Second Reading
Mr GARRETT (Kingsford Smith) (5.14 p.m.)—I will continue my remarks on the Anti-Terrorism Bill (No. 2) 2005. As I was saying yesterday, numerous legal organisations and senior practitioners, including Peter Gray SC from the Sydney bar, who provided an opinion to me specifically on this matter, have stated that these laws could in fact capture artistic expression. I seek leave to table this opinion.
Leave granted.
Mr GARRETT—Gray’s verdict was clear:
"Australians involved in creative or artistic fields seem to me to be particularly vulnerable to the risk of prosecution under the regime to be introduced by the Bill.”
The opinion went on to say:
“Risk of contraventions of provisions of the Bill would arise, perhaps in a more acute way, with for example:
a play or film or television programme depicting in a sympathetic or even non-hostile way the policies or strategies or motivations of the Iraqi insurgents, or of al-Quaida, or of other groups which may from time to time be at war with or engaged in armed hostilities with Australia; a song, or picture, or written work, which expressed corresponding sentiments or which utilised the musical or artistic or literary traditions or styles associated with the culture of a hostile organisation or country in a way which signified sympathy with or admiration of that culture; any imaginative/creative work, (literary, visual or other) which repeated or included seditious views expressed by others.”
At the very least, it seems to me that the increased uncertainty about the scope of the new offences and the potential severity of the punishment for them would inevitably tend to stifle, or to drive underground, the free expression of opinion and of creative or artistic responses to public and governmental affairs.
No substantial alternative view has been placed on the record, other than assertions by the Prime Minister and the Attorney-General that this is not the case. Moreover, the Attorney-General has said these clauses will be subject to review, the clear implication being that they are not in a coherent shape at present. If that is the case then why enact laws of this kind at all, or at the very least why not review them first instead of ramming them through the parliament?
Alone amongst voices addressing this matter, the justifications by the Prime Minister and the Attorney-General for the new laws have been various but in all cases wrong. Now the Senate Legal and Constitutional Affairs Legislation Committee has, in a unanimous bipartisan report, said that the sedition schedule should be taken out of the legislation altogether. The claim that the Attorney-General makes that the sedition laws just update some of the language is wrong. There are expanded provisions in these laws, including new offences for urging assistance of any kind for the enemy or for countries where the ADF has been deployed.
The claim that the sedition laws are meant to catch language which goes beyond criticism but encourages the use of force or violence is wrong. Some of the proposed sedition offences have no link to violence or terrorism, including those that refer to ‘unlawful associations’—an unlawful association merely falling into that definition if a single member of that association has a prescribed seditious intention.
Critically, the claim made by the Attorney-General that people will still be able to participate in vigorous public debate because they will be protected by the good faith defence is also wrong. The good faith defence clearly does not protect free speech and freedom of artistic expression; indeed it makes no mention of these categories of activity at all. Additionally, a number of the offences relating to unlawful association have no defences at all, as the offences are in the Crimes Act but the defences are in the Criminal Code. Competent authorities, to use one of the Attorney-General’s stock phrases, are unanimous that the good faith defences are especially limited and offered no defence in previous prosecutions for sedition, such as the prosecution of communist leader Sharkey in 1949.
Finally, the Attorney repeatedly offers that the proposals are in line with the Gibbs commission recommendations of the early 1990s. Again, with respect, he is wrong, for, whilst a component of Gibbs’s recommendations are reflected in the new laws, the main thrust of his commission’s report was to limit the sedition offences to three circumstances: incitement to overthrow or supplant by force or violence the Commonwealth government and constitution, violent interference in parliamentary elections and incitement to use force by one group within the community against another. The former Chief Justice expressly recommended the removal of the unlawful association offences, but here they are expanded in the new bill and additionally new offences lie.
What confidence can we have in anything the government brings forward if the Attorney-General and government spokespeople such as the Prime Minister continually misrepresent the legal situation in relation to this bill? What confidence can we have if members of the government who are lawyers and have some comprehension of the gravity of making false and misleading claims of this sort on a matter of this importance say nothing? The answer is we can have none. I refer to an editorial that appeared in the Herald Sun on 28 November, which stated:
“Mr Howard’s sometimes flippant defence ... is short of reassuring ... we believe the laws threaten with criminal sanctions those who exercise their democratic right to speak out or those who report what they say.”
The editorial went on to say that the Attorney-General should abandon these laws. It is absolutely right about that. We can have some confidence in the recommendation of the Senate committee report, because that report was bipartisan. It contained recommendations by both government and opposition members. The Greens and the Democrats also concurred that the schedule 7 offences of sedition should be withdrawn altogether. That is the only possible action that is open to the Attorney-General.
Artists who express a range of diverse views are as essential a part of our democracy as the press. Yet both these entities in our society find themselves in the gun sights of these new laws. For artists and those who publish their work, whose careers are often precarious and marked by periods of tough times, even the possibility of falling foul of laws of these kinds is enough to constrain and lessen the scope of their work or the publication of it to the public.
Importantly, what falls within the expanded term ‘urging’? This is the question which has not been answered. Urging is something which artists always do, and who can say with any confidence that the uptake of such actions produced by song, a word or a pamphlet will not result in an action deemed under these laws to be considered seditious? This is an intolerable situation for the artistic community of Australia to be placed in.
The editor of the Ballarat News, in reporting on the Eureka blockade, found himself in that situation some 100 years ago. It is not too remote a possibility that a modern artist reflecting on the war in Iraq will not be in the same situation. The mere fact that we are quite properly conducting a debate in these terms indicates the extraordinary state of affairs that has been reached by the prospects that this legislation brings to the House.
As for the remainder of the bill, I have already said that I do not agree with some of its elements. But I urge the parliament to accept the amendments brought forward by the opposition and the recommendations from the Senate committee. They will go some way towards improving this bill. Frankly, a five-year sunset period with additional review procedures is the very least we should expect for legislation which has such scope. I welcome the constructive approach taken by the members of the Senate committee, and I note the role played by Senator Payne, who I think has laid out some clear guidance for her colleagues in considering this legislation.
When a government has imprisoned its own citizens, left a citizen without legal rights or fair treatment in an overseas jail, demonised those who have sought to flee persecution and come to Australia, locked up children behind razor wire in detention camps and made adverse comments on judges and lawyers working in the criminal justice and administrative law field—when a government and an Attorney-General have a track record of this kind, I think all Australians would be mindful of the need to look very closely at legislation of this magnitude and to oppose, or at the very least aim to amend, those aspects which weigh down on the rights and freedoms that are a part of our way of life. The cumulative effect of laws of this kind is to make Australia a different country. Whether the laws will achieve their aim is another matter. In their proposed form, they will chill debate. The sedition clauses should be removed as a matter of urgency. (Time expired)