Australia and ASEAN’s evolving counter-terrorism regime

Australia’s counter-terrorism cooperation with Southeast Asia raises thorny questions of democracy and security, Isaac Kfir writes.

The 10 regional leaders who gathered in Sydney for the ASEAN–Australia Special Summit wanted to highlight the value of ASEAN as a force for ‘stability’, ‘prosperity’ and ‘security’ in our region.

Because the counter-terrorism conference was closed to the public, we can only ascertain what was discussed by looking at the Memorandum of Understanding (MoU) on Cooperation to Counter International Terrorism (which, beyond a one-page summary, hasn’t been made public) and the various speeches that have been made since the Summit. The types of measures being proposed by Australia and the track record of its ASEAN partners, both give cause for cause for concern.

The MoU seems to suggest that Australia will provide technical support to its ASEAN partners in the field of counter-terrorism and disrupting terrorist financing. Australia will also aid regional dialogue on counter-terrorism legislation as well as on capacity-building initiatives to detect and disrupt terrorist activity.

This would build on Justice Minister Michael Keenan’s announcement in 2017 that Australia will support the formation of the South East Asia Counter-Terrorism Financing Working Group, which is aimed at blocking terrorism finance. The chairs of the Group are Australia and the Philippines, which entails working closely with the regime of Rodrigo Duterte, a leader who has called on UN human rights team to be fed to crocodiles if they were to investigate his ‘war on drugs’.

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The counter-terrorism summit was opened by Australia’s Minister for Home Affairs Peter Dutton. His speech serves as a useful indicator of what is to come in the counter-terrorism world – at least from Australia’s perspective. It’s also worth noting some of the comments of Prime Minister Malcolm Turnbull, who has highlighted his concern over encrypted messaging apps.

Dutton and Turnbull’s focus on social media and encrypted messaging, which Dutton described as “potentially the most significant degradation of intelligence capability in modern times”, is significant. Across Southeast Asia, freedom in the cyber world is in decline as governments introduce measures to limit access to the internet and the ability to engage in free speech. The argument is often that such measures are designed to improve security.

The demand by governments such as the UK and Australia, France and Germany, to have the ability to access encrypted messages, as well as their need to ‘regulate’ the internet through preventing the dissemination of radical material, are major themes in the evolution of counter-terrorism policies.

There are two main problems with the argument that we need to regulate encrypted communication, social media and internet access.

First, the argument that governments need to regulate these technologies for security purposes tends to lack substantive evidence. We the public are asked to act in faith and trust the policymakers, who often couch the legislation in opaque language. Leaders make references to the need to protect intelligence sources and methods while preventing the release of more detailed explanations of why new legislation is necessary.

There are obvious justifications for such actions, but we must also recognise that in an era of increased security classification, policymakers sometimes sweep activities under the security rubric because it is easier than looking for the alternative. There is also a very patronising, paternalistic element here: the public is often painted as not mature enough or equipped to understand such complex issues.

Second, defining what is defamatory, radical or dangerous is challenging. It means that one social media platform may reach a conclusion that others would dispute.

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If Australia is to support ASEAN countries in counter-terrorism initiatives, while also advocating for more government authority in the space of encrypted communication, it must be done with our strongest traditions of transparency, public discourse and rule of law in mind.

Motions need to be filed and debate needs to occur in parliament, with members being encouraged to engage in contrarian views without fearing being labelled as being soft on terrorism, as seen with the unprecedented attacks by ministers Greg Hunt, Michael Sukkar and Alan Tudge on the Victorian judiciary on the way it has interpreted the law.

It is noteworthy that most ASEAN countries are not liberal democracies. In authoritarian countries such as Cambodia, Thailand, the Philippines and Myanmar, Muslim minorities experience constant oppression that feeds Salafi-jihadi narratives. We already know that both al-Qaeda and Daesh have made references to the abuses experienced by the Rohingya.

In 2018, Freedom House noted that seven of the eight Southeast Asian countries have become less free. Malaysia was the exception, although there’s evidence that its government is censoring news websites and using criminal law to clamp down on peaceful speech and assembly (when it comes to net freedom, Malaysia is identified as only ‘partly free’ by Freedom House).

Recently, the Indonesian parliament adopted vaguely worded legislation, which President Joko Widodo said he won’t sign, making it illegal to criticise national politicians. Prior to the ASEAN Summit, Cambodian Prime Minister Hun Sen felt sufficiently secure to threaten to beat up protesters if they burned his effigy.

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We need to recognise that Australia’s own counter-terrorism laws have come under international criticism. The UN Human Rights Committee, for example, has expressed concern over the haste in which legislation has been adopted and reviewed (between 2001 and 2007 the federal parliament enacted 48 anti-terror laws, an average of almost eight pieces of legislation each year). The committee was not assuaged by Australia’s assertion that it has rarely used the prescribed powers (the committee noted that “there is a risk that such emergency measures could, over time, become the norm rather than the exception.”)

The ASEAN counter-terrorism conference does not seem to have offered any effective answers to the challenge of how to cooperate with our ASEAN partners on countering violent extremism and countering terrorism without acquiescing or supporting illiberal, oppressive policies.

There is a tendency nowadays to opt for the easy solutions of ban, prohibit, and regulate, often without a proper, open public discourse on the efficacy of the measures. We need to be careful about quick and easy solutions, which is what bans and prohibition tend to be.

By addressing our shortcomings and being willing and able to ask the difficult questions, we can act as a regional leader in counter-terrorism. Australia can ensure that as it advises and encourages its partners to develop effective counter-terrorism measures, they do so in a manner consistent with basic rights.