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