Book and Magazine Censorship: Defence of the Muslim Lands -Pg2


 

 

 

 

Defence of the Muslim Lands

Author by Sheikh Abdullah Yusuf Azzam

 

Ruddock releases 'terror' censorship Discussion Paper

Topic: Discussion paper on uniform classification measures
The Attorney-General Philip Ruddock MP
Transcript Date: 1 May 2007
Place: John Laws Radio Program

Journalist: Last time I talked to you … you’ve made that very clear about Terry Hicks and David Hicks. But last time we talked we talked about classification of that Sheikh Feiz Mohammed DVD, the so-called Hate Series. Can you tell me where you are in terms of your bid to get the states to adopt uniform measures for classifying that sort of material?

Attorney General: Well you know I said when I spoke to you on that occasion I wanted to act on the matter urgently and my officials have been talking to the state officials and we’ve prepared a discussion paper because it does require consultation. We can’t release the discussion paper until we’ve had all the state attorneys agree that it should be released and at the moment the Queensland Attorney is raising questions about whether that release should occur. He said he’s not approving of it at the moment. I’ve had my officials go back and say do you know all the others have agreed – why don’t you? And I’m hoping he’ll move today and I’m hoping all your Queensland listeners will encourage him in allowing for the release of that discussion paper so we can get on with it.

Journalist: Yeah, well we should get on with it. I’m surprised that he hasn’t responded and he could only respond in the affirmative if he was really concerned about the future of Australia’s youth if they get hold of this stuff. I mean it’s dangerous. This Hate Series is very, very dangerous.

Attorney General: Well I simply make the point I don’t know what his motives are. He hasn’t said he’s opposed to the measure. He said he’s opposed to the release of the discussion paper. We can’t proceed with it until the discussion paper is out there. I’ve had my officials go back to Queensland and say all the others have agreed, even those who have said they’ve got some doubts such as the Victorian who always seems to be able to hedge his bets. But I’ve told him that New South Wales, Victoria, Western Australia – they’ve all agreed. Queensland is the only one that hasn’t. I’ve had my officials go back to them today.

Journalist: Okay. Can’t you act unilaterally? Can’t you just tell them you’re going to do it?

Attorney General: Yes, and I’ve said to them that if they’re seen to be standing in our way we will, but that would require Commonwealth legislation. I’ve certainly had our officials … I’ve had Cabinet agree that we should in fact move on it if the states don’t. We want the cooperative scheme to work. We’re going to give it its best shot, but we won’t be giving it the best shot if we don’t get that discussion paper out there so that we can undertake the consultation and then we can put in place a new code. But if the states aren’t willing to do it we’ll amend the Act, but that will take longer. I mean we’d do it during the budget session but we’d be looking about May or June before we could actually get around to doing that.

Journalist: How much time will you give Queensland?

Attorney General: Well, I’m giving them today. I’m wanting them to agree to the release of the discussion paper because then we can get on and see whether there are any serious views – that the way in which we’re proposing to it has some unforeseen consequences. I mean I’m always open to looking at people’s views when they can see it. But I want to have this in place within the next few weeks.

Journalist: Okay. I hope Peter Beattie … hey Pete, tell your Attorney to pick up the telephone.

Attorney General: Yeah, well Kerry Shine’s a nice bloke and he’s eminently reasonable. He’s never been the stickler on these things that some of his colleagues have been but on this particular matter he’s said he’s not approving of the release of the discussion paper. We’re going back to him and saying all the others have agreed. Will you?

Journalist: Yeah okay. And the sooner the better as far as you’re concerned.

Attorney General: Absolutely. Absolutely.

Journalist: Okay. Thank you very much for your time Attorney General.

Attorney General: It’s always a pleasure John.

Journalist: Thank you very much. Bye.

 

 

Action on Material Advocating Terrorism
The Attorney-General Philip Ruddock MP
Media Release 077/2007
3 May 2007

Community concern over material that advocates terrorism will be swiftly addressed through new laws, Attorney-General Philip Ruddock said today.

A discussion paper on proposed laws has been released for public comment. The laws propose banning Australian publication of material advocating terrorist acts.

“I am delighted that my State and Territory colleagues have agreed that the proposal can now be put out for public consultation,” Mr Ruddock said.

“Terrorist acts are a specific and highly dangerous threat to Australian society and material which advocates people undertake such acts should not be available. I am pleased that we are now one step closer to getting this kind of material out of circulation.

“I would like to thank my State and Territory colleagues for their fast response to my request to get this issue dealt with quickly .

“In particular, I acknowledge the efforts of Margaret Keech, the Queensland Minister responsible for censorship, for securing the Queensland Government’s approval to release the discussion paper.

“It is gratifying that the States and Territories have worked cooperatively and constructively with the Commonwealth and had quickly agreed to the proposal and process of public consultation.

“I am committed to a fast resolution of this important issue,” Mr Ruddock said.

The Material That Advocates Terrorist Acts Discussion Paper is available at www.ag.gov.au under ‘Classification’ and follow the links. Submissions are due to the Department by 29 May 2007.

 

 

Details of 'terror' censorship Discussion Paper

MATERIAL THAT ADVOCATES TERRORIST ACTS DISCUSSION PAPER
1 MAY 2007

1 BACKGROUND

There are community concerns about the public availability of material that advocates people commit terrorist acts. It is not certain that the national classification scheme adequately captures such material.

This paper therefore outlines a proposal for amendments to the national Classification Code and the Classification guidelines to ensure that material that advocates terrorist acts is refused classification.

Submissions are sought on the proposal by no later than 29 May 2007.

Submissions may be sent in writing –

by email: classificationreview@ag.gov.au

by post: Attn: Kerri-Ann Smith Classification Review Classification Policy Branch Australian Attorney-General’s Department Robert Garran Offices 2-4 National Circuit BARTON ACT 2600

Contact officer: Kerri-Ann Smith (02) 6250 6708

Status of the Discussion Paper

This discussion paper does not necessarily represent the views of the Standing Committee of Attorneys-General or any individual Attorney-General.

Confidentiality

All submissions will be treated as public unless the author clearly indicates to the contrary. A request made under the Freedom of Information Act 1982 for access to a submission marked confidential will be determined in accordance with that Act.

 

2 PROPOSAL SUMMARY

The proposal is to amend the Classification Code and guidelines so that publications, films and computer games that advocate terrorist acts are refused classification.

The proposal is to amend the National Classification Code to include the requirement that publications, films and computer games that ‘advocate terrorist acts’ be refused classification. This would be done by adding, ‘advocates terrorist acts’, in Item 1 (RC Classification) of each table (publications, films and computer games).

The meaning of the terms ‘advocate’ and ‘terrorist act’ would be explained in the amendments – by using terms similar to the provisions in the Criminal Code definitions – as either definitions in the Code or part of the List of Terms in the guidelines. In addition, the Explanatory Statement would provide further explanation and discussion of the terms and the types of material that would be unlikely to be considered to advocate terrorist acts such as bona fide articles by investigative journalists, satirical pieces or patriotic battle movies. It is intended that only material that advocates terrorist acts as strictly described would be refused classification.

Attachment 1 provides an indication of how the Code and guidelines might look should these proposals be agreed to by State, Territory and Commonwealth Ministers.

The Customs (Prohibited Imports) Regulations 1956 and Customs (Prohibited Exports) Regulations 1958 prevent the import or export of some material. The Regulations repeat the language of item 1 of the Classification Code. To ensure consistency between restrictions on material distributed within the country and material entering or leaving the country, it would also be necessary to amend these regulations to include as a prohibited import or export material that advocates terrorist acts.

 

3 LACK OF CERTAINTY

Doubts exist as to the extent to which the present law ensures all material that advocates terrorist acts is refused classification. The lack of clarity is illustrated by a combination of public concern about various material available as books, DVDs or on the internet; the differences of interpretation in Board and Review Board review decisions which overturn Board decisions applying the same criteria to the same material; and litigation in the Federal Court (for which judgment has yet to be handed down) over the interpretation of the phrase. Further litigation may result in a clearer understanding of the current law but it is doubtful that it will supply real clarity anytime soon.

The national classification scheme requires material to be refused classification if it ‘promotes, incites or instructs in matters of crime or violence’. An alternative category for refusal of classification of material advocating terrorist acts is if material deals with matters of violence in such a way that it ‘offends against the standards of morality, decency and propriety of a reasonable adult to the extent that [it] should not be classified’. However, this provision has not been actively used in classifying material that might be considered to encourage terrorist acts.

The elements of the term ‘promotes, incites or instructs in matters of crime or violence’ are not fully explained in either the guidelines or by judicial consideration. There remains uncertainty around the classification of material which may more insidiously encourage people – whether or not they are naïve and impressionable – to commit terrorist acts. Material may be expressed in a way that does not clearly attract the operation of the provisions that would require it to be refused classification.

Arguably, terrorist acts are of sufficient concern and pose such potential danger to the community that material that advocates people commit them should be specifically identified for refusal of classification. The classification scheme should be clear enough that the impressionable and vulnerable in the community are protected from material which encourages people to carry out acts of terrorism through techniques such as praising terrorist acts or issuing calls for action based on ideological or religious duty.

Directly praise

It is unclear to what extent the existing term ‘promote’ would include ‘praise’. The proposed definition of ‘advocate’ would cover ‘praising’, including material that supports a particular terrorist attack or method of terrorist attack.

Example: An article published by a fundamentalist religious organisation describes the action of an individual who has detonated a suicide bomb amidst a market place of civilian shoppers, causing death and mayhem. The article directly praises the particular act, its deadly effect on ‘the enemy’ and the bomber’s consequent martyrdom. It claims that the person would be assured a place in heaven.

Under the current classification scheme, the article is about a ‘matter of crime or violence’ (which is clearly an act of terrorism) but it is not clear that the elements of ‘promotion’ or ‘incitement’ to do the same, or ‘instruction’ in how to build or detonate a suicide bomb are satisfied. However, ‘direct praise’ as in this sort of article carries the risk that a person reading such literature might be influenced to commit a similar terrorist act.

Indirectly counsel

Example: A pamphlet distributed at a cultural festival, or a DVD of a speech adopts words and / or tone which indirectly advocate committing a terrorist act. It does not provide detailed step-by-step instruction on how to carry out any specific action. It does not expressly urge anyone to take action. It does not expressly praise an action.

However, through its text, tone and context, the material may indirectly counsel, urge or provide instruction in how to commit a terrorist act. It may not be a dispassionate exposé of serious issues. It may through its text or tone indirectly urge or instruct the reader to commit a terrorist act by for example causing death or serious harm to sections of the community to advance a political, ideological or religious cause.

Under the current scheme, it is about a ‘matter of crime or violence’ (terrorist act) but there would be no certainty that the element of ‘promote’ is satisfied, nor direct ‘incitement’ to act, nor direct ‘instruction’ on how to attack the weaknesses. However, it may be regarded as indirectly ‘counselling, urging or instructing’ doing a terrorist act by its inspirational tone and exhortations.

 

4 WHAT WILL BE THE EFFECT OF THE CHANGES?

The Classification Scheme targets the material and gets it out of circulation. It will be illegal under State and Territory legislation for the material to be sold and distributed in Australia. The Commonwealth proposes mirroring amendments to the Customs Regulations that will prevent import or export.

Criminal laws allow the prosecution of a person who commits a range of offences and crimes (including those preparatory to and/or in collusion with others) which could be part of terrorist activity. Sedition laws allow the prosecution of a person for advocating that force or violence be used against a Government. Terrorism laws allow the prosecution of a person for committing a terrorist act or training for or otherwise preparing or financing such activities. In each case the evidential burden is high and the relevant or appropriate person to be prosecuted may not be identifiable or within jurisdiction.

Criminal prosecution of terrorists does not, in and of itself, authorise police to remove terrorist material from sale in Australia. This proposal is one strategy aimed at restricting the trade in this material, regardless of whether the person who wrote, created or distributed it can be prosecuted.

 

5 AMENDING THE CODE AND GUIDELINES

The Board and Review Board are required to apply the Commonwealth Classification Act, the National Classification Code and the relevant Guidelines when making classification decisions. The proposal includes amendments to both the Code and guidelines but would not change the other matters to which the Boards must have regard in classifying material.

The Board and Review Board would continue to take into account the broad matters set out in s 11 of the Act such as certain standards of reasonable adults, the literary, artistic or educational merit of the material, its general character and the class of persons to whom it is intended to be published. The Act also requires material to be classified in accordance with the Code and guidelines (s 9).

The Code sets out some broad principles to which classification decisions should give effect (as far as possible), including that adults should be able to read, hear and see what they like, that everyone should be protected from exposure to unsolicited material they find offensive, and the need to take account of community concerns about depictions that condone or incite violence (cl 1).

The Code also contains specific tables describing in greater detail the content of publications, films, and computer games that would require them to be given a particular classification (cls 2-4).

The proposal is to add another subsection for material that ‘advocates terrorist acts’ to the RC item in the Classification column for each type of material – publications films and computer games.

An alternative suggestion is to amend the existing criteria in the Code of ‘promote, incite or instruct’ so that it expressly encompasses material that advocates terrorist acts. This could be done by redrafting the criteria in each of the RC items in the Code to read:

‘promote, incite or instruct in matters of crime or violence, including advocating terrorist acts’.

The guidelines state that material that has elements which exceed the limits of the classification categories must be refused classification. There is little further explanation of the terms related to crime and violence. In fact, in the film guidelines the word ‘incite’ is not used at all, and although ‘instruct’ is qualified by ‘detailed’ the word ‘promotion’ is repeated but not explained. Other than repeating the terms of the Code, the publications guidelines simply refer to ‘detailed instruction’ in crime or violence with no mention of ‘incite’ or ‘promote’.

It is proposed that there would be definitions of the essential terms ‘terrorist act’ and ‘advocate’ (see below).

 

6 ELEMENTS ‘TERRORIST ACT’ AND ‘ADVOCATE’

Explaining the terms

‘Terrorist act’ and ‘advocate’ would be explained based on definitions used in the Commonwealth Criminal Code.

The terms would be explained as follows:

'advocate’ means action that directly or indirectly counsels or urges doing a terrorist act; or directly or indirectly provides instruction on doing a terrorist act; or directly praises doing a terrorist act where there is a risk that such praise might lead a person (regardless of his or her age or any mental impairment) to engage in a terrorist act.

‘terrorist act’ means an action or threat of action that causes serious physical harm or death to a person, or endangers a person's life or involves serious risk to public health or safety, serious damage to property or serious interference with essential electronic systems. Such an action or threat of action must also be intended to advance a political, ideological or religious cause and to coerce or influence by intimidation an Australian or foreign government or intimidate the public or a section of the public. However, it does not include advocacy, protest, dissent or industrial action which is not intended to cause serious harm, death, endangerment of life, or serious risk to the health or safety of the public.

Where the terms should be explained

Should the explanation of the terms ‘advocate’ and ‘terrorist acts’ be placed in the Code or guidelines?

If placed in the Code as definitions, they would give the explanations the status of a legislative definition. Although this would provide more detail than the other criteria set out in the Code, it would ensure clarity about the meaning of the terms. However, the Code as currently structured lists criteria only. A full definition of the meaning of those criteria in the Code itself would be inconsistent in length and style with the other elements.

Section 9 of the Commonwealth Classification Act requires classifiers to consider the Code and guidelines when classifying. Section 12(1) refers to the guidelines as assisting the Board in applying the criteria in the Code. The attached suggestion for amended Code and guidelines places definitions of the terms ‘advocate’ and ‘terrorist acts’ in the List of Terms in the guidelines. The Act would require the Board and Review Board to use the definitions in the guidelines in applying the Code.

Ensuring such material is adequately captured and balancing freedom of speech

Freedom of speech is a valued part of Australian society. A lot of material may be controversial but that alone would not attract the operation of the provisions. It is not intended to capture material that does not ‘advocate terrorist acts’ within their meaning in the Code and/or Guidelines.

The key for material to be captured by the new provisions would be that it must actually advocate someone commit a terrorist act within the concept of the expansive definition of ‘advocates’. All aspects of the elements ‘advocates’ and ‘terrorist acts’ must be present for material to be refused classification. Material would have to be specifically about advocating committing a terrorist act, not merely expressing generalised support for a cause. The Board and Review Board would need to decide that the act clearly fell within the definition of a ‘terrorist act’ and that the material clearly ‘advocates’ doing that act within the meaning of ‘advocate’ as explained in the Code or guidelines.

Examples of material not intended to be captured by the provisions include investigative journalists’ work, satirical pieces, or patriotic material that might appear to glorify war or battle. It is not intended that the proposal restrict film-makers or authors or publishers dealing with contentious subject matter in an entertaining, informative, educational, ironical or controversial way. This may include dealing with strong themes, having a shocking impact and presenting a story from alternative perspectives. The Board and Review Board are used to dealing with such material and giving appropriate classifications.

‘Terrorist act’ would not include action legitimately taken by the armed forces of a country on the international stage in accordance with what they perceive to be their national interests and international law. However, where material could be seen to advocate terrorist acts as defined, outside the framework of the internationally recognised concept of ‘war’, it should not be available in Australia.

Some concern has been expressed about the implications of using terminology from the Criminal Code in a civil context and whether this could mean that a wider range of material is captured and a greater restriction on freedom of expression than is desirable is a likely result. One advantage of using this terminology is that the language has previously been agreed by the Commonwealth, States and Territories. While it is currently used in the criminal context, the Board and Review Board do not operate within the criminal jurisdiction, but rather apply a civil standard of what represents community values. The drafting would make no direct reference to the Criminal Code but would explain the expression.

 

7 SCOPE OF PROPOSAL

The amendments to the Code and guidelines would apply to publications, films and computer games submitted for classification in the same way as the Act, Code and guidelines already apply to them. It would apply by application of the Broadcasting Services Act 1999 to internet pages hosted in Australia and through amendments to the Customs Regulations to imports and exports.

The normal requirements and processes for classification would apply including for applications by distributors, publishers or authorities or agencies for law enforcement purposes. The proposal imposes no additional requirements for law enforcement or policing.

 

8 DISTINGUISHING SO-CALLED ‘HATE’ MATERIAL FROM MATERIAL THAT ADVOCATES TERRORIST ACTS

In Australia, material that could be considered by some to be offensive, insulting, controversial, or just unpleasant is readily available. Free speech is an important tenet of our Western liberal democracy and is enshrined in the Code. This proposal is not designed to remove from circulation material that falls short of actually advocating people commit terrorist acts. Under the proposal, the Classification Board and Review Board will only be required to refuse classification to material that advocates terrorist acts as defined.

The media has given a lot of attention to so-called ‘hate’ material. This material might insult or make claims about identified groups of people on the basis of their race, religion or ethnicity. It might rail against people other than themselves and their practices and customs. Its content can vary from unpleasant to quite abhorrent. However, only ‘hate’ material that could also be considered to advocate that people commit terrorist acts would be captured by this proposal.

Some ‘hate’ material – such as that which racially vilifies someone, may be captured by other regulation. For example, Commonwealth, State and Territory anti-discrimination and/or anti-vilification laws prohibit racial vilification, which could include the distribution of material promoting racial hatred.

The Commonwealth Racial Discrimination Act 1975 (RDA) prohibits offensive behaviour based on racial hatred (racial vilification), that is, public acts that are reasonably likely to offend, insult, humiliate or intimidate a person or groups of people, and that are done because of a person’s or group’s race, colour or national or ethnic origin. In the landmark cases of Jones v Scully and Toben v Jones, vilification of Jewish people in leaflets and on the internet was found to be unlawful under the RDA and not to be a legitimate exercise of free speech.

Commonwealth racial vilification laws are complaints based. Complaints may be made to the Human Rights and Equal Opportunity Commission which will attempt to conciliate. If the conciliation is unsuccessful the complainant may commence legal proceedings in the Federal Magistrates Court or the Federal Court. A person may also have a ground of complaint under State or Territory racial vilification legislation and may complain to the anti-discrimination body in that State or Territory. Some State and Territory laws include offences of serious vilification on prohibited grounds of discrimination

Racial vilification on the internet is also dealt with under the Commonwealth Criminal Code. The Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act 2004 extended the offence of using a telecommunications service in an offensive manner to cover material on the internet.

 

9 CONSEQUENTIAL AMENDMENTS TO CUSTOMS REGULATIONS

It is important to be consistent in the ability to stop material at the border as well as get it out of distribution when within the country. The Customs (Prohibited Imports) Regulations 1956 and Customs (Prohibited Exports) Regulations 1958 would be amended to identify material that advocates terrorist acts as prohibited imports and exports

The prohibitions in the Customs Regulations do not automatically pick up by reference material that is refused classification under the classification scheme. Rather, they prohibit the importation or exportation of publications (and other goods including films and computer games) in terms that replicate the grounds on which the Boards must refuse classification. These include goods that ‘promote, incite or instruct in matters of crime or violence’.

The same lack of certainty in the coverage of these provisions is relevant to goods at the border. Therefore, the Australian Government will need to amend the regulations so that they identify material that advocates terrorist acts as prohibited imports and exports. Amendments would use the same terms and definitions as the classification scheme.

 

 

AFP questioned about PG rated 'terror' DVDs

In May 2007, the ALP's Senator Joe Ludwig, and the Liberals Senator David Johnston, questioned the Australian Federal Police Commissioner Mick Keelty about the so called 'terror' DVDs.

 

Date 23 May, 2007
Committee name STANDING COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
Department ATTORNEY-GENERAL'S PORTFOLIO
Database Estimates Comm.
Source Senate

Proceedings suspended from 12.33 pm to 1.36 pm

Senator LUDWIG—There is another broader matter that has been in the media, to do with Sheik Feiz’s terror DVD that was given a PG rating. The specific offence, or one of the offences that could be attracted by this, is in section 80.2(5) of the Criminal Code, to do with when a person:

… urges a group or groups (whether distinguished by race, religion, nationality, national origin or political opinion) to use force or violence against another group or other groups (as so distinguished) …

I was wondering if the matter of the DVD was investigated by the Australian Federal Police. Is there an ongoing investigation or has an investigation been concluded? If so, what specific charges or offences were looked at in respect of that?

Senator Johnston—What is the name of the sheik?

Senator LUDWIG—Sheik Feiz. I do not like to use the colloquial phrase, but it was the terror DVDs that were in the media; I think they were referred to as ‘martyr films’ in some newspaper reports—in the Sydney Morning Herald, I believe.

Mr Keelty—I can advise that you the matter was referred to the Commonwealth DPP, who subsequently advised us that no offence was made out to support a charge of sedition under the relevant legislation and that the matter has been now referred to the Office of Film and Literature Classification.

Senator LUDWIG—Are you able to say what the view of the Commonwealth Director of Public Prosecutions was as to why it did not meet the elements of the offence? The reports say that it calls for Muslims to murder non-Islamic people. I am just wondering why that would not fall under the banner of urging violence within the community.

Mr Keelty—I do not have a copy of the Commonwealth DPP’s advice with me, but in the advice I have received it states that the DVDs made by the individual were examined in the context of the old sedition laws because of when the acts were allegedly committed. The Commonwealth Director of Public Prosecutions formed the view that there was insufficient evidence to support an offence under the old legislation.

Senator LUDWIG—So that was not tested against the new section?

Mr Keelty—No. I do not have the DPP’s advice in front of me, but I presume it was because of the date of the creation of the DVD.

 

 

OFLC questioned about the PG-rated 'terror' DVDs

During the May 2007 Senate Estimates, the ALP's Senator Joe Ludwig questioned the new Director of the OFLC about the recent controversy surrounding the Muslim 'terror' books and DVDs.

 

The speakers were:

Labor party QLD Senator Joe Ludwig
Liberal Party WA Senator David Johnston

Office of Film and Literature Classification
Mr Donald McDonald
Director Mr Jeremy Fenton, Senior Classifier

Attorney-General’s Department Management and Accountability
Mr Ian Govey, Deputy Secretary, Civil Justice and Legal Services

Support services for government operations Output group 4
Mr Alex Anderson, Assistant Secretary, Legal Policy

 

Office of Film and Literature Classification: Discussion
Date 24 May, 2007
Committee name STANDING COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
Database Estimates Comm.
Source Senate

Talk Mr Govey—There was already some work being done on policy within the Office of Legal Services Coordination. I think it is worth making the general point that it is very hard to add up all the little bits that were working on this and then come up with where we are now. Effectively, we sat down again and looked at what structure we were going to need, taking into account the available resources. The branch has been set up in light of current needs, which are not necessarily the same as when you had policy being done from an office in Sydney and an office in Canberra.

Talk Senator LUDWIG—Yes, Mr Govey. Sometimes it is very hard from this side of the table. If you are telling me that it is hard from your side, I will certainly accept that. Mr McDonald, I know that you are new but this was a process of policy development which might be called, if I use the general term, the hate books—that is, books promoting suicide bombing and atrocities against the West. As I understand the situation, we have a fourfold system dealing with this type of material. I am happy to be assisted here. First, there are criminal offences under section 102.1A of the Criminal Code, which proscribes counselling, praising of or instruction in a terrorist act. Second, there are sedition offences under section 80.2 of the Criminal Code. Third, there is the censorship regime. You have a role—this is already within the capacity of the Classification Review Board to take into account—to refuse classification on the basis of depictions that condone or incite violence. The fourth area involves Customs, if there is an importation. There are regulations that then deal with the importation of refused classification material or the like. Have I missed any? They are the four main ways in which we generally deal with this type of material.

Talk Ms Davies—Yes, those are the four main ones, although I note that the sedition offences et cetera that you are talking about are not directed at the material itself.

Talk Senator LUDWIG—That is right. Under the categories and symbols page on your website there is the classification ‘PG’ for films and computer games that contain material that need to be explained to children and, therefore, parental guidance is recommended. The PG content is mild. I refer to the specific example of the Sheik Feiz terror DVD, which was given a PG rating. As I understood it, that matter was raised in the Sydney Morning Herald on 15 April 2005. The question that I have is: how is a film that calls for Muslims to murder non-Islamic people considered mild by the board?

Talk Mr McDonald—The board considered that material on a referral that was submitted by the Australian Federal Police. It was a clear majority decision to classify the material on that basis.

Talk Senator LUDWIG—I do not understand one issue. Perhaps you can help me with this. How can a film that calls for suicide attacks or so-called martyrdom be considered mild by the board? How on earth can the board come to the conclusion that a DVD that displays racial hatred by calling Jewish people an army of pigs is mild? I would like to know specifically why the board—which, as I understand the brief, is to be reflective of Australian community standards—considered this material appropriate for young Australian Muslim children aged, say, 10 years, to view.

Talk Mr McDonald—I am just referring to the actual report. As you clearly understand, this decision was reached before I was appointed to the board, which is not meant to be misunderstood as any repudiation of the decision; it is just that I was not there and familiar with it. It was the board’s view that the classifiable element of the themes—which are the religious themes—was mild in its viewing impact. I am now reading from the report, which states:

The film contains religious themes that have a low sense of threat and/or menace and that are justified by context. The context is a lecture about tenets of the Islamic faith, ostensibly from a fundamentalist perspective.

Talk Senator LUDWIG—Was the content of the DVD produced in Australia or overseas?

Talk Mr McDonald—Yes, it was produced in Australia. It is astonishingly undramatic, Senator. A camera is simply trained on somebody who is standing there, speaking.

Talk Senator LUDWIG—Are you able to provide to the committee the statement of reasons by the board?

Talk Mr McDonald—I believe I have provided them in full. The report refers to various points—at minute 14 et cetera—

Talk Senator LUDWIG—I understand the report.

Talk Mr McDonald—The concluding remark is:

In the Board’s view, the use of the consumer advice “Religious themes” most accurately reflects the content of the classifiable element in the film.

In a minority view of the board, it was stated:

The classifiable elements contained in the film do not exceed “very mild” in impact. The themes are delivered in the manner of a modern-day sermon, and contain references and imagery generally tolerated within the wider Australian religious community.

That was the minority view, but I believe it was a minority of three.

Talk Senator LUDWIG—It just does not seem sensible to me. How can it be justifiable when it has material or content that allows someone to murder non-believers? If you could provide that report, it would be helpful. I understand, and I am sure Mr Cornall can confirm this, that in the past those reports have been provided to the committee upon request.

Talk Mr McDonald—Yes. We have the report, Senator. I would be happy to have it provided.

Talk Senator LUDWIG—Could it be tabled?

Talk CHAIR—Is it the wish of the committee that the report be tabled? There being no objection, it is so ordered.

Talk Senator LUDWIG—Are you able to say when the decision was made? Is that demonstrated in the report?

Talk Mr McDonald—Sorry, your question was the date—

Talk Senator LUDWIG—The date the decision was made. I am not sure how it works. Do you review the material?

Talk Mr McDonald—On 9 February 2007.

Talk Senator LUDWIG—When was it referred to the OFLC by the Australian Federal Police?

Talk Mr McDonald—I am hazarding a guess that it would have been 20 days prior to that. I will ask Mr Fenton to provide that information. He is a member of the board and a senior classifier.

Talk Mr Fenton—We would have to take that on notice. We are not sure exactly when the material would have been received, but the director is correct in saying that it would not have been more than 20 days before the decision was made, I believe.

Talk Senator LUDWIG—Is there a legislative requirement for the decision to be made within 20 days of receiving it?

Talk Mr Fenton—A statutory requirement, yes.

Talk Senator LUDWIG—I have not yet seen the decision, but does that provide the names of members who made the decision? We have heard that it was a majority decision but there was also a dissenter. Does it provide the names of the people who were in the majority and the name of the dissenter?

Talk Mr McDonald—It provides their initials. The names could be provided to you. As you would appreciate from the legislation, the board acts as a group and it is ultimately a board decision.

Talk Senator LUDWIG—Yes, I accept that. But it is always worth while clarifying that for the purposes of the record. Are those individuals appointed for a period of time?

Talk Mr McDonald—Yes. They are appointed for either three years or four years.

Talk Senator LUDWIG—How many classifiers are there at present?

Talk Mr McDonald—The board consists of 17 members in its current establishment—that is, the director, the deputy director, two senior classifiers, of whom Mr Fenton is one, and the remaining 13 board members.

Talk Senator LUDWIG—What is their usual term of appointment?

Talk Mr McDonald—Three or four years.

Talk Mr Anderson—To add to that: there is a statutory maximum of seven years for the term. It is common for the initial appointment to be for, say, three years.

Talk Senator LUDWIG—Thank you. Who appointed the decision makers who made the decision in respect of the DVD to which we are referring? Were those appointments made under the current Attorney?

Talk Mr Anderson—I believe that some of them would have been initially appointed under the previous Attorney, but I will just check that. Yes, a number of them were actually appointed under the previous Attorney. The current deputy director, a senior classifier and two members were appointed under the previous Attorney. The remainder have been appointed by the current—sorry, under the current Attorney; it is still an appointment by the Governor-General on advice of Executive Council.

Talk Senator LUDWIG—Were the people who made the decision in respect of the DVD all appointed by the Attorney?

Talk Mr McDonald—It is the mix as described by Mr Anderson.

Talk Senator LUDWIG—I did not have the decision with me. How many people on the board made the decision? Was it the whole 17?

Talk Mr McDonald—There were 13 who participated in that voting.

Talk Senator LUDWIG—Hence my question. Were any of the 13 not appointed by the Attorney-General? Not all of the 17 were.

Talk Mr McDonald—I am trying to analyse the initials. I think that we had better provide that to you on notice.

Talk Senator LUDWIG—Thank you.

Talk CHAIR—Will you take that on notice?

Talk Mr McDonald—Yes. Chairman, could I correct the date that I gave earlier. I said that the classification decision was made on 9 February. That was the day of the viewing. I am sorry, I misread the report. The board classified them on 1 March 2007.

Talk Senator LUDWIG—Thank you. I think my next question, on the proposed change, should be directed to you, Mr Cornall, or even to you, Mr Anderson. When was the proposed change to the law to address this area first mooted?

Talk Mr AndersonBefore the videos in question, some previous publications were described in the media as books of hate. The Classification Board, and then the Classification Review Board considered eight publications. On 10 July 2006 the Classification Review Board refused a classification to two of those hate publications. At the SCAG (Censorship) meeting in July 2006, the Attorney first proposed amendments to the classification act to deal with material advocating terrorist acts.

Talk Senator LUDWIG—So it was proposed at that meeting on 10 July 2006?

Talk Mr Anderson—10 July was when the Classification Review Board made a decision about publications.

Talk Senator LUDWIG—And at the next SCAG following that?

Talk Mr Anderson—There was a SCAG meeting shortly after that.

Talk Senator LUDWIG—Would that have been about mid-July?

Talk Mr Anderson—Late July.

Talk Senator LUDWIG—How time flies! So it was raised at that time. Was that when it was first proposed?

Talk Mr Anderson—That is correct.

Talk Senator LUDWIG—It is interesting that you say that. It seems that in 2005 it was first mentioned by Mr Philip Ruddock in a radio interview with Ray Hadley. I might have to ask the minister to check on this, but was it a matter that popped into the head of the Attorney-General back in 2005 and he did nothing with it? It was a matter that was raised in that interview but it seems to have been sitting there waiting from there on. I could provide the transcript if you want to have a look.

Talk Mr Anderson—July 2006 was when the Classification Review Board made a decision on these eight publications. They had previously been to the Classification Board. So the issue itself had been known to the Attorney prior to proposing to state and territory ministers at SCAG (Censorship) in July 2006. It was only once the decision of the review board was known that the extent to which there was a problem became clear, as to how the terrorist material and the classification code, act and guidelines interact.

Talk Senator LUDWIG—So the explanation is that it was a matter that Mr Ruddock first raised in July 2005 in the radio interview. The next time we hear of it is roughly in July 2006 when we learn from a media release from the Attorney that he has written to the states about the issue. I think that was sent on 9 June 2006 and it was entitled ‘Classification review to consider hate material’. So 10 July is probably a little out.

Talk Mr Anderson—My recollection is that the Attorney referred the matter to the Classification Review Board. I cannot be sure of the exact timeframe leading up to that, in terms of the Classification Board itself considering it.

Talk Senator LUDWIG—The media release dated 9 June 2006 goes on to state:

The Australian Government will push for censorship laws to be reviewed to assess whether they deal adequately with material which urges or advocates terrorist acts ...

...Mr Ruddock also has referred eight publications and one film to the Classification Review Board in response to community concerns ...

It got to the Classification Review Board by July and soon after to SCAG?

Talk Mr Anderson—No. He referred the matter to the review board. I cannot recall the precise dates, but if the press release is dated 9 June then I am assuming that that would be when the Attorney referred the matter to the review board. However, the decision of the review board was on 10 July 2006. That was followed relatively soon after by the SCAG (Censorship) meeting at which the Attorney formally urged state and territory ministers to agree to amend the legislation and the code.

Talk Senator LUDWIG—We still had a period from July 2005 to write the letter—about a year later. It is almost a year from the time the thought popped into the Attorney-General’s head—at the time of the radio interview—to the time when he took the action of writing a letter.

Talk Senator Johnston—That is not necessarily surprising, given that I think the AFP had to review the evidence to see whether there was an existing offence. That does take some time. The document that you have given us indicates that there is an element of that. The brief was being reviewed, it came back and then I think the Attorney has looked at what involvement he needed from the states. The problem we have is that if you unilaterally make legislation in the Crimes Act you need to make sure it is not incompatible with existing state legislation. So there is an element of everybody being on the same page, and that does take some time, I must say.

Talk Senator LUDWIG—He did not give the SCAG ministers that much time to get into the vote. He went to the press and announced it and then ended up in SCAG saying, ‘This is what I want you to do,’ whereas he had already considered it and thought about it 12 months earlier. He had plenty of opportunity a lot earlier to take it to SCAG and say, ‘This is my thinking on the matter.’

Talk Senator Johnston—It is much better to compare apples with apples.

Talk Senator LUDWIG—I am happy to hear that you have compared them. What we had in 2005 was Mr Ruddock’s thoughts on radio. It appears to me that it disappeared at that point. In 2007 we learn that a hate-filled jihad DVD was given a PG rating. The Classification Review Board then provides a PG rating, and the Attorney then writes to the states to ask them to come up with a policy in the area within two weeks.

Talk Senator Johnston—I will take this question on notice and get a chronology of what has occurred. I am sure there is a lot more to it than simply looking at the radio interview and at the end outcome. A lot of consultation has to go on. I will get a chronology for you.

Talk Senator LUDWIG—We also have the press release entitled ‘States should agree to new test for terrorism material’, dated 15 April 2007. The real crux of the matter is that, when you are doing your chronology, you should also plug in what consultation went to the states at that point; otherwise you have 2005 where the original thinking starts. It concertinaed right at the end where you end up with a press release on 15 April 2007 stating that the states have to agree, and they are given about two weeks to come up with a considered response about all this. If you then say that it has been developed over 2005, obviously from that point the Attorney-General, if he has also consulted with the Australian Federal Police, has had a significantly longer time to consider it, look at the issue and decide on the best course of action.

Talk Senator Johnston—I do not think that that depiction is accurate, but I will come back to you with a formal response on the chronology.

Talk Senator LUDWIG—All right.

Talk Mr Anderson—I have one other thing, Senator. While the chronology will detail in particular what happened from 2005 to 2006, I can say that between the July 2006 SCAG censorship meeting and the 13 April 2007 press release a great deal of work was done by a working party of officials from the states, territories and the Commonwealth seeking to progress the case for the amendment. It was the Commonwealth’s experience that we were meeting resistance from the states and territories at every turn along the way, despite doing a great deal of work seeking to persuade them of the need for the amendments. But the chronology will make clear all of the steps.

Talk Senator LUDWIG—That will be helpful. Mr McDonald, this is a matter that I suspect you will have to grapple with.

 

 

NSWCCL censorship case fails

In June 2007, the NSW Council for Civil Liberties failed in their Federal Court case against the Classification Review Board.

The books JOIN THE CARAVAN and DEFENCE OF THE MUSLIM LANDS remained banned in Australia.

NSW Council for Civil Liberties Inc v Classification Review Board (No. 1)
[2006] FCA 1409 (3 November 2006)
Federal Court of Australia
New South Wales District Registery

 

Federal Court decision – NSW Council for Civil Liberties v Classification Review Board
Australian Government
Classification Review Board
14th June 2007
Media Release

The Classification Review Board notes with the interest the judgement handed down today by the Federal Court about an application lodged by New South Wales Civil Liberties Incorporated in relation to two books, ‘Join the Caravan’ and ‘Defence of the Muslim Lands’.

In mid 2006, the Classification Review Board unanimously classified these books ‘Refused Classification’.

Classification Review Board Convenor, Ms Maureen Shelley said, “I am pleased that the decision of the Classification Review Board withstood the scrutiny of the Federal Court, in that the Court dismissed the application. Members of the Classification Review Board are keen to read the reasons for decision. It isn’t often that the Review Board is given guidance by the Courts on interpretation of the Classification Act and such case law can only assist the Review Board in its deliberations”.

‘Refused Classification’ means that the two books ‘Join the Caravan’ and ‘Defence of the Muslim Lands’ by Sheikh Abdullah Azzam cannot be legally sold, hired or advertised in Australia.

 

 

Ruddock introduces 'terror' censorship bill

CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES) AMENDMENT (TERRORIST MATERIAL) BILL 2007
Second Reading
Date 21 June, 2007
Database House Hansard
Speaker Ruddock, Philip, MP (Berowra, Attorney-General, LP, Government)
Source House
Stage Second Reading
Type Speech
Context Bills

Second Reading Speech Mr RUDDOCK (Berowra—Attorney-General) (9.22 a.m.)—I move:

That this bill be now read a second time.

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.

This is a serious issue. Currently there is too much uncertainty around whether the existing classification laws adequately capture such material. This material should not be legally available in Australia.

The bill introduces new provisions to the classification act, which will expressly require that publications, films or computer games that advocate the doing of a terrorist act must be classified as ‘refused classification’.

I would prefer to see these provisions in the National Classification Code and guidelines, not in the classification act, but that requires the states’ and territories’ agreement.

As the classification scheme is a cooperative national scheme, the state and territory censorship ministers and I must agree to the provisions of the code and guidelines.

I first sought state and territory agreement to changes to classification laws in July 2006. To date, they have been reluctant to respond positively to my proposals. I am not prepared to wait indefinitely to address this problem.

Following public consultation on a discussion paper, I recently wrote to censorship ministers seeking their agreement to amend the code and guidelines to require the Classification Board to refuse classification of material that advocates terrorist acts.

I am hopeful that my state and territory colleagues will agree to these amendments at the Standing Committee of Attorneys-General meeting in July. If they do, the amendments in this bill will not be needed. But, I might say, any evidence of bona fides is hard to find. When officers are instructed not to agree to the proposals, it is unlikely that an agreed set of proposals would be submitted to the ministers’ meeting in July. Ministers would be very unlikely in a meeting to conclude that agreement and would again refer it off to officers. That has been the standard practice.

If states and territories do not agree in July, we must be in a position to ensure that material that advocates the doing of terrorist acts is not legally available in Australia. This bill ensures that this can be done expeditiously through an amendment to the classification act.

The bill introduces the same provisions as the proposed amendments to the code and guidelines. It requires the Classification Board to refuse classification of material that advocates terrorist acts. The provisions take into account submissions received following public consultation on the discussion paper. The submissions were carefully considered and, consequently, the proposal has been refined, so that the new provisions will operate effectively against unacceptable material but will not impinge on freedom of speech or mainstream popular culture.

The requirement in this bill for material to be classified as ‘refused classification’ is not intended to restrict the genuine and legitimate exercise of freedom of speech or to prevent filmmakers, authors or publishers from dealing with contentious subject matter in an informative, educational, entertaining, ironical or controversial way.

As the bill clearly sets out, where the treatment of a terrorist act could reasonably be considered to be done merely as part of public discussion or debate or as entertainment or satire, it is not to be refused classification.

This protects material such as investigative journalists’ work, historical analyses, material that might appear to glorify war or battle (including ‘factional’ or fictional accounts of war, insurgency or resistance), satirical pieces, and popular culture movies.

On the other hand, material which goes further and advocates the doing of terrorist acts—for example, by directly praising terrorist acts in circumstances where this runs the risk of inspiring someone to commit a terrorist act—would and should be required to be classified ‘refused classification’.

Striking the right balance is important. Freedom of expression is an important part of our society’s values. However, there is another right which must be protected—the right to be protected from the pernicious influence of material that advocates the naive and impressionable to go out and commit terrorist acts against other human beings.

The bill adopts the meanings of ‘advocate’ and ‘terrorist acts’ from the Criminal Code Act 1995 by adaptation of language or direct reference. It is intended that the meanings of these terms in the classification act remain consistent with their meaning in the Criminal Code.

‘Advocate’ covers direct or indirect advocacy, in the form of counselling, urging or providing instruction on the doing of a terrorist act. It also covers direct praise of a terrorist act where there is a risk that such praise might lead a person (regardless of his or her age or any mental impairment) to engage in a terrorist act.

However, the advocacy would need to be about doing a terrorist act, not merely expressing generalised support of a cause.

The term ‘terrorist act’ is given the same meaning as in section 100.1 of the Criminal Code. Any amendments made to that section will automatically apply to the definition of ‘terrorist act’ for the purposes of the classification act.

‘Terrorist act’ is tightly defined. The action or threat must be made with the intention of advancing a political, religious or ideological cause and coercing or intimidating an Australian or foreign government or the public. It includes actions or threats involving serious harm to people, damage to property, endangerment of life, serious risk to the public’s health or safety, or seriously interfering with an electronic system including telecommunications, financial and essential government services systems, essential public utilities and transport providers.

Action which is advocacy, protest, dissent or industrial action, not intended to cause serious harm, death, endangerment of life, or serious risk to the health or safety of the public, is expressly excluded from being a ‘terrorist act’.

This bill will improve the ability of our laws to prevent the circulation of material which advocates the doing of terrorist acts. Classification laws need to be better able to ensure that such material is not available in Australia.

Whether that happens through amendments to the National Classification Code and guidelines with the agreement of the states and territories or through amendments to the classification act that I introduce today is not yet clear. But let me make it clear to those who may want to read these remarks: this bill will not proceed if the Classification Code is amended by agreement with the states and territories in a satisfactory way. Its introduction now is to ensure that we can deal with these matters in an appropriate time frame. In other words, it is a bill proposed for more abundant caution. I might say to the states and territories that I would expect that if they do not agree, this bill would secure passage through both houses of parliament, given the comments of the opposition about what they allege has been delay on my part in proceeding with these matters. Let me make it very clear: I have been pressing the states and territories to deal with this issue for more than 12 months, and I think they have had more than enough time to come to an agreement. I suspect their behaviour has been designed to frustrate these amendments, and that is why this bill is important in terms of ensuring that we have sufficient options to be able to deal with this issue in an appropriate time frame. I commend the bill to the House.

Debate (on motion by Mr Snowdon) adjourned.

 

 

Interview: Philip Ruddock
July 8, 2007
Reporter : Laurie Oakes Sunday Program

LAURIE OAKES: Just before Parliament rose for the winter recess you snuck some legislation into the house that would make it an offence to produce or disseminate material, books, films, DVDs, computer games advocating terrorism. Now why wasn't that voted on before the house rose?

PHILIP RUDDOCK: Well the bill was introduced and it's been left on the table, one, so that the Opposition and Senate committees can have their examination of it but also because I'm trying to work with the states. The classification scheme is a combined scheme in which we require usually the states and the Commonwealth to agree on changes that should be made to the classification code. Now in 2006 I asked the states to look at the issue of advocacy of terrorism acts and it has been on the agenda all that time and I've had a job keeping it on the agenda because until the Sheik Fa-Mahomoud's DVDs were given a classification which was 'parental guidance required' which I think is quite extraordinary in relation to a product of that type, it was quite clear that the law did not require the classifiers to look at the advocacy issue in a way which would enable a DVD of that type to be effectively prescribed and not available to the Australian community. Now we have a meeting of attorneys in July.

I hope that they will agree, particularly given the advocacy of people like the Premier of New South Wales and some of the attorneys that Sheik Fa-Mahomoud's material ought to be looked at critically and that they will support amendments to the classification code which is the way in which we would normally deal with these issues. But if they don't, if they don't , I've made it very clear that the Commonwealth will nevertheless proceed to deal with it by amendment to the Commonwealth legislation.

 

 

Ruddock attacks Labor

On July 26 2007, the State Attorney-Generals met with Philip Ruddock in Hobart to discuss his proposed tightening of the classification laws.

 

Hatzistergos supports classification review
abc.net.au/news
, July 26, 2007

The New South Wales Attorney-General says he supports federal moves toward less restrictive laws governing the classification of sensitive material in books and films.

The attorneys-general meeting in Hobart today will discuss exempting material that is for the purposes of public discussion, entertainment or satire.

John Hatzistergos says under the previous classification system, films such as the IRA movie, The Devils Own, and books such as Nelson Mandela's biography would have been refused classification.

"We believe that the original proposals were unworkable and absurd, and we're pleased that the Commonwealth has now seen the error of its ways," he said.

"Nevertheless, we're happy to move forward in this way, we believe that the modifications are sensible and we're happy to support them."

Mr Hatzistergos says the previous system was unworkable and absurd.

"Well, I think it's important that we have balance. No one wants material which is advocating terrorism, or which can incite or counsel, [but] that doesn't mean that any material that may document terrorism should, by reason of that fact, be prohibited," he said.

"There are obviously circumstances in public discussion, in entertainment, in satire, where it's appropriate for those sorts of things to be documented."

 

 

Labor States fail to act on material advocating terrorism
The Attorney General Philip Ruddock MP
Media Release 157/2007
27 July 2007

Attorney-General Philip Ruddock today 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.

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,” Mr Ruddock said.

“As I have said before, should an attack happen in Australia I want to be able to look into 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.”

“Last month I introduced legislation in Parliament to allow the Australian Government to act independently from the states given that they have refused to co-operate with me to make changes to the National Classification Code and guidelines.”

At the Standing Committee of Attorneys General meeting in Hobart today only SA and NSW agreed to support changes to classification laws as proposed by the Australian Government. The changes would have required publications, films and computer games that advocate terrorist acts to be refused classification by the Classification Board and be unavailable lawfully in Australia.

The proposal included provisions to ensure the regulation would not impinge on freedom of speech or mainstream popular culture.

“I initially sought state and territory agreement to change the classification laws in July 2006, and with no progress made on this issue, I am proceeding with the Classification Amendment (Terrorist Material) Bill 2007 already introduced in the Australian Parliament,” Mr Ruddock said.

“Once the Bill is passed, the Australian Government will be in a position to deal with material that advocates terrorist acts.”

 

Aust to ban pro-terrorist material
abc.net.au/news
, July 27, 2007

Attorney-General Phillip Ruddock says the Government is acting independently to amend classification laws after the Standing Committee of Attorneys-General failed to reach agreement on the change at today's meeting in Hobart.

Mr Ruddock says it is important the definitions used in the national counter-terrorism regime are consistent across all areas of legislation.

"The Commonwealth will legislate to put in place an amendment to the Classification Act, given we were not able to obtain a unanimous agreement from the states and territories to the proposed changes," he said.

He says it is regrettable some states are continuing to resist the Commonwealth moves, with only New South Wales and South Australia offering support.

"That's not surprising given the vehemence of the support offered by [NSW] Premier Iemma when the DVD of Sheik Fayez Muhammed was first given a PG rating by the classification body," he said.

 

Attorney-General pushes for tougher censorship
theage.com.au, August 28, 2007

Victorian Attorney-General Rob Hulls did not rule out agreeing to toughen the current laws banning materials that incite crime or violence.

But he believed there had to be more consultation before a ban was brought in, a spokeswoman said.

Mr Hulls also slammed Mr Ruddock for acting unilaterally. The federal legislation, which has already been introduced to Parliament, contains more protections than an earlier proposal by Mr Ruddock's department.

Material that depicts terrorist acts, but whose depiction could "reasonably be considered to be done merely as part of public discussion or debate or as entertainment or satire" is not to be refused classification.

The Age believes that the protections were added to the legislation in response to concerns raised within the Coalition.

 

Labor on Terror: 'Amen no more'
The Attorney General Philip Ruddock MP
Media Release 175/2007
15 August 2007

Rudd Labor has deviated from its typical refrain of ‘Amen’ to Howard Government policy and has moved to weaken terrorism legislation.

The House of Representatives passed today the Classification (Publications, Films and Computer Games) Amendment (Terrorist Material) Bill 2007 which would allow the Howard Government to act quickly and decisively to remove materials that advocate terrorist acts from circulation.

However Rudd Labor has signalled its intent to water down the legislation and delay its passage in the Senate.

“I am deeply disappointed that the Opposition want to play around with this kind of issue,” Attorney-General Philip Ruddock said.

“Governments have a responsibility to do everything possible to improve security to deal with potential terrorism threats in Australia and the stance of Labor clearly demonstrates that Labor across the nation is not serious about dealing with terrorism.”

Mr Ruddock said he had been forced to introduce the legislation because most of the Labor State and Territory Governments refuse to amend the National Classification Code and Guidelines which requires unanimous agreement.

“The failure of Labor States and Territories to reach agreement that we should stop the recruitment of the impressionable and vulnerable into terrorist activity left me with no choice but to act independently,” Mr Ruddock said.

“I am disappointed that Rudd Labor sees no need to act decisively on this issue. This is a major problem with the Opposition. They are about putting in place measures that would be inadequate to protect the Australian community. It is clear that they see the bill as one that ought to be watered down.”

Mr Ruddock said if the legislation is passed in its current form, the Australian Government would be in a better position to deal with material that advocates terrorist acts. The legislation includes provisions to ensure the regulation would not impinge on freedom of speech or popular culture.

“The fact is that terrorist organisers do not respect age or mental capacity – it is those who are younger and with diminished mental capacity who are more frequently targeted,” Mr Ruddock said.

“Let me make it very clear: this measure would not be effective unless boards consider those who are more vulnerable to this sort of material.”

“I would not want to be the one who finds that somebody who was mentally impaired picked up some of these messages and set off to carry out a suicide bombing here in Australia.”

 

 

Classification Amendment (Terrorist Material) Bill 2007

In August 2007, the bill had its second reading in the House of Representatives and moved to the Senate. It was supported by the Labor Party.

 

 

Arch Bevis MP (ALP) Comments on the Bill

CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES) AMENDMENT (TERRORIST MATERIAL) BILL 2007: Second Reading
Date 15 August, 2007
Database House Hansard
Speaker Bevis, Arch, MP (Brisbane, ALP, Opposition)
Interjector Jenkins, Harry (The DEPUTY SPEAKER);
Emerson, Craig, MP
Source House
Stage Second Reading
Type Speech
Context Bills

Speech Mr BEVIS (Brisbane) (9.49 a.m.)—I note, first of all, that Labor is supportive of the Classification (Publications, Films and Computer Games) Amendment (Terrorist Material) Bill 2007. We will be voting for it in the House of Representatives and also in the Senate, but we will be moving some amendments consistent with the recommendations of the Senate Legal and Constitutional Affairs Committee. I move:

That all words after “That” be omitted with a view to substituting the following words:

“whilst not declining to give the bill a second reading, the House:

(1) notes that the existence of PG-rated terrorist material came to light in April of 2005, and condemns the Attorney-General for taking more than two years to act to protect Australian children from this material, and notes that this Bill could have been advanced two years ago;

(2) notes that it is completely unacceptable for the Attorney-General to sit on his hands for two years while material which exists to brainwash children into acts of terrorism is freely and lawfully distributed in Australia; and

(3) notes that, under the government’s hand-picked Classification Board and Classification Review Board, a situation has evolved where material that openly praises and advocates terrorist acts can be given a rating as low as ‘PG’”. The aim of the legislation is to provide greater clarity as to 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 act, which provides that material which advocates terrorist acts must be banned. The 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 it: (a) directly or indirectly counsels or urges the doing of a terrorist act; (b) directly or indirectly provides instruction on the doing of a terrorist act; and (c) 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 recommended that changes be made to paragraph (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 may suffer’. This is an amendment that Labor will move, and I will return to those Senate committee recommendations shortly.

Proposed new subsection 9A(3) provides clarification of this. It provides that the section does not apply if the depiction or description could reasonably be considered to be done merely as part of a public discussion or debate or is entertainment or satire. So material which is produced genuinely for public debate or is produced for entertainment and satire will not fall under the aegis of section 9A.

The bill originates from revelations earlier this year that films advocating terrorist acts of martyrdom and jihad had in fact been rated PG by the Office of Film and Literature Classification after referral of the material by the Australian Federal Police. In response to this, the Attorney-General firstly called on the states and territories to amend the classification laws and subsequently released a discussion paper on material that advocates terrorist acts, which has resulted in this bill.

Labor’s response was to call on the minister to immediately refer the films to the Classification Review Board on the grounds that the material promoted and incited matters of crime or violence. However, I do note that the Sydney Morning Herald had revealed the existence of these movies two years ago. At that 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, three months out from an election—indeed, perhaps less than three months out from an election.

Rather than bringing forward this legislation when the situation became public knowledge two years ago, and rather than act to protect Australians from this material at that time, the government and the Attorney have instead chosen to debate this legislation in the final sitting weeks before an election. I say to the Attorney and the government that they should not try to point the finger of blame at the states for this delay, for not agreeing to the proposals which were taken to the SCAG meetings earlier this year. The Attorney knew about the problem for a year before he wrote to the states, so it is a bit rich to sit on the issue for a year and then foist it upon the states and expect them suddenly to agree. Once again, the government is a picture of panic in slow motion. The government has known of the existence of this material for the past two years and until the introduction of this legislation had done precious little in an attempt to remove it.

At this point I want to take a moment to say something 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 past 11 years making sure that, instead of community representation, Liberal Party mates are more than well represented on that Classification Review Board. We have now reached the stage where four out of seven members of the review board have either direct or very close links to the Liberal Party. In other words, we have a board that, in large part, is representative not of the community at large but of a narrow political ideology represented in the Liberal Party. How can the Australian community have confidence in the classification watchdog when more than half of its members are representative of such a narrow constituency? The government, as it has done with so many other Public Service institutions that it has had its hands on, has transformed the Classification Review Board into a source of jobs for Liberal Party mates.

I note that in the community there are many who have expressed opposition to this bill. I want to make a couple of comments in the hope of allaying some of those concerns. 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. I note that there are moves underway at the Standing Committee of Attorneys-General that will allow for much greater freedom for academics to access the material that has been refused classification. As we understand that many in the community have legitimate concerns regarding the legislation, there are a number of points that need to be made in response to those concerns.

The first point is that the concerns of many in the community opposed to this bill have to be weighed against 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 and which racially vilifies groups, particularly Jewish people, being given a rating of PG. 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 and Jihad bee characters, indoctrinates young Islamic children into committing 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 yet had been 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 our society and in the Classification Code that adults should be able to see and read what they wish, there have always been limits on that right, and our society has endorsed those restrictions over time. On balance, we believe that this legislation strikes the appropriate balance between the competing desires of public safety and the rights of adults to see and read what they wish.

The second point I would like to make is that there are legitimate uses of this material—for academic, security and intelligence purposes. I note that some have called for an exemption for academics from the provisions of this new bill. However, I am advised this cannot be achieved for technical reasons. While it is the Commonwealth which classifies the material, it is the states or territories which provide penalties for its distribution. So this is not something which we can achieve directly here, through federal legislation.

However, I would note that there are currently proposals before the Standing Committee of Attorneys-General looking at ways to allow academics and others with a legitimate interest to legally access material that has been rated RC. I hope that the Attorney at some point will be able to provide some further insights into that matter. It is clearly an important issue that needs to be properly addressed. In federal Labor’s view, this is an appropriate way to progress the issue. We support the SCAG process. I understand that the proposals before SCAG do go a long way towards eliminating many of the concerns that have been raised in this area.

The third point I would like to make is that this legislation in many respects only clarifies what could be fairly regarded as the existing position. The National Classification Code, as it stands, already provides that material that counsels, praises, urges or instructs in matters of crime or violence must 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 be to streamline the process for police investigations of this material. If the police believed that material advocated a terrorist act—again, already an offence under the Criminal Code—they would be able to refer it to the Office of Film and Literature Classification for their consideration and subsequent classification.

Finally, I make the point that the Senate Standing Committee on Legal and Constitutional Affairs has recommended a change to the legislation to make it easier for the material to be classified. I have touched on this briefly before. But a problem arises in clause 9A(2)(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 made this recommendation after receiving submissions, including from the Classification Review Board, that this clause would be difficult to enforce. They 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 ultimately recommended the removal of this clause from the bill. Labor supports that view and will be moving amendments in the Senate in an effort to achieve that outcome.

I again remind the House that for the last two years the current government has allowed material of this kind to be freely circulated within Australia. That is a concern. Action on these matters could have and should have been taken much earlier. However, the legislation that is before the House is appropriately adapted to the twin tasks of providing proper guidelines for the classification of terrorist material and ensuring that the principle that adults should prima facie be able to read and view what they want is also upheld.

When the bill is before the Senate, we will be moving the amendment to which I have referred. I would encourage the government and the Attorney-General—who I am pleased to say is in the chamber, for which I thank him—to give consideration to the adoption of Labor’s amendment, which addresses a concern noted by the committee, including a number of senators from his own party. Labor, as I said, will be supporting the bill.

Interjection The DEPUTY SPEAKER (Mr Jenkins)—Is the amendment seconded?

Interjection Dr Emerson—I second the amendment and reserve my right to speak.

*** Sophie Mirabella MP (Liberal) Comments on the Bill

CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES) AMENDMENT (TERRORIST MATERIAL) BILL 2007: Second Reading Date 15 August, 2007 Database House Hansard Speaker Mirabella, Sophie, MP (Indi, LP, Government) Page 10 Proof Yes Source House Stage Second Reading Type Speech Context Bills Main Committee No

Speech Mrs MIRABELLA (Indi) (10.04 a.m.)—I rise to support the Classification (Publications, Films and Computer Games) Amendment (Terrorist Material) Bill 2007. It gives me no great pleasure to follow the member for Brisbane. The member for Brisbane spoke about the Liberal Party having a narrow constituency, but perhaps it has eluded him that, on this side of the House, we have representation from nurses, policemen, milkmen, doctors, lawyers and motor mechanics—unlike the situation opposite, where trade union hacks litter the opposition benches at a time when less than 17 per cent of the workforce in the private sector is unionised. This is the situation in a party that has been gutless and stuck in a previous century and refuses to reform its party structure to allow within its ranks genuine, fair representation of the Australian community. They know it, and they are embarrassed by it. The member for Brisbane’s bold claim that the Liberal Party has a narrow constituency does indeed ring very hollow.

The member for Brisbane also spoke about the threat of terrorism. I could not help but sense yet again Labor saying me too’. But let us stop for a minute and think: had the Labor Party been in government instead of the coalition over the last few years, would we have had the myriad of security measures that this government has taken? The answer is no.

They like to say, ‘We’re exactly the same as the coalition.’ They like to say, ‘We will be just as strong on security and terrorism.’ But we know, and in their hearts the Australian people also know, that this is wrong, that this is false. It does not matter how many times and how loudly the Labor Party say, ‘We are just as strong against terrorism as the coalition’; in their hearts the Australian people know it is not true.

When the Attorney-General presented this bill to the House in June, there was a view around the parliament that perhaps we would not need to proceed with the bill as the Standing Committee of Attorneys-General would be meeting in July and this issue would be resolved with amendments to the National Classification Code and guidelines, which require the consent and agreement of the states and territories. That meeting of the state and territory attorneys-general occurred on 27 July this year, exactly one year since the standing committee had previously met. It should be noted that New South Wales and South Australia were the only two states who agreed to support the amendments to the classification act that were proposed by the Australian government.

The Attorney-General is on record as saying that he would rather have dealt with the matter under the provisions of the National Classification Code and guidelines than deal with it under the classification act. But, as the National Classification Scheme is a cooperative disposition with the states and territories, all state and territory attorneys-general and the Commonwealth Attorney-General must agree to the provisions contained in the code and the associated guidelines.

Let no-one be confused as to the lengths to which the Commonwealth Attorney-General has gone in seeking the agreement of the states and territories to amend the classification laws landscape. Indeed, so much of his current role is taken in negotiating with all sorts of individuals within his party and between governments to get cooperation and agreement on essential legislation in the national interest.

This process has been going on for more than 12 months. In fact, on 27 July 2006, the Commonwealth Attorney-General noted that he was pleased that, after a meeting of the state and territory censorship ministers, the states were ‘willing to support a fresh look at the classification scheme’. Yet 12 months later, they did not agree to such important changes. It is like Victoria’s approach to the National Plan for Water Security all over again. You can just smell an election in the air when state Labor governments become recalcitrant and work against the national interest just to support their union hack mates in the federal parliament.

It is surely not a fanciful policy ideal to ensure that material advocating and supporting terrorism be illegal in our country. Why has it taken the states more than 12 months to come to terms with this basic policy ideal? We are not dealing with fairytales here. We are dealing with the very materials that advocate acts of terrorism. This bill amends the Classification (Publications, Films and Computer Games) Act 1995 to require that publications, films and computer games that promote terrorist activity and terrorist acts be refused classification. This measure will essentially make it illegal to deliver, promote or sell such material in Australia. It is clear that the Australian government is serious about ensuring that material which supports and promotes terrorist activities will not be legally available in Australia.

Of course, concern has been expressed that this legislation may impinge on the notion of free speech. This is misguided as the proposal put before the Standing Committee of Attorneys-General clearly included provisions that would have ensured that these new provisions would not encroach or infringe upon our much valued freedom of speech or mainstream popular culture. In society we often say that prevention is better than cure. When we are dealing with terrorism, it seems that it is often prevention which is the hardest battleground to conquer.

Once again, some in the filmmaking industry and the publishing industry need to realise that these provisions are not intended to limit the authentic operation of their democratic right to free speech, nor are they intended to limit writers, publishers or filmmakers from dealing with sensitive subject matter in an informative manner. There are protections in the act for public discussion and debate, along with investigative journalistic work and other things such as historical analyses. However, the government believes that material which goes beyond this—material which might directly praise terrorist acts or might inspire, provoke or instigate terrorist activity—clearly needs to be dealt with under the Classification Act to ensure this material is free from the hands of those in our society who wish to do harm with evil intent.

We need to do everything we can to improve our laws to prevent material that glorifies terrorism by removing its circulation within our community. This is a basic responsibility we have as a national government: to ensure that we take these preventative measures in the national interest and in the interests of the safety of our communities right across Australia.

So I take the cries from prominent actors, academics and celebrities who claim that actions such as these are too draconian or an encroachment of civil liberties with a grain of salt. As the Attorney- General noted in his second reading speech on this bill, this is a very serious issue. He has noted that it is important to strike the right balance on matters such as this. On this matter I agree with him entirely. But that does not mean we should not take strong peremptory action in condemning terrorist acts, which are tightly defined under the Criminal Code, and the published material which might inspire terrorism.

The Attorney-General should be commended for bringing this matter to fruition. Whilst the government would have preferred that the states and territories came on board through amending the classification code, this was not to be the case as interstate egos, a federal election and other priorities got in the way. This is an issue that is far too important to get bogged down in petty politics. When passed, this bill will allow the Australian government to be in a better position to deal with material which advocates terrorist acts and we should support this wholeheartedly. I commend the bill to the House.

 

 

Phillip Ruddock MP (Liberal) Comments on the Bill

CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES) AMENDMENT (TERRORIST MATERIAL) BILL 2007: Second Reading
Date 15 August, 2007
Database House Hansard
Speaker Ruddock, Philip, MP (Berowra, Attorney-General, LP, Government)
Interjector Jenkins, Harry (The DEPUTY SPEAKER)
Source House
Stage Second Reading
Type Speech
Context Bills
Main Committee No

Speech Mr RUDDOCK (Berowra—Attorney-General) (10.43 a.m.)—I thank the members for Brisbane and Indi for their contributions to the debate on the Classification (Publications, Films and Computer Games) Amendment (Terrorist Material) Bill 2007. I particularly thank the member for Indi because I think her contribution was very measured, sensible and a constructive contribution to a debate that is of the utmost importance. I will come back to the member for Brisbane shortly, but let me just make it very clear that governments do have a responsibility to do everything possible to improve security to deal with potential terrorism threats in Australia. Waiting for a terrorist attack to occur is unacceptable, and I have been concerned for some time about the influences within our society that lead people into terrorism. We need our laws to deal with material that encourages people to commit terrorist attacks, and that is what this bill is about.

The Classification (Publications, Films and Computer Games) Amendment (Terrorist Material) Bill 2007 amends the Classification Act so that material that advocates the doing of a terrorist act must be refused classification. Material that has been refused classification cannot be legally sold, exhibited or displayed in Australia. There is significant doubt and uncertainty whether the current classification laws adequately catch material that advocates the doing of a terrorist act. What is clear is that something needs to be done. I would like to point out that this bill was not how I wanted to resolve the issue. I made it clear in my second reading speech that this bill would not proceed if the state and territory governments did not agree to amendments to the classification code and guidelines.

However, the states and territories have been anything but cooperative. I first sought their agreement over a year ago and have continued to press the issue in good faith since then. I was hopeful that agreement could be achieved at the Standing Committee of Attorneys General meeting in July this year, but unfortunately the states and territories continue to frustrate the process, and I am not willing to indefinitely wait to address this problem. It is disappointing that the Commonwealth has been forced to go it alone on this issue. The states are clearly divided. New South Wales and South Australia indicated their support for the proposal. The National Classification Scheme requires the unanimous support of all governments. That is why the initiative failed. I want to make clear that New South Wales and South Australia did indicate their support. The states and territories are clearly divided on this issue.

In thanking members who have contributed to this debate, let me deal with the member for Brisbane very directly. I am quite disappointed by his amendment. He is not without accurate information in relation to the chronology of events in this matter. I was asked a question by his colleague in the other place—I assume he talks to the shadow Attorney, Senator Ludwig—and I answered on 24 May questions that went to this very issue.

I might table a chronology of events for the benefit of the House. It is a chronology which identifies that what happened in 2005 is that there was a discussion between me and Ray Hadley on radio station 2GB about the sale of books inciting terrorism, our sedition laws and also the classification process. I took steps following that matter back in July 2005 to have the AFP examine eight publications and one film, and they determined that no offences had been committed. The AFP provided material in December to the Classification Board for assessment, and they classified the film ‘PG’ and the publications ‘Unrestricted’. The AFP consulted with the DPP and then examined the material against the recently amended sedition laws. I requested advice and I received that. Separately, I applied to the Classification Review Board for a review of the classification of the eight publications and one film. I wrote to censorship ministers in June 2006, putting them on notice that this was an issue that I thought the censorship ministers should consider. The Classification Review Board did refuse classification for two publications. They reclassified the other six publications ‘Unrestricted’, and the film remained ‘PG’.

So it can be seen that I was very active in dealing with these issues. It can be said quite clearly that it is quite inappropriate to offer any criticism of me, in the form of the amendment, for delaying this matter and sitting on my hands for some two years, as suggested. It is quite inappropriate given that the member had the chronology available to him to draw those conclusions.

I notice that in his comments he went on to say that the extent to which academics might be able to access material that is seen to be advocating terrorism for academic pursuits is an issue that ought to be addressed. That was an issue that I put on the agenda for censorship ministers to deal with. It was an issue that I thought was appropriate to be examined. I notice that the shadow minister, the member for Brisbane, says that this is not an issue that the Commonwealth should deal with unilaterally and that I should continue to work with the states and territories. So on the one hand he says that I should work with the states and territories and continue to suffer the frustration of their inertia—and I might say that they are very slow to deal with these issues; but on the other hand—that is, the praising and advocacy of terrorism acts in material—he says that I should in some way be condemned because I had endeavoured to treat with his Labor colleagues in state and territory governments.

I make it very clear that this is not an issue in which any delay can be sheeted home to me. It is an issue in which there has been very clear frustration of the process by certain Labor attorneys, and that indicates to me quite clearly that the Labor Party across this nation is not serious about dealing with terrorism issues. I was faced with a situation in which I could only get New South Wales and South Australia to support me, and people were coming into this chamber and saying: ‘Look, this is an important measure. You’ve been sitting on your hands. You should’ve been dealing with it and you should be criticised for it.’ And then they foreshadowed an amendment that the opposition intended to move in the Senate—not in this chamber, but in the Senate—which would effectively weaken the measures! They say they support the measures, but then they want to weaken the measures—and they do so very deliberately when they say that they would support an amendment that would effectively delete the measure that says that those who are looking at these issues should have regard to a person’s age and mental impairment when they look at the impact that material advocating terrorism might have on them.

I want to deal with that issue quite deliberately. This bill is not about restricting freedom of speech; it is about ensuring that material advocating terrorist acts is no longer legally available. The bill takes into account submissions received during the widespread consultations. The original proposal was modified to address concerns expressed about its scope. In particular, section 9A(3) of the proposed bill was added to make it clear that material that does no more than contribute to debate or public discussion or is of no more than entertainment value or satire is not material to which this provision is intended to apply. The explanatory memorandum states clearly that the provision is only intended to capture material which goes further than that and actually advocates the doing of a terrorist act. As I said, I did, as always, happily see the bill referred to the Senate Legal and Constitutional Affairs Committee. The committee recommended that the bill be amended to delete reference to ‘regardless of his or her age or mental impairment’ from the proposal.

The government considers the amendment proposed by the committee unnecessary. In fact we think it would be highly undesirable because the classification scheme requires boards to consider the context of material and its target audience. Paragraph 9A(2)(c) makes certain that, in assessing whether there is a risk of a person engaging in terrorist acts, boards do not inappropriately consider only an average or ordinary person. The fact is that terrorist organisers make material available with a view to encouraging the naive and, in some cases, the mentally impaired to participate in terrorist acts—in particular, suicide bombing. The government believes that if the criteria is pared back in the way proposed by the opposition, the classification board and the classification review board will make decisions with reference to whether the material presents a risk to the ordinary or average person. This measure would not be effective if that were adopted, and I would hope that the opposition would reconsider its approach on this matter. Let me make it very clear: this measure would not be effective unless boards consider those who are more vulnerable to this sort of material. I make it very clear that I would not want to be the one who finds that somebody who was mentally impaired picked up some of these messages and set off to carry out a suicide bombing here in Australia—influenced by material of that sort, which we could have done something about.

This is a major issue, as far as I am concerned, with the opposition. They are about putting in place measures that would be inadequate to protect the Australian community. Yet they come in here and say, ‘We’re not opposing the bill.’ It is clear that they see the bill as one that ought to be watered down. If you look at the way in which the Labor Party are looking at these issues across the nation, what you see is that they are clearly divided. We have the New South Wales government saying, ‘Look, we support you.’ The South Australian government says, ‘We support you.’ What does that say about Victoria, Queensland, Tasmania, Western Australia, the ACT or even the Northern Territory? What I say is that the Labor Party across this country are clearly divided about the urgency and the need to deal with these issues. They were prepared to frustrate this in the committee process. They have the audacity to come in here and suggest that I have been in some way derelict in my responsibilities because I saw fit not to play what they accuse us of being engaged in—that is, a blame game. But when you sit down and try to talk about the issues and work them through, you find it a very frustrating process. I am deeply disappointed that the opposition want to play around with this sort of issue. They pretend that they are just as concerned about these questions as the government, but they seek to undermine the legislation by amendments and they condone the actions of their colleagues in the states, who clearly were not prepared to come to the party on dealing with these issues.

Finally, I will conclude with some general comments about the scope of the bill. The provisions do set a high hurdle for material to be refused classification. Some have expressed concerns about the ease of applying the provisions. The provisions provide a clear set of elements for the classification board and the review board to consider when making decisions on these matters. It is important that people understand that, to be refused classification, material must advocate the doing of a terrorist act. These are the two terms that are defined in the bill. These are precisely defined terms, taking their meaning from or directly adapting the Criminal Code provisions which were agreed to by the Council of Australian Governments following widespread consultation when introducing antiterrorism laws in 2005. The meaning of these terms should be consistent with their meaning in the Criminal Code. Terrorist acts are a specific and highly dangerous threat to Australian society. The government believes very firmly that material that advocates that people undertake such acts should not be legally available and that the measures in this bill will achieve this objective. I commend the bill very strongly to the House. I hope it will receive a speedy passage and I hope that the opposition will reconsider their proposals to move amendments in the other place.

Interjection The DEPUTY SPEAKER (Mr Jenkins)—The original question was that this bill be read a second time. To this the member for Brisbane has moved as an amendment that all words after that be omitted with a view to substituting other words. The immediate question is that the words to be omitted stand part of the question.

Question agreed to.

Original question agreed to.

Bill read a second time.

 

 

The Bill Moves to the Senate

CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES) AMENDMENT (TERRORIST MATERIAL) BILL 2007: Second Reading
Date 15 August, 2007
Database Senate Hansard
Speaker Colbeck, Sen Richard (Parliamentary Secretary to the Minister for Finance and Administration, LP, Tasmania, Government)
Source Senate
Stage Second Reading
Type Speech
Context Bills

Speech Senator COLBECK (Tasmania—Parliamentary Secretary to the Minister for Finance and Administration) (4.26 p.m.)—I move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

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.

This is a serious issue. Currently there is too much uncertainty around whether the existing classification laws adequately capture such material. This material should not be legally available in Australia.

The Bill introduces new provisions to the Classification Act, which will expressly require that publications, films or computer games that advocate the doing of a terrorist act must be classified as Refused Classification.

I would prefer to see these provisions in the National Classification Code and guidelines, not in the Classification Act, but that requires the States’ and Territories’ agreement.

As the classification scheme is a co-operative national scheme the State and Territory Censorship Ministers and I must agree to the provisions of the Code and guidelines.

I first sought State and Territory agreement to changes to classification laws in July 2006. To date, they have been reluctant to respond positively to my proposals. I am not prepared to wait indefinitely to address this problem.

Following public consultation on a Discussion Paper, I recently wrote to Censorship Ministers seeking their agreement to amend the Code and guidelines to require the Classification Board to refuse classification of material that advocates terrorist acts.

I am hopeful that my State and Territory colleagues will agree to these amendments at the Standing Committee of Attorneys-General meeting in July. If they do, the amendments in this Bill will not be needed.

If States and Territories do not agree in July, we must be in a position to ensure that material that advocates the doing of terrorist acts is not legally available in Australia. This Bill ensures that this can be done expeditiously through an amendment to the Classification Act.

The Bill introduces the same provisions as the proposed amendments to the Code and guidelines. It requires the Classification Board to refuse classification of material that advocates terrorist acts. The provisions take into account submissions received following public consultation on the Discussion Paper. The submissions were carefully considered and, consequently, the proposal has been refined, so that the new provisions will operate effectively against unacceptable material but will not impinge on freedom of speech or mainstream popular culture.

The requirement in this Bill for material to be classified as ‘Refused Classification’ is not intended to restrict the genuine and legitimate exercise of freedom of speech or to prevent film-makers, authors or publishers from dealing with contentious subject matter in an informative, educational, entertaining, ironical or controversial way.

As the Bill clearly sets out, where the treatment of a terrorist act could reasonably be considered to be done merely as part of public discussion or debate or as entertainment or satire, it is not to be refused classification.

This protects material such as investigative journalists’ work, historical analyses, material that might appear to glorify war or battle (including ‘factional’ or fictional accounts of war, insurgency or resistance), satirical pieces, and popular culture movies.

On the other hand, material which goes further and advocates the doing of terrorist acts, for example by directly praising terrorist acts in circumstances where this runs the risk of inspiring someone to commit a terrorist act, would and should be required to be classified Refused Classification.

Striking the right balance is important. Freedom of expression is an important part of our society’s values. However, there is another right which must be protected—the right to be protected from the pernicious influence of material that advocates the naïve and impressionable to go out and commit terrorist acts against other human beings.

The Bill adopts the meanings of ‘advocate’ and ‘terrorist acts’ from the Criminal Code Act 1995 by adaptation of language or direct reference. It is intended that the meanings of these terms in the Classification Act remain consistent with their meaning in the Criminal Code.

‘Advocate’ covers direct or indirect advocacy, in the form of counselling, urging or providing instruction on the doing of a terrorist act. It also covers direct praise of a terrorist act where there is a risk that such praise might lead a person (regardless of his or her age or any mental impairment) to engage in a terrorist act.

However, the advocacy would need to be about doing a terrorist act, not merely expressing generalised support of a cause.

The term ‘terrorist act’ is given the same meaning as in section 100.1 of the Criminal Code. Any amendments made to that section will automatically apply to the definition of ‘terrorist act’ for the purposes of the Classification Act.

‘Terrorist act’ is tightly defined. The action or threat must be made with the intention of advancing a political, religious or ideological cause and coercing or intimidating an Australian or foreign government or the public. It includes actions or threats involving serious harm to people, damage to property, endangerment of life, serious risk to the public’s health or safety, or seriously interfering with an electronic system including telecommunications, financial and essential government services systems, essential public utilities and transport providers.

Action which is advocacy, protest, dissent or industrial action, not intended to cause serious harm, death, endangerment of life, or serious risk to the health or safety of the public, is expressly excluded from being a ‘terrorist act’.

This Bill will improve the ability of our laws to prevent the circulation of material which advocates the doing of terrorist acts. Classification laws need to be better able to ensure that such material is not available in Australia.

Whether that happens through amendments to the National Classification Code and guidelines with the agreement of the States and Territories or through amendments to the Classification Act that I introduce today is not yet clear.

Ordered that further consideration of the second reading of this bill be adjourned to the first sitting day of the next period of sittings, in accordance with standing order 111.

 

 

Senator Joe Ludwig (ALP) Comments on the Bill

CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES) AMENDMENT (TERRORIST MATERIAL) BILL 2007: Second Reading
Date 19 September, 2007
Database Senate Hansard Speaker Ludwig, Sen Joe (ALP, Queensland, Opposition)
Source Senate
Stage Second Reading
Type Speech

Speech Senator LUDWIG (Queensland) (5.51 p.m.)—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.

 

 

Senator Natasha Stott-Despoja (Democrats) Comments on the Bill

CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES) AMENDMENT (TERRORIST MATERIAL) BILL 2007: Second Reading
Date 19 September, 2007
Database Senate Hansard Speaker Stott Despoja, Sen Natasha (AD, South Australia, Opposition)
Source Senate
Stage Second Reading
Type Speech
Context Bills

Speech Senator STOTT DESPOJA (South Australia) (6.09 p.m.)—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.

 

 

Senator Kerry Nettle (Greens) Comments on the Bill

CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES) AMENDMENT (TERRORIST MATERIAL) BILL 2007: Second Reading
Date 19 September, 2007
Database Senate Hansard Speaker Nettle, Sen Kerry (AG, New South Wales, Opposition)
Source Senate
Stage Second Reading
Type Speech
Context Bills

Senator NETTLE (New South Wales) (6.09 p.m.)—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.

 

 

Senator Guy Barnett (Liberal) Comments on the Bill

CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES) AMENDMENT (TERRORIST MATERIAL) BILL 2007: Second Reading
Date 19 September, 2007
Database Senate Hansard Speaker Barnett, Sen Guy (LP, Tasmania, Government)
Source Senate
Stage Second Reading
Type Speech
Context Bills

Speech Senator BARNETT (Tasmania) (6.20 p.m.)—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.

 

 

Senator Linda Kirk (ALP) Comments on the Bill

CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES) AMENDMENT (TERRORIST MATERIAL) BILL 2007: Second Reading
Date 19 September, 2007
Database Senate Hansard Speaker Kirk, Sen Linda (ALP, South Australia, Opposition)
Source Senate
Stage Second Reading
Type Speech
Context Bills

Second Reading Speech Senator KIRK (South Australia) (6.36 p.m.)—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.

 

 

Senator David Johnston(Liberal) Comments on the Bill

CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES) AMENDMENT (TERRORIST MATERIAL) BILL 2007: Second Reading
Date 20 September, 2007
Database Senate Hansard Speaker Johnston, Sen David (Minister for Justice and Customs, LP, Western Australia, Government)
Source Senate
Stage Second Reading
Type Speech
Context Bills

Speech Senator JOHNSTON (Western Australia—Minister for Justice and Customs) (11.32 a.m.)—I believe that one of the speakers in the second reading debate has not completed her speech. I thought Senator Kirk had not finished. (Quorum formed)

In closing the second reading debate, at the outset I want to express my disappointment that the Labor Party has chosen to pursue their amendment to this bill. It clearly demonstrates a lack of understanding of the important issue and it shows the depth of inexperience the Labor Party has when it comes to issues of national security—and, may I say, a high degree of naivete. This disappointment does not extend to surprise. I am not surprised that the Labor Party has once again pushed an agenda that is not in the best interests of the nation.

On the one hand, you have a government doing everything it can to improve security and deal with potential terrorism threats in Australia and, on the other hand, you have the Labor Party and opposition in this place supporting measures that would be inadequate to protect the Australian community. They want to water down this important initiative. They are clearly not serious about dealing with terrorism and the genesis of terrorism. I will deal with the opposition’s amendment in more detail in the coming committee stage. Waiting for a terrorist attack to occur, of course, is utterly unacceptable. Prevention, anticipation and doing something to avert the event are the top priority and the new battleground.

The government is concerned about influences within our society that lead people into terrorism. Our laws must deal adequately with material that encourages people to commit terrorist acts, and that is what this bill is about. The Classification (Publications, Films and Computer Games) Amendment (Terrorist Material) Bill 2007 amends the classification act so that material that advocates the doing of a terrorist act must be refused classification. Things could not be simpler and more welcome. Material that has been refused classification cannot be legally sold, exhibited or displayed in Australia. There is significant doubt and uncertainty about whether current classification laws adequately capture material that advocates the doing of a terrorist act. What is clear is that something needs to be, and must be, done with respect to such material.

I thank honourable senators for their contributions to the debate, and I would like to respond to some of the points raised. With respect to Senator Ludwig, the accusation against the Attorney-General of delay in responding to this issue is totally wrong. Of course, what we do in the Commonwealth domain is to consult the states. There is no point in having federal legislation that is in contradiction to state legislation, so we consult the states. We consult the state Attorneys-General at six-monthly meetings, we consult the ministers of police, we consult corrective services ministers—we consult all the necessary state ministers to make sure there is national, harmonious, concise, consistent legislation. The Attorney has been seeking to herd cats in terms of the state ministers. They have a very limited understanding of what national security is really about and, as is typical of most Labor Party ministers in this country, no interest whatsoever in responding to these threats.

Senator Ludwig is fully aware of the facts regarding what has gone on here. Subsequently I will table a chronology of events that the Attorney-General has put before the various state ministers, only to be rebuffed out of ignorance and naivete. The Attorney, in tabling this chronology in the other place, was quite surprised and shocked by accusations similar to what we have heard from Senator Ludwig being raised in the House of Representatives by the member for Brisbane. Senator Ludwig is aware that it is his state and territory Labor colleagues who are responsible for the delay, and he did nothing to bring them to account.

I note that Labor supports this legislation, yet it seeks to take the opportunity to argue that there has been a delay. The delay is at Senator Ludwig’s feet, having no goodwill with his state colleagues, obviously. It seems that Labor has a very relaxed attitude towards the facts in this matter. I table the chronology in order to highlight the significant inconsistencies in the arguments put forward by the honourable senator.

It is indisputable that the Attorney-General has been working tirelessly on this important initiative since the existence of this material first came to light in July 2005. It is the state and territory Labor governments that have frustrated the process continually, refusing to be cooperative or constructive, and hiding behind their bureaucrats while repeatedly opposing any proposal put forward by the Australian government. Of course, Senator Ludwig, representing Rudd Labor, has been the epitome and personification of that dilatory conduct.

I do not intend to take up the Senate’s time by going through the chronology of events once again. It is there for all to see. The document I have tabled speaks for itself, and I think it is important to make the point that, immediately after it was clear that the AFP, the DPP and the Classification Board were unable to deal with this kind of material under the current regime, the Attorney-General did act decisively and urgently to obtain the agreement of the state and territory censorship ministers to take material that advocates terrorist acts off the streets. They said no, many times, and here we are now, late in the electoral cycle, seeking to repair something that responsible state ministers should have switched on to a lot sooner than they did. So the Attorney has been forced to take action. The Attorney should be commended for his leadership on this point.

I now turn to some of the commentary in the second reading debate. Senator Nettle made some outrageous commentary in her speech last night, comparing the current government to the Hitler and Stalin regimes. These sorts of comments always say more about the person uttering them than the person or institution they are trying to criticise. I was disappointed by Senator Nettle’s attitude to these matters. It shows that she and Labor have not been paying attention to what has happened in the world since September 11, 2001. Senator Nettle, in one of her more lucid moments in the debate yesterday, claimed that these measures further erode human rights in Australia in the name of national security. She mentioned that freedom of expression and freedom of speech will be further eroded. The government rejects this. The former Canadian Attorney-General and former human rights lawyer Irwin Cotler, who is a strong proponent of the concept of humane security, recently told a Canadian parliamentary committee:

... terrorism constitutes an assault on the security of a democracy and the most fundamental rights of its inhabitants—the right to life, liberty, and security of the person.

In seeking to prevent terrorism, counterterrorism laws are in fact protecting these basic rights and freedoms. Therefore, if counterterrorism legislation is proportionate, its security objectives are not so much in conflict with human rights but supportive of them. The Australian government has put great time and effort into getting the balance correct. We maintain that this legislation goes a long way towards achieving the perfect and right balance.

Freedom of expression is an important part of Australian society and merely holding and asserting strongly opposing views should not attract censorship. This law is designed to strike an appropriate balance, as I have said, between freedom of expression and the need to protect the community, and, as I said, I think it achieves that balance. There is another right which must be protected—the right to be protected from the pernicious influence of material that advocates that the naive and impressionable go out and commit terrorist acts against other human beings. The inclusion of proposed new section 9A(3) in the bill will ensure that the new provisions will operate effectively against unacceptable material but will not infringe or impinge on freedom of speech or mainstream popular culture.

Senator Nettle mentioned article 19 of the International Covenant on Civil and Political Rights and said that this provides for freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds through any kind of media. I could see where she was going at the outset of those comments, and I thought: how naive can you get? However, this article also states that this right carries with it special duties and responsibilities. It may therefore be subject to certain restrictions—and I underline this—as provided by law and are necessary for reasons which explicitly include national security. Of course, the Greens have an absolute anathema towards national security. Refusing classification of material that advocates that people commit terrorist acts is consistent with this obligation.

I will conclude by saying that the Attorney-General has unambiguously stated that this bill would not have proceeded if state and territory governments agreed to amend the classification code and guidelines individually in their states. This point needs to be made clearly. The government has been forced to resort to this bill because the state and territory governments have refused to cooperate, and here we are with the Labor Party attempting to weaken this measure. The Attorney has pursued this issue with state ministers for over a year. This is very disappointing, but also very indicative of the fact that they have no interest, no responsibility and no understanding of what we are seeking to do here. I would like to acknowledge that, at the most recent meeting of the Standing Committee of Attorneys-General, New South Wales and South Australia indicated their support for the proposal, and so my remarks are tempered with respect to those jurisdictions. However, the amendments to the code and guidelines require unanimous support of all governments, so the initiative, once again, failed.

The bill is not about restricting freedom of speech. It is about ensuring that material advocating terrorist acts is not legally available. The bill takes into account submissions received during widespread consultation conducted by the Attorney-General’s Department on this proposal. It is important to note that there is a provision in the bill that puts beyond doubt that material that is merely part of a public discussion, debate, entertainment or satire will not be captured by the bill. The explanatory memorandum also 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. These are clearly defined terms, taking their meaning from or directly adapting the Criminal Code provisions which were agreed by the Council of Australia Governments when introducing the antiterrorism laws in 2005.

Terrorism acts are a specific and highly dangerous threat to Australian society, which is obvious to all of us. The government firmly believe that material which advocates people undertaking such acts should not be legally available, and the measures contained in this bill will achieve that objective. I commend the bill to the Senate.

Question agreed to.

Bill read a second time.

 

 

Complaints to the Censors

Classification Board
Annual Report 2006-2007

Film-other - complaints
Following media coverage of the DVDs featuring lectures by Sheik Feiz Mohammed, 36 complaints were received that the PG classifications for both The Grave and Signs of the Hour were too low.

Complaints
A total of 407 complaints were received in 2006-07 compared with a total of 669 complaints during 2005-06. When provided with contact details, the OFLC generally responded in writing or by telephone to complaints within 20 working days. The two issues that attracted the highest volume of complaints were the PG classification of the DVDs The Grave and Signs of the Hour (36 complaints) and the absence of an R 18+ classification for computer games (32 complaints).

 

Classification Review Board
Annual Report 2006-2007

Complaints
In response to an application from the Attorney-General, the Review Board convened over the end of the previous reporting period and the beginning of the current reporting period to review the classification of eight Islamic books and a DVD.

After the review, two complaints were received about the Review Board's RC decisions for two of the books, entitled Defence of the Muslim Lands and Join the Caravan. The Review Board classified the other six books 'Unrestricted' and the DVD, PG.

Two letters were subsequently received asking the Review Board to also refuse classification to one of those books, Jihad in the Qu'ran and Sunnah.

 

 

2010: Donald McDonald on the terrorism laws

The Australian Classification Board: History, Current Policies and Future Challenges
Speech by Donald McDonald
Director of the Classification Board (2007-current)
Opening speech of the BSANZ Conference
To Deprave and Corrupt: Forbidden, Hidden and Censored Books
14 July 2010

Islamic texts

In late 2005 eight ‘Islamic texts’ were submitted for classification as law enforcement applications. The Board classified them as Unrestricted. The Unrestricted category for publications encompasses a wide range of material, but is not likely to include material that offends a reasonable adult to the extent that it should be restricted.

In July 2006, the Board’s decisions were subject to review by the Classification Review Board, at the request of the Commonwealth Attorney-General at the time.

The Review Board confirmed the Unrestricted classifications for six of the eight texts, but decided that two of the texts, Join the Caravan and Defence of the Muslim Lands should be Refused Classification. In accordance with the National Classification Code, the Review Board was of the opinion that the books ‘promote, incite or instruct in matters of crime or violence,’ specifically the crime of committing a terrorist act.

In the latter half of 2007, amendments were made to the Classification Act to require that publications, films or computer games that advocate the doing of a terrorist act must be Refused Classification.

It became clear in 2007 when these amendments were being debated in Parliament that they were being made, at least in part, to deal with the type of material that was the subject of decisions made by the Board and Review Board in the previous year.

The legislative provisions cover material that ‘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 … to engage in a terrorist act.’ It is not designed to capture depictions or descriptions of terrorist acts ‘done merely as part of public discussion or debate or as entertainment or satire.’

Since these amendments came into effect, the Board has only Refused Classification to one item on the basis of this legislative provision. Online content was referred to the Board for classification in July 2009 by the Australian Communications and Media Authority (the ACMA). The film, Islamic Army in Iraq, consisted of a webpage which opened with a prayer of praise to Allah followed by a list of American losses incurred during the war. It was Refused Classification on the basis that it advocates the doing of a terrorist act and in this particular instance ‘…directly praises the doing of a terrorist act…’

Matters relating to online content and websites are the responsibility of the ACMA. I will touch on this point later in this presentation.


 

 

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