The writer in a time of terror - Page 9

From Griffith REVIEW Edition 14: The Trouble with Paradise
© Copyright Griffith University & the author.

Written by Frank Moorhouse

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Notes and acknowledgements

ACKNOWLEGEMENTS

As a writer, I have never before had the privilege or the task of writing a 20,000 word essay for publication (almost half a book), something which in my experience in this country only the Griffith REVIEW would offer. The essay was written to deadline on a complicated subject and the longest non-fiction writing I've done. I am indebted hugely to Julianne Schultz, editor of the Griffith REVIEW, who gave critical and other support in the development of the essay and to Helen Lewis, my personal researcher-editor and who also gave meticulous editorial assistance. I also thank Sue Jarvis, copy editor on GR and Paul Thwaites, production manager, for their back-up.
People who have informed the essay through their articles, submissions or private advice and conversation include: Sandra Levy, Ali Barnard, Sam Dettmann, Toby and Daniel Giddings, James Freston, Raena Lea-Shannon of Frankel and Associates, Dr Helen Pringle, School of Politics and International Relations (see Defending Voltaire to Death, Uniken magazine), Macquarie University, Professor Meaghan Morris, Professor, Department of Cultural Studies, Lingnan University, Hong Kong, Chris Connolly, Law Faculty, University of NSW, Robert Connolly, Ben Saul, director of the bill of rights project at the University of NSW's Gilbert + Tobin Centre of Public Law, Christopher Murphy, solicitor, Adam Houda, barrister, Anthony West of New Matilda, online magazine, Deborah Doctor, Arts Law Centre, Owen Harries, Dr Lenore Coltheart, Alex Wilkie, Morry Schwartz, owner and publisher Black Inc., Chris Feik, editor-in-chief Black Inc., Dr Clinton Fernandes, ADFA, Carmel Travers, Abraham, doctoral student, Monash University, Stephen Blanks, Secretary, NSW Council for Civil Liberties, Dr Wright-Neville, Monash University, Professor Catharine Lumby, Tim Herbert, Xavier Hennekinne, Angela Bowne, barrister and president of PEN, various contributors to Crickey.com which is a vigilant watchdog on civil liberty, and Irene Graham, executive director of Electronic Frontiers Australia Inc (EFA).
Journalists whose reports I have used are credited in the essay.

BOOKS AND REPORTS:

The Reckless Mind: intellectuals in politics, Mark Lilla, New York Review Books, 2001
A.S.I.O: an unofficial history, Frank Cain, Spectrum Publication, Melbourne, 1994
Civil Peace and the Quest for Truth: the first amendment freedoms in political philosophy and American constitutionalism, Murray Dry, Dana Professor of Political Science, Middlebury College, USA, 2004
Obscenity, Blasphemy, Sedition: Censorship in Australia, Peter Coleman, Jacaranda, 1962
Defense of the Muslim Lands and Join The Caravan, both by Shahee Dr Sheikh Abdullah Azzam , Assam Publications, London, 1996; new edition, 2002
Freedom in Australia, Enid Campbell and Harry Whitmore, Sydney University Press, 1966
On Liberty, John Stuart Mill, available online from Project Gutenberg website, 1859
There's No Such Thing as Free Speech, Stanley Fish, Oxford University Press, 1994
Courting the Abyss, John Durham Peters, University of Chicago Press, 2005
The Retreat from Tolerance, Phillip Adams' editor, ABC Books, 1997
The Third Reich in Power, Richard Evans, Penguin, 2005
What Price Security, Andrew Lynch, and George Williams, UNSW Press, 2006
Fighting Words: A Review of Sedition Laws in Australia (ALRC 104), at the ALRC website
The D-Notice System, Dr Pauline Sadler, doctoral thesis, summary published by Press Council, 2005
Rethinking Human Rights, Brian Galligan, Charles Sampford, Federation Press, Sydney, 1997

WEB SITES

Nationalsecurity.gov.au (from Attorney-General's Department)
Democratic.audit.anu.edu.au (from Australian National University)
Ozsedition.blogspot.com (privately compiled site)
Libertus.net (maintained by Irene Graham, executive director of Electronic Frontiers).

LEGISLATION

The new acts and amendments described in the essay as "the anti-terrorist legislation" and which impact on freedom of expression directly or incidentally and on assembly and general civil liberty are contained in the following legislation:
New offences under Part 5.3 of the Criminal Code, namely, Divisions 101, 102, and 103, 2002
New sedition offences in section 80.2 of the Criminal Code enacted 2005
Australian Security Intelligence Organisation Legislation Amendment (Terrorism) 2003 known as ASIO Bill (No 2)
ASIO Legislation Amendment Act 2003
Amendments to the Telecommunications (Interception and Access) Act
National Security Information (Criminal and Civil Proceedings) Act 2004
Amendments to the Crimes Act 1914
Amendments to the various state legislations at the urging of the Federal government, for example, the NSW Terrorism (Police Powers) Act 2002

SCRUTINY

The most recent legal scrutiny and analysis of the anti-terrorism legislation is in What Price Security by Andrew Lynch and George Williams, UNSW Press, 2006. Williams is the Anthony Mason Professor and Director of the Gilbert+Tobin Centre of Public Law and Lynch is the director of the Centre's Terrorism and Law Project . A new report has been published online at the Australian Law Reform Commission website with the title Fighting Words: A Review of Sedition Laws in Australia (ALRC 104) as well as their other advice to the government on to the legislation.

The Security Legislation Review Committee looked specifically at:

1.1 The Security Legislation Review Committee (SLRC) was established pursuant to section 4(1) of the Security Legislation Amendment (Terrorism) Act 2002, as amended by the Criminal Code Amendment (Terrorism) Act 2003. Section 4 is headed ‘Public and independent review of the operation of Security Acts relating to terrorism'.
Section 4(1) requires the Attorney-General to cause a review of the operation, effectiveness and implications of amendments made by the:
(a) Security Legislation Amendment (Terrorism) Act (the SLAT Act)
(b) Suppression of the Financing of Terrorism Act 2002 (the SFT Act)
(c) Criminal Code Amendment (Suppression of Terrorist Bombings) Act 2002 (the STB Act)
(d) Border Security Legislation Amendment Act 2002 (the BSLA Act)
(e) Telecommunications Interception Legislation Amendment Act 2002 (the TILA Act), and
(f) Criminal Code Amendment (Terrorism) Act 2003 (CCAT Act).
1.2 These Acts are referred to in this report collectively as the ‘security legislation'.
See also:
(http://www.ag.gov.au/agd/WWW/agdhome.nsf/AllDocs/C2CE3EBE73794EF8CA2570A5001FAB3C?OpenDocument)

The Australian Human Rights and Equal Opportunity Commission submission on the legislation said in part:

...6.1 In its submissions, Human Rights and Equal Opportunity Commission points out that the criminal sanctions in Division 101, based on the concept of a terrorist act, and 102 Subdivision B,
based on the existence of a terrorist organisation, interfere substantially with the right to freedom of expression...
...The HREOC submitted that the broad discretion given to the Attorney General to proscribe and subsequently de-list an organisation does not satisfy the international human rights law requirement that any interference with [these] rights (in this case, the right to association and freedom of expression) be prescribed by law and proportionate to the legitimate aims sought to be achieved by the legislation...

10.50 HREOC submitted that the ambiguity and breadth of the term ‘support' may render subsection (1) disproportionate to the legitimate aims sought to be achieved by the legislature.
Thus, the subsection may impermissibly restrict the right to freedom of expression. Under that subsection a person commits an offence if the person intentionally provides to an organisation, known to that person to be a terrorist organisation, support or resources that would help the organisation engage in an activity described in paragraph (a) in the definition of terrorist organisation. ‘Support' is not defined in the Criminal Code, and could be regarded as support that directly or indirectly helps a terrorist organisation engage in a terrorist act. Thus, it could extend to the publication of views that appear to be favourable to a proscribed organisation and its stated objective.

10.52 HREOC submitted that section 102.7 may therefore disproportionately restrict the right to freedom of expression. This is because it arguably extends to expression other than expression that ‘incites to violence or public disorder.

TH0SE WHO HAVE EXPRESSED CONCERN

Alarm about the climate and aspects of the anti-terrorist legislation have been expressed by: The Press Council of Australia, the Law Council of Australia, PEN, NSW Council for Civil Liberties, Law Reform Commission, and a grouping of arts organisations advised by Chris Connolly (visiting Fellow in law UNSW), by journalists through the Media Alliance (see its report Turning Up the Heat, the decline of press freedom in Australia 2001-2005 - the report says that we have seen the most significant tightening of laws restricting media coverage in peacetime, particularly on national security, the Human Rights and Equal Opportunity Commission, and the Security Legislation Review Committee.

GRAND DECLARATIONS

Rights of Man: The Declaration of the Rights of Man and of the Citizen, a revolutionary manifesto written in 1789, by the National Assembly of France is not altogether absolutist, ‘The free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law.'

First Amendment: Our aspiration to freedom of speech has widened and leans heavily since the American Bill of Rights (1791) which is the first of ten amendment to the US constitution, "Congress shall make no law...abridging the freedom of speech, or of the press..."
This too has been redefined and tightened over the years. See especially the book Civil Peace and the Quest for Truth: the first amendment freedoms in political philosophy and American constitutionalism, Murray Dry, Dana Professor of Political Science, Middlebury College, USA.

Universal Declaration of Human Rights: In 1945 the Universal Declaration of Human Rights was adopted by the United Nations, Article 19 reads:
"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, either orally, in writing or in print, in the form of art, or through any other media of his choice."
Australia is a signatory to this.

European Union: The European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950, marks the end of the Grand Declarations.
It begins with a Grand Declaration and ends in a tangle of exceptions:
Article 10

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

LOST ATTRIBUTION

I have lost, and cannot find, the attribution for the last paragraph on page 33 of the essay which begins "Freedom of expression as it evolved..."