Making it happen - Secretary's speech to Queensland Regional Heads Forum - 17 May 2007
NATIONAL SECURITY POLICY – KEEPING AUSTRALIA SAFE
17 May 2007
INTRODUCTION
It is a pleasure for me to open this Queensland Regional Heads Forum for 2007.
The theme of this conference is making it happen.
I can’t think of any area of government administration over the last five and a half years where the Public Service has had to make things happen more – and in a hurry - than in the area of national security.
Today I want to share with you my perspective on how we have been keeping Australia safe since 11 September 2001, with a particular emphasis on our anti-terrorism laws.
SEPTEMBER 11
Given the significance of the events of that one day, I will start with my recollections of Australia’s immediate reaction to the terrorist attacks in New York and Washington.
Ed Tyrie rang me just after midnight on the morning of September 12. When you get a call from the director of the Protective Security Coordination Centre in the middle of the night, you know it is not a social call.
I had the TV on, so I had seen the planes crash into the World Trade Centre towers.
Like just about everyone else at the time, I was stunned - trying to comprehend what had happened, its motivation and consequences.
But in the midst of such an enormous human tragedy, Ed knew exactly what to do.
He called an immediate meeting of the counter terrorism committee, bringing all of the 13 agencies directly involved in national security to the PSCC Watch Office at half past one.
Implementation of the National Counter Terrorism Strategy
The committee instantly put practical measures in place to shield Australia from a possible terrorist attack.
Our risk level was raised from standard to a special counter-terrorism risk, the second highest level, just below Full CT Alert.
Likely targets such as United States, Israeli and Jewish interests were given extra security.
In Canberra, the roads around the US Embassy were sealed off to create a no go zone and additional guarding was provided at the Israeli Embassy and British High Commission.
Ex-President Bill Clinton was in Cairns at that time and his close personal security was lifted dramatically.
Security at airports was also increased although, unlike the United States, aircraft in Australia continued to fly as usual.
Sometime on that first day, there was an alert about a plane coming into Brisbane. It was diverted to the end of the runway and held there until the concerns were dismissed.
By 6.00 am, when the committee met again, committee members had advised every State and Territory police commissioner about the night’s events.
Briefing Government
A group of us, including the PSCC, ASIO and the Australian Federal Police, went to Parliament House at 7.00 o’clock to brief the Acting Prime Minister, John Anderson. As we came out of the basement lift, we ran into Laurie Oakes prowling the corridors looking for news.
Mr Anderson held a press conference at 7.30 and then rang the PM to report on the situation in Australia. John Howard was in Washington that day, just five kilometres from the smoking Pentagon.
Around 9.00 o’clock, Mr Anderson chaired an emergency telephone meeting of the Cabinet, bringing all of the Ministers up to date.
And so, on one of those historically important days that define the course of world events for years to come, Australia’s immediate national response had been put in place overnight in less than eight hours.
NEXT STEPS
A couple of weeks later, I was asked to chair a review of Australia’s counter-terrorism arrangements.
It was patently clear to everyone on that interdepartmental committee that our current arrangements were grossly inadequate.
Put simply, we had to propose a new approach to 21 st century terrorism and make it happen without delay.
We handed our report to the National Security Committee of Cabinet by the end of October.
Essentially, we made four groups of recommendations.
They were:
- one, to increase resources to existing counter-terrorism agencies
- two, to consolidate some functions to achieve a more cohesive outcome (which included transferring Emergency Management Australia from Defence to the Attorney-General’s Department)
- three, to make a wide range of security improvements (including in particular additional security at airports and the border), and
- and four, to introduce new laws to deal with this new type of terrorist threat. To me, the key features of this new terrorism are that it has only a vague purpose, not a clear political objective; it deliberately attacks innocent citizens and non-military targets at random; and, as its perpetrators are willing to die for their cause, the possibility of punishment for a crime has little or no deterrent effect.
So much has been done since October 2001, it is not possible to go into all the details today. I can summarise them in five general observations.
First, the October review was the starting point for nearly six years of continual development and refinement of Australia’s counter-terrorism policy, capacity and implementation.
Over that time, the Australian Government alone has spent or committed over $7 billion to make Australia and Australian interests safe.
A lot of that money has gone to building up capacity in the Australian Federal Police and our intelligence agencies and greatly increasing aviation security and border protection.
Second, we have recognised that we need not just a coordinated national approach to terrorism but a coordinated international approach as well.
So we have visited and worked with many other countries to learn from them and to encourage and assist them to join in the global counter-terrorism effort.
Third, we have progressively focussed on local terrorist threats as much as foreign extremism. As the London bombings shockingly highlighted in July 2005, Western countries are just as exposed to home grown terrorism as we are to attacks from foreigners.
Recent terrorism cases in Australia have reinforced that warning.
Fourth, these measures, particularly some of the new counter-terrorism laws, have provoked considerable public debate about their impact on our civil liberties.
And fifth, while the early response dealt with the effects of terrorism, now we are increasingly trying to address the causes.
UNDERLYING CAUSES
While we are on that last point, it is worth reflecting on what we think are the issues underpinning this modern and lethal extremism.
What is it that links disparate, disaffected groups across the world and inspires them to work with or emulate the terrorist acts of Al Qaida and its affiliates?
I should state emphatically straight away that none of the Australian Government’s policies are an attack on Islam. None of them are an attack on our Muslim citizens or neighbours.
In fact, we endeavour to involve the Muslim community in tackling this terrible threat.
Our policies are a response to extremism which has hidden behind a perversion of what the Prime Minister has rightly described as one of the great religions of the world.
One analysis of the causes of this modern extremism is that, within the diversity of Islam, current radical strands share four broad features:
- First is a desire to return to an earlier, pure Islam, purged of outside influences
- Second is the aim to create Islamic states, and ultimately a pan-Islamic caliphate, ruled by strict Islamic law
- Third is a willingness to use violence, and
- Four is a virulent anti-Westernism in reaction to grievances ranging from Muslim economic dispossession to what is seen as the contaminating influence of Western culture.
Radical Islam competes with other forms of Islamic belief. It provides not only a theology but an explanation of Muslim disadvantage and how to address it.
This perceived disadvantage includes concerns about cultural and economic globalisation and the power of the United States.
Western countries know they have to respond to both the consequences and the causes of these radical and misguided beliefs to discredit the ill founded ideology that underpins them.
But this will not be easy because this is, in the words of the British Prime Minister, a battle of values and beliefs.
In his address to the joint Houses of Parliament, Tony Blair said:
It is a struggle about values and about modernity – whether to be at ease with it or in rage at it. To win this struggle we have to win the battle of values as much as arms. We have to show that these are not Western still less American or Anglo-Saxon values, but values in the common ownership of humanity, universal values that should be the right of the global citizen.
LEGISLATIVE RESPONSE
Now I want to take a look at some of the new laws which have been introduced since 2001.
Australia had some counter terrorism legislation before 2001, but it was very limited and directed to specific behaviour. That legislation had its origins mainly in international treaties dealing with particular types of threats like plane hijacking.
This is understandable.
Australia was a very safe country, protected by geography and social cohesion from the disputes that lead to conflict, insurgency and terrorism in other, less fortunate, parts of the world.
We also had, of course, all of the traditional State offences such as murder, causing grievous bodily harm and conspiracy.
But they are directed at punishing an offender after the event. They are based on the assumption that the threat of conviction and punishment is a deterrent.
They suffer from what is, in my view, an almost fatal flaw when related to terrorism. They largely rely on the completion of an act – such as murder – before the offence is committed.
How would the threat of imprisonment deter a suicide bomber?
So we had to create a whole new area of law directed to meeting the challenges posed by 21 st century terrorism.
The key point to understand about this new legislation is that it is directed to making certain conduct a criminal offence before a terrorist attack occurs.
Its emphasis is very largely on using the criminal law to prevent a terrorist act occurring, not just imposing a penalty after the event.
NEW LEGISLATION
The first batch of new counter-terrorism laws – following on from the October 2001 review - was passed by Parliament in June 2002.
Those laws make it a crime, among other things, to commit a terrorist act, to prepare to commit a terrorist act, to be a member of a listed terrorist organisation, to train with a terrorist organisation or to fund a terrorist organisation.
A terrorist act is defined as an action or threat which is made with the intention of advancing a political, religious or ideological cause with the intent of coercing or intimidating a government or the public and with consequences including loss of life or serious damage to property.
However, a terrorist act does not include advocacy, protest, dissent or industrial action.
A terrorist organisation is an organisation which has been proscribed by the Attorney-General on the advice of ASIO or is found by a court to be a terrorist organisation which threatens Australia or its interests.
The most recent review of our counter-terrorism legislation resulted in the passage of two more Anti-Terrorism Acts in December 2005.
They were the 24 th and 25 th Acts passed by Parliament to better protect Australians from terrorism since the dreadful events in September six years ago.
That legislation included controversial provisions relating to control orders and preventative detention.
A control order allows a court to impose restrictions on a person’s movements or activities for the purpose of protecting the public from a terrorist act without that person having been convicted of any offence.
Preventative detention allows a court to order a person to be detained for up to 14 days for the same reason, subject to compliance with a number of strict safeguards, once again without having committed a criminal offence.
The whole point of these recent statutory changes is to authorise law enforcement agencies to intervene as early as possible to protect the community in advance of a terrorist attack.
Taken together, the 25 Acts passed since 2001 represent the evolution of a whole new area of criminal law and law enforcement procedure.
CRITICISMS
This process has, of course, not been free from criticism.
Many commentators see these laws as eroding established civil liberties and legal protections.
They argue that they give law enforcement and intelligence agencies intrusive and unjustified additional powers.
However, as far as I can tell, many of the critics do not offer any constructive options or counter-proposals. Most of the time they simply argue, either directly or by implication, for the retention of the status quo.
This approach doesn’t wash with the Weekend Australian which has characterized some of the criticism as a polemical campaign by the legal and civil liberties lobby to de-legitimise and strike down the recent provisions of the Criminal Code, a campaign enthusiastically embraced by sections of a gullible media (2 September 2006, page 16).
The Australian Government does not accept these criticisms either. It sees the new laws differently.
It sees them as balancing civil liberties with its essential responsibility to keep the whole community safe and secure.
It recognizes that the balance between individual rights and community safety has changed since September 11 but believes that it has achieved the right balance in the changed security environment.
In doing so, the Attorney-General has pointed out that these laws are totally consistent with the Universal Declaration of Human Rights which states in Article 3 that Every person has the right to life, liberty and security of the person.
The Government’s approach has been that individual rights have to sit comfortably with this overriding human right to which everyone in our community is entitled.
Other Western countries have taken a similar view.
This point was made very eloquently by the former Canadian Attorney-General, Irwin Cotler. As you may know, Mr Cotler is a leading civil rights lawyer who acted in the past for Nelson Mandela.
Mr Cotler has said this: Indeed, as the United Nations put it, terrorism constitutes a fundamental assault on human rights – a threat to international peace and security – while counter-terrorism law involves the protection of the most fundamental of rights- the right to life, liberty and the security of the person – and the collective right to peace.
And on 12 September 2006, the Hon John von Doussa QC, the President of the Human Rights and Equal Opportunity Commission, delivered an address at James Cook University in which he said:.
It is self-evident that terrorism is a gross violation of fundamental human rights. Only the mad or the bad would suggest otherwise. The threat of terrorism is patently legitimate. The Government has both a right and a duty to take action to protect its citizens.
I think that point is worth stressing. Governments have a duty to take action to protect their citizens.
OTHER ARGUMENTS
In addition to this argument, I would make four further points in response to these criticisms.
The first is that there is nothing unusual about evolving or adapting the criminal law – like any other area of law – to meet changing circumstances. That happens all the time.
Apart from counter-terrorism, some other notable areas of development of Australian criminal law over the last few years include legislation outlawing cybercrime, people trafficking and child sex tourism.
The second observation is that changes were plainly necessary. Our existing laws had been drafted to meet different threats. They had become inadequate for the task.
Journalist Paul Kelly put it this way in The Australian (2 September 2006, page 18): One sign of a mature democracy is its ability to change its security laws in response to an unprecedented threat to its society. What else would a mature nation do? Denial is not an option.
The third observation is that many other countries have also changed their laws to deal better with the threat of modern terrorism.
LAWS OF AUSTRALIA
The fourth - and I think the most important - observation is that the changes to our counter-terrorism laws were the subject of intense public debate and parliamentary scrutiny.
Anyone who has carefully followed the development of these new laws will know that there have been a number of parliamentary inquiries into the major pieces of counter-terrorism legislation over the past five years.
The draft laws as originally put forward were amended by the Government in the light of the parliamentary committee reports.
They were also amended as a result of internal party consideration and negotiation with the Opposition parties.
In other words, the legislation was negotiated through a complex process that meant there was a considerable level of support for the final form of the new laws.
Let’s look, for example, at the major package of counter-terrorism legislation passed by the Senate on 27 June 2002. The four bills passed at that time recorded 51 ayes, 12 noes - a majority of 39.
Three years later, on 7 December 2005, the House of Representatives accepted Senate amendments to the Anti-Terrorism Bill (No 2) 2005 and, as there were only three No votes, the Deputy Speaker declared the question resolved in the affirmative.
In the second reading debate on that Bill, the Shadow Attorney-General, Nicola Roxon said: Labor are convinced that the terrorist threat does require tough new laws, but we demand that their use be circumscribed carefully.
Later on, talking about amendments to the process for obtaining a control order, Ms Roxon said: These are very important improvements. They protect our basic freedoms without in any way compromising the effectiveness of the regime to fight terrorists.
I mention these statistics to illustrate the support this legislation eventually had in the Australian Parliament.
I mention these quotes from Ms Roxon’s speech to illustrate that the changes which were made to the Bill as originally introduced resulted in the bill receiving Opposition support.
I should also add that much of the legislation is underpinned by a referral of constitutional power from the States and some of it is reinforced by complementary Acts of the Parliaments of the States and Territories.
In short, I think we can say that these new laws are a very clear example of democracy in action.
They have involved all Australian governments and parliaments in an extraordinary display of national cooperation.
PUBLIC ATTITUDES
It is more difficult to measure public opinion but there are clear indications that these new laws are also supported by the broader public, against a background of real concern about security.
For instance, the Unisys Security Index based on a Newspoll survey for the September quarter in 2006 found that 52% of Australians or 8 million people are very or extremely concerned about Australia’s national security in relation to war or terrorism.
That figure had grown by 1.7 million people from the previous quarter.
And an ACNielsen/Age poll reported in The Age on 11 September that year found that:
Almost two in every three Australians believe the world is less safe than it was before the September 11 attacks in the US … And half believe a terrorist attack in Australia is more likely than it was in 2001.
It is also worth noting this finding from the ACNielsen/Age poll:
Asked about the Federal Government’s response to the threat of terrorism, almost one in two voters (49 per cent) believe the Howard Government had shown about the right amount of respect for civil liberties, 29 per cent believed the Government had not shown enough respect, and 15 per cent thought the Government had shown too much respect.
So I think we can say with some confidence that there is a general consensus that these laws are necessary and appropriate to meet the terrorist threat we now face, despite the objections of a vocal minority.
COURT CASES
Of course, passing new laws is only the first step in a process.
Oversight by the courts is an essential element in determining their constitutionality, scope and proper application.
Since 2001, there have been two terrorism related convictions.
Jack Roche pleaded guilty to an offence of conspiring to destroy official diplomatic premises with intent to endanger life. Mr Roche was sentenced to nine years imprisonment with a minimum of four and a half years. He is in fact being released today on strict parole conditions.
Faheem Lodhi has also been convicted of offences related to preparing to commit a terrorist act involving Australia’s electricity supply system. He has been sentenced to 20 years imprisonment, with a minimum term of 15 years.
Jack Thomas was convicted in the Supreme Court of Victoria for offences involving receiving money from a terrorist organisation and falsifying a passport.
Mr Thomas’ conviction was overturned by the Victorian Court of Appeal. A record of interview conducted by Australian police overseas was held to be inadmissible because established procedures had not been followed.
Even so, the Appeal Court found that: No question has arisen with respect to the truthfulness or reliability of those statements – that is, his admissions which were the basis of the guilty verdict at trial.
Mr Thomas is now facing a further prosecution.
In addition to those cases, nine men have just been committed for trial in Sydney for conspiring to do acts in preparation for a terrorist act.
And in Melbourne, 13 men have been arrested and charged with varying charges.
The charges include being members of a terrorist organisation, directing the activities of a terrorist organisation, intentionally making funds available to a terrorist organisation, possessing a thing connected with the preparation for a terrorist act, making a document in connection with the preparation for a terrorist act and receiving funds from a terrorist organisation.
Their committal proceedings have commenced.
A key point to note is that some of the alleged offences involve preparatory acts. They would not easily have been covered by the traditional offences I mentioned before, offences of murder, conspiracy and so on.
Some of the charges relate to membership of or directing a terrorist organisation. They would not have been covered at all.
JUDICIAL COMMENTS
The judges who conducted the Lohdi and Thomas trials made a number of useful observations about the new counter-terrorism laws.
Judge Whealy, who conducted the Lodhi trial, said: …the obligation of the Court is to denounce terrorism and voice its stern disapproval of activities such as those contemplated by the offender here …. The community is owed this protection even if the obstinacy and madness of extreme views may mean that the protection is a fragile or uncertain one.
The trial judge in the Thomas case, Justice Philip Cummins, said: Australia has a deep duty to protect its citizens from terrorism and so far as in its power to protect humanity from terrorism. That is why the Commonwealth Parliament enacted the laws against terrorism … and why the States of the Commonwealth likewise have enacted laws. The most fundamental right is the right to life. The law must protect that right. Australians are entitled to security. However, security is a necessary but not sufficient condition for a just society. Security is not enough. There must also be justice – for all citizens, including the weak, the marginalised, the unpopular and the alienated.
CONCLUSION
In conclusion, I should emphasize that this task is not complete.
Our intelligence agencies assess that the current terrorist threat will continue for years to come. They also advise – as we can easily observe - that the threat will adapt and change over time.
So our policies and laws will have to adapt and change as well. That is why the Attorney-General, Philip Ruddock, refers to the Government’s response to terrorism as an unfinished canvas.
Even so, I think we can draw one very clear lesson out of this extraordinary period of policy, legislative and operational activity.
And that is that Governments – and Parliaments - have to make decisions. That’s what they are elected for.
They have to deal with complicated interactions of law, policy and public opinion.
They have to make difficult choices between competing positions - but they have to be made.
They can’t sit on the fence. They can’t be paralyzed into inaction.
They have to reshape policy and law to meet changing times and circumstances.
And it is the role of the Public Service to make it happen.
ROBERT CORNALL
Secretary
17 May 2007