More bad law on terrorism

Extreme views should be exposed to public scrutiny rather than hidden away by federal government censors, writes BEN SAUL MOST democratic governments would be deeply worried that the maladministration of bad laws will corrode the rule of law and threaten the freedoms of their people. It might be expected that the treatment of Dr Haneef in recent weeks would give Australian governments reason to pause before rushing headlong into passing yet more anti-terrorism laws when they seem unable to properly administer the existing ones. Yet the federal government has announced that it will press ahead with new censorship laws to ban publications, films and computer games which “advocate” terrorism, which includes “praising” terrorism where there is mere “risk” that such praise “might” lead to terrorism. Most of the states have refused to support the changes, although New South Wales and South Australia have signed up. Earlier this month a Senate committee endorsed the proposals with little objection, despite serious concerns by community and religious groups, writers, artists, libraries, academics and lawyers. Existing classification laws allow publications and films to be banned if they promote, incite or instruct in crime or violence. The government is worried that some publications and films do not directly incite terrorist crimes, but still encourage terrorism in an indirect or ethereal way, particularly by influencing impressionable or vulnerable groups. The problem is that the government has been unable to point to any concrete examples of materials which should be banned, although it was unhappy with decisions by classification authorities not to ban some radical Islamic books. It has also been unable to provide empirical evidence of whether such publications do in fact radicalise vulnerable individuals and make them into terrorists. Every democracy has the highest duty to protect its citizens and institutions from political violence which seeks to destroy it. Human rights and public safety cannot exist without the protective authority provided by strong democratic institutions. But there is always a risk that measures taken in the name of democracy will undermine the values which sustain democracy itself. That risk will materialise in the new censorship law, which unjustifiably interferes in freedoms of expression and religion without marginally improving public safety. The law is extraordinarily vague and will result in great uncertainty and unpredictability in classification decisions. It has the potential to ban all kinds of popular novels and classic films, and is open to blatant political manipulation and discriminatory misapplication. Part of the law is redundant, since it duplicates existing law and creates more confusion. Terrorism is defined in Australian law to include political violence not only against civilians, but against authoritarian governments and democracies alike, so that those who forcibly resist oppression or human rights violations in Burma or Zimbabwe or Sudan are branded as terrorists no different from al Qaeda. The law does not require that an author or film producer intend that terrorism should occur in future as a result of their support for political violence in the past. People interpret publications, films, computer games in a variety of ways. Human expression is infinitely nuanced and there will always be dramatic differences of interpretation. In this context, many publications or films carry a risk that someone will be indirectly provoked by it to commit violence, but that is not a sufficient reason to ban those materials and to disproportionately deprive the whole community of them. The new law proposes not to ban publications which could “reasonably” be considered to be done as part of public discussion or debate or as entertainment or satire. But this savings provision leaves much discretion to the censors as to what they think is reasonable and part of debate, discussion, entertainment or satire. The law also does not ensure that academics can access banned materials, thus preventing genuine research into the causes and forms of modern terrorism. It is also likely that the law will disproportionately target Islamic publications and result in the discriminatory treatment of that religious community. Already, censors have banned fairly innocuous Islamic texts which encouraged opposition to the illegal Soviet occupation of Afghanistan, yet the collected speeches of Osama Bin Laden are freely available from a major western publisher, and Hitler’s Mein Kampf can be freely bought in Australian bookstores. Likewise, the Bible’s blood-curdling Old Testament is full of stories detailing the fanatical slaughter of whole cities, including innocents; the wrath of a punitive, vengeful, war-mongering God; and the crude favouring of a “chosen” people to the detriment, and occasional extermination, of others. The Christian tradition can be painted in a manner as extreme and fanatical as radical Islam if the right gloss is put on it, and yet we allow the Bible to be taught to our children in Sunday school. Australia already has some of the strongest anti-terrorism laws in the world, with around 40 anti-terrorism statutes passed since 9/11, despite facing a lesser threat of terrorism than Britain and the United States. Except at the margins, classification law should play no role in policing political, religious or cultural expression. The law should only intervene in those truly exceptional cases where books or films are likely to incite imminent, unlawful terrorist violence. In most cases, extreme views should be exposed to public scrutiny rather than hidden away by classification authorities making paternalistic judgments on behalf of society. • Ben Saul is Director of the Sydney Centre for International Law and Chair of Sydney PEN’s Freedom to Write Committee. Photo: Susan Trigg/iStockphoto.co