ARPA: Freedom of speech and a bill of rights

Freedom of speech is a crucial issue in the national human rights debate in Australia. Freedom of speech is at the apex of the core freedoms considered to warrant protection in any mechanism designed to protect human rights. It is a recognised right in international human rights documents, including in Article 19 of the International Covenant on Civil and Political Rights, but it is not absolute. In international standards as well as national norms and charters, the right to freedom of speech is qualified and restrictions are permitted as long as they are reasonably appropriate in a democratic society. The issue of drawing the line on permissible restrictions on this vital freedom is, however, extremely difficult.

In Australia recent developments in anti-terrorism laws have demonstrated the fragility of the protection of freedom of speech here. This fragility is of concern since the protections that are afforded freedom of speech have been described as relatively weak (Chesterman 2000; Gelber 2005). Despite a common law tradition valuing free speech, and in the absence of an express constitutional or federal statutory right to free speech, it is clear that at the coalface of political disputes free speech does not often fare well.

My focus here is speech-restricting measures that have been introduced in the context of anti-terrorism laws, as a case study to examine this proposition. Between the terrorist attacks of 11 September 2001 and the election of the Rudd Federal Government in November 2007, the Howard-led Australian federal parliament passed 44 pieces of anti-terrorism legislation, more than in any other comparable jurisdiction internationally (Williams 2009). The laws have been widely criticised as breaching civil liberties and human rights on a range of grounds (see, for example, Hocking 2004; Lynch 2007; Chong et al. 2005; Lynch & Williams 2006).

Many of the newly-enacted provisions impact on freedom of expression specifically, including the definition of a terrorist act as including an intent to advance a ‘political, religious or ideological cause’ which raises the possibility of capturing legitimate dissent and protest (Hocking 2004, p. 203), a penalty of five years’ imprisonment for lawyers who communicate unauthorised information obtained during a person’s detention or for failing to give information when detained (Hocking 2004, pp. 229–230), sedition laws, and the amendment of the classification regime to ban material that advocates terrorist acts. I will discuss the last two here.

SEDITION

In 2005 the Commonwealth introduced new anti-terrorism provisions by passing the Anti-Terrorism Act (No. 2) 2005 (Cth). This Act amended a number of existing laws to introduce a range of new provisions, including expanding the grounds for proscription of terrorist organisations, creating a new offence of financing terrorism, introducing control orders and preventative detention, expanding police search and seizure powers, giving police power to compel disclosure of information, and expanding the powers of the Australian Security Intelligence Organisation (Senate Legal and Constitutional Legislation Committee 2005). The legislation was heavily criticised, both for the short period of time allocated to its discussion and for the human rights-abrogating characteristics of its provisions (International Commission of Jurists 2009; Williams & Lynch 2006, p. 8).

In 2005, five new sedition offences were introduced by amending s80.2 of the Criminal Code to cover a range of speech-based activities, all focused on the urging of an activity which could be considered threatening to the constitutional system of government. They included urging force or violence to overthrow the Constitution or government, urging force or violence which interferes in parliamentary elections, urging force or violence within the community, urging a person to assist the enemy, and urging a person to assist those engaged in armed hostilities against the Australian Defence Force. Defences for acts done in good faith were included in s80.3, and these permit attempts to demonstrate shortcomings in policy, lawfully trying to change policy, industrial disputes and the reporting of matters.

The new sedition laws were highly controversial. A report on the draft provisions by the Senate Legal and Constitutional Legislation Committee acknowledged that submissions and evidence received on the draft legislation from media representatives, artists, lawyers and Muslim community members were ‘overwhelmingly opposed’ to their enactment (2005, p. 76). They were argued to be anachronistic, and to be drafted in an overbroad manner that would potentially capture too much speech, and would disproportionately impact on marginalised members of the community (Gelber 2009a; Chong 2006, p. 163).

During the Senate Inquiry into the sedition laws, it was argued by the Australian Federal Police that the sedition laws were necessary because new technologies including the Internet could allow people to promote terrorism in ways that were otherwise not covered by criminal law. One of the examples cited was the publication of books on the Internet that advocated terrorism (Kearney 2005, p. 2).

BANNING BOOKS

The next year, in July 2006, the federal Attorney-General banned two radical Islamic books. The ground on which they were banned was that the Classification Review Board found that they instructed readers in how to commit crimes. Specifically, each of the publications was found to contravene s1(c) of the National Classification Code in that each was found to ‘promote, incite or instruct in matters of crime or violence’. When material is found to breach this element of the Code it is ‘refused classification’ and therefore cannot be imported into, or sold or distributed within Australia. In making their findings the Classification Review Board (2006a, 2006b) took note of community concerns in relation to terrorism, and the raft of anti-terrorism laws that had been enacted in recent years.

CHANGES TO CLASSIFICATION REGIME

Despite the success of using the pre-existing classification regime to ban these books, the Attorney-General subsequently moved to expand the grounds on which material could be refused classification by adding s9A to the Classification (Publications, Films and Computer Games) Act 1995 (Cth). This provision permits the banning of material that advocates the doing of terrorist acts, defined as including material that ‘directly or indirectly counsels or urges’ or ‘provides instruction on’ the doing of a terrorist act. It includes in the definition of such material, material that might lead a person ‘regardless of his or her age or any mental impairment’ from being so encouraged. This replaces the ‘reasonable adult’ test normally used by the Classification Review Board in its decision making.

In a Discussion Paper released by the Attorney-General’s Department in May 2007, the change was justified by arguing that there was doubt over whether the pre-existing regime could be used to ban all material that advocated terrorist acts (p. 2). I have already noted that during the Senate Inquiry into the sedition laws before they were enacted, security agencies defended their necessity by arguing the Internet allowed people to promote terrorism in ways that were not captured by the law. Yet despite the successful enactment of the highly controversial sedition laws in 2005, in 2007 this same argument—that material might exist on the Internet which could advocate terrorism, and that might not be captured by other areas of the law—was used to expand the classification regime two years later.

It appears the federal government was trying to cover the field as widely as possible, using a range of speech-restricting measures to try to limit access to material that could be regarded as advocating the doing of terrorist acts. In so doing, the government has brought in a regime that appears to cover every possible manifestation of such advocacy. While its supporters would argue that this was precisely the purpose of the multi-pronged strategy, an insuperable obstacle remains to the justification of this regime from a human rights perspective.

This obstacle is the vagueness of the terms used as the basis for this speech-restricting regime. Since the freedom at risk in relation to these provisions is freedom of expression, and since freedom of expression is vital to democratic governance, greater deference ought to have been accorded to it. Greater care ought to have been taken before ushering in such a wide-ranging and multi-pronged regime of speech regulation. Instead, we have a sedition law that is anachronistic, overbroad, and that confuses the key criterion of sedition (the urging of action against constitutional authority) with other types of speech (such as the urging of violence in the community). We also have a classification regime that potentially risks banning an enormous range of publications on the ground that they might be capable of influencing a particularly susceptible person (such as a person who is mentally ill for example) to commit a terrorist act.

Precision ought to have been applied to the terms used and the ways in which speech-based activities could be captured. Doing this would mean the repeal of the sedition laws, amendment of the definition of material that ‘advocates’ terrorism, amendment of the definition of ‘advocacy’, and the reinstatement of the ‘reasonable adult’ test in relation to the classification regime. Although some moves in the right direction on sedition law have been mooted in the current consultation on the Attorney-General’s Department’s National Security Legislation Discussion Paper (2009), these moves are not sufficient to rescue the sedition laws from overbroad operation (Gelber 2009b). Moreover, the national Discussion Paper moots no substantive changes to the classification regime along the lines suggested here.

The construction of the current sedition laws and relevant components of the classification regime suggest insufficient care was taken in the original drafting of these laws, and that the problems that emerged when they were enacted have not yet been resolved from a human rights point of view. Instead, in deference to considerations of national security, measures were enacted that reach far beyond those necessary to achieve, or even efficacious at achieving, the stated goals of protecting the community from terrorist activities and enhancing national security. This small example is an indication of the risks faced by freedom of expression in a jurisdiction without an exogenous set of values against which to measure the justifiability of government policy making from a human rights perspective.

A BILL OF RIGHTS FOR AUSTRALIA

The outcomes of the National Consultation on Human Rights launched by the Rudd Government in December 2008 and announced in September 2009 suggest that human rights can be better protected in Australia by adopting two strategies. The first is the active pursuit of human rights education in the broader community, and the second is the adoption of a federal Human Rights Act (Human Rights Consultation Committee 2009).

I was an agnostic on the question of a bill of rights until very recently, on the basis of the kinds of arguments outlined by Brian Galligan (see, for example, Galligan and Larking 2007). The evidence suggests that countries with a bill of rights do not automatically protect human rights better than those that do not. A bill of rights is no panacea.

Nevertheless, I have come to the view that a bill of rights is needed in Australia for two reasons. The first is that we need an exogenous set of values against which to evaluate government policy and executive action. This was made especially clear in the indefinite detention Al-Kateb case, in which the High Court of Australia could not find any ground in Australian statutory or constitutional law on which to prevent the executive deciding that if it wished to detain non-citizens indefinitely, perhaps for the rest of their lives, they could legally do so. This was a shocking outcome.

The second reason I believe a bill of rights is needed in Australia is to change the ways in which human rights are debated. A bill of rights is likely to help alter Australians’ understandings of what rights and whether they ought to be protected, by encouraging awareness of what rights are and how they can be protected in a democratic society. A carefully drafted bill of rights along the dialogue model being promoted will, by encouraging robust discussion and express parliamentary acknowledgement of the importance of human rights and the reasons for their abrogation under specific circumstances, assist the educational process that has been identified in the National Consultation as crucial to protecting rights. In the realm of protecting freedom of speech, such clarity is sorely needed.

REFERENCES

Chesterman, M. 2000, Freedom of Speech in Australian Law: A Delicate Plant, Ashgate, Dartmouth.

Chong, A. 2006, ‘Intolerance of terror, or the terror of intolerance? Religious tolerance and the response to terrorism’, UTS Law Review, vol. 8, pp. 153–169.

Chong, A., Emerton, P., Kadous, W., Pettitt, A., Sempill, S., Sentas, V., Stratton, J. Tham, J.-C. 2005, Laws for Insecurity? A Report on the Federal Government’s Proposed Counter-Terrorism Measures, Joint Report by the Public Interest Advocacy Centre and others [Online], Available: http://www.amcran.org/images/stories/Laws%20for%20Insecurity%20Report.pdf [2009, Sep 7].

Galligan, B. & Larking, E. 2007, ‘Rights protection: The Bill of Rights debate and rights protection in Australia’s states and territories’, Adelaide Law Review, vol. 1/2, pp. 177–199.

Gelber, K. 2005, ‘Political speech practice in Australia: A study in local government powers’, Australian Journal of Human Rights, vol. 11, no. 1, pp. 203–231.

Gelber, K. 2009a, ‘The false analogy between vilification and sedition’, Melbourne University Law Review, vol. 33, no. 1, forthcoming.

Hocking, J. 2004, Terror Laws: ASIO, Counter-Terrorism and the Threat to Democracy, UNSW Press, Sydney.

International Commission of Jurists [ICJ] 2009, Assessing Damage, Urging Action: Report of the Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights [Online], Available: http://www.icj.org/news.php3?id_article=4536&lang=en [2009, Aug 5].

Kearney, S. 2005, ‘Sedition laws may be ditched’, The Australian, 26–27 November, p. 2.

Lynch, A. & Williams G. 2006, What Price Security? Taking Stock of Australia’s Anti-Terror Laws, UNSW Press, Sydney.

Lynch, A. 2007, ‘Achieving security, respecting rights and maintaining the rule of law’, in Law and Liberty in the War on Terror, eds A. Lynch, E. Macdonald & G. Williams, Federation Press, Sydney.

Dr Katharine Gelber is Associate Professor in the School of Social Sciences and International Studies at the University of New South Wales. Her research examines human rights, with a special focus on free speech and hate speech.

View other articles in this symposium:

The Australian Human Rights Debate: Where to From Here? Louise Chappell
Prisoner Voting Rights Lisa Hill
Human Rights in Australia: Refugees and Asylum Seekers Graham Thom

View other articles by Katharine Gelber:

Combatting Hate in Cyberspace (Digest, Jun 2015)
The Dark Side of the Internet (Digest, Nov 2011)
Academic Freedom in Australia (Digest, Dec 2008)
Constitutional Reconfiguration (Digest, 31 May 2002)
Free Speech, Hate Speech and a Bill of Rights (Journal, Mar 2002)
Human Rights Treaties in Australia (Digest, 12 Apr 2001)