Kerry Nettle (NSW, Australian Greens) Share this | Hansard source

Freedom of expression and freedom of speech are two of our most important freedoms, and they must be defended vigorously. The Howard government has presided over many attacks on human rights in Australia, often under the guise of combating terrorism. This is a government that does not tolerate different ideas, and it has jettisoned its liberal principles in the pursuit of conservative power.

Since September 11, over 50 different pieces of legislation have marked the erosion of civil rights and fundamental freedoms in Australia. This marks another step down this road to tyranny. The Classification (Publications, Films and Computer Games) Amendment (Terrorist Material) Bill 2007 will change the definitions of Australia’s classification laws to ban any publications, films or computer games that advocate terrorist acts. The definition of ‘advocating terrorist acts’ is extremely broad and is built on the flaws of existing terrorism laws with wide definitions. The definition of ‘terrorism acts’ encompasses a wide range of political activities that no reasonable person would construe as terrorism. Nelson Mandela’s ANC, the East Timorese resistance, Tibetan activists or citizens blocking the construction of a coalmine could all fall within the definition of terrorism in this legislation. Even the UN special rapporteur takes the view that Australia’s definition of a ‘terrorist act’ goes beyond the UN Security Council’s characterisation of terrorism and believes that it should be more limited.

The definition of ‘advocacy’ is equally broad, including those who directly praise the doing of such acts. Immediately, it is easy to see how those who praise in print or film the action of the West Papuan independence movement, for example, or the Iraqi insurgents could be caught by these definitions. Regardless of what political perspective one has about such things, should the professing of such views be banned?

It is concern about the depth and the breadth of this definition that meant that the Attorney-General’s attempt to change the censorship laws in this way was rebuffed by the state governments. Now the Howard government is trying to ram them through in the dying days of its government. The Law Council of Australia, the Human Rights and Equal Opportunity Commission and a range of community and legal organisations have also opposed this bill, but the government is, nevertheless, persisting. The Law Council said in its submission to the Senate inquiry into this bill:

- no need for the proposed amendments has been demonstrated;

- the intended implications of the amendments are unclear and have not been plainly and consistently stated; and

- the amendments seek to rely on definitions used in the Criminal Code which have already been the subject of substantial criticism because they are overly broad and vague.

It goes on to highlight the important limits in international law on government attempts to squash freedom of speech.

Article 19(3) of the International Covenant on Civil and Political Rights requires that any restrictions governments impose on freedom of expression must be necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order ... or of public health or morals.

The Law Council says in its submission:

With the current level of information provided in the Second Reading Speech and EM about the operation of the existing classification regime and the intended effect of the proposed amendments, the Law Council believes that members of parliament could not possibly satisfy themselves that the proposed amendments are necessary in the manner required by international law.

It goes on to say that this parliament has not been given sufficient information to answer the following critical questions:

- are the current provisions directed at materials that promote, incite or instruct on matters of crime or violence insufficient to prohibit the distribution of materials which are likely to increase the risk of a terrorist act?

- If so, in what way are the current provisions insufficient? What type of material do they allow to be published which the Government claims it is necessary to ban?

- Is it in fact necessary to ban this additional material for the protection of national security and/or the respect of other rights? Would the banning of such material actually serve to decrease the risk of a terrorist act and how?

- Are the proposed amendments appropriately targeted at banning this type of material—that is, are the parameters of the type of material targeted clearly defined and are those parameters as narrowly drawn as possible? Or are the proposed amendments so broad or so discretionary that they unduly burden public debate in a manner which is fundamentally incompatible with freedom of expression?

The Law Council is also concerned at the manner in which the government is undermining the cooperative approach to classification laws between the Commonwealth and state governments.

The practical scope of these proposed laws is extremely unclear. The fact that the government has attempted to claim exemptions for entertainment and academic work shows that it knows the definition is highly subjective, broad and open to abuse. Even with these entertainment and academic exemptions, it is hard to know where in practice the censor and courts would draw the line. For example, the computer game Command and Conquer allows a player to be an Islamic terrorist. Would it be captured by these laws? There are many other computer games with similar themes played by millions of Australians. Even the Classification Review Board, which manage the censorship laws, are concerned about the bill and the lack of an objective test. In particular, the inclusion of indirectly or directly praising a terrorist act in the definition of advocacy lowers the bar on what may be refused classification.

The reality is that there is no need for this bill, and it could make things worse. It could worsen the problem that the government purports to be trying to solve. The few publications that really do promote Islamic or other forms of terrorism in Australia will be driven underground and will circulate in secret. They may even be given greater notoriety through the classification process. The Greens believe the best antidote to dangerous ideas is the light of day and public debate, not suppression. As Justice Oliver Wendell Holmes once wrote:

… the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.

Terrorism must be fought politically. We must show that freedom and democracy are worth their claims.

The crucial point that seems to have been lost in this debate is that the classification laws already ban the incitement of violence and that any expression that is seriously proposing attacks on Australian citizens would already be covered. Sydney journalist David Marr said it best in a Sydney Morning Herald article written not long after the July 2005 London bombings. He wrote:

Banning the expression of these grubby ideas is going to lead us into absurd and embarrassing tangles. While we’re stripping bookshops of repugnant texts that urge the destruction of Israel, perpetual jihad against the US, and tell how to turn yourself into a human bomb, what should we do with—

parts of the Bible that—

... call for homosexuals to be put to death? And what should we do with the new edition of Mein Kampf that sells steadily in Australia?

Staying clear of this mess has traditionally depended on one key issue: the danger of violence. Incitement to violence is an ancient crime, against the law in every corner of Australia. Anyone who incites others to acts of violence is guilty of a criminal offence. That’s also the law in Britain. Even in the US, constitutionally guaranteed freedom of speech ends at the point where speech might lead to “imminent lawless action”.

This is the power we’ve always had to combat fanatics trying to whip secular and religious terrorists into action. At the core of the crime—for centuries—has been the provision that the threatened violence must be direct, intended and close to hand. That’s how freedom of speech is protected.

This bill goes well beyond this sensible approach to limiting freedom of expression which has withstood the test of time. It is a great shame that the government has failed to see reason on this matter and that the opposition, who for many years have allowed themselves to be spooked by the government’s mantra on national security, are following the government on this issue and this bill. There are many in this place who like to claim that they support liberal values, yet too often the same people give their support to attacks on the values they claim as their own.

Noam Chomsky said, in his famous study of the media and Western democracies, Manufacturing Consent:

Goebbels was in favor of free speech for views he liked. So was Stalin. If you’re in favor of free speech, then you’re in favor of freedom of speech precisely for views you despise. Otherwise, you’re not in favor of free speech.

For democracy to claim freedom as its mantle, it must be able to tolerate dissenting views in its midst, no matter how hateful or unpopular. If we have confidence in the people, democracy will allow them to reject such ideas. The Greens are confident that the Australian public will not succumb to the ideas of hate and sectarian conflict. We are confident that, given freedom of expression, people will use such a right wisely and for good. This bill is a product of fear. Senators should embrace hope and freedom and show confidence in the Australian public and our democracy rather than embrace the fear that is a part of this bill.