Australia's legal fight against terrorism

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.