Proceedings of the Special Senate Committee on
Anti-terrorism
Issue 13 - Evidence
OTTAWA, Monday, February 14, 2011
The Special Senate Committee on Anti-terrorism met this day at 8 p.m. to examine matters relating to anti- terrorism.
Senator Hugh Segal (Chair) in the chair.
[English]
The Chair: Honourable senators, this is the fourteenth meeting of the Special Senate Committee on Anti-terrorism of the Third Session of the Fortieth Parliament of Canada. As we await legislation from the House of Commons, we continue our inquiry into the changing nature of the terrorist threat in Canada. Part of this study includes looking at the experiences of other countries that have legislated with respect to anti-terrorism and have had jurisprudence on related issues over time.
Today, we are fortunate to have witnesses from our allies in Australia. The first witness that we have with us today is Dr. James Renwick, a distinguished barrister from New South Wales and Associate, Sydney Centre for International Law, University of Sydney Law School. He is a graduate of the University of Sydney where, as a Parsons scholar, he received the first doctor of laws degree conferred by an Australian university. He is a former Fulbright scholar. Dr. Renwick has a general commercial and public law practice, and regularly appears in the federal and supreme courts of his country and before a wide range of tribunals and inquiries. He is a commander in the Royal Australian Naval Reserve, which already sets him above and beyond, where he has experience in appearing at disciplinary trials and boards of inquiries. He pioneered the teaching of national security law in Australia and is the author of Counter- Terrorism and Australian Law.
Dr. Renwick, it is good to see you. We are delighted that you are here. Professor Syrota, it is good to see you as well.
Let me inform colleagues that Professor George Syrota is an Associate Professor at the Law School of the University of Western Australia and a barrister of the Supreme Court of Western Australia. He is a graduate of Oxford University and the University of Virginia. Professor Syrota is a former visiting lecturer at Monash University in Melbourne, a former Bigelow teaching fellow at the law school, University of Chicago, and a former member of the Law Reform Commission of Western Australia. Among his publications are Australia's Counter-Terrorism Offences: A Critical Study and The Definition of `Terrorist Act'.
We are delighted that you could make time in your busy schedules to assist us in our deliberations. We are pleased that you can be available both to give us some initial comments and to take some questions from the committee. I will ask Dr. Renwick to lead off.
I do not think you can see us. Is that correct? Can you see us?
James Renwick, Associate, Sydney Centre for International Law, University of Sydney Law School, as an individual: I can see you, sir.
The Chair: Good. That is important. Please continue. Thank you so much.
Mr. Renwick: Honourable senators, thank you very much for this opportunity to participate in these hearings. My personal comments are based on my experience as a barrister in private practice in Sydney, who has appeared in a number of terrorism cases, including a large recent hearing, and as an occasional academic lawyer who has taught national security law courses in Australia.
My comments are particularly based on two reports, both of which I trust you have. One is a document called The Challenges of Trying Terrorists as Criminals, which was the result of some work I did in Washington, D.C., as a Fulbright scholar, which I trust you have. The other document is called Responding to the Threat of Jihadist Terrorism, which was the result of another colloquium I organized and spoke at, run by an Australian think tank, the Kokoda Foundation, last year. In due course, pages 15 and 16 may be of particular relevance.
I have read the brief but useful summary provided by your information service on the developments here in Australia. First, for those who are not familiar with the Australian system, we, too, are a federation. The Australian Constitution gives specific powers to the national Parliament, but leaves everything else, except in a few cases of prohibitions, in the hands of the state parliaments. We do not have an equivalent to section 92 of your Constitution, vesting specific powers to the provinces.
None of the enumerated powers we have includes a general power to make laws in relation to criminal offences; that is a federal power. The national Parliament needs to either come to an agreement with the states, whereby they refer their powers to the federal government — and that happens in relation to terrorism matters — or, alternatively, to rely on another head of power, typically the defence power, the external affairs power, which allows you to legislate based on treaties. What all this means is that, although the national government, by agreement, takes the leading role in anti- terrorism matters, state parliaments and governments have an important role to play. In the recent long-running terrorist trial, both the state and the Australian police had a significant role.
The Australian equivalent to the U.K.'s MI5 — forgive me, I am not sure of the precise equivalent in Canada — called the Australian Security and Intelligence Organisation, ASIO, has a specific mandate to detect and prevent terrorism. Its statutory functions include protecting the Commonwealth and its people, and the several states and territories from politically motivated violence. That includes terrorism, promotion of communal violence, that is, activities, which are directed to promoting violence between different groups of people in the community, so as to endanger the peace, order and good government of the Commonwealth. Importantly senators, that is whether directed from, or committed within, Australia or not. What all of that means is that intelligence officers can and do become involved in anti-terrorism operations and thereby become required to give evidence in terrorism cases. The courts have to accommodate the need for their identities to remain secret.
Turning to the actual level of threat in Australia based on jihadi radicalism, unsurprisingly, that is hard to assess. The number of Australians who identify themselves as Muslims is relatively small, but significant. The last Australian Census in 2006 — and you should bear in mind the question about religious affiliation is a voluntary question — suggests that about 45 per cent of Australians are Christians; about 1.7 per cent, approaching 2 per cent now, I think, are Muslims; and about 0.5 per cent are of the Jewish faith.
Now ASIO, the MI5 equivalent, in its recent public annual report to Parliament, does consider there are considerable risks to Australia and its people posed by jihadists. Some of these people are radicalized in Australia, although increasingly, this appears to be done on the Internet, particularly when young male Muslims become radicalized overseas. The ASIO report says that global interconnectivity enables home-grown extremists to link into an overseas terrorist network, adapt a militant ideology to the local landscape, and plan, resource and stage an attack without the material support or membership of a terrorist organization. Over the past eight years, they say, four potentially serious attacks intended to produce mass casualties have been prevented.
My general observations, senators, are necessarily limited to how the law actually works and some conclusions derived from the study and practice of that law and discussions with relevant experts. At the outset, I wish to suggest that there are three matters to be kept always in mind. Also, I wish to make a general remark.
First and most important, as I am sure you would agree, it is essential that the rule of law and, in particular, compliance with duly made law by government, continues to be observed. Where failings occur, they should swiftly be remedied because not doing so can have a drastic effect on public confidence and can allow jihadi recruiters to improve their strike rate.
Second, it is vital in my opinion that the independent judiciary trying terrorism matters and the prosecution, which is independent of political interference, continue to go out of their way to make it clear that Islam itself is not on trial in terrorism cases involving jihadist threats or attacks. I believe, having spoken to the U.K. experts, that the U.K. has done a great deal of useful work in that regard, which can be as simple as having prosecutors go to speak at mosques or to Muslim religious leaders and provide them with the facts of what has happened in a particular case. Similarly, as the second paper you have states: Nation states need to go on to the front foot and explain why anti-terrorism policies, whether using hard — that is military — or soft power, are justified, and when genuine injustice does occur, remedy it quickly and openly.
Third, in Australia at least, there is a need to counter Muslim radicalization in the jail system, which is becoming a significant problem. At least in Australia, the known jihadists who have been exposed tend to be young or youngish men. It is therefore necessary to determine why it is that young men in Australia, and I imagine in Canada, who are not destitute, because of the availability of social services, why they decide on the path of violence against their fellow countrymen. Once that is better understood, more can be done to counteract it. The second paper puts it this way: What is the path that people, particularly young men, travel that takes them to the point where they are willing to recruit others and kill others, perhaps at the cost of their own life?
A related question is whether governments and their agencies should focus on remedying disadvantage more generally, promoting cultural harmony and assimilation, or focus on those who have crossed the line, who can be dealt with by police and the courts? Is it feasible effectively to do both? I have developed these and related ideas further in the two papers you have been provided with and would be happy to answer any questions you may have.
The Chair: Thank you very much, Dr. Renwick. We will now hear from Professor Syrota, and after his testimony, we will open the floor to questions. Professor Syrota, could we hear from you now?
George Syrota, Associate Professor, University of Western Australia, as an individual: Thank you for your kind introductory remarks, and I am honoured to be invited to make this presentation to you. I have delivered a paper to the committee through your admirable clerk, Ms. Reynolds, and I would like to put on record my thanks to her for liaising with me regarding the set-up of this video conference.
I have circulated the paper to the committee, and I will amplify some of the points I have made in it.
Australia enacted new counterterrorism legislation in 2002 in response to the attacks on New York and Washington, D.C., on September 11, 2001, and in response to the United Nations Security Council Resolution 1373(2001), which requires member states to take additional steps to prevent and minimize the threat of terrorism.
The counterterrorism legislation we have in Australia is broadly similar to what you will find in Canada, the United Kingdom and New Zealand. It is based on the same fundamental concept. I think the basic concept in Canada is known as the "terrorist activity." A similar definition is known as the "terrorist act," in the Australian legislation. It is "terrorism" in the U.K. legislation, but it is basically the same idea in all those countries.
Before giving details of that legislation, I will tell you something about the scale of the threat to Australia. The last successful terrorist attack on the Australian mainland was in 1986, which was 25 years ago, and it is a tribute to the security services and the police that they have kept the mainland free from terrorist attacks for such a long time, despite the growing radicalization and threat. That last attack involved two men who were from the Armenian Revolutionary Federation. They exploded a car bomb outside the Turkish consulate in Melbourne. That was as a reprisal for the alleged genocide of Armenians by the Turkish government in 1915. While one of the two terrorists was setting up the car bomb, it exploded prematurely, so he died. It was not a suicide bombing case in the way we would understand it, but he died as a result of the explosion. The other one was tracked down, and he was convicted of conspiring with the dead person to cause an explosion likely to endanger life and was sentenced to 10 years in prison. The only person who lost his life was the other terrorist, but there was substantial damage to property.
Although there have been no further serious terrorist attacks on the mainland, there have been attacks offshore that have been construed as attacks on Australia, and there are two. The first was the Bali bombings in 2002, which resulted in 202 deaths, of which 88 were Australians. This was seen as a direct attack against Australia itself. Three of those terrorists were convicted and executed some eighteen months to two years ago, and one of them, the mastermind, Abu Bakar Bashir, is being retried for that right now in Indonesia in relation to his involvement in that.
The other attack was on the Australian embassy in Jakarta in 2004, where nine people died, no Australians. That attack, like the Bali bombings, was orchestrated by Jemaah Islamiyah.
We have been free of attacks on the mainland for 25 years. There have been one or two minor attacks that I can tell you about, but I will gloss over those for the moment and turn to the law itself.
In 2002, the federal Parliament — Mr. Renwick has explained to you the constitutional provisions, but it is the Commonwealth Parliament that has really taken the lead — enacted new laws in that year and in subsequent years, which granted sweeping new powers of search, surveillance and arrest to the federal police, the ASIO, Australian Security and Intelligence Organisation, and other security agencies. It created 14 new counterterrorism offences of quite unparalleled width. There has been a lot of legislative activity, much more so in Australia than I think you have had in Canada or elsewhere, particularly under the Howard government. There has been less so under the Rudd and Gillard governments. There have been no more than half a dozen trials under the new laws. Those have taken place from 2006 onwards. Three of the trials have involved multiple defendants, and an equal number have involved a single defendant. Some of these trials, the ones that have multiple defendants, have run for several months, and one of them cost upwards of $10 million, although that estimate is only from the newspaper, so these are expensive trials to run. They have attracted, as you can imagine, extensive press coverage, but I would emphasize in relation to each of them that no damage actually eventuated because all of these plans were foiled by the police before damage resulted.
I will give you some examples of these trials to give you a fuller picture, but I think you will see that the sort of thing happening here is not dissimilar from what you are suffering in Canada and England.
The first person convicted under the new laws was Faheem Lodhi, in 2006. His plot was to blow up part of the Australian national electricity grid and to hit certain military targets. He was operating by himself. He was a Muslim. His object was to promote the cause of violent jihad. The trial judge, in sentencing him to 20 years' imprisonment with a 15-year non-parole period, described his plans as amateurish and unlikely to succeed. However, if you start exploding bombs, you might not do much damage to the Australian electricity grid but you are putting life at risk, people's lives can be lost, and that is the real reason for the stiff sentence.
The second trial involved multiple defendants in Melbourne in 2008. There were nine defendants; I believe five were convicted and four were acquitted. They were plotting to blow up various sports stadiums in Melbourne when they were crowded with people so they could maximize the amount of damage, injury and carnage that was inflicted. There was also, as part of that plan, I believe, a plot to assassinate then-Prime Minister John Howard.
The third trial, in which my colleague Mr. Renwick was involved, involved five defendants, I believe. He will correct me on the details. They were all convicted in Sydney. The charge was one of conspiracy to carry out terrorist acts and the basis of the charge was that they were stockpiling weapons and chemicals for making explosives but they never really got as far as to succeed.
The prison sentences — James will correct me if I am wrong — I believe were in the range of 23 to 28 years, but they were all exceptionally long sentences and this was another jihadist type of plot.
The last trial, which concluded only recently, just before Christmas, was a plot, and the trial involved five defendants, three of whom were convicted, two acquitted, and it was a conspiracy by them to break into the Holsworthy army barracks, on the outskirts of Sydney. They would be armed with machine guns, automatic weapons and their object was to kill as many military personnel as they could. As I said, the plan was foiled.
Those are some basic statistics and simply a rough guide. They are not an accurate statistical picture but give you a feel of the situation. I think in all these trials since 2006 there are about 20 to 25 defendants. It depends how you count them. Most of them were on multiple counts in the indictment, and roughly about two-thirds would have been convicted and about one-third would have been acquitted. All of them, as Mr. Renwick has stressed earlier, were men. They were Muslims or converts to Islam. A number of them had been born here in Australia or raised here or spent many years here. It is a case of the home-grown terrorist rather than people coming in from outside as happened with 9/11. That, of course, parallels your experience in Canada and in the United Kingdom as well.
The age is about mid-20s to late 30s. It is not people in their teens and it is not really people in their 40s. It is that range where the radicalization is taking place, and in all the trials there was an intention to promote violent jihad.
I will go back to the conviction rate because it is only an estimate. Mr. Renwick has been more heavily involved in this and might like to offer a view and even perhaps disagree with me, but the conviction rate is not absolutely marvellous. Two-thirds convicted and one-third acquitted. I have seen statements by some of the prosecutors involved in these cases. They are extremely complex cases and you have to take your hats off to them for conducting them as well as they did in very difficult circumstances. Yet, I heard statements that the conviction rates were no different from what you would find in ordinary trials for murder or rape or burglary or so on, but the truth of the matter is that infinitely more resources have gone into a terrorism trial in police resources.
There are extensive powers of questioning in the police and ASIO, and so on, and you would be entitled to ask why, in light of all those resources, it is not a higher conviction rate than it is. I will offer a partial explanation in a moment and Mr. Renwick may well disagree with me on the point. He is more experienced. He has been involved in these trials. I noticed in the press the other day, after the trial ended in relation to the proposed attack on the Holsworthy army barracks in Sydney, which is where, of the five defendants, three were convicted and two acquitted, the police were said to have left the court grim faced, meaning they were really hoping for a lot more than that.
Before dealing with that conviction rate, I will just talk briefly about the drivers of this radicalization. James has already mentioned it, but I will add a couple of additional points to what he has already said.
First, there is Australia's involvement in Afghanistan. It has troops there and it previously, as you know, had troops in Iraq. Australia is a strong, committed ally of the United States, of Israel, of the United Kingdom, and that in the eye of the terrorist makes us the infidel. That is their distorted view of the situation.
Justice Whealy, a Supreme Court judge for New South Wales who has presided over two of these trials, including the Sydney trial in which Mr. Renwick was involved, published a paper in the United Kingdom recently in which he suggested the following factors were playing a part in this radicalization of Muslim youth. First — and James mentioned this — instant access via the Internet to websites that give you the precise lowdown on how to make a bomb.
Second, there are extremist websites, easily accessible, which really promote violent jihad and put it forward as a worthwhile duty, not just a right of Muslims. That can have an effect on an impressionable young man.
There is also — though I have never accessed it myself but it is in Justice Whealy's paper and I have no doubt this is right — video footage of executions of hostages and things that we would regard as vile, but which in a sense can really play on the minds of these young Muslims.
Justice Whealy made one very interesting point in this paper and I will read to you from his speech and I will send the committee clerk the actual title of this paper. It was delivered shortly after the convictions and sentences in the Sydney case where five defendants were all convicted. The imams, the leaders of the Muslims in that area, condemned the trial and this obviously struck a bad cord with Justice Whealy and he responded as follows:
. . . after the imposition of the sentences, a number of senior Imams in the local Muslim community arranged a meeting to consider the outcome of the trial. They published a notification to the Australian Federal Police describing the trial as "a travesty of justice" and demanded to be shown evidence that would substantiate the proposition that each of the offenders had terrorist intentions in relation to their collection of chemicals, weaponry and ammunition. Public statements of this kind are disappointing. They reflect that some of the "leaders" of the Muslim community are in denial concerning the activities of a minority in their own community. The remarks show an entrenched attitude of hostility to our Court system and to the fairness of jury determinations. An opportunity was missed that might have enabled the senior members of the Muslim community to state publicly that they did not sympathise with terrorist activities, that they did not condone them, and that such activities were to be condemned by the great majority of Australian Muslims. Their remarks inexplicably overlooked the very public fact that four other men, associates of the convicted offenders, had pleaded guilty to serious preparatory terrorist actions involving the same or similar evidence.
That is an important statement because it is unusual for judges ever to come out and say anything about a trial afterwards; more unusual still for them to attack a particular section of the community but, in this case, I think Justice Whealy's remarks were really deserved and are to be supported. He is there accusing the imams of fomenting trouble. The last sentence I quoted, where he said they had ignored the fact that some of these people had pleaded guilty, is an accusation there that the Muslim imams were actually being dishonest.
I daresay they would put a different construction on that if they were here, but I brought this to your attention because it gives some indication of an underlying polarization there, which is breeding and adding to this radicalization. It is an unhealthy atmosphere when there are imams attacking the jury system, and the judges having to defend themselves in this way.
Some of these offences that were created in 2002, and some more in 2005, are of the widest possible kind. Any act done in preparation for a terrorist attack is now an indictable offence under section 101.6 of our Australian Criminal Code, and it does not matter how remote from the actual perpetration of the blowing up of the bomb; just to think about it is more or less an indictable offence.
I will give two examples of what would now be, technically, offences under the law. There is an equivalent provision under section 83.19 of the Canadian Criminal Code. I think my remarks I am making here are apropos of your equivalent offence. If two people were just to meet together to discuss the possibility of perpetrating a terrorist bombing but not reach agreement, and take matters no further, their discussion would have been an act done in preparation for or planning a terrorist attack. It is an offence.
Likewise, if a lone wolf were to access the Internet and download into his computer information on how to make a bomb, intending to plant the bomb somewhere in Sydney or Perth or wherever, but never took matters further than the mere downloading, that would be an indictable offence, liable to imprisonment for a long term.
Justice Whealy has justified punishing these preparatory acts. He said the police have got to be able to strike at an early stage. As he stated in one of his judgments, "the purpose of these new offences is to punish people who contemplate action of the prohibited kind".
That is just the mere contemplation. I raise with you the question whether discussions themselves, if they are criminalized, would not transgress your Charter of Rights and Freedoms, which gives the right to freedom of thought and expression. We do not have those constitutional safeguards there. It is just the possibility that there could be argument that it could be struck down as unconstitutional.
I would say that judges are reluctant to strike down legislation of the Canadian Parliament for reasons too obvious to state. It should also be said that the law of high treason also punishes merely preparatory acts. In a sense, if you were to strike down these terrorist provisions, you would also be undermining the law of treason. That has been on the books for 600 or 700 years. It is a big ask. I do not know whether the judge would do it.
Let me conclude now on this question that your analysts asked me to address, which is the notion of different prosecutorial practices that prevail in the United Kingdom and Australia. This goes to my point about the relatively low conviction rate. Two-thirds, given all the resources, is not really as good as you should be achieving.
The definition of "terrorist act," on which your legislation and Australian legislation is based, comes from or originates from proposals put forward in the United Kingdom. They were originated by Lord Lloyd of Berwick, but in the U.K. Parliament they actually watered down the definition. If you look at the detail of it there and what you have in Canada and what we have in Australia, they have pedaled away from it in two ways.
Without going into too much detail, one of the complicated intents that must be proven in relation to a defendant, in Canada or in Australia, is an intent to intimidate the public or coerce the government. Can one really coerce the government? It is difficult when governments say we will not give in to terrorists. The British said this will cause problems, so they got rid of that and substituted for intent to "intimidate the government" intent to "influence the government."
Then they took one further step. They said that in any terrorist trial which involves explosives or firearms, the prosecution does not have to prove either of those intents at all. That must have been pressure coming from the Home Office or the Crown Prosecution Service. They have looked at this, their eyes have popped out, and they said we will get nowhere with this. We do not want it.
They have reduced the pressure on the prosecution there. Also, they have a policy in the United Kingdom that they will only charge one of the new terrorism offences that have been thought up and legislated since 2002, if there is not an offence under the general law with which you can charge the defendant.
For example, in that conspiracy to attack the Holsworthy army barracks, it was prosecuted in Australia under the new terrorism laws where they had to prove an intention to further a religious ideal, and an intention to intimidate the public. In that sort of case in England, their policy is, we will not have any of that. It is too complicated. You are risking acquittals. They would have charged, I believe, just a plain conspiracy to murder. They would have stuck with the original offences.
When you compare the U.K. experience with the Australian and Canadian, there is this to be borne in mind: If you look at all the trials in Canada, Australia and New Zealand over the last 10 years, there are barely two dozen. Britain, the United Kingdom, has 35 years of prosecuting terrorists in relation to the problems in Northern Ireland.
I wonder whether the Commonwealth countries, like yourself, Australia and New Zealand, when they took that definition from Britain, were really alive to the fact that the British themselves made up the definition, took one look at it and thought, "This will be too hard." They have pedaled away from it and are not making as much use of it as they are in Commonwealth countries. I wonder whether that is one of the causes for the higher acquittal rate.
You could also say that, under the new terrorist laws, you have to prove an intention to advance a religious, political or ideological cause. There has been a lot of debate about that in your own courts. In the Khawaja case, I think Mr. Justice Rutherford, at first instance, took that part of the definition out. He said it was unconstitutional. Then the Ontario Court of Appeal put it back in. I believe your house, if I am correct in this, has made recommendations on that part of the definition, which have not been accepted by the lower house, the House of Commons.
In England, they would be looking at this and asking why are you spending so much time on this issue. Why not just prosecute with the standard charges where they are available?
That is all I have to say. Thank you.
The Chair: Thank you, Professor Syrota, for that very informative tour d'horizon. I will now open the floor to the members of the Senate special committee. I have four who have asked to pose questions. I will ask our colleagues here in Canada to specify which one of our guests you wish to have answer the question, or whether it is a question for both of our panellists in Australia. I will start with Senator Wallin.
Senator Wallin: Thank you both for the case you have made. I do want to hear from both of you on this. Mr. Renwick, in your paper for the Center for Global Risk and Security, on page 11 you talk about the very issue that the professor was just getting into, the success rate and using specialized terrorist legislation and courts to deal with this. You talk about the host of jurisdictional and evidentiary impediments for American prosecutors. I would like you to elaborate some of those. We have heard about them in different forms and ways: is there a deterrence effect; or we can possibly, under the Criminal Code, protect sources in the same way; and why do so many of the cases fall off?
This is a bit of an odd question to Professor Syrota, and I do not want to get too far off the mark at the beginning, but you raised, in some of your observations, the whole point about Julian Assange and whether or not he would qualify in any way because of his statements about the capitalist system, and what we have all seen occur in Egypt in the last 10 days. I would like your thoughts on those issues.
Go ahead, Dr. Renwick, if you would like.
Mr. Renwick: Dealing with page 11 of the paper, this was based on some comments from a very experienced United States former prosecutor about the difficulties of prosecuting terrorists in the United States system. I have seen both systems at work. I went and observed the trial in Guantanamo Bay of an Australian citizen at the end of 2004, and I have also briefly seen how the United States courts work.
I was very surprised to hear the prosecutor say that the U.S. federal justice system does not work adequately. The United States is still grappling with the issue of what to do with people in Guantanamo Bay and whether they can now be brought to trial.
What I can say, though, is my experience of the Australian system is that the normal civil courts are put under some strain because our system, like yours, prizes openness of justice but, nevertheless, it can manage. Just as, for example, cases involving blackmail or victims who are children and the like, can be dealt with partly in closed court. In terrorism trials in Australia, the courts can be and are closed where, for example, intelligence officers need to give evidence. That is sometimes done just as a precaution.
For example, sometimes a single word can concern the intelligence or police people. If you have the case heard in camera, then there is an opportunity within a day or two for the authorities to check the transcript. If there is no problem, the transcript can be released. The media are shut out of the courtroom but only for a short time, as it were.
The other thing I have to say is that I see no reason to believe why normal civil juries in Australia — in an age of almost universal literacy, after all — cannot deal with these complex issues. Our system of jury trials is based on jurors accepting directions from judges about what is the juror's task, what is the judge's task, and what directions they need to follow.
For my own part, I do not see the need for specialist terrorist courts in Australia at all. I simply do not know enough about the situation in Canada to offer any comment beyond the general remark that the common law system is robust, flexible and adaptable, and in Australia it has been able to adapt well, in my view.
Senator Wallin: You were only reporting the case rather than making the case for special terrorist courts?
Mr. Renwick: Yes. This was a colloquium held in Washington, D.C., in January 2008, which brought people together from all over the world. Obviously, given that a number of them were from the United States and given that Mr. Bush was still president, it was a live issue about where people were to be tried, and how.
Although it was Chatham House, and I cannot tell you who it was, but it was a senior former prosecutor who expressed this view, and many people were quite surprised by that view. From my own past, I have great confidence in the common law courts and their ability to adapt.
Mr. Syrota: If I could add to that. Again, you have to remember that the British have the most experience in this area and we should look to what has happened there. On the whole, they have made a good fist of prosecutions in the United Kingdom. They made a slip, in a way, when they introduced internment. That did not last long.
Additionally, the Diplock courts, which were courts without juries, were introduced for various reasons. They were special courts to deal with terrorists. In a sense, I would be loath to see that happen in Australia. I think it would add to the view of the imams and the Muslim leaders that they were being singled out and discriminated against. To the extent that you can deal with the matter with the ordinary civil courts, I think that is the way to go.
I can understand what Mr. Renwick has said about the need to keep some of the evidence secret. That is an obvious point. You will have to exclude the public from the galleries at certain points. However, on the whole, you want to conduct the trial as closely as you can to an ordinary trial for murder or possession of explosives. Despite what the imams said, the quote I read out earlier, where they thought that the trial over which Justice Whealy presided was a travesty of justice, I think that claim will be made 10 times over if you dispense with civil juries. In the eyes of the public, juries give great credibility to verdicts and I would preserve them at all costs.
Let me now turn to the question you raised about Julian Assange, because every time you turn on the radio or television here, there is some new piece of evidence swirling around about him. It is not quite clear what he has done. He is a matter of great interest to us here in Australia because he is one of our own. As you know, he is an Australian citizen.
The charge that is being levelled against him of high treason in the United States is gilding the lily or over-egging the pudding. There is a slight smack of McCarthyism there. I do not know what nationality Mr. Assange has. I know he is an Australian citizen. I do not think he is a United States citizen, and if he is not, he cannot be guilty of high treason there. One of the steps of being convicted of the offence is that you have to owe allegiance to the country that is trying you for treason. I think that one is out.
In addition, I think the basis of the charges here is that WikiLeaks has revealed information that has put the lives of security and military personnel at risk. Again, I do not know whether the allegation is true.
Let us suppose, for argument's sake, that it was true and that the lives that were put at risk were Canadian or Australian military personnel lives. Then I think there might be offences of which he would be guilty. However, I doubt that the terrorism offences could be deployed against him, because of the ingredient that the prosecution has to prove, which I mentioned earlier. They have to show an intention to intimidate the public or coerce the government.
My feeling, just from reading about this in the papers, is that Julian Assange is out there to embarrass government and to influence governments, but "coerce" is a very strong word; it is putting the gun to your head, forcing you to do something that you do not want to do. I do not really see that that is part of the evidence against him at the moment. Although I do not want to say that he is guilty of any offences at all, and it would not surprise me if the whole thing collapses in a heap at the end of the day, to the embarrassment of the United States government, I do not really see the terrorism laws playing much of a role against Mr. Assange. I think there is an over-egging of the pudding going on in relation to him.
Senator D. Smith: I have a question for each of the speakers, but either can comment on the other's answer. We will start with Mr. Renwick.
My question is really the question that you ask yourself at point 14 in your submission: What is the path that people, particularly young men, travel that takes them to the point where they are willing to recruit others and kill others, perhaps at the cost of their own life?
What conclusions have you come to in answering that question in the Australian situation? It may be the same in Canada or the U.K. Have you come to some conclusions about what that path is?
Mr. Renwick: If you take up that document again and if I can take you through a couple of parts of it. If you go to page 4, the first thing to note about all of this, 4(a), is that there is a degree of asymmetry in the warfare that is genuinely new. It is the obvious point that an individual or a small group can cause terrible damage.
The next point, if you go over to page 6, is that in the trial the professor was referring to, the judge there sets out the four factors that he discerned in the accused. At the bottom of page 6, first he said that each was driven by the concept that the world was, in essence, divided between those who adhered strictly and fundamentally to a rigid concept of the Muslim faith, indeed a medieval view of it, and those who did not. Second, it was driven by the conviction that Islam throughout the world was under attack, particularly at the hands of the U.S. and its allies, and that included Australia. Third, each offender was convinced that his obligation as a devout Muslim was to come to the defence of Islam and other Muslims. Fourth, it was their duty, indeed a religious duty, to prepare for a violent jihad in Australia.
Finally, if I could take you to the piece you were quoting from in the paper, and particularly to page 15, at the bottom of the page. There is reference to whether it is a leaderless formation or not. Plainly enough, some people actually do join up with al Qaeda or other organizations. They attend training camps overseas, for example. There are other cases where there is only limited contact, such as over the Internet. There are yet other cases — it has been described as terrorism by franchise — where people, without ever having direct contact with terrorists, say, "I follow that doctrine." That makes it very difficult to work out what motivates individual people.
The best answer I can give you is to refer you to page 16, where the conference looked at a seminal article called The Staircase to Terrorism: A Psychological Exploration. The article uses the metaphor that the terrorist act is the final step on a narrowing staircase. You start off along with many others on a broad staircase, but then you keep climbing. Instead of getting off the staircase, you keep going until you reach the point where the only possible act is to destroy others or yourself in a terrorist act.
The learned author sets out a number of factors. One is the individual's interpretation of the conditions in which he lives. That may be real or a delusion. As I said in my opening remarks, in a First World country like Australia or Canada, where there is a proper social security system, we are not dealing with people who are in shockingly abject poverty in the way you might see in a Third World country.
The available options he sees to remedy justice may, again, be quite delusional, or it may be that many people feel there is an injustice — for example, in the foreign policy of the United States.
Point (d) is very important. Moral disengagement from society is very important. If you feel you are completely disengaged from normal society, if you do not have a job, if you have little to do with people from day to day and you only deal with people who are radicalized, that can quite quickly affect your world view, leading on to recruitment or identifying yourself as a member of the organization and, finally, overcoming your inhibitions about acts of violence.
I have suggested a couple of mechanisms, which are not original. One is that governments and agencies of government must, where there is a good explanation for why we have these laws and why prosecutions are taking place, publicize them. During and after a trial, the story must be told. Equally, where there has been a government bungle or a government misbehaviour, that should be brought to life as well because, after all, the strength of democracy is that we can accept that we are not perfect, although the system itself is a good one.
Those are only some general suggestions. I do not pretend to have any eureka moments, but plainly there is much work to be done.
Senator D. Smith: I have a couple of questions for Professor Syrota, and Mr. Renwick, you can respond to them as well if you wish.
You referred to a number of the sentences in Australia as long sentences, over 20 years. Do you think that affects the thinking of people who are considering getting into this, or do they even think about the sentences? I do not really know if it affects their thinking at all, particularly if they are in the suicide category.
In Mississauga, which is a suburb of Toronto with almost a million people, there were 18 people charged with plotting to blow up the CN Tower and other places in Toronto. Initially, we heard quite a bit of cynicism via the grapevine from some people in the Muslim community. Then the charges against several of the individuals were withdrawn because of a lack of hard evidence. Of the others, all but one wound up pleading guilty. I believe a trial went ahead with regard to only one accused.
Of course there are different elements in that community that have different approaches. This committee heard from a witness several months ago whose focus was on the need for programs to ensure that the right messages from their community were getting through to people, most of whom were young, to try to impact their thinking and get them off that path.
Have you any thoughts on that?
Mr. Syrota: I am not an expert in this area at all. As to sentences, I would have thought they would not have known much or cared much. They might have known in general terms that they would be up for it if they were convicted. It is hard to deter suicide bombers who are willing to put an end to their own lives.
One thing that drives these young fellows is the tremendous amount of publicity they get when there is a successful attack. That is the lead story on the CBC News and ABC News here, and they are craving that. It is difficult to know what to do about it in the context of a society where freedom of the press is valued and must be allowed. I am not suggesting that there should be a curtailment of free reporting, but it is one of the downsides of it. The publicity they get feeds and drives it on.
One of the first terrorists to come before the courts here was a young Muslim in his early twenties. He was acquitted of two terrorism charges but convicted of one charge of recklessly making a threat against a government officer. He was courting the attention of the media. He was interviewed by The Australian and was enjoying the publicity. If you Google him, I think you will see that he is trying to set up his own television show now. I do not know how successful that is. That is one problem that drives this, together with the Internet.
Also, as I mentioned earlier, if the leaders or so-called leaders of the community do not distance themselves from it and appear to condone it, what better driver could you have?
I am afraid I do not have much more of a solution than that. I think it is a puzzle and a problem for everyone.
As Mr. Renwick was saying, Australia is a tolerant, fair and welcoming society. There are bigots here, but not many of them. Yet, these people have spent their lives here, have been treated quite well, and then turned on the society. It is difficult to know the reasons for that. It is a problem in Australia, Canada and the United Kingdom, and I do not know that anyone has the solutions. I certainly do not.
Senator D. Smith: Mr. Renwick, do you have any thoughts on the sentencing issue?
Mr. Renwick: I have nothing to add at this stage. Thank you.
Senator Marshall: My question is for Mr. Syrota, although Mr. Renwick may also want to speak to it.
You were talking about the conviction rate and saying it is not marvellous. Once a person is convicted, where do they serve their time? Some of them have been sentenced. Do they serve time in the general population in the prisons? Are those who have been sentenced to quite lengthy terms in solitary confinement, or are they with the general population where they can recruit people to their cause?
Mr. Syrota: I have no detailed information on that. I think Mr. Renwick would be better placed to speak to that because he has been involved in these trials.
I do know that in the time leading up to their trials, some of them have been held in solitary confinement. Some of them have been shackled and searched daily, and I think some of the trial judges have expressed concern that there is an element of overkill there. Many of these are single people. It is an accusation that has not yet been proven. Some of the accusations have completely fallen away. There is really no reason to deal with them as if they were people who could just rip the whole of society to shreds at a moment's notice.
In terms of where they serve their sentences, the general idea would be that they go to ordinary prisons. However, they almost certainly will be held in maximum security prisons and probably in special wings. However, I expect there will be an attempt later on towards the time when they finish serving their sentence to rehabilitate and reintroduce them to society. I think Mr. Renwick will know more about this than me.
Senator Marshall: Mr. Renwick?
Mr. Renwick: As I understand it, in New South Wales — and I cannot speak for other parts of Australia — people who are terrorism subjects or who have been convicted of terrorism offences are given the highest possible security classification in jails. That might not necessarily mean they are in solitary confinement, but they are in an exceptionally secure part of what is already a high security jail. The professor is right that there have been comments by judges from time to time that the police authorities in Australia have over-confined people who, after all, at some stage, are not yet convicted. That is the first point.
The second point, though, is that I think there are significant issues about Islamic radicalization of prisoners more generally, perhaps simply as a way of avoiding being intimidated in jails; people become radicalized. However, it is a phenomenon not just in Australia but in other countries. An eye needs to be kept on it. I do not have the answers but I think the prison authorities all around the world are conscious of this particular problem.
Senator Marshall: If someone is in there for a lengthy period of time, would you know if there is a process whereby they are de-radicalized? Also, what happens to them once they are out of prison? Are they just left to go on their merry way? What happens all along the spectrum?
Mr. Renwick: I am not sure of the detail of de-radicalization programs, but I had suggested in my opening remarks that such programs are necessary. As to what happens with people when they finish their sentence, they might still, of course, be serving their sentences but have finished the non-parole period. I imagine it is the same in Canada, but that means they have served the required compulsory incarceration period for the remainder of the sentence. If they were to commit another offence, or to get themselves into trouble, then they could be required by the court to go back into jail and serve the rest.
Then there is the question of what can be done at that point, and what can be done when they finish their sentence completely. We have in Australia, at least in theory, a system of control orders that allows the police to go to the courts and say, in effect, that people should be subject to conditions on their movement, communication and so on to ensure they do not commit further offences and do not radicalize others.
As you would know, that is a controversial idea, both in Australia and in the United Kingdom. In Australia, there was a challenge to the validity of those laws and the challenge failed.
However, it is obviously controversial to limit people's freedom when they are not being punished for a criminal offence. In fact, we do it for people who are in quarantine. Also, we have laws in almost every state in Australia that, for example, people who have served sentences for sex offences, who cannot control themselves anymore, can be subject to further incarceration in prisons even though it is not part of the sentence.
It is one of those difficult dilemmas for democracies; what do you do with people who have served their time but might still be a threat? As I say, there is a range of ways you can deal with it.
Senator Marshall: I realize that.
Mr. Syrota: As I understand it, the control orders that Mr. Renwick was mentioning have been used in two cases. I think they were used in relation to Jack Thomas and also to David Hicks.
My recollection is that they can be put in place for up to one year but there is the power to renew them. I think they cover a wide range of things: There is a curfew in that you have to be in by such and such a time; you must report to the police; there are lists of people whom you are forbidden to contact; et cetera. I think in one of these cases — it might have been Jack Thomas — you were prohibited from contacting or telephoning a list of people, including Osama bin Laden, who is included in the warrant. This was the subject of some merriment. People would say, "If they know his telephone number, he could ring him and the rest of us can listen in and hear what is being said."
Those control orders are controversial because they are a restraint on someone and they can be imposed on people who have not been convicted of a criminal offence, as I understand it.
Senator Marshall: Would you have been aware of a case where someone convicted has had their citizenship revoked?
Mr. Syrota: I do not believe that ever has happened, and I am not sure that someone born here could have their citizenship revoked. Where would they be sent? I think you are thinking of people who have immigrated to the country. I do not know if that has ever been employed in a terrorist case, but Mr. Renwick may know more.
Mr. Renwick: I am not aware of that, either. Generally speaking, senator, once you are a citizen, you are Australia's problem. When you are still a permanent resident, if you commit certain criminal offences, the immigration minister can basically say, "That is it. You cannot stay in Australia any longer."
The other general point is that you cannot exercise a power to deprive someone of citizenship if it would make them stateless. As the professor said, where would someone go?
We do have power, though, to cancel people's passports, and that is done from time to time when a view is taken that someone travelling overseas would be up to no good and, for example, is a threat to Australia's authority or the security of another country. It is a controversial power but it is not an uncommon power in western democracies.
Mr. Syrota: There has to be notice there, senator. I mentioned earlier the case of a young person who was a bit of a publicity seeker. What precipitated his fury against Australia is that, after being interviewed by ASIO, he was denied a passport. He was an Australian citizen but he was denied a passport on the basis that they thought he would embroil himself in terrorist activities if he traveled aboard.
As a result of being so denied, he then became implicated in a plot to enter ASIO's buildings and I think he was going to fire on people there. However, the jury at the end of the day felt that it was just a fanciful thought of his. The prosecution did not manage to bring home the charge. However, it was interesting that his dissidence against Australia was started by the denial of his passport. Therefore, such revocation can be used in some cases, as Mr. Renwick said.
Senator Marshall: I was aware that was an option and had been used.
Senator D. Smith: I might point out on a point of order that there have been instances in Canada where someone who was not born here, came to the country, and had proceedings taken against them to revoke their citizenship because they had lied under oath to get here. There is a ground where that is a category. It does not happen too often but it does exist.
Some of them related to people who had been very active Nazis during the Holocaust but they lied when they got here.
Senator Jaffer: Thank you very much for both your presentations. I am interested in what you said about ensuring that you keep the faith separate from the person committing the offence. Could either or both of you enlighten us about your programs to reach out to the Muslim community?
The Chair: Would either of you care to answer the question? Dr. Renwick?
Mr. Renwick: Senator, the parliamentary information and research service has prepared a document about what Australia has done. I believe that pages 4 and 5 make reference to the current national action plan, which Australia is working on, and its aims. My knowledge of those programs is no greater than what you would find on those two pages. I reiterate what I said in the opening remarks: It is terribly important to make clear in these criminal trials that Islam is not on trial, which of course it is not.
Mr. Syrota: I totally agree with Mr. Renwick's last remark. A problem has arisen to some extent in relation to some of these cases where there have been acquittals and the evidence has been shown to be quite thin. The paradigm case was Mohammad Haneef. He was the Indian-born doctor who worked for a while in the United Kingdom before coming to Australia to work on the Gold Coast. He was connected with terrorists in England on the basis of the thinnest of evidence. He was incarcerated for 12 days before they charged him with giving support to a terrorist organization in England. The particular terrorists with whom he was connected were his second cousins, who perpetrated a terrorist attack at Glasgow airport. It was said that he had left his cellphone or the card for the cellphone with his second cousins in the United Kingdom and had done so deliberately to assist them in some way. In fact, it all fell apart and the charge was withdrawn. Although his visa was withdrawn, it was later restored. The police kept up the pressure. They maintained for some time, even after his release, that he was still a subject of interest to them. The government's Clarke Inquiry completely exonerated Mohammad Haneef so much so that the government apologized to him and recently paid him substantial compensation. In that case in particular and in other cases, the prosecution fell over. Those events have been used by the Muslim community as an indication to them that they are being unfairly targeted.
In my view, they are not being targeted. I agree wholeheartedly that Islam is not on trial. However, when you prosecute people and the charge comes completely unstuck and an apology is made, it can lead to that sort of perception. The law is so widely drawn that people are being arrested not on the point of committing the terrorist attack but way before then. If you are to charge people on the basis of the beginning of their planning, you will raise questions with a jury: Was it a serious plan? How committed were they? There are all sorts of possibilities for a trial to go wrong, which takes us back to the general law. To be charged under the law for murder, you have to kill someone deliberately. To be charged with attempted murder, you have to be doing the last act needed to bring about the victim's death, such as pointing a gun at the person's head or dropping the poison in the drink and handing it to the person. In such cases, the prosecution will not fall over. However, if you charge people for any preparatory act or for vaguely being a member of a terrorist organization, there will be a lot of circumstantial evidence; the jury will listen to it; and, in some cases, they will say that they are confused by it — not guilty. That circumstance is used by the Islamic community to say that they are being targeted.
The law is a double-edged sword because it allows the police to move in early to nip the crime in the bud, which is a good thing because no one wants to see these dreadful crimes perpetrated. However, the police and the prosecutor have to exercise constant discretion in determining whom they will charge and whom they will not charge. If they bring the charge and it falls apart later, it does not look good and, in my view, can be used potentially by the imams to suggest that they are being targeted.
Mr. Renwick: If I may add as a footnote, this question about when you charge and when you stop investigating is one of the most difficult problems in these cases. An intelligence officer obviously does not want the act to occur but wants to know as much as possible about the size of the conspiracy, if that is what it is, who is involved and what they are planning. The police have an enormous amount of pressure to move perhaps earlier than they would like to because of the enormous human cost of a terrorist act and the criticism that governments, fairly or unfairly, would be put under. It is a terrible dilemma in this area. May I give you a reference? In the first paper I gave you, this theme is discussed on pages 8 and 9, which you might read at your leisure.
Senator Jaffer: Could you provide us with some details about the de-radicalization measures taken by your government?
Mr. Syrota: I am not in a position to give you those details. I know that on the government's national security website, there are references to devoting over $9 million to the cause against terrorism this year. The site speaks to the need for de-radicalization programs but there is not any detail. As Mr. Renwick said, it is a matter of getting the prosecutors and the police to liaise with the community to gain their respect. I am sure that to actively recruit Muslims into the police service is one way of heading it off. I do not know what programs the government has but, in saying that, I do not mean to say they have none. There is a certain sort of mendacity within the Islamic community in that a small minority of imams are fomenting dissent. It is difficult to know exactly how to deal with it.
Mr. Renwick: I can only point you again to pages 4 and 5 of the document produced by the parliamentary information and research service under the heading policy initiatives. I do not think I can add much to what is said on those pages.
Senator Tkachuk: My question is to both witnesses. Terrorism has been with us throughout the 20th century. We once celebrated terrorists such as Yasser Arafat at the United Nations, and we put up with what happened at the Munich Olympics in 1972. We have an understanding in the nation state that we have to protect the security against other states, but we also have to have an understanding that we have to protect ourselves from those wishing to attack our way of life that may not be part of nation states. There are ideological groups, like the communists were. The communists fomented trouble by ideology everywhere they went. They were organized; they met in the Comintern; they made decisions to go after a particular country; and they used terrorist acts just like these people do. We think about how we treat them. Do we treat them like a domestic criminal who robs a bank? Do we treat them like some member of a nation state that is spying on us? Maybe we should have a third way to treat these people. This will be with us always, and we have to find a third sort of way, a third group of laws that deals with these people separately, rather than having this argument about whether we should treat them in criminal court or as prisoners of war.
This will go on forever. You cannot keep them in Guantanamo all the time. This terrorist war may go on for 30, 40 or 50 years, like the communist war did.
I do not know whether Australia may be thinking of it, but we have been having this debate here about how to do it. They have been having it in the United States about how to try these people.
You have to try them; you cannot try them like the local criminal who robbed a drugstore but you have to try them in a different way. You cannot try them like a member of a nation state, a foreign army, so you have to find a third way to try them. Western democracies have to look at this because I do not think there is an end to this.
Mr. Syrota: It is a very difficult question but, in terms of how you treat the terrorists, it is certainly the policy of the British government in relation to charging offenders that they want to use the general law as much as they can. The reason for that, as stated in the report of the independent reviewer of terrorism, Lord Carlile, is it is important that you do not give the terrorists the badge of honour that they want and are looking for. You can deny them that possibly by just charging them under the ordinary law with offences like murder and possessing explosives and these rather unexciting charges. That is one thing.
The other thing is that going back to that definition of "terrorism" that you have been grappling with in Canada — and lots of ink has been spilled on it here in Australia and in the United Kingdom — in order to bring home the conviction, you have to show an intention to advance a political, religious or ideological cause. That is a bit of a mouthful and no one really quite knows what it means. What is violent jihad when it is at home?
The problem, if you have to show that someone is advancing a religious cause, is it means there will have to be interviewing of that person about his or her, but in most cases his, religious beliefs. That has been a bit of a thorn here and I think also in Canada. A lot of the people who are interviewed never get charged at the end of the day, yet there is the sort of careful dissection of their religious beliefs.
That can be offensive to people and it is another reason for making more use of the general law offences because, if you are charged with murder or conspiracy to murder, you are not really interested in the religious credo or faith of the person. It might come up as a matter of importance in sentencing.
However, the definition of "terrorism" that has been selected in Canada, Australia and New Zealand really forces the security services and the police to look into the defendant's racial background and religious beliefs, and I wonder whether that is a good thing. If I have not answered your question directly, let me say I think probably the answer is not to treat them in a third way, but maybe it is because I am British by birth; maybe there is sympathy there.
I think to go along with that notion of deny them the cachet, deny them the badge of honour and so far as can you, just treat them as ordinary criminals is part of the answer. It is all I can give, senator.
Senator Tkachuk: Just to take issue a little bit — or maybe we should have the other gentleman comment.
The Chair: Mr. Renwick, by all means.
Mr. Renwick: Certainly, senator. You have raised a very serious issue, which America at least has been debating since shortly after 9/11. I am more and more convinced that the normal civil judicial system trying criminal offences is capable of dealing with almost all terrorist cases, if not all of them.
Of course, we can all think of a case where the only usable evidence against someone would disclose a source or method which would compromise national security and, therefore, the case cannot go ahead, but that is not a problem unique to terrorism. You have drug cases where you cannot prosecute the most serious offence because there is only one informer and if you were to use that informer's information, it would give the game away and put their life at risk.
This is something that prosecutors do grapple with from time to time and you simply may have to proceed with a lesser offence. What is that? It is simply a reflection on what the available evidence allows you to charge.
It is possible to imagine that you could not charge someone and you might have to proceed to preventive detention. As I said, in Australia, in a number of ways we do that but we do it very reluctantly because it infringes the very notion that punishment is something the courts impose for breach of criminal offences.
What are the other possibilities? I suppose one might have an international tribunal, but that always has its difficulties. Certainly, the superpowers tend to want to retain a right of veto in that regard.
The problem with military tribunals is that, first, if they offer a standard of justice that is lower than the standard of justice the country would offer to its own soldiers charged with a military offence, they are open to the criticism made about Guantanamo Bay. If you charge them with the same offences before a military tribunal, then it picks up the comment by Lord Carlile, the anti-terrorism reviewer, that you are giving the terrorist too much respect as a soldier when, of course, he or she is not.
Therefore, it is a difficult issue, senator, but my own view, having thought about it a little, is that the normal criminal law system is a very strong one and is adaptable.
Mr. Syrota: Could I add a footnote to that? If you were to have specialist tribunals to deal with terrorist cases, it would bring in an additional problem as to what you would call a terrorist case.
We have had a lone terrorist here; it was an attack on the mainland but I did not mention it earlier. I think it took place some 10 years ago where a person who was a pro-lifer attacked an abortion clinic in Melbourne. I think he shot the security guard. He was charged with murder and convicted and sentenced to life imprisonment or some such sentence.
With that sort of a case, it could possibly be charged as terrorism today because he was furthering an ideological cause, an anti-abortion cause, intending to intimidate the public. Would that come within the specialist tribunal? It is a difficult question you would have to ask.
There is also the other attack that I perhaps glossed over or did not have time to mention earlier. There was a bombing of the French consulate here in Perth in 1995 or 1996 — two Molotov cocktails were thrown through the window. There was no person injured there; there was extensive damage to property. They convicted the people under the general common law offences and they served five, six or seven years in jail.
The cause of that attack on the French embassy was that the French government had resumed testing nuclear missiles and this was a reprisal for that. It is a form of terrorism, it is anti-government and it savours of terrorism, but is it really necessary to take it to a special tribunal? If you had one, what sort of cases would it consider? I think that would be a further complication, which is really an unnecessary matter —
The Chair: Professor Syrota, I will let the senator respond to some of that.
Senator Tkachuk: Just a couple of points. The idea that a person who bombs an abortion clinic is a terrorist — we all know what a terrorist is; to me, that would not be a terrorist.
Certainly, the argument that the terrorist, by being exposed to a criminal court, would not get the same respect, from what we know of the readings of these people, by not trying them harshly and trying them as terrorists, here is what we do in Canada. We would arrest the person. We would then make sure that he got his welfare cheques. We would pay his defence fund. That is exactly what they say about our society, namely, that we are so weak, we are not willing to protect it. Here is what will happen to you when you get caught: All your lawyer's fees will be paid, you will be able to go to court, and you will be able to continue with a tirade against the terrible Western culture. Let us be serious here. I cannot possibly believe that terrorists would say, "If we get tried in a criminal court, that would give us less stature in the terrorist community." I think that would just show how weak the forces are that they are trying to destroy.
Mr. Renwick: If I could just add as a footnote, the English have a lot of experience in this regard. An important paper entitled Counter-Terrorism Powers: Reconciling Security and Liberty in an Open Society said — and this really states the problem without answering it in a way — that, "The challenge, therefore, is how to retain long held and hard won freedoms and protections from the arbitrary use of power or wrongful conviction, whilst ensuring that democracy and the rule of law itself are not used as a cover by those who seek its overthrow." That acknowledges your concerns.
Of course, there are people who want to use our open democratic processes to overthrow democracy. The courts and parliaments need to respond appropriately to it. Can it be done? I would like to think that it can.
Senator Tkachuk: I was suggesting that there could be a third way. I was not suggesting that we would deny people's freedoms or that we would pass laws that would deny the rule of law. I am just saying that terrorists are people who are trying to destroy our culture and our society. To me, they are no different than the Nazis trying to destroy the Jewish people because of what they believed. These terrorists want to destroy Western culture because of what they believe. We have to find ways to combat them. Jurists should have this discussion for sure, but I do not see it happening.
Mr. Syrota: One thing to be said about the verdict of the jury is that it carries a lot of weight in the community. It is true that, in the small quote I read earlier, the imams complained of the jury's verdict. However, in the eyes of most people, I think Muslims would as well. If these 12 men and women, good and true, find you guilty beyond a reasonable doubt, it is difficult for most people to come to the conclusion that it has all been a fix. If you take the jury out of the equation and if you have special tribunals and judges — well, judges are independent, I know, but it is easier to portray them as instruments of the state than it is 12 people sucked up off the street. The jury is part of the democratic process but, in using them, it is a great force against terrorism.
Senator Dallaire: I had to come to this committee to listen to some of the near assaults of decades upon decades of building civil liberties and balance in our laws. However, it is a free and democratic society so we are allowed our divergent opinions.
How far have you responded to the concerns of the civil liberty structures of your nation with regard to things like section 101.6, as you described earlier, because you wanted early intervention, an offence to do any act in preparation for or planning a terrorist act warrants action.
In that light also, have you had any cases of Aboriginal people conducting any activities against the government, the infrastructure of the nation with regard to their revindication or grievances?
Last, what about the age of those who commit the offences? Has there been consideration with, depending on what age they are, particularly juveniles, regarding the depth of the belief in the actions or the manipulation by the adults to conduct those actions?
The Chair: In this context, "revindication" would be translated as "legitimate grievances." That is for our Australian friends.
Mr. Renwick: Thank you for that.
Perhaps I can deal with it in reverse order. I am not aware of any people under 18 being charged with terrorism offences. Of course, as with any offence, if people are convicted, it is open to them to show they were led astray by someone else. That would be reflected in the sentence and in their prospects for rehabilitation.
Regarding the second question, I am not aware of any offences by Aboriginal people.
On the question of civil liberties, I might let the professor deal with section 101, but I can say that the Parliament in Australia has been intensely conscious of the controversy involved in passing these laws. When they were passed, there were almost a record number of submissions made to the Australian Senate, which led to some changes. Some people would say, "Well, in the aftermath of 9/11 it was not politically palatable for either major party not to pass what were seen as strong laws." Be that as it may, it seemed to be an example of democracy at work where people were invited — the civil liberties people — and people generally responded in large numbers to the proposed laws, and some amendments made.
Mr. Syrota: I agree with everything that Mr. Renwick just said. To my knowledge, I think we can both say that the Aboriginal people have not been accused of any such crimes. Again, for people under the age of 18, that is not really the bracket. It is people in their mid-20s to late 30s; that is where the radicalization is taking place. There may be one or two groups slightly younger or older but that is basically the age group.
In relation to civil liberties, yes, we do have an open society. Our Parliament operates very much like yours does; it is an open and free society. The government did put pressure on the Senate in terms of the timetable and said, "Yes, you can consult, but we will only give you so many weeks to do this." There were quite a few complaints by the civil liberties' lobby, saying that you are not giving us enough time. I do not remember the name of the judge, but he said that the devil is in the detail. If you do not give more time for consideration of the bills now, there will be all sorts of things that could have been tidied up that will not be. I think his view has been vindicated.
There were certainly concessions to the civil liberties' groups — not all they wanted, but there were concessions to them. In terms of the offence of doing any act of a preparatory nature, that is the widest offence. It is parallel to section 83.19 of the Canadian Criminal Code. It is phrased slightly differently, but it has the same basic import. I mentioned earlier the possibility of a challenge under your Charter of Rights and Freedoms.
There is that offence of high treason, which is just as broad: Any act that is done in preparation for levying war against the Crown or compassing the Queen's death, any act has always been treason. These terrorism laws have been modelled on that. It is not true to say that they are unprecedented. They are very wide, but they are not unprecedented. Although high treason would not be charged today in a peaceful society, against terrorists, nevertheless it is probably technically the case that those three terrorists in Sydney, who plotted an attack on the Holsworthy army base on the outskirts of Sydney — they were going there with their machine guns blasting — were conspiring to carry out a terrorist act.
If Australia was at war with another country or in a time of national emergency, it would be quite appropriate to charge those people with high treason. I think they would be guilty of it in those circumstances, if not today. The reason it is not used against terrorists, and I do not suggest it should be, is it is a very old offence and is really the most serious crime on the books. You would use it only for an exceptionally serious case, a case where Australia was at war with another nation and then Australians went into an army barracks here and attacked Her Majesty's soldiers. That is the clearest case of high treason you could get.
If you look at the authorities on the cases of high treason, they date from the 17th and 18th centuries. They have factual situations with men riding around on horseback charging at the king and so on. They are quite inapposite to modern situations. You would not want to charge terrorists with high treason. Leave that offence to one side. Nevertheless, the width of that offence is the same as the width of section 101.6.
Senator Dallaire: That is nice to know we have high treason. We also used to have capital punishment and we adjusted that. We were also allowed to have court martials with the authority of being able to use capital punishment as a sentence. We only got rid of that recently.
I come back to the dimensions of these laws. In an era of intelligence-based policing and with the capabilities that exist within the revolution of electronics and the like, it seems to me that having a law that must go that far down into the civil liberties of the society is an indication of the ineffectiveness of the intelligence-based policing of a society. I argue that on the principle that this country has seen revolutionary actions, for example, in 1970. We have had insurrections, for example, in 1990 by Aboriginal people. There have been other similar instances where the growing discontent of elements within our society, let us say Aboriginal, can conduct actions against either government or the people in order to have their grievances raised.
At what point do these fit in to your terrorism definition and permit the authorities to use these acts to go against them?
Mr. Syrota: I am not quite sure what point you are driving at. It is a little bit difficult to hear. Are you asking whether these laws ought to be deployed more widely?
The Chair: From where I am sitting, it strikes me that the senator was asking about the present culture of civil liberties, the presumption of innocence and understanding that in societies you will have people who have legitimate grievances, which may be reflected in various ways. How do that reality and the jurisprudence in your country dealing with that reality interact with the jurisprudence we talked about here tonight, namely, protecting in a prophylactic way against terrorist activities, or prosecuting those who may be found guilty of conspiracy at various levels relative to terrorism? That is my understanding of the precise question being put.
Mr. Syrota: Thank you for that clarification; it is only because it is a difficult line.
I would say that written into the definition of terrorism in Australia are exemptions for people who are trade unionists, who, in the course of a strike, might start throwing stones at buildings and this, that and the other thing. There can be damage to property and tempers are frayed. That is specifically exempted from the law. I cannot remember the exact phrasing of it, but protest and dissent that does not have as its main objective death or the endangerment of life is specifically exempted.
There, Parliament was trying to draw a balance to convict the jihadists who are guilty of terrorism, while allowing a great measure of freedom to people with different views to be able to express their views, not just peaceably, but even going as far as rock throwing, so long as it does not come to the endangerment of life. That is not saying that people who throw rocks and damage property will be outside the criminal law altogether. They will not be; they will liable for criminal damage under state law. However, the idea is to keep them right out of the terrorist laws. It is a fine balance but, certainly, Parliament has had a go. I believe the Canadian legislation has a similarly worded exemption.
Mr. Renwick: The wording is advocacy, protest, dissent or industrial action.
Senator Dallaire: It does not cover insurrection by Aboriginal people who take on not only the police but also the army with weapons. Do we consider them part of a terrorism structure, or people who are fighting for their grievances and, in an extreme scenario, being tried under those normal laws versus a terrorism-based law?
Mr. Renwick: At the end of the day, a prosecutor must be prepared to sign an indictment and must be prepared to say, first, "I can prove this beyond a reasonable doubt and with the all the relevant requirements," and, second, that it is otherwise in the interests of justice to bring this charge against these people. I must say, the hypothetical example you are giving is very much on the limits of this law. I would have thought it would be dealt with in another way.
Senator Dallaire: I hope so.
The Chair: This has brought us to the end of questioning from this end. On behalf of the members of the Special Senate Committee on Anti-terrorism, I want to thank our Australian witnesses for being so generous with their time, for their preparation, the material they sent us, their perspective, their clarity and candour. One of the great things about our Commonwealth brothers and sisters in Australia is that they share the same burdens we do in trying to protect a society from terrorists, trying to act in a fashion that respects the rule of law while maintaining the important balance of civil liberties which, after all, are what distinguishes our society — the rule of law, the common law and the premise of due process. We thank you for sharing both your perspectives with us. It was very helpful to our deliberations. We very much appreciate the time you have made available for that purpose.
(The committee adjourned.)