The Islamic Council of Victoria (ICV) is an independent non-government organisation that is the peak representative body for the many Mosques and Islamic societies that comprise the Muslims of the State of Victoria.

Before addressing the provisions of the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002, we would like to make a number of preliminary comments.

At the outset, we reiterate our unequivocal condemnation for the murder of innocent people wherever it occurs and for whatever political end it seeks to serve. Such acts are repugnant to any notion of humanity, respect and tolerance; which are values common to all human beings regardless of their faith. Whilst the ICV supports all initiatives of law enforcement authorities to safeguard Australians from acts aimed at harming innocent people, we have grave reservations at the prospect of escalating the powers of any law enforcement authority at the cost of fundamental civil and political rights. In a broad sense, we believe that existing legislation is sufficient to empower our law enforcement authorities to combat any potential threat of terrorism. We believe it is unwise and imprudent to introduce laws that have the potential to undermine fundamental civil and political freedoms at a time when our nation is still grieving in the wake of the Bali tragedy.

Secondly, we welcome the opportunity for public participation and consultation in formulating these laws. Recent events have impacted the Australian Muslim community in a manner that is unprecedented in our history. Indeed, as you will have noted in submissions received by this Committee in the course of its examination of the Security Legislation Amendment (Terrorism) Bill 2002, the term ‘terrorism’ is not value-neutral. Ill-conceived and unsupported racial and religious stereotypes have reinforced an intractable link between the term ‘terrorist’ and people of Islamic faith. Any laws that would escalate the powers of law enforcement authorities would have a particular impact on the Muslim community.

Thirdly, we have faith in and are confident of, the ability of the Australian criminal justice system to not only combat the threat of terror, but to deal with suspects in an appropriate manner. Our criminal justice system has developed over many years and, in that regard, we believe that any measures to combat the threat of terrorism must not derogate from fundamental principles that are central to the administration of justice. In this respect, we would draw your attention to the following norms:

1. Everyone is to be presumed innocent until proven guilty.

2. All persons are equal before the law and are entitled without discrimination to equal protection under the law.

3. The right to silence and the right against self-incrimination.

4. Detention only for a reasonable time.

5. The right to seek bail.

6. The independence of the judiciary.

7. Any individual must be safeguarded from an abuse of power by an administrative or executive decision, and all individuals must have redress should such an abuse occur.

8. Any person arrested or detained on a criminal charge, or suspected to be involved in criminal activity, must have the right to legal representation and must have the merits of their arrest or detention heard before a Judge.

9. Any domestic legislation must be in strict accordance with our obligations under international law to uphold human rights and fundamental freedoms.

The matters listed above are fundamental to our democratic society and are therefore peremptory norms. The bill threatens to undermine these norms. No laws that derogate from these norms are justifiable. In the case of the anti-terrorism measures, and specifically, the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002, the existing criminal justice system is sufficient in dealing with the threat of terrorism. The Government has not provided an adequate case that new laws are necessary.

It is noted that part of the terms of reference to the Senate Inquiry are that the information gathering capability be vested in the Australian Federal Police (AFP) instead of ASIO. The reservations we note in this submission apply equally to AFP as they do to ASIO.

Finally, ICV would be happy to appear before the Senate Committee to clarify the matters raised in this submission.

ICV have grave concerns over the expansion of powers conferred upon an organisation such as ASIO. Matters that impact individual liberty and freedom are best dealt with in the transparent and accountable environment of our criminal justice system. The threshold concern is that an unaccountable and secretive organisation such as ASIO may be more likely to abuse such power. Whilst we recognise that Australia’s counter-terrorism capability needs to be enhanced, we ask that such enhancement does not come at the expense of liberty.

ICV believes that detention without charge is fundamentally wrong, and is therefore unjustifiable. The bill proposes that in certain circumstances an individual may be detained incommunicado for a period of up to 7 days. Under the current law, if a situation were to arise where an individual is suspected of involvement in terrorist activities, such an individual would be appropriately charged under the existing framework of criminal law and, given the gravity of the potential offence, a magistrate would most likely deny that individual bail. Therefore, the criminal law as it currently stands adequately addresses this problem. To place in the repository of one organisation (whether it be ASIO or the AFP) the power of detaining without criminal charge would be unwise as it is unnecessary and may well be open to abuse.

The detention of any person not suspected of a crime is unacceptable regardless of who carries out the detention (whether it is ASIO, the AFP, state police or otherwise).

There are inherent dangers in creating parallel processes in the criminal justice system. As noted above, individuals suspected of committing terrorist offences would be adequately dealt with under the existing criminal justice system in the same manner, for example, as a suspect is dealt with who is suspected of committing murder. Under the proposed measures unnecessary inconsistencies would be created in the administration of our laws. People suspected of involvement in terrorist offences should be afforded the same fundamental rights and protections as anyone alleged to have breached the criminal law.

It is indeed timely to remind the Committee that in other countries in our region, legislation (which provides for detention without trial) that was originally aimed at curtailing the communist uprising of the 1960s is applied today to jail human rights and political activists. The point is that history is testament to the fact that abuse of such power may be directed to situations that were never contemplated by the legislation. Notwithstanding the good intentions of our legislature, to place undue power on law enforcement authorities leaves the system open to potential abuse in the future.

As noted in the submissions to the Security Legislation Amendment (Terrorism) Bill 2002, the definition of terrorism is too broad and vague. It is capable of being interpreted in a context other than that for which it was clearly intended. The implication of this in the context of the present bill, is that law enforcement authorities can be issued warrants and question and hold detained persons on the basis of a power that is predicated on a term that in the first place is vague. ICV holds the view that any matter that impinges on individual freedom and liberty must be in the control/oversight of a judicial officer. It is unacceptable that the bill empowers designated officers with a discretion that affects matters dealing with the issue of warrants and detention of suspects- such matters should only ever be heard by a Judge.

In formulating these laws, we have concerns as to whether the power exercised by the law enforcement authority will be exercised differently when applied to a non-citizen e.g. an Australian Permanent Resident or an individual temporarily residing in Australia under a temporary protection visa or student visa. In other jurisdictions such as the U.S.A and U.K we understand that anti-terrorism laws appear to discriminate against non-citizens of those countries. In the first instance, we have doubts about the constitutional validity of laws that have a different application to non-Australian citizens. However, we would hope that all laws to combat terrorism apply in a manner that does not derogate from the fundamental civil and political rights of individuals who are not Australian citizens but who reside in this country.

The right to silence and the right against self-incrimination are fundamental rights that are an inherent part of our system of justice. The erosion of such rights is a source of grave concern. It marks a dangerous step towards coercion and intimidation. The provision of 5 years imprisonment for refusing to answer is outrageous and a violation of the rights of free citizens in any democratic society.