The International Commission of Jurists Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights was established to inquire into and report on the implications of anti-terrorism measures that have been introduced around the world since September 11, 2001. The Panel is visiting a range of countries and in March 2006 the Panel visited Australia and invited submissions.
AMCRAN was unable to attend its
hearings but we made a submission to the inquiry. The submission
prepared by Agnes Chong and Vicki Sentas, and made the following key
legislation enacted following 11 September 2001-whilst not
being the sole identifiable cause of social exclusion amongst the
Muslim community-has significantly contributed to fear and
alienation. This fear is translated for example in an unwillingness
of members of the Muslim community to help those within the community
who may be associated with terrorism, however vaguely.
‘Terrorist' offences are framed so that two
people committing identical activities may be charged differently,
depending solely upon motivation. This opens the possibility of
overpolicing particular communities where a particular proscribed
religious or political motivation is imputed.
The Suppression of Financing of Terrorism Act
contains particularly broad definitions of ‘terrorist act'
(s 100.1) and ‘terrorist organization' (s 102.1).
Terrorist organizations are treated as monolithic entities despite
the fact that some limbs may perform charitable activities. For
example Hamas operates belligerent wings such as the Al-Qassam
Brigade, but also funds significant food, shelter and humanitarian
services for Palestinians. Muslim community members sending funds to
a Hamas-operated hospital may find themselves caught by the
legislation. The Anti-Terrorism Act (No 2) 2005 imports a
‘reckless' element into the funding offences, making it
possible for example that Muslim community members sending funds
after the 2004 tsunami in Indonesia may be caught under the
legislation if those charitable organizations later turn out to be
associated with the Free Aceh Movement (GAM).
Charter of the United Nations Act Financing
Charter of the United Nations Act 1945 has greatly contributed
to the criminalization of support for a diverse range of unique
liberation struggles such as Palestine and Sri Lanka. The effect of
that Act is to make it an offence punishable by up to 5 years to deal
with the assets of an organization listed on the UN Consolidated
list-at the time of writing [in 2006], 1,617 organizations and
individuals were on the list.
Criminal Code also allows for the proscription of
organizations and prescribes penalties for dealing with those
organizations in particular ways-at the time of writing, all 19
listed organizations were Muslim organizations.
Antiterrorism Act (No 2) 2005 expanded the bases upon which an
organization could be proscribed, where an organization ‘advocates'
terrorism. The definition makes no distinction between legitimate
liberation struggles and ‘terrorism.' The
expansion of grounds will have a particular effect on Muslim
community groups who may wish to express solidarity with Muslims who
live under oppressive regimes.
for directing, financing, membership and even association are very
severe, ranging from 3 years to life imprisonment.
One of the main effects of
proscription is that it will create two further
levels of isolation: it will
create isolation between the Muslim community and the
wider Australian community, since
non-Muslim Australians will fear, rationally or
irrationally, that they may be
talking to a member of a terrorist organisation and will
thus shun Muslims, and likewise
within the Muslim community, it will lead to people
not wanting to talk to one
another, again, for fear of falling foul of this legislation.
Orders and Preventative Detention:
Antiterrorism Act (No 2) 2005 sets up a control order and
preventative detention regime. Orders for preventative detention may
be issued by a senior police officer in relation to an anticipated
event or information possessed by an individual-the regime
bypasses the fair trial safeguards required under criminal law for
detention. In the event of a terrorist attack, preventative detention
provisions may be mobilized to capture hundreds of Muslim citizens on
the basis of anticipated information.
offences have a significant impact on the ability of the Muslim
community as well as the general community to express its views. The
current climate of institutionalised Islamophobia, may lead to the
criminalisation of statements made by Muslims as ‘incitement'
where there may otherwise be no evidence of violent acts.
AMCRAN had heard of incidents of Muslim families being threatened
with an ASIO detention warrant under s 34JBA of the ASIO Act in
order to secure cooperation.
General Police Powers and
Overpolicing of the Muslim community:
Soon after the Prime Minister's
initial media release relating to the proposals now contained
in the Anti- Terrorism Act (No. 2) 2005, the Police Federation
of Australia openly stated that these
proposals will inevitably lead to racial profiling with respect to the Muslim community.
Naturally, legislation that has the effect of targeting one particular racial or religious
group in this way is a matter of grave concern.
Police stop and search powers:
Criminal Code 1914 (Cth) as amended by the Antiterrorism
Act (No 2) 2005 grants police powers to stop and search
individuals. Police would also
be offered very broad discretion in that, pursuant to Section 3UB(a)
of the Anti-Terrorism
Act (No.2) 2005 they need only suspect on reasonable grounds that
‘might have just committed, be committing or be about to
commit such an act."
AMCRAN expressed concern that these powers may be used for collateral
purposes that are not aimed at apprehending criminal offenders, for
example to gather intelligence or for harassment or targeting of
concluded the submission by noting that over-policing along racial or
religious lines that is facilitated by Australia's antiterror
legislation amounts to officially sanctioned racial and religious
International Commission of Jurists Eminent Jurists panel continues
to receive reports and conduct hearings on counter terrorist laws
worldwide. A report on the Australian hearing of 2006 is available