ICJ inquiry on implications of anti-terrorism measures
Tuesday, 02 May 2006
 
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 was prepared by Agnes Chong and Vicki Sentas, and made the following key observations:


  • Anti-terror legislation in Australia contributes to the normalization of Islamaphobia


Antiterror 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.


  • The discretionary use of legislation in targeting so called Muslim ‘extremism' licenses the overpolicing of Muslim people


Terrorism offences:

‘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.


Financing offences:

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 offences:

The 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.


The 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.


The 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.


Punishments 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.


Control Orders and Preventative Detention:

The 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.


Sedition offences:

Sedition 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.


ASIO Powers:

Anecdotally, 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:

The 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 a person ‘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 individuals.


AMCRAN 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 discrimination.


The 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 here.