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

I have got it in the right order now. I was rather quick to jump to my feet earlier to move one of a number of amendments standing in my name on behalf of the Australian Democrats in relation to this bill.

I incorporated my speech last night. As some senators would know, I was talking to around 1,000 ADFA midshipmen and officers instead of attending this debate. Speaking of national security, through you, Mr Temporary Chairman, to my colleagues, I want to go on record and respond briefly before I address the first amendment on behalf of the Democrats. All of us in this place are capable of acknowledging that terrorism is those things that Coulthard referred to. Whether it is an assault on our freedoms, our liberties or our way of life, it represents an absolute invasion and threat to the things that we hold dear. I think we are all capable of understanding that there is a need for proportionality and that it is important to get the balance right.

I am really getting sick and tired of people who question how this balance is achieved being described as somewhat naive. I understand the attack has just been made on my crossbench colleagues, the Greens, that they do not necessarily care about national security. I do not think we can accuse anyone in this place of not caring about national security, but one thing I will say is that some of us see national security not just as a nebulous concept, an enigma or some big picture. When we talk about terrorism we should not forget that people in the community—indeed, some of us in this place—see it in a very personal and emotional sense, and we are all looking for some answers and some solutions. I want to make this clear again, for the record: as a legislator I am allowed to question the nitty-gritty of these laws, especially when we believe that there is a lack of empirical justification for some of the changes before us and that there is a defective definition in relation to these and to other bills or acts.

It is not just me; it is not just the Democrats; it is not just people in this place. Broader organisations have been critical of the legislation before us and of other counterterrorism measures that have been adopted by this government. It is not because we do not care about national security; it is because we do care passionately about reaching that proportionality to which the minister refers, and because there are a number of ways in which we recognise that we address issues such as terrorism. In light of September 11 and of the anniversary that we commemorated last week in this place—not that we really commemorated it, to be quite frank—as I said on record afterwards, I was a little surprised to see that the recognition of September 11 was done in the context only of national security. Nowhere did I see an acknowledgement of the fact that Australians died. Ten Australians died. Friends of people in this place died. I get very frustrated that sometimes we lose that aspect of this debate when attacks take place in the chamber against the state or territory governments or Rudd devotees or apparatchiks or whatever it may be. Anyway, I put in that plea.

I acknowledge the minister’s concerns with the state and territory governments. I do not necessarily endorse them. I note from the second reading address by Minister Ruddock, the Attorney-General, that he also devoted more time in his second reading address to attacking his state counterparts than he did necessarily to putting forward an argument for justifying the need for the legislation. Perhaps, if he had addressed more comprehensively the issue of this power grab and some of the constitutionality questions relating to legislation, it would have been more productive.

I now move amendment (1) on sheet 5373 revised:

Schedule 1, item 3, page 3 (after line 15), after subsection 9A(1), insert:

     (1A)    Before making a classification in accordance with subsection (1), consideration must be given to the likely impact of the material, based on an assessment of the class of persons to or amongst whom the material is to be, or is intended to be, or is likely to be published.

This amendment, which has been circulated in plenty of time, is based not on some arbitrary judgement of the Australian Democrats but on a Law Council submission. It means that any material that might be refused classification because it concerns terrorist material must be viewed in context. So the inclusion of the phrase ‘regardless of his or her age or any mental impairment’ in clause 9A(2)(c) suggests that material must be assessed according to how it may be understood by any person and not necessarily an ordinary or reasonable member of its intended audience.

The Democrats and others consider this to be a marked departure from usual practice, and it would place classifiers in the awkward position of placing themselves in the shoes of, say, a child or someone with a mental impairment—a scenario that the Classification Review Board itself raised issues with. Mr Temporary Chairman Barnett, I think you are on record in this place as having queried this. I believe you were satisfied with the government’s response, but I still think there is room for some qualification in relation to the legislation before us. That is why I am seeking to amend clause 9A(1A) to require that decision makers should assess the likely impact of the purported terrorist material ‘based on an assessment of the class of persons to or amongst whom the material is to be, or is intended to be, or is likely to be published’. That is our intent. I do not believe this amendment has the support of the other parties, but it was important for us to attempt to change this proposed section. I commend the amendment to the chamber.

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

The opposition will not be supporting the amendment. This item provides that, when making a classification regarding a publication, film or computer game that advocates the doing of a terrorist attack, ‘consideration must be given to the likely impact of the material, based on an assessment of the class of persons to or amongst whom the material is to be, or is intended to be, or is likely to be published’. Currently no such requirement exists in the material and its likely impact vis-a-vis certain groups is uncertain. Labor is opposed to this amendment on the grounds that, although the material may be likely to be accessed by only one group, it does not mean that it cannot be accessed by other groups as well. It is far better that the classification laws take a more universal test by looking at material in the whole context, rather than through the lens of a certain group. It is not a matter that was explored significantly in the Senate Standing Committee on Legal and Constitutional Affairs and it did not eventuate in a recommendation from them.

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

I congratulate Senator Stott Despoja on addressing ADFA last night. I suggested that the topic she was to talk about should be entitled ‘to fight and win’. I think she may well have rejected that theme at ADFA. Nevertheless, I congratulate her on going into the lion’s den, to some extent, to teach good things to the people at ADFA.

I might also say, in not such a harmonious spirit, that every time the government does something in terms of a budget initiative, the crossbenches and the opposition call it a pork barrel. Due consideration by the government is entitled a failure to act, and when we seek national consistency it is called a power grab. Let us address the facts. Can we take some of the emotive politics out of it? I know we are getting to the end of the cycle, but can we maintain some semblance of balance? This amendment is totally unnecessary. Section 11 clearly sets out the provisions that deal with this issue. The government does not support the amendment.

Question negatived.

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

On behalf of the Australian Democrats, I move:

Schedule 1, item 3, page 3 (line 18), after “if”, insert “it is intended or might reasonably be regarded as intended by the creator of the material that”.

We believe this amendment reflects the need to exclude instances where material clearly has a purpose other than advocating terrorism. We believe that the bill is confused, because in some respects it asks the classifier to focus on the intention of the person who created the material and in other respects it clearly focuses on the effect of the material, intended or otherwise. The amendment will ensure that only material that might reasonably be regarded as intending to advocate terrorism—so acknowledging that intention role—will be refused classification. The amendment reflects HREOC’s view. It is one of the organisations that have been critical of the legislation before us. I quote from HREOC’s submission:

... a way of ensuring that legislation in this area is carefully targeted and proportionate—

there is that word again—

is to expressly require both a specific intent to incite the commission of a terrorist act and a concrete danger of this act being committed as a result of incitement.

In putting that comment from HREOC on the record, I remind the government that a number of organisations have been critical of the legislation; once again, it is not just the crossbenches. There are organisations and groups like the Law Council, the Gilbert and Tobin Centre, the Federation of Community Legal Centres, the Australian Publishers Association—obviously we are dealing with some really vexed and important issues relating to freedom of speech and academic pursuit—the Classification Review Board, the Australian Press Council, the Sydney Centre for International and Global Law—which has given some helpful points on issues in this debate or surrounding issues, including a bill of rights—and the New South Wales Council for Civil Liberties. I suspect that organisation might be regarded as a usual suspect by some in the government, but nonetheless their concerns have been duly noted.

There is a very strong argument from a number of groups that the law as it currently stands is sufficient; hence the concerns that the government have not provided sufficient justification. So, if you get away from the issue of constitutionality or the so-called power grab or anything to do with the state, territory and Commonwealth dilemmas or arguments, there are many other arguments in relation to this legislation, including the so-called empirical or lack of empirical justification. 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, among other things, it promotes, incites or instructs in matters of crime and violence. That is what we are talking about.

While I know the minister implores us to strip emotion away from the politics, I once again put on record that terrorism is emotional. Yes, we have to be clear-headed and hard-headed legislators in addressing and coming up with responses to terrorism, but we also have to be careful that we do not become political for the sake of it and, once again, incite fear in the community when we could be addressing in very clear and rational ways not only the causes but the perpetuation of violence, be that terrorism violence or any other violence in our community. Hence, the intent of our motion is to deal with intention and effect. I hope that the Labor Party and the government will duly consider the amendment before them.

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

Unfortunately, you are to be disappointed, Senator Stott Despoja. The Labor Party will not be supporting the amendment. One of the difficulties with your amendment is that it requires, for material to be considered to be advocating the doing of a terrorist act, that that must have been, or could be reasonably regarded as, the intention of the creator of the material. A piece of material should be looked at in a complete context, not just at that point. You are trying to look at only the point at which it was created. It is far better to have a more functional approach and to look at its actual likely impact rather than its intended one. You could certainly get into a range of debates about what the intention was at the time of creation. Putting that aside, the legislation will allow a functional approach. It will ask questions about the impact rather than what the intention of the creator may or may not have been at the time of creation, which would tie up a lot of legal experts for some time.

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

The introduction of the notion of intent for the person advocating the type of material that we are talking about here obviously severely undermines the purpose of this bill and is unacceptable to the government. The bill is about taking out of circulation material that, on the face of it and as a fact, advocates the doing of a terrorist act. The objective assessment of the material itself, not what the creator intended, is what is important. We do not support this amendment.

Question negatived.

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

by leave—I move together:

(3)    Schedule 1, item 3, page 3 (line 19), omit “or indirectly”.

(4)    Schedule 1, item 3, page 3 (line 21), omit “or indirectly”.

As honourable senators can see, the two amendments remove the words ‘or indirectly’. These amendments will ensure that only materials which directly counsel or urge the doing of a terrorist act will be refused classification. These amendments are required because the inclusion of the notion of indirect advocacy of terrorism draws a blurry line between material that may, on the one hand, be legitimate in the context of a struggle for liberation or independence and may, on the other hand, be a terrorist act. The Democrats consider that more leeway should be afforded to classifiers to reflect this political reality. This goes back to the broader issue of respecting the freedom of expression.

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

Labor does not support these amendments. The Democrats are not going to get much joy out of us in this area. The amendments omit the phrase ‘or indirectly’ from proposed subsection (2)(a) and proposed item 4. Currently that proposed subsection provides that material must be banned if it directly or indirectly counsels or urges the doing of a terrorist act. These amendments would remove the phrase ‘or indirectly’ to mean that material can only be banned if it does those things directly. As I have said, Labor does not support the amendments. I do not want to draw this out longer than we need to, but the main reason is that, if you look at much of the hate language these days, you will see that much is obviously conveyed directly but it can also be and has been conveyed through code words and dog whistles. You have to look at the whole of the material and its indirect impact. You need only look at many European neofascist movements to know that terrorist organisations are unfortunately not always up-front about their intentions. That is why, I suspect, ‘indirectly’ is included in the bill. It is to ensure that there are no gaps or loopholes in the legislation. We do not think it is appropriate to allow those so that terrorists can circumvent them and therefore escape refusal of that type of material.

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

The government is keen to get consistency across the law and across jurisdictions. This amendment seeks to narrow the definition of advocates in contrast to that already set out in the Criminal Code. It is entirely counter to what we believe should be the case. Of course, the government, in those circumstances, could not possibly support these amendments.

Question negatived.

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

I move:

(5)    Schedule 1, item 3, page 3 (lines 23 to 28), omit paragraph 9A(2)(c).

This amendment deletes proposed section 9A(2)(c), which deals with the praise of terrorist acts. As senators may be aware, in my speech in the second reading debate I referred to some of our concerns relating to this provision and the use of ‘praise’ rather than ‘promotes’ or ‘incites’. The Democrats have put on the record a number of times now that we believe that ‘praise’ is a fairly nebulous, vague concept—especially if there is no requirement of intent. Left unamended, we believe this section of the bill has the potential to be misinterpreted by classifiers and, once again, to unduly restrict freedom of expression.

On that note, I acknowledge Senator Ludwig’s comments about the Labor Party’s view on ‘indirect’ as well as ‘direct’. I am starting to feel incredibly sorry for the classifiers in some of the interpretation of this legislation and indeed of some of the material before them. This amendment is to remove that notion of praise, and I commend it to the Senate.

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

This amendment would completely remove clause 9A(2)(c). That clause 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. Labor believe there are some problems with this clause and will be moving an amendment to that ourselves. We prefer our position to that of the Democrats. However, I will not take the opportunity of making those points at this time. This amendment would effectively be throwing out the baby with the bathwater, quite frankly, so our amendment is preferred in this instance and we will move an amendment which is in line with the Senate committee recommendations. I will talk on those at the appropriate time.

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

Completely removing this ‘directly praises’ element of ‘advocates’ is unacceptable. This would be an important tool in the fight to ensure that material that, through its praise of heinous acts, might encourage the naive and impressionable to commit similar acts. Concerns have been expressed about the possible effect of this provision on popular culture movies, such as Braveheart or Michael Collins. However, other safeguards ensure an appropriate balance in making classification decisions—namely, that the praise in this instance must be direct and not done merely as part of public discussion, debate, entertainment or satire. Obviously, this amendment is unacceptable to the government.

Question negatived.

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

I withdraw Democrats amendment (6) on sheet 5373 revised. I do so because, while the last amendment was perhaps a bolder, broader attempt by the Democrats to deal with some of the issues in that section, it is obviously not appropriate, according to the Labor Party. We certainly do not want to be throwing any babies out with bathwater, I can assure you, Senator Ludwig, through you, Mr Temporary Chair. The Democrats will support the opposition amendment which will shortly be before the chair.

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

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

With respect to the matter being on the Notice Paper, if Senator Ludwig were really earnest and genuine in his approach to the government on those sorts of matters, he would, of course, be able to say that he had read the chronology that was tabled in the lower house, which answers every inquiry he has had about that. What he is seeking to hide is that the states have been offered an opportunity to come with us on this and they have simply dragged the chain unacceptably. Senator Ludwig is complicit in that because he knows Queensland is one of the principal offenders. But I would not expect him to advert to that in here.

This amendment by the Labor Party relates to material that directly praises the doing of a terrorist act in circumstances where there is a risk that such praise might lead only the average or reasonable person to commit a terrorist act. It is unacceptable to the government. Let me explain for the benefit of Senator Ludwig what he is suggesting. He is suggesting that an adjudication be made based upon the reasonable person test. This is a lawyers’ feast. The Labor Party and the opposition in this place have very limited understanding of the practical workings of the judicial process, particularly the civil judicial process, and the money involved in these sorts of matters. He is advocating the lawyers’ feast approach. Let us argue what is reasonable; let us call all the evidence. The government says, ‘No, terrorist organisers do not respect age or mental capacity. It is those who are younger, impressionable and with diminished mental capacity who are more frequently targeted to engage in terrorist acts such as suicide bombings.’ This is not about the reasonable man test. This is about enabling the adjudicators to look at the people targeted and to make a more subjective assessment. We need to protect the more vulnerable in the community in matters as serious as this. But, of course, I would not expect the ALP to understand that.

The government also believes that consistency is important across state law. Senate scrutiny committees have indicated on numerous occasions that they are concerned that statutory language should wherever possible have the same meaning when used in different legislation. I do not think I can take it any further. The fact is that the deletions to the bill that the opposition seek really disclose higher and higher levels of naivety.

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

Democrat amendment (7) standing in my name is identical to the Australian Labor Party amendment we are debating, so I will not move it. As senators would be aware from the running sheet before us, both the amendment that I withdrew prior to this and, indeed, the amendment that was lost, amendment (5), dealt with the issue of praise of terrorist acts. In amendments (6) and (7) we were putting forward some alternatives to try and deal with some of the issues that have been raised today.

Obviously, the Labor amendment is entirely acceptable to us, for reasons that I have outlined. It deals with the inclusion of the phrase ‘regardless of his or her age or any mental impairment’. Again, I put on record that this suggests that material must be assessed according to how it may be understood by any person and not necessarily an ordinary or reasonable member of the intended audience. Senator Ludwig has outlined the details. The Democrats believe that this is a departure from usual practice. We again have concerns about how the classifiers will judge some of this material in that context—how they will be able to put themselves into the shoes of someone with a mental impairment, for example. This is of grave concern to us; hence the discussion during the committee process and at present. The Democrats will support the amendment moved by Labor. Indeed, had we not been debating their amendment we would have been debating our identical amendment.

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

I will take the opportunity to clarify a couple of points that people seem to have been getting hot under the collar about. Labor is not saying that there is a reasonable person test requirement. Perhaps we can deal with it in this way: does the government say that currently, prior to this amendment, there is a reasonable person test requirement in the guidelines that the Classification Review Board need to deal with?

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

No.

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

That is right; there is not. The amendment that Labor is proposing does not insert a reasonable person test into the legislation. Or does the government have a different view?

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

The amendment talks about advocating. When you withdraw, limit and take out what the government seeks to do, you are leaving nothing.

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

I take it from that that the answer is: ‘No, we’re not importing a reasonable person test.’ Therefore, in those instances we are not importing a reasonable person test. The Attorney-General maybe needs to go back to the start of law school, because he said:

Labor is saying it should only be taken into account how a reasonable person might see it—I think that’s a major weakness.

That is wrong, both in your view and in my view. What we now have is the government saying that in this instance the Attorney-General can put himself in the position of a mentally impaired person to determine whether that legislation would work and how the Classification Review Board would view it. I cannot do that, quite frankly. Maybe Senator Johnston can. In that respect, I cannot add any more. Our position would be to allow the Classification Review Board to determine it, as they argued in their submission.

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

I really do not want to delay the Senate by having to show Senator Ludwig how the legislation functions. I am really surprised that he asks the questions that he does, because it discloses quite a high level of ignorance. I have said that the reasonable man test is what is left with respect to advocacy if you do not specify or prescribe it. We are prescribing it and we want to stick with that prescription.

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

Would the ignorance that you mention be sufficient to place me in the position of a mentally impaired person? Maybe you could say whether or not that is the case, because that is the position that you are putting the Classification Review Board in. Have you ensured that they have the requisite tools, the guidelines, to determine it? The problem is that you have not provided an answer, to date, to the argument in their submission.

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

I have answered that question.

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

You could try again. I invite you to at least make it clear. What you are arguing is not clear; it is opaque, quite frankly.

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

It is clear to us, Senator Ludwig. Indeed, if we have to go back to lecturing you on what we are doing here, I have said to you that what you propose would mean that material would advocate if it directly praised the doing of a terrorist act in circumstances where there is a risk that such praise might lead only the average or reasonable person to commit a terrorist act. Clearly, that is unacceptable. I cannot put it more clearly than that. What we are prescribing is the power for a consideration of advocacy where there are people affected who are mentally impaired, naive, impressionable and young, as I have said. It could not be clearer.

Question negatived.

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

On behalf of the Democrats, I move amendment (8) on sheet 5373:

(8)    Schedule 1, item 3, page 4 (after line 6), at the end of section 9A, add:

        (1)    A person (the applicant) may apply to the Classification Review Board for access to material which has been classified RC if the purpose of the access is to review or analyse the material for educational or scholarly purposes and the Classification Review Board may grant access in accordance with the subsection.

        (2)    An application may be made to the Administrative Appeals Tribunal for the review of a decision of the Classification Review Board under subsection (1).

        (3)    The regulations may prescribe:

             (a)    the procedures for application and review; and

             (b)    conditions for the release of material which will safeguard the capacity to undertake educational or scholarly review or analysis while limiting the circulation of RC material.

This amendment relates to a review for educational purposes. We believe this amendment will prevent the unnecessary restriction of public analysis and discussion of such material. A decision by the Classification Review Board is of course reviewable by the AAT. The amendment that we have proposed allows regulations to prescribe:

             (a)    the procedures for application and review; and

             (b)    conditions for the release of material which will safeguard the capacity to undertake educational or scholarly review or analysis while limiting the circulation of RC material.

In my remarks in the second reading debate I put on record the Democrats’ concern at what we perceive as the failure of the legislation to address whether or not academics and indeed policymakers may be able to access banned material for academic or policy research. Certainly, there were a number of insights provided to the Senate committee, in various submissions to the Senate inquiry, which highlighted the positive need to provide academics with access to banned materials for study purposes. The examples included: the removal of books from university library shelves, where the books had been introduced by a historian to help his students to understand jihad; and the questioning by the AFP of a university student studying the prevention of terrorism. We thought they were completely extraordinary examples.

Limiting access to books on terrorism, we believe, will hinder the ability to understand and criticise the ideas expressed in them. This is clearly a problem not only for academics and scholars but for the community at large, which depends upon quality research to understand better the social and security challenges facing our nation. The Democrats oppose the restriction of materials for genuine academic or policy research. Hence the amendment before us, which is an attempt to deal with what we consider to be some clear, obvious and important exemptions.

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

The government consider this proposal to be ill-conceived, premature and inadequate. We are working with the states and territories through the Standing Committee of Attorneys-General to establish mechanisms for appropriate access for legitimate purposes to material which has been refused classification. As state and territory laws provide for the offences relating to the use of refused classification material, it is appropriate that they be part of developing suitable mechanisms with appropriate limits and controls. This is what the Attorney-General has been saying from the outset to no avail, and it has been rebuffed by the Labor Party. There are fundamental flaws in this Democrat approach. The proposal contains no limits on the type of refused classification material which may be the subject of an application. It would also designate the Classification Review Board, a merits review body, to override state and territory law. To use the honourable senator’s words, this would be a ‘power grab’. It would enable Commonwealth regulations to set out procedures which would rightly belong with the states and territories. The government clearly, in these circumstances, given what we have been through in seeking to engage the states, could not accept this amendment.

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

The Labor Party will not be supporting Democrat amendment (8). It would add a new section 9B, which would provide an exemption for RC material if the purpose of the access is to review or analyse the material for education or scholarly purposes. This matter was raised in the Senate committee, and I understand that the matter is currently before SCAG. The minister might be able to confirm that. We anticipate the outcome will ensure that the process works effectively. The minister may be distracted at this point—though I am sure his advisors are listening—but I wonder if he could respond to a matter I raised during my second reading contribution that there be an undertaking to fix this in some way, shape or form to ensure that it is dealt with. It is not appropriate to deal with it in the way the Democrats have proposed. I do understand why they are proposing it. The mechanism that the government have outlined, we think, can work when it is available. We hope that it is available at the earliest possible time to allow proper research and scholarly and educational work in this area to help fight terrorism.

Question negatived.

Bill agreed to.

Bill reported without amendment; report adopted.