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

I rise to speak on the Classification (Publications, Films and Computer Games) Amendment (Terrorist Material) Bill 2007. I note that Labor are supportive of this bill; we will support it and vote for it. However, during the committee stage we will move amendments consistent with the recommendations of the Senate Standing Committee on Legal and Constitutional Affairs. These were recommendations from a decision of a committee where the majority of Liberal and Labor members supported those recommendations. The aim of the legislation is to provide greater clarity on whether or not terrorist material must be refused classification by the Classification Board of the Office of Film and Literature Classification. The bill will insert a new section 9A into the Classification (Publications, Films and Computer Games) Act, which provides that material which advocates terrorist acts must be banned.

The proposed new section also provides the criteria that will be used to determine whether or not material advocates the doing of a terrorist act, specifically whether:

(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 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 any mental impairment (within the meaning of section 7.3 of the Criminal Code) that the person might suffer)—to engage in a terrorist act.

The report of the Senate committee has recommended changes be made to proposed subsection (2)(c) to remove the phrase:

... (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) ...

This is an amendment that Labor foreshadows it will move in the committee stage. I will return to that in due course. The recommendation was that proposed new section 9A(3) provide a clarification to this, so that the new section would not apply if the depiction or description:

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

So material which is produced genuinely for public debate or for entertainment and satire will not fall under the aegis of proposed section 9A.

Turning to the background of the bill, the bill originated from considerations earlier this year that films advocating terrorist acts of martyrdom and jihad and calling Jews ‘pigs’ were freely available in Australia, having been rated PG by the Office of Film and Literature Classification—OFLC—after referral of the material by the Australian Federal Police. In response to this, the Attorney-General, Mr Philip Ruddock, firstly called on the states and territories to amend the classification laws and subsequently released a discussion paper, ‘Material that advocates terrorist acts’, which has culminated in this bill.

Labor’s response was to call on Mr Ruddock to immediately refer the film to the Classification Review Board on the grounds that the material promoted and incited crimes or violence. However, I note that the Sydney Morning Herald revealed the existence of these movies some two years ago. At the time, the Attorney-General promised that he would act but then did nothing for a year, until he wrote to the states to request action on the National Classification Code. Surprisingly enough, the Attorney-General has now decided that it is time to act, in this instance very shortly before an election. Rather than bring forward this legislation when the situation became public knowledge two years ago and rather than act to protect Australians from this material at the time, he has instead chosen to debate this legislation in possibly the final sitting week before the election.

There is no point in playing the blame game. There is no point in blaming the states for this delay, for not agreeing to the proposals that he took to SCAG earlier this year. The Attorney-General knew about the problem for a year before he wrote to the states. It is a little rich to sit on an issue for a year then throw your hands in the air, foist it on the states and expect them suddenly to agree. Once again the government really demonstrates that it is in a bit of a slow panic over this issue. The government knew about the matter and could have dealt with it in a reasonable way in the course of the 12 months. It could have raised it with the states, raised it through the proper channels and then been able to resolve it, at least with time on its side. The government has known of the existence of the material for the past two years and still, with the introduction of this legislation, has done nothing to attempt to remove it. We have only got to this point now.

I want to take a moment to say a little bit about the Classification Review Board. The chief problem facing Australia’s classification regime these days is simply the fact that the government has spent the last 11 years, instead of making sure that the Classification Review Board has community representation and instead of ensuring that it works effectively within the legislative regime, making it a place where Liberal Party mates are more than well represented. We have now come to a stage where four out of the seven members of the review board have either direct or very close links to the Liberal Party. In other words, we have what is commonly called a non-representative body, in my view, where a large part of the community is not represented.

On the board is a narrow political ideology representing their views. It is really no wonder that the decisions are so out of touch with the community when the Liberal Party is the holder of the majority in the Classification Review Board. How can, really, the Australian community have any confidence in the classification watchdog when more than half of its members are representatives of such a narrow constituency? The government has, like it has with other areas of Public Service institutions, got its hands on it. It has transformed the Classification Review Board into another source of jobs for mates. That is how we got into this mess. Now the Attorney-General has had to find a legislative fix, given his inaction and the way he has treated the Classification Review Board as a place for mates.

I note that many in the community are opposed to the bill. I hope to allay some of their concerns, if not all. It is Labor’s opinion that the bill will not improperly or unfairly impact on the legitimate right of the community to debate these issues. There are moves underway at the Standing Committee of Attorneys General that will allow much greater freedom for academics to access material that has been refused classification. As I understand it, many in the community have legitimate concerns regarding the legislation. However, there are four key points that I would like to take the opportunity this evening to respond to.

The first is that the legitimate concern of many in the community opposed to the bill must be weighed against the competing interests, which include the right of the community to protect itself from material which openly advocates violent attacks upon it. The unfortunate and unacceptable situation at the moment is that we have material which openly advocates for young children to become terrorists, which racially vilifies Jewish people and which is given a PG rating. As Australia’s alternative government, Labor takes the threat of terrorism seriously. We will not allow a situation to evolve where material such as Hamas’s infamous Mickey Mouse look-alike and ‘jihad bee’ characters indoctrinates young Islamic children into acts of violence. I point out that this bill belatedly arose out of a situation in which a DVD urged young children to become terrorists and martyrs, and yet it was given the same rating as The NeverEnding Story or Star Wars.

There is a serious and legitimate concern about freely allowing material which openly purports to turn children into holy warriors or terrorists to circulate. While there is a general presumption in the classification code that adults should be able to see and read what they wish, there have always been limits on this. The right to free speech does not extend to yelling ‘Fire!’ in a crowded theatre, nor does it extend to indoctrinating children in acts of terrorism. On balance, Labor believes that this legislation does strike an appropriate balance between the competing desires of public safety and the right of adults to see and read what they wish.

The second point I would like to take up is that there naturally are legitimate uses of the material itself. Academic, security and intelligence purposes come to mind. I note that some have called for an exemption for academics from the provisions of the new bill; however, this cannot be achieved for technical reasons. While it is the Commonwealth which classifies this material, it is usually state or territory law which provides penalties for its distribution. In other words, the penalty provision or regime is within the states, so this is not something which can be achieved easily under the federal jurisdiction.

However, I would note that there are currently proposals before the Standing Committee of Attorneys General which are looking at ways to allow academics and others with a legitimate interest to legally access material that has been rated RC. I will take the opportunity in the committee stage to examine how far that has now been progressed. It was a matter that was raised in the Senate committee hearings, and obviously some time has passed since then, so I am sure that the department, through the minister, can provide some assistance. In federal Labor’s view, this is an appropriate way to progress the issue. Labor supports the SCAG process. The proposals before the SCAG go a long way to eliminating many of the concerns—the legitimate concerns, may I add—that have been raised by persons who have a legitimate interest in the material.

The third point I would like to explore is that, when you look at it, this legislation in fact only clarifies the existing position. The National Classification Code, as it stands, provides that material that counsels, praises, urges or instructs in matters of crime or violence must already be refused classification. As advocating terrorism and terrorist acts are already offences under the Commonwealth Criminal Code, the effect of the legislation is largely to clarify the situation of material that promotes and incites terrorism. The effect of the scheme would actually be to streamline the process for police investigation of this material. If the police believed that material advocated a terrorist act—again, already an offence under the Criminal Code—then they would be able to refer it to the OFLC for their classification.

Finally, I turn to the recommendations of the Senate Standing Committee on Legal and Constitutional Affairs. The Senate committee recommended a change to the legislation to make it easier for the material to be classified. I touched on this earlier this evening. As I stated earlier, the problem arises in subclause (c), which provides that material must be banned 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 any mental impairment (within the meaning of section 7.3 of the Criminal Code) that the person might suffer) to engage in a terrorist act.

The Senate committee made this recommendation after receiving submissions, including from the Classification Review Board itself, that this clause would be difficult to enforce. The Classification Review Board said:

It is difficult to envisage circumstances where the Review Board might objectively assess how a teenager, for example, or a person with some mental impairment might react to praise of a terrorist act.

The committee, having examined the submissions, ultimately recommended the removal of this clause from the bill. Labor will support that position and similarly foreshadows an amendment. The position ultimately arrived at, on the submission by the Classification Review Board itself, objectively sought to ensure that the Classification Review Board could do its job effectively and could ensure that material that fell into directly praising the doing of a terrorist act could be removed by making a Refused Classification decision. That which did not meet that standard would not. In other words, the Classification Review Board was indicating that it would be able to then make those decisions itself.

Unfortunately, in this instance, having allowed the situation to continue for over two years—plus, I might add, the full year in which he sat on his hands and did nothing—the current Attorney-General, Mr Ruddock, once again went to the blame game, blaming the states not agreeing to the proposal that he took to SCAG this year to resolve the matter. That notwithstanding, he went out and beat it up beforehand, expected them to meet an agreement and held the bill over their heads to say, ‘If you don’t agree, I’m going to pass the legislation in any event.’ You really wonder about the negotiating skills of the Attorney-General in this respect. He was always going to get what he wanted—that is, the legislation—because of the way he commenced the negotiation. It was not, in my view, in good faith. He undertook a situation where he then ensured that we would be here debating this legislation rather than trying to reach general agreement with the states.

But I have already said that this matter was revealed more than two years ago. So, given he had known about it for that length of time and had left it right to the end to use in a manner which he chose, you can only conclude that he had one aim in mind. That was not to reach agreement with the states themselves but to then find someone to foist the responsibility for the delay in bringing forward proper measures onto the states themselves—in other words, to say, ‘Because you haven’t agreed, it’s your fault; therefore, I have to legislate, and it will take time.’

However, the legislation, in any event, is before us. It is appropriate and adapted to the twin tasks of providing proper guidelines for the classification of terrorist material and of ensuring that the principle that adults should, prima facie, be able to read and view what they want is upheld. It does achieve that. Labor will support the legislation, but I think it does not reflect well on the Attorney-General and the process that he has adopted in bringing this legislation forward. It could have been a much easier and neater process to engage the states, change the guidelines and give the opportunity for the OFLC, the Classification Board and the Classification Review Board to do their work.

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

I seek leave to incorporate Senator Stott Despoja’s speech.

Leave granted.

Natasha Stott Despoja (SA, Australian Democrats) Share this | Link to this | Hansard source

The incorporated speech read as follows—

As the Democrats’ Attorney-General Spokesperson, I rise to speak on the Classification (Publications, Films and Computer Games) Amendment (Terrorist Material) Bill 2007

This Bill is objectionable to the Australian Democrats for many reasons.

We consider that the Bill represents a confrontational approach by the Government to law making and comments by the Attorney-General to the effect that this legislative change is necessary because of a lack of cooperation from State Governments are commensurate with a power grab and must be resisted.

The Attorney General noted in his second reading speech that it would be preferable to deal with the subject matter of this Bill via the National Classification Code. The Code has operated as a cooperative classification scheme between the states, territories and the Commonwealth for almost 11 years. It is a scheme that, by and large, has served the community well and operated effectively.

Indeed, the Attorney General devoted more time in his second reading speech to criticising his State counterparts for failing to support amendment to the Code, rather than providing the necessary and concrete basis to Parliament which justifies the need for this legislation.

There is a good reason why the Standing Committee of Attorneys-General did not reach consensus on this Bill—the mechanism is clumsy, the means not justified, and the implications for fundamental rights are too high.

Power grab/constitutionality

In its submission to the Senate inquiry, the Law Council warned that Parliament should not jeopardise the cooperative national scheme by using the Classification Act to circumvent the nationally agreed standards in the Classification Code. In short they say that ‘the success in Australia’s federal system is contingent on jurisdictions not withdrawing their support or simply “going it alone” whenever their preferred view does not prevail’.

The Victorian Attorney General, Mr Rob Hulls, has stated that the matter hasn’t even been properly discussed with the states and that the Attorney General:

‘is trying to bully the states and territories into accepting laws he hasn’t even demonstrated we need.’

Some stakeholders challenged the laws on constitutional grounds. In particular the Sydney Centre for International and Global Law stated that the:

‘proposed power to refuse classification for “praising” terrorism may excessively restrict freedom of religious expression, since it disproportionately affects all believers to control the expressions of a few.’

The Commonwealth is expressly prohibited, of course, from making any laws which prohibit the free exercise of religion by virtue of s.116 of the Constitution.

Moreover, the Centre noted that:

‘constitutional protection limits only Commonwealth laws and does not prevent the States from curtailing religious speech, which is significant given that State criminal laws primarily enforce classification decisions.’

This emphasises the inherent flaw in the Mr Ruddock’s attempt to sideline the states on this issue. The Democrats are concerned by these arguments and consider that it raises the question as to whether the Commonwealth should be legislating in this area on constitutional grounds.  

Bill of Rights

At the risk of sounding like a broken record, the Democrats also consider that the Bill’s dramatic implications for human rights and civil liberties are even more concerning, given Australia does not have a Bill of Rights or Human Rights Act.

As the only common law country without such protection, the basic human rights of Australians are subject to greater risk than the rights of citizens of these other nations.

While a number of the provisions contained in this Bill emulate the United Kingdom’s laws, it does not contain the UK’s accompanying protections for human rights and civil liberties. 

The Human Rights Act and the European Convention on Human Rights provide citizens of the United Kingdom with an avenue of appeal and an opportunity for judicial review when their Government infringes on these rights. I ask the Government: why do Australian citizens not deserve commensurate protection?

Clearly, the absence of a Bill of Rights or Human Rights Act exposes Australians to unjust infringements on their rights and freedoms. A Bill of Rights is about protecting people and ensuring that our Government remains accountable for its actions.

As Sydney Centre for International and Global Law noted:

‘...in the absence of any entrenched statutory or constitutional protection of human rights in Australia, it would not be appropriate to modify classification law in this far-reaching manner. The proposed amendments have the potential to unjustifiably and arbitrarily infringe freedom of expression, without showing any proximate connection to a substantial likelihood of imminent unlawful terrorist violence actually occurring.’

The Democrats’ Parliamentary Charter of Rights and Freedoms Bill is on the Senate Notice Paper and the Democrats will continue to advocate for an Australian Charter of Rights and Freedoms.

Empirical justification

Turning now to the lack of justification for this Bill by the Government, its content has been described as unjustified and unrepresentative of community views. 

Several agencies have requested empirical evidence to show a causative link between accessing ‘radical materials’ and the risk of terrorism occurring. However, none of the extrinsic material that accompanies the Bill provides a convincing argument as to why existing classification laws should be extended in this manner, nor how the vulnerable in the community are to be protected. No such evidence was presented to the Senate inquiry either.

In contrast, many credible submissions to the Senate inquiry argued that the classification scheme as presently configured is capable of being applied so as to ban material which advocates terrorism.

HREOC recommended that the proposal be reconsidered on the basis that it was not convinced ‘of the necessity for tighter censorship laws in order to combat incitement and/or glorification of terrorism.’

The current provisions of the Classification Code provide that material must be refused classification if, amongst other things, it promotes, incites or instructs in matters of crime or violence.

These existing grounds are claimed by the Attorney General to be inadequate, notwithstanding an acknowledgement that a terrorist act is both a matter of crime and violence. As the Law Council noted:

‘…as such material which promotes or incites the commission of such an at or provides instruction on its commission must already be refused classification’

Put simply, the law as it stands is sufficient. The Government is making laws for the sake of making laws and, in all likelihood, as part of its hitherto successful campaign of maintaining a ‘climate of fear’ to justify is actions.

Definition of a terrorist act

The Democrats consider that the Bill uses a problematic definition of terrorism.

In the words of the NSWCCL:

‘the Code has too broad a definition of what may constitute terrorist activities. While this broad definition may be suitable for dealing with actual terrorist actions, it is not suitable as a guideline for censorship.’

The definition of terrorism for the purpose of the Bill is taken from the Commonwealth Criminal Code—a definition which itself has been widely condemned by none less that the Government appointed Security Legislation review Committee, the Parliamentary Joint Committee on Intelligence & Security, the Senate legal & Constitutional Affairs Committee and the UN Special Rapporteur on the Promotion and Protection of Fundamental Freedoms while Countering Terrorism.

All of these entities recommended that, in the very least, section 102.1(1A) of the Code, the equivalent of subsection 9A(2), should be amended to require a substantial risk that praise of a terrorist act might lead someone to engage in terrorism, rather than a mere ‘risk’.

But will the Government heed this advice? Of course not, it pushes on with a defective definition, and throws some extra complexity in for good measure!

Subsection 9A(2) attempts to define how someone ‘advocates’ the doing of a terrorist act. The use of advocacy is problematic because it includes the notion of ‘praise’, a far vaguer notion than ‘promotes’ or ‘incites’ as is presently the case in the Code. Quite simply, the definition is too broad.

Further, the Bill purports to require decision makers to stand in the shoes of a young or mentally impaired person, in considering whether there is a risk that praise may lead to terrorist activity. Apart from the obvious logistical difficulties that this scenario may raise, as was made clear by the Classification Review Board itself (how can you put yourself in the shoes of a mentally impaired person!) this requirement unnecessarily introduces a ‘lowest common denominator’ factor.

As stated by the Law Council:

‘..the ability of people to participate in a public debate…should not be unduly circumscribed by  prohibitions based on speculation about how irrational actors may respond to certain material’

If this Bill is to become law we will be moving amendments to delete reference to the phrases identified above and replace them with terms which narrow the scope of materials which can be censored and introduce more objective tests. 

Exemption for genuine educational purposes and policy makers

Finally, the Democrats are alarmed at the Bill’s failure to address whether academics or policy makers may access banned material for academic or policy research.

Various incidents were referred to in submissions to the senate inquiry which highlighted the need to grant academics access to banned materials for study.

Such incidents have included removal of books from university library shelves where the books were introduced by a historian and to help his students understand Jihad, and the questioning of a university student studying the prevention of terrorism by the AFP

Limiting access to books on terrorism will hinder the ability to understand and criticise the ideas expressed in them. This is a problem not only for academics and scholars, but also for the community at large, which depends upon quality research to better understand the social and security challenges facing the nation.

The Democrats oppose the restriction of materials for genuine academic or policy research and we will be moving amendments to create an exemption to allow access to banned materials for this purpose.

Kerry Nettle (NSW, Australian Greens) Share this | Link to 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.

Guy Barnett (Tasmania, Liberal Party) Share this | Link to this | Hansard source

I stand tonight to support this government’s legislation and to respond to some of the comments made from the opposition benches. I note that Senator Nettle has referred to the imposition on free speech resulting from this legislation, and in one way she is right. But in another way she is wrong. She is wrong because it is important to secure the safety and security of the Australian people—that is, Australian families and Australian children. This legislation is designed to strike a balance. The government believes, and I believe, that freedom of expression and freedom of speech are maintained in this legislation in an appropriate balance. I will speak to that a little later.

The report of the Senate Standing Committee on Legal and Constitutional Affairs into the Classification (Publications, Films and Computer Games) Amendment (Terrorist Material) Bill 2007 is a public document and was tabled in July 2007. As chair of that committee, I want to thank the secretariat, Jackie Morris and her team, for their work in preparing the report and for their assistance. I would also like to thank Senator Crossin and the other members of the committee, including the participating member Senator Nettle. I thank her for her involvement and participation. I also wish to place on record my thanks to the witnesses who appeared at our hearing in Sydney on 17 July and to all those who presented evidence to the committee. We appreciate it.

In speaking in support of the bill, I refer to the Attorney-General’s second reading speech in which he summarises the concerns as follows:

This bill will improve the ability of our laws to prevent the circulation of material which advocates the doing of terrorist acts.

…            …            …

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

The Attorney-General says that the classification scheme is a cooperative national scheme and that he would prefer to see these provisions in the national code and guidelines. Importantly, the Attorney-General first sought state and territory agreement to changes to the classification laws in July 2006—over 12 months ago. In his second reading speech, he states:

To date, they have been reluctant to respond positively to my proposals. I am not prepared to wait indefinitely to address this problem.

Senator Ludwig spoke to the bill and indicated support for the bill, subject to some amendments. I broadly support the comments made by Senator Ludwig in support of the bill. But there are some aspects of his contribution which I wish to oppose and these relate to the involvement of the state and territory censorship ministers. The Attorney-General has expressed and requested a cooperative approach to this matter, starting over 12 months ago in July 2006. But the Attorney-General is rightly aggrieved and upset with their lack of action on material which advocates terrorism. Surely this has to be a top priority for all Australians no matter what level of government.

Our censorship laws through the Classification (Publications, Films and Computer Games) Amendment (Terrorist Material) Bill 2007 improves the ability of our laws to prevent the circulation of material which advocates the doing of terrorist acts. But it should be remembered that the classification review system that we have in this country has traditionally been a cooperative one. The Attorney-General, Philip Ruddock, has demonstrated leadership on this matter to ensure proper balance. In a news release issued by the Attorney-General on 27 July 2007 he expressed:

... strong disappointment that agreement could not be reached with State and Territory Censorship Ministers to toughen laws that deal with materials advocating acts of terror.

The release went on:

Mr Ruddock said the failure of the states to recognise the need to do everything possible to stop the recruitment of the impressionable and vulnerable into terrorist activity, left him with no choice but to act independently.

“Prevention is the new terrorism battleground and I am not prepared to wait indefinitely for Labor states to ensure this kind of material is removed from circulation ...

“As I have said before, should an attack happen in Australia I want to be able to look in the eyes of those affected and know I did everything I could to stop terrorism and the recruitment of the impressionable and vulnerable into terrorist activity.”

Those on this side of the chamber fully support the Attorney-General in his efforts to act independently because he could not obtain the agreement and the cooperation of the relevant state and territory censorship ministers. For whatever reason—and I believe it is probably political—they did not come to the table with a cooperative and positive approach. I believe it is to their shame that they did not address this matter. It is in the public interest to protect the impressionable, the vulnerable and those who may be swayed in some way by material that is before them. This legislation, in my view, does the right thing to ensure that material promoting acts of terror will be removed from public availability.

There has been widespread community concern about the availability of books and videos which advocate terrorist acts. The government considers that such material should not be available. It is not completely clear whether this kind of material would be picked up under current classification laws. There is some doubt about that and I think all of us in this chamber accept that. So we need to act. We cannot wait any longer. The proposal is intended to get this inflammatory material advocating terrorism out of circulation to protect the vulnerable and the impressionable in our society. It is not, as Senator Nettle indicated in her contribution, about curtailing freedom of expression. We are not about that; we support freedom of expression. It is an important foundation ingredient of freedom in Australia. Freedom of expression is one of the underlying principles of Australian society. Merely holding and asserting strongly opposing views should not attract censorship. Our laws must strike an appropriate balance between freedom of expression and the need to protect the community and provide safety and security. That balance is needed. I believe the legislation before us has an appropriate balance.

The committee considered the proposed legislation in some detail—and, again, I thank all those senators involved in putting their views forward. Page 5 of the committee report states:

Proposed subsection 9A(3) provides an exemption for some material that might otherwise be considered to advocate the doing of a terrorist act as follows:

A publication, film or computer game does not advocate the doing of a terrorist act if it depicts or describes a terrorist act, but the depiction or description could reasonably be considered to be done merely as part of public discussion or debate or as entertainment or satire.

We had submissions from, for example, the Australian Library and Information Association as well as from a range of other groups—the Writers Guild and those types of groups—and this is important for them. The Attorney-General’s Department, in its response to some of the questions asked at the committee hearing, noted:

The original proposal outlined in the discussion paper has been modified to address concerns expressed about its scope, and in particular a new provision, 9A(3), was introduced to make it clear that material that does no more than contribute to public discussion or debate or is no more than entertainment or satire is not material to which this provision is intended to apply. The explanatory memorandum clearly states that the provision is only intended to capture material which goes further than that and actually advocates the doing of a terrorist act.

I failed to mention this earlier, but the government has listened. A public discussion paper was put out for public consultation. Responses were received and the government and the Attorney-General’s Department have acted on that and inserted this exemption under section 9A(3).

I am sure Senator Ludwig, and perhaps others on the other side, may refer to the reference in subclause (c) of 9A(2), which says:

... 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 any mental impairment (within the meaning of section 7.3 of the Criminal Code) that the person might suffer) to engage in a terrorist act.

There will be some discussion about this. I am sure Senator Ludwig and others will be addressing it with an amendment, but it was the view of the committee that there could be some confusion by the inclusion of the words ‘regardless of his or her age or any mental impairment’, and I acknowledge that as the chairman of the committee who has signed off on the report. But the Attorney-General’s Department has provided assurances with respect to the clarity of the legislation. There are more lawyers there than sitting on these benches, and greater minds than me have accepted the fact that that is not required and may, in fact, diminish the effectiveness of the legislation. All in all, the committee believes that the legislation should be passed, and I think it is well worth while.

In making some concluding comments, I want to refer to the concerns that even New South Wales Premier Morris Iemma had about Sheik Mohammed, the leader of the Global Islamic Youth Centre in Liverpool, in Sydney’s west, when he was inciting terrorism. As reported by the Daily Telegraph and AAP on 18 January this year:

Mr Iemma said he had called on the Attorney-General (Philip Ruddock) to do whatever was necessary to have Sheik Feiz Mohammed’s DVD withdrawn from sale.

‘This DVD goes a lot further than vilification,’ Mr Iemma said in Sydney.

‘The sort of incitement that’s taking place, or that the DVD encourages, is incitement to acts of violence and acts of terror.

‘I will take the advice of the Attorney-General but there are specific laws in the Commonwealth jurisdiction on the sale of this material and that’s why we’ll be seeking the cooperation of the federal Attorney-General to take whatever steps are necessary.’

That is exactly what the Hon. Philip Ruddock is doing; he is taking the steps that are necessary to ensure the removal of this type of material. The article continues:

The sheik delivers his hateful rants on a collection of DVDs sold in Australia and overseas.

‘This is just more disgusting commentary from a sheik who has no understanding of the values that we live by in this country,’ Mr Iemma said.

‘I’ve called on the Commonwealth Attorney-General to take whatever necessary steps are available to try and have this DVD withdrawn (from sale).

So there we have it. We have a Labor New South Wales Premier asking the federal Attorney-General to take whatever steps are necessary, and the steps necessary are the legislation that is before us.

Other concerns were expressed to our committee and they are set out in our report. We heard from Mr Jeremy Jones, Director of International and Community Affairs at the Australia/Israel and Jewish Affairs Council. You can understand their concerns. They invited the committee to go further by having tougher legislation to thwart that type of material being put into the public domain, and I can understand it when those types of comments are made by whoever and get into the public arena.

I think the balance is right. There has been public discussion. There has been a draft discussion paper. Feedback has been obtained from the public. We have had a Senate committee report. Sadly, the state and territory censorship ministers have been dilatory and have not cooperated, so it is important. I thank the Attorney-General, the Hon. Philip Ruddock, for his leadership.

In closing, this issue is not dissimilar to the philosophy and initiative of this government to protect children and families online with the more recent $180-plus million initiative by the Minister for Communications, Information Technology and the Arts, Senator Helen Coonan. It is a fantastic initiative to protect Australian families online with internet filtering initiatives across the board. It is consistent with this government’s policy of protecting, supporting and encouraging families in every way possible. On that front, I thank Senator Coonan, her office and her department for their leadership in that arena, because it is a great initiative that is consistent with this government’s philosophy of protecting, supporting and doing its best to protect the welfare of Australian families.

Linda Kirk (SA, Australian Labor Party) Share this | Link to 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.