which fitted the definition have not been proscribed while others have. ASIO’s response was to provide the committee with a set of criteria which it used to determine which entities it sought to proscribe. These criteria are provided in the report.

The committee has found the criteria useful as a means of assessing the arguments provided by the government in each statement of reasons and, in previous reports, the committee has asked the government to address these criteria in future statements of reasons. This has not occurred to date. The request is repeated in this report. It is the committee’s view that a clearer exposition of the criteria would strengthen the government’s arguments, provide greater clarity and consistency in the evidence and therefore increase public confidence in the regime as a whole. It would greatly facilitate the committee’s review process if this change occurred.

The question of community information regarding these regulations also remains a difficulty. On these current regulations there was no attempt to inform the community beyond the Attorney-General’s press release. Perhaps, on organisations with the profile of these two organisations, this is not nearly as important as it might be in other cases.

On the substantive question of the threat posed by the organisations themselves, the committee has sought to consider each against ASIO’s criteria. It is notable that not all categories in the criteria are covered in the statement of reasons. In this review, the committee has sought to understand the current circumstances of each organisation. In each case, there are complex forces at work. Each organisation has been under considerable pressure and yet structural decline has not led to a lessening of the threat. However, it is unclear whether the threat comes directly from the organisation as such or from some wider and widening response to the war on terrorism.

The committee notes that all sources describe al-Qaeda as an organisation that is damaged and fragmented by the pressure that has been brought to bear on it since September 2001. Its capacity is now aspirational and ideological rather than material or advisory. However, all also argue that the influence of the organisation and its capacity to inspire jihadist activity have grown as a result of actions in the war on terrorism, particularly the war in Iraq. In particular, the Attorney-General’s statement of reasons quotes bin Laden who, in advocating terrorism, says that the bombings in Europe are revenge for invasion and occupation of Muslim lands. It is this capacity of al-Qaeda to inspire disconnected groups which remains a concern.

On Jemaah Islamiah, the picture is also a complex one. The International Crisis Group notes that, while there is an intersection and overlapping of personal networks, there are divisions over tactics among terrorist groups in Indonesia and that individuals often operate on their own. The International Crisis Group argues that there are numerous indications, including insufficient funds coming from outside, that the capacity of Noordin’s group, who were responsible for the latest bombings in Indonesia, remains limited, although ‘the troubling thing is that there seems to be no shortage of recruits’.

Jane’s, the intelligence analysts, judgement of JI confirms this view of the International Crisis Group. They note that perceptions of the threat posed by the group vary widely. However, they assess that JI’s role in regional violence ‘is almost certainly exaggerated’. They note that the group ‘rarely conducts any operations’ and that recent activities have not caused the level of damage their perpetrators may have expected. In Jane’s view:

JI appears to have shifted from the material to the ethereal—

and that—

... JI’s operational inertia in a target rich country, where it enjoys at least some material and considerable tacit support, remains a mystery.

The Australian Strategic Policy Group note that JI was never as structured and homogenous a group as some commentators have made out. Nevertheless, the committee notes that although there have been only two terrorist attacks attributed to JI or its affiliates in the period under review—the attack on the Australian Embassy in 2004 and at Bali in 2005—it accepts these attacks as clear cases of terrorism, bringing JI within the scope of the Criminal Code for prescription purposes. The committee does not recommend disallowance of the regulations relating to either al-Qaeda or Jemaah Islamiah. I commend the report to the Senate.

Robert Ray (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Not only do I not support the disallowance of these particular regulations; I believe the government is absolutely right to have these two organisations relisted. That is not to say that I do not have some concerns about the direction that the world is taking in handling terrorism—and I fully concede that some of my remarks are made totally with the benefit of hindsight.

I was a little disappointed at question time today that Senator Coonan did not address one part of Senator Faulkner’s question, and I now think it is a necessity for the government to make a full parliamentary statement analysing or giving us the benefit of their analysis of the current situation in Iraq and the way forward. We had statements before we intervened in Iraq, and I think it is now time the government shared with the Australian people and the parliament where its vision is for the future of Iraq, given all the question marks over it, be they from former General Cosgrove, the new head of the British army and General Abizaid from the US, et cetera.

But I am particularly concerned about the recently published national intelligence estimate from the United States. Originally this was leaked to the New York Times, and I abhor that sort of breach of security—the fact that it was leaked. I think that was most unfortunate. But, now that it is in the public domain, this is the work of 16 security agencies in the United States and this report has been signed off by intelligence tsar John Negroponte, so it does carry a fair bit of heft and validity. Basically, the thrust of this report is that Islamic radicalisation, rather than being in retreat, has spread across the globe. One of the quotes is:

... the Iraq war has made the overall terrorism problem worse ...

Of course, the credibility of the national intelligence estimate was pretty high in 2002. A lot of politicians, at the time of intervention in Iraq, were very, very keen to quote from it. But I did notice, and I was very disappointed to read, the Prime Minister’s response to this particular report. He is quoted in the Age, on page 12, on 28 September. Having said some things on it, he went on to say:

Some of the intelligence agencies that were involved in this assessment were telling us … that Iraq in 2003 had weapons of mass destruction ...

In other words, this latest national intelligence estimate can be dismissed because some of the agencies contributing to this one apparently got it wrong in a previous one. I think that is a totally political response. I really do think that is just a political response and it required a better response from this particular government.

This particular form of assessment was also there in 2002. I do not want the Prime Minister to dismiss the 2002 one without some intellectual application to it because, when you go back and look at the declassified report as released in October 2002 and then compare it with a much more classified version, released later, in July 2003, you will find substantial differences. No-one has yet answered why those substantial differences occurred. In the 2002 report, all qualifications are removed. All doubts are erased. But, in the actual report, they continue to exist. We were not fully informed in October 2002 of the real situation. Let me quote some examples that were deleted from the 2002 report. It said, for example:

We lack specific information on many key aspects of Iraq’s WMD program ...

That was missing from the 2002 declassified report but existed in the classified report. Here is another example: ‘although we have little specific information on Iraq’s CW stockpile’. That did not appear in the declassified version but was in the classified version. Every qualifier, every doubt, was erased. It became a political document, not an intelligence document.

The issues of UAVs and the threat that these could be used to convey chemical or biological warfare came up. Yet, in the classified version, the Air Force dismissed that, saying: ‘They don’t have enough UAVs; they don’t have the weaponisation capability. You don’t have to be concerned about it.’ But, if you just read the declassified version, everyone is under threat from the UAVs.

Of course, the other well-publicised area is that of uranium out of Africa, out of Niger. The declassified report indicated that Iraq had been trying to source uranium supplies from Niger. The classified report describes that as ‘highly dubious’. They knew that they had sent Ambassador Wilson to Niger. They knew that he had investigated and found no credibility in that.

What I am saying is that the national intelligence estimate has far more credibility than the declassified version of 2002 would indicate. Once we read the classified version, which was released later, we find all sorts of qualifiers in there. And no-one has yet explained why they were omitted from the declassified report. One can only presume that that was done for political reasons—and not necessarily at the direction of their political masters; I do not allege that. Rather, they were just trying to please. One of the problems we have in the modern day is politicians quoting from intelligence agencies to back up their political point. In the old days, this was never done. People instead said, ‘I will neither confirm nor deny.’ But it is convenient these days to buttress your political arguments by using an intelligence agency as a source.

Go back to the 2001 election, when the Prime Minister went to the National Press Club and quoted from an ONA report to back up his views on children being thrown overboard. We only found out after the election that ONA had based all its intelligence on the basis of ministerial press releases. Talk about a dog chasing its tail. Ministers put out false information—I do not say that they did so knowingly—on kids being thrown overboard. ONA, to impress their political masters, put that in an intelligence report. Then the Prime Minister read the intelligence report and said: ‘Ah! I’ve got independent verification.’ He then went to the National Press Club and used that to justify his actions. Then, lo and behold, the week after the election, the director of ONA started to admit the truth and told everyone that that report was just based on ministerial press releases.

I am disappointed with Prime Minister John Howard dismissing this latest national intelligence estimate as a flawed work from agencies that got it wrong previously. Let us have a debate on how flawed this information is. I am speaking with the power of hindsight here. Very few of us foresaw what the future of Iraq would be after intervention. None of us every conceived that the de facto civil war that exists there at the moment would have transpired or come into being.

We do not know where we are. We hear the trite sayings. ‘Don’t cut and run,’ is the latest political spin. What does that mean? Does that mean that we stay in Iraq forever and that anyone who suggests that we have a full debate about it and a full analysis of what is happening there is some sort of political coward who will not stick it out? That is much too trite a response in my view. I am not advocating an immediate military withdrawal from Iraq by anyone, but it has to be considered. In the terms of the British head of army, if it is exacerbating the problem—if it is going to result in absolutely no chance of a solution—then we have to start publicly discussing what the solutions are and how we can resolve it.

Dismissing a credible intelligence report from our closest ally based on the work of 16 agencies in the intelligence arm is not the way to go about it—unless you are only trying to protect yourself politically, and that is exactly what this exercise is on behalf of the Prime Minister. He cannot contemplate the fact that intervening in Iraq may have made Australia more vulnerable to terrorist attack. That is not politically acceptable. But if you do not face the facts—if you do not analyse the facts—you make it harder to protect your country. Here, the national good should prevail over the political good. We should have a full and frank discussion in this parliament as to the future of Iraq and our role in it.

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

As I repeatedly say whenever reports from the Parliamentary Joint Committee on Intelligence and Security are tabled, I am not a member of the committee and neither is anyone else on the crossbench. I have only had the benefit of reading the report just now. I recommend that anybody who wrestles with the dilemmas that terrorism and how to respond to it present read the report and the speeches that have just been given. Even from what I have just read, there are important aspects within the report as well. The report also deals with some wider issues that relate to this whole process that we need to try and wrestle with in as serious and a sober way as possible.

It certainly appears to me from the outside that the members of the committee take their job seriously. In a political environment, it would not be surprising for a political committee—if the Attorney-General wanted to relist al-Qaeda and Jemaah Islamiah as terrorist organisations—to say: ‘We don’t even need to think about that; of course we do. Let’s send out a press release trumpeting how we are tough on terror by agreeing to it.’ But the committee has taken its job seriously in looking at those requests for listing organisations at face value and taking the opportunity to properly review all of the available and fresh information there is about those two organisations and about the broader process that this listing of organisations represents.

The Democrats are on the record a number of times as having concerns with the whole construction of and framework around the process of listing organisations in the Crimes Act and whether this is the best way of dealing with what we all acknowledge is a genuine threat of violence against Australians and others. In this sort of debate in a politicised context, making statements such as that is prone to leaving you open to being slagged off and smeared by cheap-shot tabloid merchants and a few other people who engage in such tactics. On the government side, Minister Downer springs to mind in particular as one who is always ready to jump forward and slur anybody who raises a question about whether we are following the right path in how we deal with terror. It is good to have members on this very important committee who do not take that approach.

I need to emphasise, as I do each time, that this committee only involves people from the major parties—people from the government party and the party of the alternative government. That means that there is a restriction on the range of views that are present on the committee. For this committee more than any other, that presents a problem because this committee gets access to information that none of the rest of us in this parliament, let alone in the wider community, get access to. That presents a problem. It is a requirement of the law, so it is not much that this chamber can do anything about in this context. But it is something worth raising each time.

It does concern me to hear Senator Ferguson say—and the report confirms—that, in order to enable it to make greater sense of the government’s decision-making process, the committee has repeatedly requested that the government address the listing criteria of ASIO in the statements of reasons they put forward for listing or relisting organisations. The committee has done that in May 2005, in September 2005 and again in this report of October 2006.

According to the report, the government has not responded formally to these recommendations. That is a concern to me and, frankly, it is not good enough. When a committee is clearly engaging in its tasks in a very responsible and considered manner by seeking to have a quite reasonable request for the government to provide and address the criteria for listing in its statements of reasons, for the government to continue to refuse to do that is a sign of a government that is not taking its own responsibilities seriously enough. Having heard Senator Ray’s outline of intelligence agencies and the way intelligence reports and declassified intelligence reports have been used by members of this government, it does not give me great confidence that even this committee is being provided with the full range of information that it requires to make full consideration.

It is an important reminder to all of us engaging in these debates that these are difficult areas. I think it is important for people who would be described as being on the left or the right of the political spectrum—however inadequate those descriptions are—to try to engage in debate in these issues on the basis of facts, substance and reality and to try to examine the best way forward from here. That is something we and the public debate would benefit from significantly. Part of the reason I emphasise that is because of evidence given in the report itself. To give an example, I quote paragraph 2.17, regarding al-Qaeda:

While much of the literature on Al-Qa’ida questioned the solidity of the organisation since the pressure brought to bear on it by the invasion of Afghanistan, all agreed, however, that its value as an ideological inspiration remained strong.

Trying to combat an organisation whose main strength is as an ideological inspiration is very different from combating an organisation whose main strength is to set off bombs around the joint. We need to take that into account more in considering how best to deal with these challenges. It is as much a matter of hearts and minds.

The statement was made, I think by Senator Ferguson, that the committee found that, whilst Jemaah Islamiah is perhaps not as effective in setting off bombs around the joint as people thought it might be and perhaps does not have the resources that people thought it might have, it apparently and unfortunately seems to have few problems in finding recruits. Why is that? Whatever we do with the crimes legislation in Australia or elsewhere, I am not sure that we can address those sorts of things primarily through organisational listings, through the Crimes Act or through anything else. It is a hearts and minds issue and that is where we need to direct more of our attention.

In mentioning al-Qaeda, the committee said that if the role of that organisation:

... is largely one of propaganda, it would seem to the Committee that to ascribe more success to it than it warrants would be dangerous and self-defeating.

In other words, continually trumpeting al-Qaeda as the big global bogeyman when the evidence suggests it is much more enfeebled than is often portrayed is not helpful; it is actually counterproductive to our own interests to blow up these organisations as being much stronger and more effective than they really are. The report quotes from the assessment of the Jane’s Terrorism and Insurgency Centre:

Much of the action against Islamic terrorism has led to more rather than less violence. Intelligence has often been poor, contaminated or obtained under duress, most notably from Abu Ghraib prison in Baghdad and the US base in Guantanamo Bay. Media reports that the US interrogators had desecrated the Koran, though later withdrawn, can be assumed to have compounded the damage already caused by either poorly designed procedures or badly trained personnel.

The concern, and the reason I emphasise those points, is again to say that the Democrats believe that we need to be putting more attention on the impact of our own behaviour, our own failings and, more significantly, the failings of our key ally—a nation that certainly for the last few years we have basically been handcuffed to with regard to how they are operating on some of these issues.

The failings that are identified in Abu Ghraib and Guantanamo Bay in poor training or bad procedures, let alone some of the more egregious allegations that have been raised, do far more damage than any benefit that can come about via mechanisms such as listing organisations through our Crimes Act. The real attention and action should be on our failure to show that we take seriously the issues concerning the sorts of failures that Senator Ray outlined in his speech, which I think are of serious concern. The matters being considered by the committee with respect to listing organisations are important, but it certainly seems to me from information provided to the committee, which is portrayed in its report, that a lot of the action, contest and focus actually needs to be elsewhere because that is where some of the failings are. I seek leave to continue my remarks later.

Leave granted; debate adjourned.