Date August 7, 2014
Andrew Zammit
The Sydney Morning Herald
Illustration: John Spooner
The threat posed by Australians in extremist groups in Syria and Iraq is being used to justify dramatic changes to national security legislation. The threat is very much real, but that does not make all the proposed new laws necessary or justified.
Attorney-General George Brandis recently described the terrorist threat resulting from the conflicts in Syria and Iraq as "the government's number-one national security priority". When politicians describe something as a major national security threat, it’s best to not uncritically trust their claims, but to look for what public evidence either confirms or disproves it.
In this case, there is plenty of public evidence showing that it’s a serious threat.
Many Australians have joined the conflicts in Iraq and Syria and at least 12 appear to have died, two in suicide bombings. They have joined some of the most extreme groups in the region, namely the al-Qaeda affiliate Jabhat al-Nusra and the former al-Qaeda affiliate the Islamic State. Some of these fighters have appeared on social media bragging about war crimes and threatening Australians. Evidence has also emerged of active recruitment efforts within Australia, connections to earlier terror plots, and that some Australians have leadership roles within the extremist groups.
These types of conflicts pose dangers that are not geographically confined. Al-Qaeda itself was formed from groups of Saudis and Egyptians fighting against the Soviets in Afghanistan. Several Indonesians who fought in Afghanistan during the 1980s would go on to play leading roles in the formation of Jemaah Islamiyah and were behind attacks such as the Bali bombings.
Many of the 9/11 hijackers initially went to Afghanistan to get training to fight in Chechnya, but al-Qaeda redirected them towards attacking America. In the UK, many terrorist plots began with people travelling to Pakistan with the intention of fighting in Kashmir and Afghanistan, but got persuaded to come back to Britain and plan bombings. Some Australians who trained with jihadist groups in Afghanistan and Pakistan returned and attempted to kill people here.
The Syrian conflict is already posing a similar threat in Europe, with at least six alleged violent plots involving Syria returnees. The most well-known incident occurred in May, when a gunman murdered four people near the Jewish Museum of Belgium. Shortly after, a 29-year-old Frenchman named Mehdi Nemmouche was caught. He was allegedly carrying guns, ammunition, and a video claiming responsibility for the attack, and had fought in Syria with IS.
Given the track record over the past 30 years, the fears that Australian jihadists in Syria and Iraq could pose a threat at home are well-founded.
However, that does not mean every measure put forward to tackle the threat is justified.
Certainly there is a need for law reform, which has been made clear by five separate inquiries over the past three years: one by the Parliamentary Joint Committee on Intelligence and Security, one by the Council of Australian Government’s review of counter-terrorism legislation, and three by the Independent National Security Legislation Monitor.
These inquiries found major shortcomings in Australia’s national security legislation. Some of the laws were out of date given changes in technology, some of them infringed on liberties without a clear national security benefit, and some were poorly worded and impractical. The inquiries recommended many changes, several of which directly addressed the issue of Australians joining jihadist groups overseas.
These included: allowing the Australian Security Intelligence Organisation to confiscate passports without having to go through the Foreign Minister for up to seven days, but without reducing the suspects’ appeal rights; making it easier for the Australian Secret Intelligence Service to spy on suspected Australian terrorists overseas on ASIO’s behalf; allowing prosecutions in Australia to use evidence gathered in foreign countries without the permission of the foreign government; and placing restrictions on convicted terrorists who continue to prove dangerous once their sentences are finished, using systems similar to sex offender registries.
However, successive federal governments, both Labor and Liberal, failed to act on these recommendations. This was until the issue appeared to reach crisis point in June this year, when IS seized the Iraqi city of Mosul and the first videos and photos of its Australian fighters spread throughout the media. Now the Abbott government is attempting to pass extensive new legislation in a very short time period.
Many of the government’s proposed reforms are long-overdue measures that come directly from the inquiries, but also proposed are some very questionable changes that did not come from the inquiries.
These include new restrictions on speech and the prospect of mass data retention. One of the most concerning proposals could require any Australian returning from Syria and Iraq to prove they were not involved in terrorism.
This reversal of the burden of proof departs from Australia’s legal traditions and is unlikely to address the terrorist threat effectively. If state counter-measures to the threat are heavy-handed rather than carefully calibrated, they risk harming innocent people and delegitimising necessary counter-terrorism efforts.
This could well happen if new laws are passed without the proper processes of deliberation. Many of the current problems with Australia’s national security legislation resulted precisely from new laws being rushed through Parliament after 9/11.
The Parliamentary Joint Committee on Intelligence and Security’s report explicitly warned of this risk, and advised that drafts of new legislation should be subject to intense parliamentary and public scrutiny. Instead, the Committee was given only two weeks to gather public submissions on the first batch of new legislation and little time to hold public hearings.
The threat Australia faces from its citizens being involved with extremist groups in Syria and Iraq is real, but the seriousness of the threat is what makes it so important to get the laws right.
Unfortunately, it’s looking doubtful that the proposed reforms will leave Australia with the most effective and appropriate laws to address the threat.
Andrew Zammit is a researcher at Monash University’s Global Terrorism Research Centre.
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