Australia's legal fight against terrorism

Indra Rosandry, Bogor

On Sept. 9 this year, Indonesia was shocked yet again by a suicide bomb blast, the target of which was the Australian Embassy in Jakarta. This attack is another episode of the terrorism phenomenon that has threatened Indonesian society for the last three years. Like Bali and the JW Marriott bombings, this also involved suicide terrorists. Yet, apart from questions regarding the work of the police in locating the masterminds of the attacks, there is a more important issue raised, on the effectiveness of the prevailing laws regarding terrorism. The Indonesian government enacted two laws, namely laws No. 15/2003 and 16/2003, in response to the bomb blasts in Bali. The laws likely provide some positive characteristics, but some argue that they contradict the 1945 Constitution.

Issues such as the unclear definition of a terrorist act, the abuse of freedom of expression, the retroactive principle and human rights have impeded their effective operation. Moreover, the Constitutional Court's decision, ruling that Law No. 16/2003 is no longer legally binding, could weaken the status of the current Antiterrorism Law.

In this respect, Australia's antiterrorism legislation can be taken as a good example. The Australian government has established some of the most developed antiterrorism regulations after Sept. 11. This legislation includes: (i) Security Legislation Amendment (Terrorism Act) 2002, (ii) Suppression of the Financing of Terrorism Act 2002, (iii) Criminal Code Amendment (Suppression of Terrorist Bombing) Act 2002, (iv) Crimes Amendment Act 2002, (iv) Border Security Legislation Amendment Act 2002, and (v) Maritime Transport Security Act 2003, and the ASIO (Terrorism) Act 2003.

These acts have established a framework to cope, not only with international terrorism, but also its financing system. For example, Terrorism Act 2002 provides detailed definitions of acts of terrorism. These definitions not only criminalize terrorist acts -- such as bombings and hijackings -- but also penalize conduct that supports such terrorist acts, such as providing or receiving training connected with terrorist acts, possessing things connected with terrorist acts, or collecting documents likely to facilitate terrorist acts (sections 101.2, 101.4, and 101.5 respectively).

Unlike the Indonesian Antiterrorism Law, these detailed definitions of terrorism offenses could remove any uncertainty that might create a broad interpretation.

In the transport security sector, Australia has established the Maritime Transport Security Act 2003 to reduce the vulnerability of its maritime transportation sector to terrorist attacks. From July 1, 2004, the act makes it an offense for certain maritime industry participants to operate without an approved security plan.

Since this area is not covered by the prevailing Antiterrorism Law, the Indonesian government should develop a maritime transportation security regime, to provide stronger protection against the threat of terrorism. It would also be important to establish an aviation transportation security law, separate from the Antiterrorism Law.

With respect to the financing of terrorism, Indonesia could also draw on Australia's Suppression of the Financing of Terrorism Act 2002. The act is aimed at preventing the movement of terrorist funds, and enhancing the exchange of information about financial transactions with foreign countries. With this act, the federal government has the specific power to cut off the money supply of terrorists within Australia's jurisdiction.

So far, neither the Antiterrorism Law, nor Indonesia's other laws have provisions dealing specifically with the financing of terrorist actions. There is only Law No. 15/2002 on money laundering, which states that terrorist funds are categorized as money laundering.

Nevertheless, the law does not cover specific measures regarding the financing of terrorism. Given Indonesia's weak banking and financial regulations, the enactment of a new law, which deals with the suppression of terrorist financing, is necessary.

Combating terrorism through a single law would not be as effective as establishing several laws. This relates to the complexity of terrorism itself, where terrorism might be committed based on political, racial, or even religious motives. Therefore, a single domestic law may be insufficient to cope with this problem.

However, there is critical concern in a practical sense. For Indonesia, the establishment of several antiterrorism regulations would potentially give broader power to the government, to justify anything in the name of security. This dilemma is reasonable, due to the public's paranoia over past abuses of human rights, in the context of Soeharto's authoritarian rule.

Even with only a single Antiterrorism Law, there is fear that it would justify suppression by the state.

Given the similar threats that Australia and Indonesia are facing, such a concern would be unfounded. The creation of a number of antiterrorism regulations would be more effective, as long as each regulation dealt with a specific terrorism-related issue.

On top of that, this would also hinder the possibility of the intervention of nonjudicial authorities into the judicial process, for example, security institutions, such as the National Intelligence Agency (BIN), police or military would not be granted any extra powers or authority to enforce the regulations.

The writer is a recent masters graduate of the University of Melbourne. He can be reached at indrarousse@yahoo.com.