Natasha Stott Despoja (SA, Australian Democrats) Share 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.