Director-General's Address
LawAsia Conference 2005
Gold Coast
Wednesday 23 March 2005
Introduction
In this address I want to make some comments about:
the legislative response to terrorism;
intelligence and law enforcement; and
some of the broader challenges in combating terrorism.
I am happy to take any questions following my address.
Terrorism and the Legislative Response
From where I sit, what stands out over the past decade and more, has been the reluctance of countries to introduce laws specifically targeting terrorism
except where directly challenged, such as in the UK with the IRA, in Spain with ETA, and in Sri Lanka with the LTTE.
Whatever the debate about the appropriateness of today's response, what is clear is that the world community did not fully grasp the emergence of Usama bin Laden and al Qai'da during the 1990s.
We saw the World Trade Centre bombing in 1993;
We witnessed the Manila Air conspiracy in the mid 1990s, involving a plan to blow up a dozen or so airliners flying between Asia and the United States;
We read bin Laden's fatwa in February 1998, in which he proclaimed that innocent civilians were legitimate terrorist targets;
We saw the attacks in East Africa in mid-1998 in which, overwhelmingly, innocent Kenyans and Tanzanians were the victims;
We read about the arrest of a terrorist on the Canadian - United States border in December 1999, who intended to attack the Los Angeles International Airport;
We saw the attack on the USS Cole in late 2000; and
We read about the foiled plans by terrorists to attack targets during the Millennium celebrations in Jordan and elsewhere.
Throughout all of this, from 1996 on, bin Laden and al Qai'da had a safe haven in Afghanistan. Their camps provided training to people from around the world, including from Australia. And, apart from a few missiles following the East African bombings in 1998, the training largely went unhindered and unchallenged.
By any yardstick, the response of the United States and the world community to what was happening during the 1990s was exceedingly measured and restrained.
September 11 changed all that for many countries, including Australia. For others, it did not. For instance, Indonesia did not introduce specific terrorism laws until after the attack in Bali on 12 October 2002.
The point being that, by and large, countries have pursued legislative measures only after specific threats and attacks.
Far from being too quick to act, we have often been too slow, and counter-terrorism is not a game in which it pays to only act when you can see the whites of eyes.
In many countries, care has been taken to seek to ensure that legislative responses have been proportionate and balanced, whatever controversies might surround some specific legislation.
Australia is one example. In March 2002, six separate terrorism Bills were introduced into the Federal Parliament. Five of those Bills passed speedily through the Parliament and were given Royal Assent in July 2002.
The sixth and most controversial of the Bills concerned ASIO's questioning and detention powers. That Bill was given Royal Assent on 22 July 2003, exactly one year and 17 days after the other terrorism legislation. It was passed by the Parliament following three separate Parliamentary Committee inquiries and significant compromises to accommodate the understandable differences of views across the political spectrum. And, like the ASIO Act of 1979, and all subsequent amendments to it, the questioning and detention powers were eventually passed by the Parliament with bi-partisan support.
The questioning power has been utilised, the detention power has not. Subject to a three-year sunset clause, the legislation is about to be reviewed again by a Parliamentary Committee.
Australia's terrorism laws have been a response to real threats and to real attacks. Bin Laden first 'legitimised' Australia as a specific terrorist target in a statement on 3 November 2001. Since then, we have been specifically mentioned on numerous occasions by bin Laden, his deputy, al Zawahiri, and the terrorist leader in Iraq, al Zarqawi.
And the threats have been given substance by at least one aborted, disrupted or actual attack in Australia or against our interests overseas in each of the five years between 2000 and 2004 inclusive. So our terrorism laws do not exist in a vacuum, as much as it might appear that way in as lovely a part of the world as the Gold Coast.
Properly considered, balanced tough laws are an essential component in the fight against terrorism. The notion that such laws constitute a victory for terrorists is a nonsense.
their victory lies in the death of innocent civilians, ours lies in its lawful prevention.
We should also keep an open mind about the need to further develop and make changes to terrorism laws, as new issues or challenges are identified, such as the recent legislation here in Australia seeking to provide better protection in criminal proceedings for classified and security sensitive information.
Intelligence and Law Enforcement
To successfully combat terrorism with global reach, we strive for integrated strategies encompassing:
respect, compassion and understanding of religious and other differences;
diplomacy;
legislation;
law enforcement;
selective military action; and
intelligence.
A key objective in counter-terrorism is to lawfully prevent attacks, and to ultimately defeat or neutralise those who seek to kill innocent civilians as an expressions of their world view.
The application of black letter law through the arrest, charging and sentencing of those involved in terrorism is a very important means through which we seek to prevent attacks, and ultimately defeat our protagonists. The Indonesian and Australian Federal Police investigation following Bali is an outstanding example of the value of this approach. However, an arrest is not an end in itself. Rather, it is one of several options to be considered in any given situation.
Probably less than ten percent of people in Australia who have, or have had, a substantive involvement with al Qai'da, Jemaah Islamiah and other like-minded groups, will ever face a court of law. I suspect it would be a similar story in most other countries. In many cases, the capacity to obtain evidence sufficient to meet proper legal standards is beyond reach.
The great majority of people in Australia who are assessed to have trained with al Qai'da and associated groups remain free in the community because, amongst other reasons, the relevant laws did not come into force until July 2002.
But the community has an understandable expectation that the Government will lawfully protect it from the potential threat posed by those substantially involved with al Qai'da and other terrorist groups, and from those who have undertaken terrorist training. Equally, it is important that any action taken against such people - monitoring or otherwise - is within a proper legal framework.
Through the ASIO Act, the Australian Parliament has recognised that it is possible for someone to pose a threat to security without necessarily being in breach of the law.
As we all know, the application of something called common sense can lead you to draw a reasonable conclusion that something which sounds, walks and looks like one is, in fact, one. Such a conclusion is insufficient, and properly so, in a Court of Law. But in the event of that thing taking action consistent with the way it sounded, walked and looked, very proper questions arise about why it was not stopped.
So it is with those who have a substantial involvement with terrorist groups and/or have undertaken terrorist training. In the event of any such people being involved in an act of terrorism, either in Australia or overseas, the community, the media, the Parliament and the Government, would want to know the full extent of action undertaken and why it failed.
It is against this background that it is essential there be a seamlessness in our intelligence and law enforcement counter-terrorism efforts. Different countries manage this in different ways. Here in Australia we follow the British model of separating the powers of a security intelligence agency from the power to charge and arrest embedded in law enforcement. So far, our model has worked well in our environment, and has shown a capacity to adjust to new challenges.
Some Broader Challenges
When those known to be involved in terrorism are taken into custody, is the community best served by an immediate application of law enforcement processes, or is it best served through seeking to obtain, through lawful means, information concerning current plans and intentions, and the location of others involved in terrorism?
When Khalid Shaikh Mohammed, the principal planner behind 9/11, was captured in Pakistan in early 2003, would our common interests have been served by his immediate arrest and charging with terrorism offences. I think not, even though it may raise questions down the track in the context of any legal action. An important bottom line is that any action taken against a Khalid Shaikh Mohammed, or whoever, should be within a proper legal framework.
One of the ironies since September 11 is that liberal democracies are more dependent than is often understood on a range of other countries taking action under laws which they, the liberal democracies, would have difficulty in enacting and which, in different circumstances, they might criticise.
the Internal Security Acts in Singapore and Malaysia are a case in point.
Would regional security interests have been best served by Hambali, Jemaah Islamiyah's chief of operations, being taken into custody in Australia rather than in Thailand? An interesting question.
Should a country like Australia be prepared to change its laws to accommodate the challenge of a Hambali, with all the attendant risks in the abuse of such powers, or should it place a premium on its own sense of purity and hope that the Hambalis of this world are captured elsewhere?
In making these observations I am not seeking to make judgements, as I understand the dilemmas and do not have a solution for them, but make the observations to highlight the fundamental nature of the challenge of terrorism when it is up close.
Perhaps those concerned that some terrorism laws go too far in the compromise of individual rights, should have more confidence in the capacity of our own democratic system, with its proper separation of powers, to ensure that any legislative excess, however unintended, can, and will, be corrected. Certainly, the European Court of Human Rights has been required to address some very difficult matters of proportion and balance arising from some of the more complex terrorism cases in the United Kingdom, Ireland and Spain.
My final observation concerns the nature of the challenge itself. For so many of the countries represented at this conference, it is essential to come to terms with the fact that we are a target, not so much because of our own sins, but because we stand in the way of al Qai'da and like-minded groups such as Jemaah Islamiyah being able to give substance to their own world view. We either represent countries not governed under laws consistent with their militant interpretation of the Koran or we are non-believers. Too often, the starting point of some analysts and commentators is a hair shirt, which would have us believe that if only we could be perfect, so would everyone else. If only it were that simple.