Penny Wright (SA, Australian Greens) Share this | Hansard source

I move Australian Greens amendment (13) on sheet 7594:

(13) Schedule 1, item 61, page 64 (line 1), omit "promotes,".

The TEMPORARY CHAIRMAN: We are now considering amendments (12) and (13) on sheet 7594 standing in the name of the Australian Greens.

I would like to do that; indeed, we have been discussing the second amendment inadvertently anyway, which is removing the word 'promotes' from the definition of advocating terrorism. We have been having a relevant discussion about that particular amendment.

If I could come back to the question that I posed to the Attorney-General, which was asking for what the meaning of the word 'promotes' is. The Attorney-General suggested that it takes its ordinary meaning. In that case, I guess any of us in the chamber would probably be equipped to try to define what 'promotes' means.

The Attorney-General tried to reassure me about the concerns that I was expressing, but that have also have been expressed by many legal commentators, about the broadness of the word 'promotes' and the uncertainty that that would create, in terms of understanding whether particular behaviour would be defined to be promoting terrorism. The Attorney-General was wanting to reassure us that if it went to a court case and a prosecution, then the burden of proof is 'beyond reasonable doubt'. However, one of the concerns raised is that, when we are dealing with laws that do not define particular behaviours with certainty and clarity, there is a chilling effect on those people who do not want to end up in a court where the prosecution has to be put to the standard of proof of beyond reasonable doubt. The risk is that people will pull right back from what would, potentially, be considered to be legitimate activity—because they are justifiably fearful about the consequences.

The Attorney-General also sought to reassure us that the government's view on what 'promotes might mean is set out in the explanatory memorandum. But—as Senator Leyonhjelm has pointed out several times in this debate already—courts, in interpreting legislation, will only have recourse to the explanatory memorandum if they feel it necessary to do so. In fact, it is quite rare. They would generally prefer to look at the wording of the offence itself in the legislation. That is why it is also desirable to have clarity and certainty about what words and terms mean.

An example that has been raised by legal commentators to illustrate the risks associated with having terms like 'promotes'—where it is not really clear how far they extend—is that of a person who 'likes' a Facebook comment which contains a favourable reference to terrorist activity. Would that fall within the definition of 'promoting or advocating terrorism to others'? What about someone who is wearing a T-shirt with an ISIL symbol on it? Although that is not a T-shirt that would be in my wardrobe, and I would not be encouraging my kids to wear it—it would be abhorrent to me—that would be, arguably, a legitimate form of political expression in Australia. I think most of us would be reluctant to prevent it—someone indicating an allegiance to something that we do not necessarily agree with. But there are serious issues here about freedom of expression and how far that freedom of expression may be affected by this legislation. So in absolute good faith, that is the reason that, if we cannot get clarity about the word 'promotes', the Greens will be seeking to have the word 'promotes' removed from the definition of 'advocating terrorism'. That is all I intend to say in this debate. I seek leave to move these amendments together.