Only The Sangfroid

Mark is of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. He does live in an ivory tower.

These are his draft thoughts…

I hear you dancing, we never met before… Is Senator Keneally correct that Australia should proscribe right wing orgs?

According to The Guardian‘s Paul Karp (yes, I know, I know, bear with me), Labor’s Shadow Minister for Home Affairs, Senator Kristina Keneally, discussed the issue of far-right extremism in her speech at the Australian Strategic Policy Institute’s 2020 Counter-Terrorism Dialogue.

Having been given an advance copy of her speech, Karp writes:

Keneally notes the fact all of Australia’s Five Eyes partners – Canada, the United Kingdom, the USA and New Zealand – have proscribed some rightwing extremist groups as terrorist organisations. “Australia has not listed any. We are the odd one out.”

Senator Keneally has an awkward history with the policy area, and is frequently criticised for strange policy positions.  Upon her promotion to the portfolio, Senator Keneally warned about ‘airplane people‘ — people who were making claims for asylum after entering Australia through regular migration pathways.  It was difficult to establish precisely what her concern was.  Should more visas be rejected by people who might make claims for asylum once they’ve arrived?

Other problems followed.  Where the ALP correctly rejected boat ‘turnbacks’ when in Government, Keneally now enthusiastically supports them.  She also advocates for ‘Community Sponsored Refugee Programs’ where asylum seekers with connections to destination countries are prioritised over other asylum seekers.  She abandoned the underlying logic of the ALP’s regional resettlement policy to score cheap political points about New Zealand’s offer to resettle people in Australia’s offshore detention facilities.

Fundamentally, she wants to breathe hot and cold on asylum seeker policy and national security.  If she thinks it will play well with the electorate, she says it.  The result is a continued lack of intellectual leadership on the issue from the ALP.

So what should we make of her claim about Australia being the only country in the Five Eyes network not to proscribe a right-wing organisation?

Australia currently proscribes 27 organisations.  It is important to note that this is not an exhaustive list of the terrorist organisations that we recognise.  Courts also have a role during prosecutions to determine if an organisation is a terrorist organisation.  That is, if you’re a member of one of the 27 listed organisations, you’re a member of a terrorist organisation.  If you’re a member of an organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act, you’re also a member of a terrorist organisation.  In the case of the latter, the prosecution has to produce more evidence.

And it’s because of this evidentiary burden that the listing process is narrow and strict.  It’s mostly affiliated organisations of Daesh and Al-Qa’ida.  Every so often, even the Greens ask why other Islamic terrorist groups aren’t listed.  If you want to ping somebody for being a member of a terrorist organisation, the threshold should be high.

Although I support black-listing, I recognise that it is controversial.  When the United Nations Security Council black-listed Al-Qa’ida and the Taliban (Resolution 1267 in 1999), human rights groups argued that interfered with people’s ordinary legal rights in a way that might be excessive.  In Australia’s case, this is the Executive being able to bypass judicial evaluation of the question about whether an organisation is a terrorist organisation.  The Court plays a very limited role in overseeing that determination.  The Law Council of Australia periodically notes that they opposed the enactment of the listing provisions.

The United Kingdom lists 76 organisations.  More than double us.  In July 2020, the UK proscribed Feuerkrieg Division (FKD), a white supremacist group with members across North America and Europe.  National Action has been proscribed since 2016, and a splinter group of it (Sonnenkrieg Division) was proscribed this year.  And then there’s a handful of organisations linked to Northern Ireland related terrorism.

But — and here’s the kicker — section 11 of the Terrorism Act 2000 does not have Australia’s ‘second limb’ approach.  If an organisation isn’t proscribed, it’s not a terrorist organisation.

Canada lists 60-odd organisations, including the neo-Nazi group Blood & Honour and its armed branch Combat 18 (both proscribed in 2019).  Note that they don’t include KFD, and that the UK list does not include Blood & Honour or C18.  But, like us, Canada includes the second limb: a listed entity or an entity that facilitates or carries out terrorist activity.

New Zealand has the two-limb approach, and lists about twenty organisations but, in quite a strange move, the only right-wing organisation is the name of the Christchurch terrorist.  This listing of an individual is confusing, given that the Terrorism Suppression Act 2002 really is about the assets and activities of groups.  But note: this is the only ‘group’ listed.

The United States is the wildcard as there’s no single list.  The usual comparison is made to the list of ‘Foreign Terrorist Organisations’ created by the Secretary of State, but this list does not contain any extremist right-wing parties.  It is unclear to which list the Senator is referring.

Let’s bring this together.  Her claim has the appearances of being reasonable, but the systems are not obviously comparable.  The UK, for example, has a much more extensive list than Canada, NZ, and Australia because of the way their legislation works.  Indeed, in comparison, the question is why more right wing organisations are not listed by the Brits (like Blood & Honour and C18).  Australia, Canada, and NZ use the two-limb method, but New Zealand’s only right wing ‘organisation’ is a single person.  Finally, the United States does not have a single list and the most comparable list does not include any right wing organisations (as far as I could see).

So her claim does not make a lot of sense comparatively.  Let’s take this one small step further: does it make sense in the Australian context?

Australia has a relatively short list because there are inherent legal-philosophical issues about proscribing organisations.  These issues are acknowledged even by people who are in support of proscribing organisations.  It is a tool used sparingly and conservatively in Australia.

According to Karp (and I’d really need to check the speech because it is very difficult to believe that a person would argue this), Senator Keneally thinks some right wing groups should be proscribed for ‘symbolic’ reasons.  For the reasons given above, this is obviously absurd.

Proscribing organisations needs to be done on an organisation-by-organisation basis, not merely because you want to have at least one group proscribed from each species of terrorist group.  That is a task better left to the courts, and it is worrying that this sort of rhetoric is being advanced in Australia’s political debates.

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