Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Hansard source

I move:

(1)

Schedule 1, item 3, page 3 (lines 25 to 27), omit “(regardless of his or her age or any mental impairment (within the meaning of section 7.3 of the Criminal Code) that the person might suffer)”.

The Labor Party is moving one amendment today in respect of this bill. It is in line with a majority recommendation proposed by both Liberal Party and Labor Party senators in the Senate committee report on the bill. It was proposed not in anger or in the making of the bold assertions that Senator Johnston has made but in an attempt, as I understood it, to improve the legislation, to make it effective and to ensure that it does what it is designed to do well and appropriately. To that end, it is supported by the Labor Party if it achieves that end. Senator Johnston clearly takes a different view, but in these areas it is not a matter of the Labor Party beating its chest on terrorism or in fact the Liberal Party or the National Party beating their chests on terrorism and how good we are at fighting it. Labor have given the coalition bipartisan support in the chamber on many pieces of legislation dealing with antiterrorism. Our credentials are on the table, quite frankly, as are the coalition’s, in ensuring that the fight against terrorism is effective and that the AFP have effective tools to be able to fight terrorism.

The amendment that I have moved is one that I have already touched on in the second reading debate. The bill, as it stands, would provide that a publication, film or computer game must be refused classification if it directly praises the doing of a terrorist act in circumstances where there is a risk that such praise might have the effect of leading a person—regardless of his or her age or mental impairment, within the meaning of section 7.3 of the Criminal Code, that the person might suffer—to engage in a terrorist act. Section 7.3 of the Criminal Code defines mental impairment as including senility, intellectual disability, mental illness, brain damage and severe personality disorder. The use of that is not good law; it is bad law. It requires the Classification Board and the Classification Review Board to stand in the shoes of a person with potentially any form of mental impairment and attempt to decide how they might react to some material.

At this point, I take the opportunity of addressing some comments that have been made in the media by Mr Philip Ruddock, the Attorney-General, especially since it seems that he is trying to find a hook in this issue. Let us put that aside and look at the facts in the cold light of day. Mr Ruddock has said: ‘Labor is saying it should only be taken into account how a reasonable person might see it. I think that is a major weakness.’ That shows how little the Attorney-General understands his own law, quite frankly. He seems to have not even read the submission of his own review board. Labor do not want to import a reasonable person test into the legislation or, as the out-of-date Mr Philip Ruddock talks about, a reasonable man test. We merely seek to delete the part of the bill which would be virtually impossible for the Classification Review Board, rather than importing a new test into the legislation, as Mr Ruddock seems to suggest. We want to leave it to the discretion of the review board to decide on.

Indeed, the Senate committee was convinced by the submissions from the Classification Review Board itself. It highlighted how difficult this would actually be to police. The convener of the review board stated in evidence to the committee:

... the Classification Review Board …[has] discussed the proposals and, as far as we can see, if we made a determination that there was praise of a terrorist act then we would have to refuse the work classification. We cannot work out any other way that we could, on a consistent basis, without some anomaly arising with different panels, apply any criteria which would lead to a consistent application of the Act, apart from simply saying that, if there is praise, it must be refused.

What the government has not addressed is how the Classification Review Board will in fact deal with the issue. It is difficult, if not impossible, to effectively implement, as evidenced by the submissions of the government’s own review board. This is, as I understand it, why the Senate committee, including coalition senators, was persuaded to adopt that. If there is a reasonable basis to say that that position was wrong, what Senator Johnston can do, in a rational, cool sense, is explain that. It might be persuasive. What he has not been able to do is articulate it in that way. What he has preferred to do is rely on an exhortation about Labor not being as tough on terrorism as the coalition. And that is disappointing, to say the least, because it is exhortation only, quite frankly.

With regard to Senator Johnston’s efforts in this chamber in respect of this bill, the bill has been available in the Senate since mid-August. The actual tabling of the committee report was on 30 July. If the government was that wedded to moving it quickly to allow matters to be dealt with by the Classification Board or the Classification Review Board, then Senator Johnston should explain why he has let it sit on the Notice Paper for so long before dealing with it. It is been more than a month. This is not a matter where he can easily say, ‘It is the states we can blame.’ If he were wedded to an amendment to the legislation, he has had it on the Notice Paper for a month to be able to move quickly and deal with it.

Labor have been ready and did, at that point, indicate that we would support the legislation. Senator Johnston seems wedded to looking at the narrow picture rather than the broad picture—but, there again, that is what you might expect from the coalition. The broad picture is that Labor do support the legislation; we do see the need for it. The coalition seem to have missed that point entirely in their contributions to try to find a hook.

If you go back and look at the chronology of events, if the government was wedded to a legislative fix, it was available from about 10 July 2006. If the government was intending to move this as a legislative fix as urgently as possible to ensure that we would have firm protections in place, then why did it not do it from 10 July 2006? From that point onwards the Classification Review Board classified two publications RC, six publications unrestricted, and a film PG. At that point in time, if you were going to move, you could have moved. You have ended up effectively at the same place, in any event. In other words, you cannot argue that you have said, ‘We’re all about process,’ if you are now going to say, ‘We’re all about action today,’ because you have let it sit on the Notice Paper for a month, and from 10 July 2006 you could have moved it.

Let us also look at some of the issues that come out of that. Of course, it is the Classification Review Board where these matters first raised their heads to the extent that they were classified as PG rather than refused classification. Let’s look at four out of seven members of the Classification Review Board. Perhaps the government can respond individually or collectively about this. The convener, Maureen Shelly, was a Liberal candidate for Blaxland in 1998—perhaps the coalition can confirm that for us. The problem seems to surround the Classification Review Board itself. If it had refused classification of the material, we certainly would not be dealing with this matter here today. The deputy convener, the Hon. Trevor Griffin, is a former Liberal South Australian Attorney-General. The review board member Mr Robert Skilkin is a former member of the WA Liberal state executive. The review board member Ms Gillian Groom is the wife of a former Tasmanian Premier, Ray Groom. She may have different leanings—I am sure Senator Johnston may be able to advise.

So, what you have is a Liberal Party stacked review board picked by the Attorney-General and not producing the results that he wants. Or are they? Now you have had to come in here with that to try to overthrow their decisions. To this extent, when you go back and look at the arguments that have been presented by Mr Ruddock about his categorisation of the Labor Party in this, you see that we perhaps ought to take him back to first-year law to help him get the reasonable person test right as it pertains to this legislation.

The submission by the Classification Review Board itself seems to have been ignored as well. The government is not choosing to respond to the Classification Review Board but is in fact trying to answer the Labor Party in looking at that in a sensible way and looking at the Senate Standing Committee on Legal and Constitutional Affairs—which reached a majority resolution with both coalition and Labor Party members on it. The government is saying: ‘They have suggested that. If there is a way forward, why don’t you pick that up? If you don’t pick that up, your answer to that is to simply argue, perhaps even badly, not the issue that is currently before us but how the Labor Party is viewed on its stance on terrorism.’ I think that is impermissible.

The Labor Party has been firm on this issue since the first inquiries I attended of the Senate legal and constitutional affairs committee in 2002, when we dealt with the first six pieces of legislation, and the next tranche in 2004. Senator Johnston and the coalition may not be aware of all of those matters. They may not be aware of the positions we have adopted throughout. The senator might be forgiven for not being involved back then, but perhaps I could invite him to look at those to see how the Labor Party has addressed these issues in the past, as it continues to do so, to ensure that we end up with good, effective law that operates so that the AFP and crime- and terrorism-fighting elements have the effective, appropriate tools to do their job and we are not coming back here to make further amendments as we go because of the government in some instances having legislated in haste.

We only have to look at the way the government are trying to use this debate—not to answer the critical issues that are contained within the Senate report itself but to try to spin the argument elsewhere. They should be pulled up for that and they should correct themselves.