Additional comments by Senator Natasha Stott Despoja on behalf of the Australian Democrats
1.1 The Democrats oppose this Bill.
1.2 A number of submitters
to this inquiry indicated that the classification scheme as presently configured
is capable of being applied so as to ban material which advocates terrorism.[1]
1.3 We believe that this Bill as introduced will erode key legal and civil rights and undermine
fundamental civil liberties such as freedom of speech, freedom of association
and freedom of religion.
1.4 This Bill represents a confrontational approach by the Government to law
making. Comments by the Federal 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.
1.5 The content of the Bill has been appropriately 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. The Democrats agree that in such an important
issue as this, it is imperative that law be made through empirical evidence.
1.6 During this inquiry there has
not been a convincing argument made as to why existing classification laws
should be extended in this manner or how the vulnerable in the community are to
be protected.
1.7 We believe
Recommendation 1 contained in the Chair’s report will improve the Bill and
lessen the potential for abuses of human rights but provide the following
additions:
Democratic Principles & International
Law obligations
1.8 This Bill undermines Australians’ right to freedom of speech. It is
tantamount to the censorship of ideas.
1.9 We note reference to two
fundamental international Treaties. First, to Article 29(b) of the Universal
Declaration of Human Rights which states:
...in the exercise of a
person's rights and freedoms, everyone shall be subject only to such
limitations as are determined by law solely for the purpose of securing due
recognition and respect for the rights and freedoms of others and of meeting
the just requirements of human dignity and the general welfare of a democratic
society.[2]
1.10 Second, to the International
Covenant on Civil and Political Rights which states that:
...everyone shall have the
right to freedom of expression; this right shall include freedom to seek,
receive and impart information and ideas of all kinds, regardless of frontiers,
whether orally, in writing or in print, in the form of art, or through any
other media of his choice.[3]
This Article is subject to the
qualification that it may be restricted where such restrictions are provided
for by law and are necessary:
- For the respect of the rights or reputations of others; or
- For the protection of national security or of public order (ordre public) or of
public health or morals[4].
1.11 The Human Rights and Equal
Opportunity Commission which is responsible for advising the Commonwealth
Government and Parliament on its human rights obligations, 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.”[5]
We entirely agree with this sentiment.
Recommendation 1
It is not appropriate to modify
classification law in this far-reaching manner.
Absence of a Bill of Rights
1.13 This 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.
1.14 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.
1.15 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.
In this context the Democrats refer to the point made by the NSWCCL in their
submission. The NSWCCL have quoted Professor Clive Walker, Leeds University, as saying 'the Human Rights Act 1988 limits the UK anti-terrorism legislation's impact on freedom of expression'.[6]
1.16 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.
1.17 The absence of a Bill of
Rights or Human Rights Act exposes needlessly Australians to unjust infringements
on their rights and freedoms.
1.18 Currently, provided that the
Parliament makes its intention clear, it can pass legislation violating almost
any human right, with the exception of the few express rights which are
protected by the Constitution including the right to trial by jury and freedom
of religion. However, even these express rights are limited, for instance,
trial by jury applies only where the Commonwealth has determined that a trial
is to be 'on indictment'. In other words, it operates at the discretion of the
Commonwealth.
1.19 A Bill of Rights is
about protecting people and ensuring that our Government remains accountable
for its actions.
1.20 Bills of Rights generally
cover rights such as freedom of religion; freedom of peaceful assembly; freedom
of association; the right to vote; the right to a fair trial; the right to
life, liberty and security of the person; the right not to be arbitrarily
detained; the right not to be subjected to cruel and unusual treatment;
equality before the law; and, the right not to be discriminated against.
1.21 For example, the New Zealand Bill of Rights Act covers a
range of civil and political rights. The United Kingdom's
Human Rights Act 1998 incorporates rights set out in the European
Convention on Human Rights including the rights to property, education and free
elections, and the abolition of the death penalty. Canada's Charter of Human Rights and Freedoms includes
the right to affirmative action and cultural rights. The South African Bill
of Rights is striking for its broad coverage of rights. It includes
economic and social rights such as access to housing, health care, food, water
and security, and rights such as that to a healthy environment and also
property rights.
1.22 We also note that the
absence of a Bill of Rights in Australia places an obligation on the Government to
incorporate consideration of protections for fundamental rights and freedoms.
We refer to the submission from the Sydney Centre for International and Global Law which states:
...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.[7]
1.23 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.
Recommendation 2
That Parliament should enact a Parliamentary
Charter of Rights and Freedoms Bill to provide Australians with basic
protections against which legislation that potential infringes on human rights
and civil liberties may be moderated.
Constitutional validity of the Bill
1.25 The Sydney Centre for International and Global Law and the Federation
of Community Legal Centres both focused upon possible Constitutional invalidity
of the Bill.
1.26 The committee received
evidence that specifically mentioned the implied Constitutional Freedom of
political communication in Lange v Australian
Broadcasting Corporation[8]
and referred to section 116 of the Australian Constitution which protects
freedom of religion. It has been suggested that the proposed classification
laws will too narrowly restrict these freedoms.
1.27 The Democrats are persuaded
by these arguments and recommend that the Commonwealth should not be
legislating in this area on constitutional grounds.
1.28 We also note the point made
by the Sydney Centre for
International and Global Law that the Constitutional protection limits only
Commonwealth laws and does not prevent the States from curtailing freedom of
religious expression, which is significant given that State criminal laws
primarily enforce classification decisions.[9]
1.29 We also note comments made
by the Law Council in its submission that there is a need for classification
laws throughout Australia to be uniform in order to be effective.[10]
1.30 The Law Council further
warns 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 state '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'[11].
1.31 We refer to comments made by
the Victorian Attorney-General in a media release dated 24 July 2007. Mr Hulls has
stated:
'It is disgraceful that Mr Ruddock has already introduced legislation into Federal Parliament
before the matter has even been properly discussed with the states and territories,'
Mr Hulls said.
'He is trying to bully the states and territories into accepting laws he hasn’t
even demonstrated we need. And if they don’t, he will break apart the
cooperative agreement with the state and territories on film and literature
classifications.'[12]
Recommendation 3
That the laws not be
passed on constitutional grounds
Definition of a terrorist act
1.32 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.'[13]
1.33 The definition of a
terrorist act is taken from the Commonwealth Criminal Code.
1.33 Many submitters referred to
the problems of adopting the definition of 'advocates' because advocates
restricts an organisation from 'directly or indirectly' urging or providing
instruction on a terrorist act. Criticism has also been directed at the use of
the word 'praising' a terrorist act and 'indirectly counselling' a terrorist
act. Uniting Justice Australia has gone so far as saying that the Code's
provisions of criminal sanctions for organisations 'advocating a terrorist act
have been overzealous'.
1.34 We consider all of these
phrases unnecessarily limit freedom of speech and undermine a liberal
democracy. Moreover, we agree with the point made by The Sydney Centre for
International and Global Law that:
...the new concepts of
'directly' counselling or urging, and directly instructing, are already well
covered by the existing test of promoting, inciting or instructing in crime or
violence. To this extent, the proposed amendment simply introduces unnecessary
duplication and complexity – and uncertainty- into classification decisions. [14]
1.35 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.
1.36 We also consider there
should be more leeway afforded to the Classification Review Board to label some
material in the context of a struggle for liberation or independence rather
than a 'terrorist act'. Gilbert and Tobin Centre of Public Law in their
submission refer to this Bill as failing to adequately address whether
the legitimate actions of a nation on the world stage in accordance with what
they perceive as their national interests may amount to terrorism.[15] The Classification Review Board also
state that 'usually the Classification Board and the Review Board are given
some discretion in the application of tests where a refused Classification is
the likely outcome'[16].
Recommendation 4
That the definition of 'advocates'
be amended by deleting the words 'or indirectly' from paragraphs 9A(2)(a) and
(b) and deleting paragraph 9A(2)(c) which deals with praise of terrorist acts
and the Explanatory Memorandum of the Bill should be amended to give the
Classification Review Board more leeway to balance genuine freedom of political
speech with what might be defined as terrorism. Further, the Explanatory
Memorandum should refer to an example of what international conflicts may
constitute terrorist acts.
Exemption
for genuine educational purposes and policy makers
1.37 This Bill does not address whether academics or policy makers may access
banned material for academic or policy research.
1.38 The Democrats know of three
incidents which highlight the need to grant academics access to banned materials
for study.
1.39 The first incident relates
to media reports in October 2006 that Melbourne University intends to challenge the new terrorism laws, which prevent
access to some academic books. The challenge has arisen in the context of a
university historian and lecturer bringing two books to help his students
understand Jihad only to have these books removed from the library shelves.
1.40 The second incident relates
to the Australian Federal Police questioning a Melbourne
University student named Abraham because he borrowed library books about terrorism and
suicide. Quite ironically his studies involved preventing terrorism from
occurring.
1.41 The third incident relates
to a student studying at the University of Wollongong who
was investigated as a result of false allegations that she attended a meeting
supporting Hezbollah.
1.42 Educational research into
terrorism is under attack from the proposed Classification laws. Academics,
Teachers and students, are entitled to read about terrorism without fear of a
knock at the door from the Australian Federal Police or ASIO.
1.43 In relation to policy
makers, as the NSWCCL suggests the proposed censorship laws will also limit
materials to policy makers. This will severely limit the ability for the
leaders of Australia to effectively address any future foreign
policy issues arising from this ongoing threat.[17]
1.44 In the same tenor Gilbert and Tobin in their submission state:
Limiting academics' access to books on terrorism will hinder
their ability to understand and criticise the ideas expressed in them. This is
a problem not only for the academics themselves but also for the community at
large, which depends upon quality academic work to better understand the social
and security challenges facing the nation.[18]
1.45 The ideology of terrorism
versus terrorist operations are distinct and the Bill
needs to acknowledge the genuine study of the causes of terrorism. The
Democrats oppose the restriction of materials for genuine academic or policy
research.
Recommendation 5
That an exemption be included so
that individuals may apply to the Classification Review Board to access
potentially banned material for educational purposes. The exemption process
should be proscribed and the decision whether or not to grant the request
should be reviewable.
Conclusion
1.46 The Democrats do not believe
that sufficient justification has been provided for the extended and
unprecedented powers the government is seeking under this legislation.
1.47 In the absence of evidence
supporting this Bill as a proportionate response to terrorism,
the Democrats consider that the current Classification laws are adequate.
1.48 This Bill should not be passed without a balance being struck between the
security imperative and the need to preserve civil liberties and safeguard
human rights. This Bill should be rejected.
Senator Natasha Stott Despoja
Australian Democrats
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