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Informa Interview – Assistant Commissioner Peter Dein, Head of Counter Terrorism & Special Tactics Command, NSW Police

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[Other Acknowledgements]

·              Chair, Robert Heath, Professor of Strategy and Risk, University of South Australia

·              Mr Amotz Brandes, Managing Partner, Chameleon Associates, USA (also speaking)

·              Mr Ben Evans, National Director, Law Enforcement Strategy Division, Australian Customs Service (also speaking)

·              International and distinguished guests

·              Ladies and gentlemen

[Introduction]

1.     Thank you for your welcome this afternoon.
It’s a great pleasure to be here to contribute to your discussions, and to talk about the Government’s approach to counter-terrorism legislation.

2.     The 5th century Chinese provincial military general Wu Ch’i made the chilling observation that “One man willing to throw his life away is enough to terrorise thousands.”[1]
It’s a warning that still resonates strongly, all these centuries later.

3.     Terrorism is a reality.
Since January this year there have been at least 185 significant terrorist attacks in 29 countries.
This has resulted in the deaths of more than 1,600 people, and the injury of almost another 3,000.

4.     Over 100 Australians have been killed following September 11.

5.     In the last week a jihadist website released a statement by Abu-Hamzah al-Muhajir, al-Qaeda’s so-called ‘Minister of War’ in Iraq, threatening Britain, the US and Australia.

6.     According to ASIO, terrorism is expected to be a destabilising global force for some time to come.

7.     The national security alert level in Australia remains at Medium meaning a terrorist attack could occur.

8.     ASIO assesses that the main terrorist threat to Australia and its interests continues to come from extremists who are part of, or take inspiration from the global violent jihad movement.  

9.     In the wake of such events, the Rudd Government is resolved to maintain Australia’s national security.  Ensuring the safety and security of the community is the primary responsibility of government.

10.   Maintenance of strong and effective counter-terrorism laws is central to that responsibility but we can’t let the threat of terrorism demean us or our democratic institutions.

11.   We make no apology for supporting laws that assist national security agencies to prevent an act of terrorism from occurring.

12.   We are also committed to ensuring that strong counter‑terrorism laws are accompanied by legitimate safeguards that ensure the laws operate in an accountable manner.

 [Effective and Balanced Counter-Terrorism Laws]

13.   The Secretary-General of the United Nations has said that: “Terrorism is a threat to all that the United Nations stands for: respect for human rights, the rule of law, the protection of civilians, tolerance among peoples and nations, and the peaceful resolution of conflict.”

14.   The United Nations Security Council has adopted resolutions requiring States to ensure that financing, planning, preparation or perpetration of terrorist acts or support for terrorist acts are established as serious criminal offences in domestic law.

15.   The focus on addressing financing, planning and preparation in some ways departs from traditional notions of criminal law that punishes those after an act of violence has occurred.

16.   While focusing on preventative measures is controversial it is absolutely necessary.
Moreover, it is an international obligation that we owe not only to our own citizens but also to those of other countries.

17.   The Government’s consistent approach, including in opposition, has been to ensure Australia maintains strong counter-terrorism legislation.
Legislation that protects the community, and also the values and freedoms we all enjoy as part of the Australian way of life – Australians rightly expect these will not be diminished.

18.    While it is clear that the threat from terrorism continues, how we deal with that threat is a complex issue.

19.    The ancient observation to which I have referred underscores this challenge.

20.    When facing a threat where people are willing to throw their lives away to terrorise others, we need our counter-terrorism laws to prevent attacks from happening, not merely to punish the perpetrators after the event.

21.   The terrorism offences in the Commonwealth Criminal Code are aimed not only at individuals who carry out acts of terrorism but also, explicitly and importantly, at individuals who train for, prepare, plan, finance or otherwise support terrorist activities.

22.   Maintaining a strong preventative regime raises difficult questions.
For example, how far do we go in criminalising preparatory and planning activities for a possible future terrorist attack?
I believe our agencies need to be able to act at an early stage.

23.   We know that intricate planning and networking invariably precede a terrorist attack.
Our view is that laws which permit targeted and appropriate intervention at an early stage have real potential to save lives.
Indeed this has been confirmed in the ASIO’s Annual Report, which was tabled just last week.

24.   Of its nature, the terrorist threat demands that we have workable tools in our legal armoury to avert a full-scale attack where lives might be lost en masse, infrastructure decimated, and the tolerant, multicultural social fabric of Australia fractured.

[Reviews into the Counter-Terrorism Laws]

25.   In the last several years, Australia’s counter-terrorism laws have been reviewed by both the Parliamentary Joint Committee on Intelligence and Security and the Security Legislation Review Committee (the latter chaired by a former judge of the New South Wales Supreme Court).

26.   These reviews have not recommended wholesale changes to the national security and counter-terrorism laws.

27.   In fact, they found our laws necessary and justified within the context of the ongoing threat of terrorism.

28.   In its December 2006 report on security and counter-terrorism legislation, the Parliamentary Joint Committee on Intelligence and Security stated that “the special terrorism law regime is justifiable and forms an important, although not exclusive, tool in Australia’s counter-terrorism strategy”. 
That Committee was constituted by respected members from both sides of the Parliament including the Hon David Jull MP, Senator the Hon Robert Ray, Steven Ciobo MP and Senator the Hon John Faulkner.

29.   The Committee’s 2007 Report on the terrorist organisation listing provisions stated that: “the Australian model exhibits a high degree of openness and opportunities for accountability”.

30.   And, in its 2005 Report on ASIO’s questioning and detention powers, the Committee found that the questioning powers had been effective and “administered in a professional way” and should continue to operate.

31.   The clear message from the reviews is that Australia’s counter-terrorism laws are a mainstay of our country’s response to the terrorism threat and are operating effectively.

32.   But all of us understand that we cannot afford to be complacent.

33.   Accountability is important. Australians acknowledge that tough counter-terrorism arrangements are necessary, but they don’t believe our security agencies should be given carte blanche in their application.

34.   In opposition, Labor argued for the inclusion of important protections and appropriate safeguards within the counter-terrorism legislation. 

35.   We moved amendments to include improved safeguards such as greater judicial oversight of the operation of the laws and executive action.

36.   We also secured amendments to the definition of terrorist act to exclude any possibility of legitimate protest or industrial action being dealt with as a terrorist offence.

37.   Labor promoted shorter periods of time for sunset clauses and regular reviews of the operation of the counter-terrorism legislation.

38.   Labor also advocated greater oversight of the use of the counter-terrorism laws by oversight bodies such as the Inspector-General of Intelligence and Security.

39.   As Attorney-General, I take very seriously my responsibility to ensure that Australia’s counter-terrorism laws remain effective and balanced.

40.   In a society with a culture of openness, strong counter‑terrorism laws must be accompanied by strong safeguards that ensure the operation of our laws are accountable.

41.   The reviews of the laws provided a number of useful recommendations which the Government is currently considering.

42.   This includes the proposal for an independent reviewer of counter-terrorism laws.

43.   Today I am not going to pre-empt the outcome of that consideration.

44.   There are obviously different options for establishing a regular review mechanism.

45.   Since 2001, the UK has had an Independent Reviewer for three of its four counter-terrorism instruments.

46.   The Reviewer has the responsibility of producing annual reviews on the operation of these laws in the UK.

47.   This and other options have recently been canvassed before the Senate Legal and Constitutional Affairs Committee. 
And the Government will certainly have regard to the report of the Committee as it considers this issue.

48.   Recommendations about improvements to the operational or procedural frameworks which support Australia’s counter-terrorism laws are also being considered and will be factored into the Government’s response.
That examination might include, for example, the way law enforcement powers are applied, or the procedure for processing of national security information in court proceedings.

49.   What I know is that changes which make the laws clearer, fairer and better targeted will strengthen the overall fight against terrorism.

[Lessons Learnt from Cases and Investigations]

50.   When considering the reviews, it is also important that the lessons learnt from counter-terrorism cases and investigations are acted upon.

51.   Since the introduction of the counter-terrorism offences in 2002, 29 individuals have been charged with terrorism offences. 
Nine of these individuals have been convicted and a number of cases remain before the courts.

52.   Most recently, a jury in Melbourne returned guilty verdicts against seven defendants in the trial arising from the counter-terrorism operation ‘Pendennis’.

53.   All seven were convicted of membership of a terrorist organisation.  In addition, three of them were convicted of providing support to a terrorist organisation, and one was convicted of directing the activities of a terrorist organisation.

54.   This was a lengthy and complicated case.  The trial ran for eight months and comprised over 50 witnesses and over 6000 pages of evidence.

55.   It was a significant test of our terrorist organisation offences. 
It showed that those offences are working as intended and enabling our agencies to intervene at an early stage.

56.   The verdicts also demonstrated effective cooperation between the Australian Federal Police, ASIO and the Commonwealth Director of Public Prosecutions as well as the Victoria Police.

57.   Cooperation between these agencies is the key to ensuring better coordination, and ultimately, more successful prosecution of terrorism cases.

58.   Enforcement of our criminal laws is necessary and appropriate. 
Where people are accused of breaking our laws they are entitled to the opportunity to answer those allegations before a fair and independent court of law.

59.   In that context, I welcome the fact that ASIO, the AFP and the CDPP have been working hard to implement the recommendations made by the Street Review.

60.   The recommendations cover four broad areas:

·   operational decision making;

·   joint taskforce arrangements;

·   information sharing; and

·   training and education.

61.   The agencies report that significant progress has been made on implementation.   

62.   A regular forum has been established to provide the heads of ASIO, AFP and the CDPP with an opportunity to regularly review strategic priorities and interoperability issues in national security operations.

63.   ASIO and the AFP have developed a Counter‑Terrorism Protocol to provide for regular and accountable exchange of national security information and ongoing high-level consultation on operations

64.   ASIO, the AFP and the Commonwealth Director of Public Prosecutions have developed Counter‑Terrorism Prosecution Guidelines to improve consultation and communication in the investigation and prosecution of terrorist offences.

65.   Other key measures include inter-agency training and secondment arrangements between the AFP and ASIO.

66.   Understanding and acting upon links and interdependencies between agencies are crucial and I am hopeful that implementation of these and other important recommendations will contribute to greater cooperation and make Australia just that much safer.

[Lessons Learnt from International Experiences]

67.   While we must learn the lessons of our experiences at home, we must also keep our eye on international developments.

68.   We need to seriously examine international approaches to see if similar models could be adopted in whole or in part in the Australian context.

69.   In a recent visit to the United Kingdom, I had the opportunity to meet with Lord Alex Carlile, who has been the independent reviewer of the UK’s terrorism laws since 2001.

70.   It was particularly useful for me as Attorney-General to discuss with him the UK’s legislative review mechanisms.
For my part, I gained a far deeper understanding of his role as independent reviewer, and how aspects of that could be used in developing a review model for Australia.

71.   Experience from overseas also gives us greater clarity and insight into the threat from home-grown terrorism.

72.   My visit to the UK brought home the importance of continuing to deliver the message that terrorism is nothing more than a base and despicable criminal act – where innocent civilians are the target of choice. 

73.   It also reinforced my belief that successful prosecutions necessarily support broader community counter-radicalisation efforts by sending a clear warning to those who are tempted by extremism. 
Conviction and imprisonment can help open their eyes to what terrorism really is – cowardly criminal behaviour.

[Conclusion]

74.   The legislation and safeguards we have in place provide a firm foundation to help keep the Australian community safe from terrorist attack.

75.   However, the extent to which we continue to be successful depends in part on a number of things.

76.   The Rudd Government is determined to have the best policy and legislative framework when it comes to counter-terrorism.
We need to ensure that we have strong and cooperative partnerships between agencies, as well as the operational capability to keep our nation secure.

77.   Alongside this must also stand better engagement with the community to ensure that the public has confidence in what we are doing and appreciation for the reasons why.

78.   These considerations will continue to loom large for decision makers in this field.

79.   And so I welcome this Summit and what it represents – an energetic, ambitious group of professionals applying themselves to the mastery of counter-terrorism issues.

80.   As Attorney-General I thank you all for attending the Summit.
I look forward to feedback from events such as this one to help ensure that our strategies remain relevant and meet the needs of Australia.

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[1] Sun-Tzu, Sunzi, Samuel B. Griffith, B. Liddell Hart, The Art of War, Oxford University Press US, 1988, p 151