Australian Press Council submission to the Senate Legal and Constitutional Affairs Committee Inquiry into the Classification (Publications, Films and Computer Games) Amendment (Terrorist Material) Bill 2007

6 July 2007

Executive Summary

The Australian Press Council encourages the Senate Legal and Constitutional Affairs Committee to reject the Classification (Publications, Films and Computer Games) Amendment (Terrorist Material) Bill 2007.

If the committee regards to proposed legislation as appropriate and necessary, the Council urges the committee to adopt the following amendments to the Bill:

• The phrase "indirectly" should be removed from clause and 9A(2)(a) and 9A(2)(b) of Schedule 1 of the Bill.
   
• The phrase "or any mental impairment" should be removed from clause 9A(2)(c) of Schedule 1 of the Bill.
   
• The inclusion of the phrase "depicts or describes" in clause 9A(3) of Schedule 1 of the Bill has the effect of narrowing the exemption for material which is part of public debate. The clause should be reworded to remove this phrase.

Submission

The Australian Press Council objects to the proposed changes to the classification scheme intended to prevent the publication of material that advocates terrorism. The Council is of the view that the proposed amendments are unnecessary and have the potential to impede freedom of speech and of expression.

While the Press Council accepts that publishers have a responsibility to exercise some caution in selecting material and in preparing it for publication, the Council does not accept the assertion that a review of the classification scheme is necessary in order to restrict the publication of material that urges political or ideologically motivated violence. There are other legislative mechanisms in place that restrict such material, including laws against sedition, racial vilification and various provisions within the Criminal Code and anti-terrorism legislation. The classification scheme itself has already been applied to ban material that has been regarded by some as advocating terrorism, when two books (Defence of the Muslim Lands and Join the Caravan) were refused classification.

In its submission in response to the Attorney-General's discussion paper, the Council expressed concerns with regard to the proposed amendments and their potential to act as an impediment to free speech . The Council acknowledges that the Bill in the form in which it was introduced into Parliament has advanced some way towards addressing the concerns raised in its previous submission. However, the Council does not believe that the amendments already adopted go far enough to adequately protect freedom of speech.

The Press Council is of the view that the definition of "advocate" that is used in the Classification (Publications, Films and Computer Games) Amendment (Terrorist Material) Bill is too broad. Two particular phrases should be removed from schedule 1 of the Bill. Firstly, the phrase "or indirectly" should be removed from clauses 9A(2)(a) and 9A(2)(b). Secondly the phrase "or any mental impairment" should be removed from clause 9A(2)(c). The inclusion of these phrases has the potential to prevent the publication of material that provides information or commentary and that is appropriate subject matter for public discourse.

We note that, in his Second Reading speech, the Attorney-General explained the definition of "advocate" as having been adopted from the Criminal Code Act 1995. However, as the Press Council stated in our earlier submission, the standard of proof required to be met in criminal matters is much higher than in other areas of law and therefore the definitions used in criminal cases are not an appropriate test to be applied to classification.

The Press Council recognises that clause 9A(3) of schedule 1 is a sincere attempt on the part of the Attorney-General to address concerns raised with respect to freedom of speech. However, as presently worded, this clause is problematic. In its earlier submission the Press Council sought the inclusion of exemptions for public interest, satire, artistic expression, information and education. The exemption clause that is included in the Bill as introduced into Parliament makes an exemption for material which "depicts or describes" terrorism, 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. However, if applied in its literal sense, this would not exempt all material from censorship, even where such material is intended to contribute to public discussion or debate. In particular, material that is in the nature of opinion or commentary may not be regarded as depicting or describing. The insertion of the phrase "depicts or describes" thus has the effect of narrowing the scope of the exemption.

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See also
May 2007 submisison to the AG on his Discussion Paper
2006 submisison to the Sheeler inquiry on anti-terrorism legislation
2006 submission on sedition legislation

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