Linda Kirk (SA, Australian Labor Party) Share this | Hansard source

I rise today to contribute to the debate on the Classification (Publications, Films and Computer Games) Amendment (Terrorist Material) Bill 2007. Labor has indicated its support for this bill, which was the subject of an inquiry by the Senate Standing Committee on Legal and Constitutional Affairs, which Senator Barnett referred to and which he chaired and I was a member of. The committee received a number of submissions during its inquiry that raised a number of concerns about this bill, some of which I will mention in the time available to me today. Under this bill, publications, films or computer games that advocate the doing of a terrorist act are to be refused classification. When introducing the bill into the House of Representatives in June, the Attorney-General claimed:

... there is too much uncertainty around whether the existing classification laws adequately capture such material.

The Commonwealth Classification (Publications, Films and Computer Games) Act 1995 provides the basis for a cooperative national scheme to regulate classification of these materials in Australia. The act establishes the National Classification Code, which is managed and implemented on a cooperative basis by state and territory representatives. The code establishes the categories of classification to be applied to publications and may only be amended with the agreement of participating members.

When the Attorney-General first proposed amending Australia’s classification laws to include a provision banning pro-terrorist related publications he did consult with the participating members—namely, the state and territory ministers responsible for censorship and classification matters. But, as Senator Barnett pointed out, the state and territory ministers were divided on this issue and as a consequence did not agree to amend the code. So what we have before us today is a bill that represents the attempt by the Commonwealth to amend the code unilaterally to implement its desired changes in the absence of agreement between the states, which still has not been secured.

As I said, a number of matters were raised by witnesses to the committee’s hearings on the bill. There were concerns about specific provisions of the bill, in particular the inclusion of definitions from the Criminal Code, the adoption of a low threshold test for determining the impact of terrorist material and the limited exemptions in the bill. There were broader concerns raised at the committee hearings about the growing number of anti-terrorism laws in Australia and whether we are striking the appropriate balance between guarding against terrorism and protecting our civil liberties from encroachment.

The Classification Code currently requires that material be refused classification if it promotes, incites or instructs in matters of crime or violence. A publication which is refused classification is effectively banned. As I said, the Attorney-General has claimed that there is uncertainty surrounding the classification of material that may insidiously encourage people to commit terrorist acts. Section 9 of the principal Classification Act provides that:

... publications, films and computer games are to be classified in accordance with the Code and the classification guidelines.

The relevant amendment inserts the words ‘Subject to section 9A’ before section 9. The proposed section 9A provides that a publication, film or computer game that advocates the doing of a terrorist act must be refused classification. The definition of ‘advocates’ says that:

(a) it directly or indirectly counsels or urges the doing of a terrorist act; or

(b) it directly or indirectly provides instruction on the doing of a terrorist act; or

(c) it directly praises doing a terrorist act in circumstances where—

and these are the important words—

there is a risk that such praise might have the effect of leading a person (regardless of his or her age or any mental impairment) ... to engage in a terrorist act.

In the time I have available I am going to go through some of the concerns that were raised by witnesses at the hearings of the committee, and I begin with the definition of ‘terrorist act’. One of the principal concerns raised at the committee hearings was the inclusion of the existing definition of ‘terrorist act’ from section 100.1(1) of the Criminal Code. The legislative definition of a terrorist act in the Criminal Code includes behaviour that is otherwise considered criminal. The Criminal Code defines a terrorist act as an action which may include causing physical harm, death, damage to property, endangering life or creating a serious risk to the health or safety of the public.

In its evidence to the committee, the Law Council of Australia drew our attention to the criticism that Australia has attracted for adopting this definition. The UN special rapporteur has noted that Australia’s definition is ‘beyond the Security Council’s characterisation’. The Law Council warned against adopting this definition in other legislation, particularly the bill before us, and argued that it is necessary to distinguish terrorist conduct from ordinary criminal conduct and to differentiate between the threat of doing a terrorist act and the actual taking of steps towards it.

The committee noted in its report that the definition of ‘terrorist act’ was the subject of considerable public debate and examination in the parliament and by the committee itself when considering the Security Legislation Amendment (Terrorism) Bill 2002 [No 2]. The committee also noted that the definition of ‘terrorist act’ in the Criminal Code is already relevant to classification decisions and that the Classification Board had cited this definition in two previous decisions when it refused classification to the publications Join the Caravan and Defence of the Muslim Lands. On balance, the committee was not persuaded that a narrower definition was necessary for the purposes of this bill.

I move now to the definition of ‘advocates’. As I said, a number of witnesses expressed their concern about the breadth of the term ‘advocating’ and I read out the definition that is contained in the act. The Law Council, for example, said that the threshold test that this effectively put into place:

... appears to require decision-makers to consider the lowest societal common denominator in considering how material will be processed, comprehended and acted upon—an almost impossible test to apply.

The Classification Review Board, in its evidence, said that the definition is such that there is no scope for any discretion to be applied and, in fact, if there is any praise of a terrorist act then the publication must necessarily be refused by the board.

The Convenor of the Classification Review Board said in her evidence that it may well be prudent to amend this bill to require that there be a substantial or a significant risk that praise will lead to a terrorist act being committed. She said that this would give those responsible for classifying material greater discretion as to whether a publication should be refused classification. A number of witnesses argued that to assess risk at the threshold of the consideration of how a minor—that is, someone under the age of 18—or a person with a mental impairment would react to material would have the potential to seriously limit the material that can be made available to the general public.

The Gilbert and Tobin Centre of Public Law described the test as unjustifiable and argued that the test ‘would permit all sorts of material to be banned that no reasonable person would see as offensive or dangerous’. In its report, the Senate committee acknowledged that there was the following risk:

... that such a test could prevent access to material which should be available to adults, particularly those engaged in academic research of terrorism or public debate about this important matter.

The committee did recognise the difficulties that a classification decision maker would have in applying this test and acknowledged that the bill may well have an effect beyond its stated aim. We were mindful of the difficulties that writers, artists and publishers would face in determining whether their work would be caught by the provision. The committee was of the view that classification decision makers should take into account how a young person may react to such material. As a compromise, the committee recommended that the bill be amended to delete the phrase ‘regardless of his or her age or any mental impairment’. I understand that there will be an amendment moved before this chamber to that effect.

Further concern was also raised at the committee inquiry about the breadth and ambiguity of the inclusion of the words ‘indirectly’ and ‘directly’ to describe what constitutes the urging or doing of a terrorist act. For example, the Australian Muslim Civil Rights Advocacy Network argued that the words were ‘unreasonably vague and could potentially cover a wide range of activities’. The Australian Press Council argued that the definition could prevent the free expression of views on political issues. But, when the committee examined it, we determined that the deletion of the word ‘indirectly’ would have the effect of undermining the aim of the bill.

In relation to exemptions from the act, proposed section 9A(3) provides that exempted from the bill are those publications that:

... could reasonably be considered to be done merely as part of public discussion ... or as entertainment or satire.

We did hear evidence from a number of witnesses that the exemption does not go far enough to protect reasonable freedom of expression. For example, the Gilbert and Tobin Centre of Public Law said that it was not broad enough to cover speech such as academic research. The committee, however, concluded that the clause is broad enough to provide adequate protection for freedom of speech.

A broader concern that was raised before the committee was, as I mentioned at the outset, a concern that we now have 40 pieces of anti-terrorism legislation that have been enacted by this parliament in the six years since 2001, producing what now resembles a simmering cauldron of terror laws. Recently I was a panel member at an Amnesty International forum held in Adelaide titled ‘Securing our Freedom’. On that occasion, I said that we must guard against a reactive approach to law making in this area and take care not to sacrifice the freedoms and the rule of law that sustain our democracy in our efforts to protect our national security.

So, as we today add a further ingredient to the simmering cauldron of antiterror laws, we must acknowledge that legislation of this nature has the potential to encroach on the individual freedoms that are the foundation of our democracy. My concern is how we are going to deal with this combination of laws—this simmering cauldron—if and when we ever decide that they are too oppressive and need to be wound back. No doubt this bill, like the 40-plus anti-terror laws this parliament has enacted in the past six years, will require a sturdy Mongolian soup stick to remove it from the simmering cauldron of terror laws.

Debate interrupted.