Thursday, December 16, 2004

Ex post facto criminalisation II

The Terrorism Suppression Amendment Bill (No 2) has now appeared on Knowledge Basket. The relevent section criminalising the financing of "non-designated terrorist organisations" is quite short:

(2A) A person commits an offence who, directly or indirectly, wilfully and without lawful justification or reasonable excuse, provides or collects funds intending that they benefit, or knowing that they will benefit, an entity that the person knows is an entity that carries out, or participates in the carrying out of, 1 or more terrorist acts.

The good point here is that the law requires knowledge that the organisation is involved with terrorism, so ignorance of this fact may be a defence. The problem is that there is still far too much uncertainty; whether a donation is or isn't illegal depends entirely on how broadly the idea of "participation" is interpreted, or whose version of events is believed. And those decisions will be made in secret, by analysts and prosecutors, and not publicised until charges are laid. How then can people avoid breaking the law if they do not know what is criminal and what is not?

As a concrete example, it's impossible to tell whether it would be illegal to donate to the Algerian Islamic Salvation Front (Ahmed Zaoui's political party) because we cannot be certain whether the government will accept that they are not involved in terrorism, or whether they will believe the propaganda from the Algerian government that they are a front for the GIA.

You can argue that it is better to be safe than sorry, and therefore avoid donating to groups where there is any doubt, but that simply highlights the problem: this law chills political activity with the threat of prosecution. That's something we should regard as highly suspect.

Since Solon, civilised countries have abided by the principle that the law should be open and public, so that people can know whether they are breaking it. This amendment raises the spectre of people being prosecuted for actions which they had no possible way of knowing were crimes, and which possibly only became criminal after the fact, when the SIS made up their minds. And that sort of ex post facto criminalisation is more a hallmark of a despotism than a free and open society.