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Edition 14

Contents
Essay

The writer in a time of terror

Winner, The 2007 Walkley Awards for Excellence in Journalism, Social Equity Journalism

Winner, 2007 Victorian Premier’s Literary Awards, The Alfred Deakin Prize for an Essay Advancing Public Debate

Winner, 2007 PEN Keneally Award

IN MY TIME as a writer, I have lived through three significant freedom of expression crises in Australia. This essay is my attempt to analyse how the threat of terrorism – which I see as real – should affect me as a "writer", which I use as short-hand for freedom of expression, not only for writers, poets and artists, but as the citizen's right to gather information, share it and discuss it. Living in a time of terror has also forced me to re-examine these beliefs in a way I hadn't done for decades – to see whether I had lost my certainty about the place, nature and role of free speech in a liberal democracy.

Watching case after case of interference with freedom of expression since the threat of terrorism manifested itself in our lives, I realised that some things were becoming unsayable, and that we were finding ourselves in a world where we no longer know what we are allowed to know and what we are allowed to say.

The cases I have in mind have come from new legislation enacted during the last few years, the use of existing legislation, amendments to existing legislation, and the behaviour of government agencies which have in turn changed the mood, spirit, and tone around freedom of expression in this country. I refer to the Acts and amendments collectively as "the anti-terrorist legislation" and have listed them on the Griffith REVIEW website. I have not turned my attention to the wider challenges to civil liberty.

 

I WAS AT high school, but still caught up in the Cold War, in the 1950s.

Prime Minister Robert Gordon Menzies said then: "Can we recognise and deal with enemies of liberty only when they actually take up arms? ... Are we to treat deliberate frustration of national recovery, of economic stability and of proper defence preparations as a mere exercise of civil rights?" This mind-set is alive again, and as I test my thinking on freedom of expression it makes me anxious.

In October 1950, the Menzies Government passed a law banning the Communist Party of Australia. The Act was declared invalid by the High Court six months later, and Menzies then tried to ban the party by referendum in September 1951. This failed – just over half the electorate did not think it was a good idea. The freedom of communists to argue their theories of the overthrow of capitalism and to be members of an organisation was inseparably intertwined. In Australia, this struggle was seen as non-violent, but it was carried on in a world where the conflict between capitalist and communist systems was violent and potentially devastatingly destructive because nuclear weapons were in play.

I published my first short story at this time – and by the 1960s had quite a file with ASIO, both as an applicant for Commonwealth Literary Fund grants and because of my involvement in the Campaign for Nuclear Disarmament. When I recently read my file, I was hurt that Australian intelligence had overlooked the power and influence of the Sydney Balmain Anarchists – all seven of us, followers of non-violent anarchist theory.

During the 1950s and 1960s, the Australian Security Intelligence Organisation, established in 1949 by the Chifley Labor Government, gave nearly all its efforts to surveillance of the Communist Party of Australia, its "front" organisations and the unions it led. Surveillance was extended to cover the Commonwealth Literary Fund and those writers who applied for grants and, for a time, their referees. In many ways, as a result, ASIO has the most comprehensive record of Australian writing of the 1950s and 1960s. They should publish it.

When you are doing archival research, you sometimes have a day when you find a hugely significant document and your mind lights up and you look around to see who you can share it with. I had such a moment in the National Archives in Canberra last year when I came across a minute of the Commonwealth Literary Fund in 1952.

The fund's memorandum recommending grants for that year came back from the Prime Minister's Office with a handwritten note in the margin: "In future all names put forward should be investigated by Security. This case is scandalous and embarrassing. RGM 21/2." Menzies was outraged by the recommendation that a grant be given to Judah Waten, a writer who had publicly expressed strong communist sympathies.

Security files were opened on writers with, in some cases surveillance carried out, including telephone tapping. Those writers thought to be connected in some way to the Communist Party (sometimes mistakenly) who were recommended for grants by the Advisory Board of the CLF were either denied these grants or the grants were deliberately delayed, sometimes for years. Passports were withheld from suspect writers and academics to prevent overseas travel to what ASIO perceived to be communist-related conferences and other activities.

We should not forget that writers are not always Simon Pure. Some are also spies, terrorists, mad, bad and dangerous to know. But the understanding until then was that grants should be given on the basis of talent, and no religious or political tests were to be applied.

 

THE SECOND FREEDOM of expression campaign in which I was involved took place in the late 1960s, when writers, students, lawyers and readers began a civil disobedience rebellion against sexual censorship in Australia by publishing underground, uncensored and unregistered newspapers made possible by offset printing, which could be done by anyone with minimal technical knowledge.

It is sometimes difficult to remember how censored Australia was – hundreds of books were banned (nearly all now considered mainstream), including James Joyce's Ulysses and D.H. Lawrence's Lady Chatterley's Lover. Australians arriving back from overseas had their luggage searched for banned books and magazines. In 1969, Phillip Roth's Portnoy's Complaint was declared a prohibited import and booksellers and publishers in four states were prosecuted.

It was said that if Martians had landed in Australia then and read our newspapers, magazines and literature, they would not have been able to learn how the human race reproduced.

Over the last fifty years Australian governments have censored swear words, blasphemy, offence to the monarchy, advocacy of communism, advocacy of anarchism, irreverence to religion, advocacy of political assassination, "horror" stories, advocacy of witchcraft, birth-control information, advocacy of the social benefits of prostitution, the advocacy of the social benefits of masturbation, opposition to marriage, advocacy of single-parent childbearing, the belittling or denigration of members of the armed forces, descriptions of lesbian or homosexual behaviour, descriptions of heterosexual sex, material offence to an allied nation and giving comfort to an enemy nation. If you find this list hard to believe, check the much longer list in Peter Coleman's 1962 work Obscenity, Blasphemy, Sedition: Censorship in Australia (Jacaranda).

The campaign against sexual censorship involved a dramatic change in our understanding of freedom of expression. It was hugely significant. Freedom of sexual expression was almost certainly a category not imagined by the great theorists, John Stuart Mill, the framers of the "rights of man", the declarations of the French Revolution and the American Bill of Rights. Even the United Nations' 1948 Universal Declaration of Human Rights and the European Convention for the Protection of Human Rights and Fundamental Freedoms in 1950 were silent about such expression.

While the early theorists could have understood the urge to ban the Communist Party and would recognise the behaviour of governments confronted by terrorism, the sexual revolution was not what they had in mind when they argued for freedom of expression.

Our concern was with what we called "sexual politics", and the expansion of the "political" into the personal, including free expression of sexual information, thoughts and fantasy in fiction and in non-fiction. I was led to it not by a political position on freedom of expression, but more by being affronted that our young, honest writing was being censored, that we could not write short stories and poems as we wished. This was not only about four-letter words – which were banned and could be excised from a book, deleted from a play or trigger an arrest – but about portraying our sexual lives as we were living them, in the confusion in which we were living them. Peter Coleman, who was to become the Liberal Chief Secretary in NSW, said of those campaigning for wider sexual freedom, "...they seek to destroy all forms of our treasured society which include, family, church, and school and other institutions...it is porno-politics..."

Police raided the houses and broke into the cars of those involved with the underground papers in an attempt to stop publication; many were arrested and forty court cases on charges of obscenity were listed and some fought. Some of us spent time in cells and Wendy Bacon was jailed for a week at Silverwater prison.

To our surprise the battle was won.

In 1973, the Whitlam Labor government abolished censorship of the printed word, films and plays. Customs restrictions were removed and the court cases still pending did not proceed. As a result of this campaign, sexual subjects such as contraception and homosexuality could at last be discussed in public. For the first time, we were reading and writing for free papers with no sexual censorship.

I was recently reminded that in 1970, an American maverick Lyle Stuart published The Anarchist Cookbookwhich told how to make bombs, pick locks and commit other crimes was also banned in Australia, although I remember copies being around. This did not come for discussion in our group, but the distinction was clear to me. The argument against publishing a book which teaches you how to make bombs is that the bomb may one day arrive in your mail box.

And now I am back facing the questions of censorship in an atmosphere different to that of the Cold War or the sexual revolution. It has required me to take months away from my other writing to work through my position again.

 

WHEN I FIRST came to consider the impact of the anti-terrorist legislation on freedom of expression, my tendency was to lean heavily on the thinking I did when I was a young writer confronted tangentially by the Cold War debate, and in a most personal and significant way it was the sexual revolution which shaped me. It was pretty much an absolutist position – anything goes, all or nothing.

Back then, we would have said things such as: "If one person is not free none of us is free." In retrospect, that is plainly not true. But it is an expression of solidarity with the oppressed, I suppose. I would have loved to have clung to my absolutist position; it would have been much easier to say "anything goes".

Another intellectual conflict I experienced while working on the essay was an inherent urge to use all my polemical and rhetorical skills to defend freedom of expression, which was opposed by an urge to realistically and tough-mindedly examine the case for limiting freedom of expression as it was now being argued.

The First Amendment in the United States, which protects freedom of speech, has restrained the American government and it has no anti-free speech legislation similar to that enacted here. Australians have no explicit right to freedom of expression, we depend on implied rights and they are highly qualified.

There are attempts now by the Australian, US and British governments to conceptualise the threats from radical terrorists as a "battlefield", which then authorises governments to act according to the demands of a war and which allows for severe regulation and the amorality of battle.

The use of the term "war" to cover terrorist activity is not yet accepted by many commentators as an accurate description of the conditions in any of the Western democracies. It should not be used until we are in battle or war as intelligent people understand it. The expressions "clear and present danger" or "clear and imminent danger" are accepted as legal terms to describe the conditions which permit a government – or an individual, when confronted by an attacker – to use drastic responses. When a nation is confronted with clear and imminent danger, it can resort to martial law or restrictive legislation.

Let me say as an informed citizen: terrorism is real and we are in danger, but I do not see the situation in Australia now as time for martial law or battlefield talk.

Curiously, though, I find in conversations an unwillingness to believe that Australia is seriously threatened by terrorism, and I suspect that this springs in part from an unwillingness to go along with the present government's assessment, or its policies and behaviour in this area. It is true that the government, and to a degree the defence forces, have come to be seen as untrustworthy – I am thinking of the Iraq war, theTampa affair, handling of various military matters, the immigration department bungles, the obstruction of freedom of information legislation and the Classification Review Board statements. But that doesn't mean the government is always wrong.

"Terrorism" is a slippery term, as the UN discovered when it tried to formulate a definition this year. Most of us understand it to be the use of nonmilitary violence to break the effectiveness of a government, to punish another ideology, to attack, defeat or drive away perceived enemies – in the current situation, "enemies of the faith of Islam". It uses assassination, mutilation and torture against officials, the military and especially civilians, and involves decentralised forces – some seemingly self-organised – within or from outside the national base deployed in the service of revengeful or punitive ideology.

Are the tactics of terrorists new? No, the Irish Republican Army used them for thirty years in Britain, killing nearly two thousand civilians with more than fifty bombings, including attacks on the Conservative Party's annual conference, the Houses of Parliament, Heathrow Airport, army barracks, police stations, pubs and shops. But life went on.

Is the use of suicide attacks new? No, the Tamil Tigers in Sri Lanka have used them for decades, as did the Japanese in World War II.

Violence against civilians? No, not new either – it has been practised by terrorists and the armies of nation states as long as there has been war. In World War I, civilians became targets – the message was clear: the armed forces and the people are one; everyone is responsible for the war; everyone is a soldier. History gives us no reason to believe that the terrorist activity as we have seen it will go on indefinitely, but it could continue for decades. The Cold War, with its surrogate hot wars, lasted for roughly forty years until the late 1980s, and resulted in the deaths of twenty-one million people. The IRA attacks in Britain continued for three decades.

There are other possible outcomes: the effectiveness of counter-terrorism may mean that the terrorists come to see themselves as stymied or defeated; or their tactics as counter productive; or that they will transmute in the face of changing conditions; or that they may represent an angry and desperate conclusion and outburst in face of a changing Muslim culture – that is, what we are seeing may be an endgame; or the terrorists may be extinguished by forces within the Islamic community itself.

Or it could be that terrorist attacks become an ugly part of Western life that we have to learn to live with – in the view of US Vice-President Dick Cheney, it is already "the norm".

Or it could be that the West collapses into fortress-like, authoritarian states.

Terrorism, once it begins, is an almost intractable threat to public safety. It can add yet another tragic and dangerous factor to life, and it can make democratic governments behave badly.

But it does not always – indeed, perhaps ever – destabilise or make a democratic society dysfunctional. Terror as we know it so far can be lived with. Increasing numbers of Australians still go to Bali for their holidays despite the travel advisories and the recent bombings.

The IRA experience shows that public safety can be diminished without significant disruption to the day-to-day workings of social life, commerce, politics or government. The British government's censorship of the IRA did not stop it functioning politically or militarily, it was a violent "state within a state" with its own army, existing within a viable democracy.

The IRA example should not in any way temper our resolve to foil, arrest and defeat terrorists in their violent phase.

Yet we know that our lethal enemies may one day become politically acceptable. It happens – even in recent history: the founders of the Jewish state used terrorist tactics against the British and the United Nations, and those "terrorists" went on to become the recognised government of Israel; the IRA's political representatives are now elected.

 

IN THE CURRENT debate, I have often heard the use of inappropriate parallels with Nelson Mandela and Mahatma Gandhi, which is also making mud of the argument. They were jailed under sedition laws and ultimately became revered historical figures (although Gandhi advocated non-violence, he was accused of causing civil unrest). They were fighting for different causes in a different historical context: that popular history reverses its judgement about these "terrorists" does not mean it will reverse its understanding of all terrorists. Popular history has not revised its view of the Nazi regime, and has negatively revised its view of the Soviet Union.

The actions of the security organisations give us some picture of the threat. At last count, nineteen terrorist organisations have been proscribed, one man has been jailed for twenty years and another for nine years, twenty-one Australians face criminal prosecution on account of involvement with al-Qaeda, or have been convicted of terrorist offences, almost a hundred are seen as sufficiently dangerous by ASIO to warrant extraordinary scrutiny and one is under an interim control order.

As a result of the National Security Hotline, which commenced operation in December 2002, more than eleven thousand people in Australia have been investigated and three thousand are still under surveillance. I suspect some of the cases will turn up unstable people who are no more than poseurs. But these must always be investigated, and perhaps brought to trial.

Surveillance and intelligence work seems to be producing good results in many democratic countries, as well as a negative impact.

The possibility of a terrorist attack is real: we are a Western nation; we are involved in and support US foreign policy. As I see it, what we have in Australia is a functioning, civil, orderly nation state which is hypothetically threatened with occasional limited attacks on the civilian population – our situation is similar to that in, say, Britain or formerly Spain (before it withdrew from Iraq) and the United States.

Terrorism is not new to Australia, as former Liberal Party senator Chris

Puplick wrote in The Australian last year:

Domestically, we have had terrorist activities going back to at least 1970, when the authorities thwarted a planned attack on the Serbian Orthodox Church in Canberra but failed to stop the bombing of the Yugoslav consulate in Melbourne. In 1972, Black September letter bombs addressed to Israeli diplomats were intercepted. In 1977, the Indian defence attaché and his wife were kidnapped and wounded. The most serious – known as the Hilton Bombing – occurred in 1978 when a bomb exploded outside the Sydney CHOGM meeting, killing two council workers and a police constable, and injuring seven others. In 1980, the Turkish consul-general was assassinated. In 1983 a bomb was found and defused at the Lucas Heights atomic reactor. In 1985 shots were fired into the Vietnamese embassy. An assassination attempt was made on the leader of the Opposition in 1966 and a state MP was murdered in 1994.

However, at the time they were thought to be one off attacks.

The current suppressions of freedom of expression are different from the Cold War and the sexual revolution. The enemy is now seen as ethnic and religious, not belonging in the mainstream – even when they are Australian citizens – and cannot be pacified by negotiation, treaty or assimilation.

Communists and the sexual revolutionaries were from the mainstream, and their activity was often in mainstream organisations and with mainstream membership – academics, ministers of religion, intelligentsia, unionists.

Of course, radical Islamist positions could increasingly gain adherents from mainstream Australia, and the intelligentsia because of support for oppressed people (say, the Palestinian cause) and opposition to Western "decadence" and Western military actions.

At the last Australian census, 280,000 people identified themselves as Muslim, but other estimates put the number now at 400,000. It is estimated that a third of Muslims living in Australia are Australian-born, and nearly all are Australian citizens. The restrictions to freedom of expression first affect those who are engaged in violent Islamist anti-Western politics. But the impact has quickly spread to affect non-Islamic writers, journalists, scholars, students and others who study or comment on, or in part agree with, Islamic criticism of the West.

As it turns out, the sixteen incidents of recent interference with freedom of expression which I analyse here involve eighteen people from outside the Muslim community, and all involve Australian citizens.

What is happening, then, because of this new climate? Has the alarm raised by concerned organisations, oversight committees, lawyers and academics of the community been heeded? Is everything reasonably quiet? Is freedom of expression safe and sound? No it is not. Not by a long shot. The situation is far worse than I thought it was when I began this essay.

 

What has happened so far? What is the pattern? And why does it worry me?

 

JUNE 2004: FIRST arrest for making and possessing a bookThe Australian Federal Police (AFP) charged thirty-five-year-old Belal Khazaal in Sydney following an investigation by the AFP's Joint Counter Terrorism Team. He gave his occupation as editor. I quote from the AFP's statement:

Counter terrorism officers arrested the man outside his Lakemba home this morning and formally charged him with collecting or making documents likely to facilitate terrorist acts. The Sydney man is the first to be charged with this offence since the introduction of Commonwealth counter terrorism legislation in 2002. The offence carries a maximum penalty of fifteen years' imprisonment. The arrest follows a lengthy investigation, involving collaborative efforts by ASIO, NSW Police and the Australian Federal Police. During this investigation, the AFP executed a search warrant at the man's home, seizing a number of documents and a computer hard drive.

In court it was alleged that among these documents was a book titled Provisions in the Rules of Jihad – Short Wise Rules and Organisational Instructions Which is the Concern of Every Fighter and Mujahid Against the Infidels. The AFP alleged that Khazaal compiled this book, and that in late 2003 he posted the publication on the internet, therefore committing an offence under Commonwealth law.

Khazaal has been on bail awaiting trial for over two years.

 

JUNE 2004: CLEANSING computers at Black Inc and elsewhereBlack Inc is the most important and respected of what could be called the "oppositional" publishers in Australia, commissioning books on political and social issues and publishing the Quarterly Essay, the magazine The Monthly, as well as Best Australian Stories, Best Australian Essays and Best Australian Poetry.

A team from the Attorney-General's Department and the Office of National Assessments went to the offices of the Melbourne publisher Black Inc and "cleansed" (the official term) computers of parts of a manuscript of a book said to be sensitive to the national security. The team then destroyed the hard disc on to which the material had been transferred.

The book Axis of Deceit was written by Andrew Wilkie, a former analyst with the Office of National Assessments, who resigned in 2003 in opposition to Australian involvement in Iraq and then stood as a Green candidate in the 2004 federal election in the Prime Minister's electorate.

After this, at least four other people were visited by the government squad which cleansed the computers of Wilkie's brother David and sister Patricia, and the computers of film-maker Carmel Travers and Professor Robert Manne, who commissioned the book for Black Inc.

Professor Manne said that the manuscript appeared to him to be "pretty innocuous and that there was nothing which would be of interest to a security service or terrorist organisation".

Andrew Wilkie said that he discussed the manuscript with a former colleague, Dr David Wright-Neville, from a security point of view and they removed a few details but the parts removed as a result of the visit by the government squad were in his opinion "nonsense and did not warrant deletion." He thought they were aimed simply at shutting him up.

Morry Schwartz, owner and publisher of Black Inc said that he had also sent it to a lawyer, Martin Toohey.

A book of this nature was bound to be controversial, so we sought the advice of a Canberra lawyer with military and intelligence experience. A week later, we received a fax from the Attorney-General's Department informing us that the manuscript was in their possession – our lawyer had given it to them without telling us. In our view, this was extraordinary ... behaviour. The manuscript was circulated by the government to the various intelligence agencies for vetting.

[In June] a small delegation of senior personnel from the Attorney-General's office and the Office of National Assessments came to Melbourne to negotiate cuts and edits... and [a few days later] a small team of computer experts – about three or four – spent two days in the offices of Black Inc to cleanse the offending material from our computer. They transferred the data to a hard disk then gave us the option of having it taken away or destroyed in front of us. We chose the second option, then watched them do it with a special little disk-breaking hammer.

Morry Schwartz says that in all about one and a half pages were removed, and he and his company were requested to sign a "confidentiality agreement". The cleansed book was published in July.

Barrister Julian Burnside said: "You only need that sort of thing to happen once or twice, and people will tend to curb the way they express themselves for fear of getting the same sort of treatment."

I spoke with Carmel Travers about the cleansing of her computers and she said that when the four officers from the Attorney-General's Department visited her at her office she said, "Look, it's a bit cramped in here ... and they'd replied: ‘Don't worry, we're used to this. We do this every day.'

"And I said: ‘Oh, really? How often have you done it?' and they said ‘Oh seventy, seventy-two, or seventy-three times.' It was almost a boast and it was not a rare event, and I found that alarming."

This occurred nearly three months after the visit to Black Inc and after the book had been published. She said that after she refused to sign an agreement that she wouldn't talk about the matter they became "bullying and threatening". From what she understood there seemed no rational basis for the erasure of the material. "The material was already in the public domain."

She said in the course of the cleansing they took a clone of her hard drive with all the details of her private and business and financial life on it.

She told me that the first call came on her private mobile phone number, not her business telephone. She now believes that her phones are bugged. "...and I saw a man taking photographs of my house shortly after this. And a month after they'd had my laptop it stopped working and the techs at IBM couldn't fix it or explain what had gone wrong with it. People are beginning to talk in whispers. "My son made what was given back to me of the destroyed hard drive into a sculpture called ‘Freedom of Speech'."

In an interview on SBS TV, the author of the book, Andrew Wilkie said:

I think a lot of it was just theatre meant to put pressure on people, almost to bully them. I think it was intended to send a very clear signal to the media, to the publishing industry, to me that they needed to be very, very careful about criticising the Government. I think the Government's behaviour was intended very clearly to send a signal to my former colleagues that, you know, you don't cross them, you don't resign, you don't speak out.

Nearly everyone involved in this cleansing operation has signed a Deed of Agreement with the Attorney-General's Department that prevents them from talking about how it was censored. Wilkie told SBS:

I need to be careful here, because I have signed an agreement with the Commonwealth not to reveal the detail of negotiations. So all I will say is that the Government's initial position was unacceptable to me in that I was not prepared to sign anything that would have effectively kept secret the fact that they had censored a book critical of the Government.

SBS asked the Attorney-General's Department how many computers had been cleansed and how the process worked, but was given no information.

Black Inc then made a complaint to the ACT Law Society about the behaviour of the lawyer, Martin Toohey, in showing the manuscript to the Attorney-General's Department. The Law Society found no professional misconduct.

Toohey's defence was under the "public welfare" provision which overrides the obligation of solicitor/client confidentiality. This provision allows a lawyer to break confidentiality if he or she believes national security is at risk. The Law Society found that there was no substance in the allegation by Black Inc that Toohey's status as an Australian Defence Force reservist had played a part in his action.

 

SEPTEMBER 2004: ATTEMPTS to stop publication of "Reluctant Saviour"Major Clinton Fernandes had finished an army approved PhD on Australian policies on East Timor and turned it into a bookReluctant Saviour, which Scribe Publishers accepted. He informed his superiors about the book which was to be published in his private capacity. He told me, "The resulting correspondence with some of the army's senior officers became increasingly heated and I eventually complained to the Defense Force's Inspector-General that the army had inappropriately invoked national security laws to try to stop me publishing it or to stall it." He said he learned unofficially from army headquarters that this was done "because the book was highly critical of the Howard government in the run-up to the election that year." He has since left the army and is now a senior lecturer at the University of New South Wales. The book has been published.

 

JANUARY 2005: HABIB and the literary proceeds of crimeAttorney-General Philip Ruddock threatened action against former Guantánamo Bay prison camp internee and Australian citizen Mamdouh Habib, who said he intended to write a book about his experiences. The Attorney-General threatened to use the "literary proceeds of crime" sections of the Crimes Act, intended to stop criminals from benefiting financially by writing about their experiences and since widened to include terrorist-related writings, to discourage publication.

It would also stop a publisher from receiving profit from the publication. Even if a person has been acquitted of an offence, it does not limit the court's power to make a "literary proceeds order". Although Habib has not been charged with or convicted of any offence, it could still apply.

 

MARCH 18, 2005: Raid on Melbourne radio station 3CRThe radio station was raided by the Australian Federal Police. Three AFP officers entered the station with a warrant to seize an interview recorded previously with Rob Stary, lawyer for terrorist suspect Jack Thomas. According to the Media Alliance, the warrant was issued because Stary, during the interview, had apparently contradicted statements made in court. The Media Alliance stated: "Obtaining the interview through these means was excessive and unnecessary – a blatant attempt at media intimidation."

 

JULY 18, 2005: The Sydney Daily Telegraph "special investigation": Following the London bombings, two reporters from the newspaper visited Muslim bookshops in Sydney and examined books which they considered were "books of hate promoting jihad, hostility to Australia and wiring up one's body".

Following their report, the Attorney-General said that his officers would review the literature, including one book which he said was "filled with vitriol against the Australian way of life" to determine whether anti-terrorism laws had been breached.

Ruddock was later to act: he referred the books to the AFP and to the Federal Director of Prosecutions. It was to take time before something happened about the books and I pick up this story later.

 

JULY 26, 2005: The case of Monash student AbrahamIn the same week the Daily Telegraphspecial investigation brought the books to the attention of the Attorney-General, the AFP paid a visit to the home of a student in Melbourne. On ABC News on July 26, journalist Tanya Nolan reported:

The best efforts of the Muslim leadership to harmonise the relationship with mainstream Australia may be undermined by an incident involving a Muslim student and federal authorities.

The student at Monash University in Melbourne says he's been unfairly targeted by the Australian Federal Police, after borrowing library books on terrorism as part of his studies. The man, known as Abraham, says he was interviewed by a Federal Police officer, who quizzed him about the literature he's been reading.

He says he's the only student in the course to be interviewed, and he's accused the AFP of engaging in ethnic profiling. Abraham has been studying for his Honours in Politics at Melbourne's Monash University, specialising in martyrdom and terrorism.

When I first contacted Abraham on the telephone he said he was frightened to talk to me because he believed his phone was tapped, but eventually we spoke on a Monash University line.

Abraham confirmed the ABC report and told me that the AFP officer called at his home at 10 am. His wife, a PhD student, opened the door and the officer "flashed his badge" but wouldn't give a business card or his name and questioned him about the books he'd bought and borrowed. The officer had said that the visit was the result of an anonymous call to the terrorism hotline. The interview lasted about fifteen minutes. "Once he saw that I was a regular, red-headed Australian and enrolled at the university he seemed satisfied. I was pissed-off and gave him a gobful about the harm he was doing to Muslims."

Abraham is a convert to Islam. His former lecturer, Dr David Wright-Neville said: "[He] is a gentle fellow and the experience ... did cause him some angst. I suspect it still does ..."

 

SEPTEMBER 15, 2005: Dangerous visitors and a discordant messageScott Parkin, a Texas-based political activist was deported to the United States after being arrested by the AFP and detained for five days. Parkin said he was in Australia to give a workshop about the peace movement in the United States and to campaign against companies profiting from the Iraq war.

While in Sydney, Parkin participated in a non-violent street theatre action outside US corporation Halliburton's headquarters in Sydney. The reason given for his detention and deportation was that he posed "a threat to national security". His visa was revoked by the Immigration Minister at the request of ASIO. Parkin had been phoned by ASIO and asked to attend a voluntary interview. He declined.

Ruddock told the ABC that Immigration Minister Amanda Vanstone had made the decision to detain Parkin after a security check. He said that visas could be revoked for a number of reasons: "I'm not going to comment on matters about which assessments are made by competent agencies. The only point I'd make is that, in relation to those matters, there are provisions by which the decision can be challenged if people are inclined to do that."

Liz Thompson from the National Anti-Deportation Alliance commented: "This is an attack on dissent, free speech and the anti-war movement. The failure to give reasons in national security suppression of free speech is itself an offence against free speech."

The Attorney-General pointed out that the government has in place measures to ensure that potential visitors who might incite violence can be refused a visa. "If you look at the visa arrangements in relation to character testing, we have a lot of people who might euphemistically be described as sheiks who are denied entry to Australia because they might bring discordant messages," Ruddock said.

Parkin returned to the United States, where no action was taken against him by American authorities.

 

DECEMBER 2005: THE Books and a film seized from muslim bookshops are found not to breach sedition lawsThe AFP and the Commonwealth Director of Public Prosecutions decided that eight controversial books and a film found in bookstores in Lakemba and Auburn, in Sydney's west did not incite violence or breach the sedition laws.

The AFP said that books and the film seized did not meet the legal test of inciting violence and were "descriptive, rather than inciting any type of violence". The Federal Police referred the material to the Classification Board, which agreed with them and the Director of Public Prosecutions, and did not ban the books or the film.

Again the Attorney-General was not satisfied, and referred the books to the Classification Review Board.

 

FEBRUARY 2006: TIGHTENING Control: After this rebuff, the Attorney-General announced that the Classification Board and the Classification Review Board would be separated from the Office of Film and Literature Classification, and the administrative functions of these boards would be undertaken directly by his department.

Legal critics opposed this change and argued that was important for the Review Board to maintain its independence, so it would not be seen as part of the political process or to be making politically motivated decisions.

 

FEBRUARY 19, 2006: Packer memorial service arrestsA friend of mine, a student at the University of Sydney, told of the following incident at a demonstration at the memorial service held at the Sydney Opera House for media owner, Kerry Packer. (As an example of the unhealthy climate – paranoid or not – engendered by the legislation and expressed attitudes of the government, I hesitate to name her.) She recalls:

It was a very dismal turnout. Maybe twenty or so. The speakers at the demonstration were those friendly, passionate people who are often in danger of alienating regular people with a holier-than-thou attitude. They planned to have someone dressed up as John Howard getting into a bed together with someone wearing a Kerry Packer mask, but it was too hot to wear the suits.

After some songs and speeches, the sound system was confiscated without provocation or explanation. Later the police claimed it was an illegal amplification system and made the ridiculous and unsubstantiated claim that this calm little group was causing offence to members of the public. With nothing else to do, the protesters decided to march on the Opera House. Suddenly there were flocks of police, a couple of mounted police, whose horse were looking extremely hard done by, and a few of paddy wagons rocked up to join the fun. We were informed our protest was illegal – holding signs in this area was now illegal.

"We have the right to protest. It's a public place," the protesters said. "This area has been rezoned, under the new sedition laws you aren't allowed to be here," a police officer said.

"Go or get in the back of the truck, those are the options for you. You don't have the authority to have a peaceful protest. There was no application," said another.

"It's a free country!" we cried.

"Not any more sweetheart. Let me show you your tax dollars at work," he said. The police were on a hair trigger and some of the protesters were all too keen to push back. It was a situation that could have been avoided if everyone took a step back and had a cup of tea. After the first arrest of a woman who kept trying to push through the police blockade, the police then seemed to be picking protesters at random to violently drag off. Within minutes, six forceful arrests were made while the demonstrators shouted "Hands off free speech".

The cases were scheduled to be heard in October.

 

MARCH 17, 2006: Giving Richard Neville a warning to shut upLouisa Hearn reported in the Sydney Morning Herald:

A spoof John Howard website that featured a soul-searching 'apology' speech for the Iraq war has been shut down under orders from the Australian Government. 

Richard Neville, an Australian futurist and social commentator, was 'mystified' to discover his satirical website johnhowardpm.org had been blocked on Tuesday ... He said that after two days of silence, a customer service representative from Melbourne IT today informed him by telephone that the site had 'been closed on the advice from the Australian Government'.

In reply to my questions, Richard Neville said: "The speech went on site on the afternoon of March 13 and momentum quickly built up, so quickly that within the hour Melbourne IT was being called by Australian Federal Police and Greg Williams at the PM's office ... In many ways these times are worse than those in which we first met [when I wrote for his satirical magazine Oz in the 1960s, which itself was censored].

"The media (especially Rupert's) actually campaigns in favour of censorship and for tougher terror law ..."

 

JUNE 2006: THE Sub-section (3) alarm bell: The government's Security Legislation Review Committee was set up to publicly and independently review the amendments to some parts of the terrorism legislation. It is chaired by retired Justice Simon Sheller and is resourced by the Attorney-General's Department. It made what I consider one of the most important criticisms of the anti-terrorist legislation in relation to freedom of expression:

... the tension between civil liberty and national security is considerable and perhaps more marked than ever if only for the reason that human rights are now better understood and recognised, not only nationally but internationally ...

The Attorney-General's Department submitted that sub-section (3) should be omitted from the definition of "terrorist act" to achieve greater clarity ... Subsection (3) expresses what many critics of the legislation would regard as an essential protection of fundamental rights such as the right of free speech. Its omission in those circumstances is unthinkable. The SLRC is of the view that to ensure the protection ... the sub-section should remain.

The Committee's report went to the government in June 2006, and by September no action had been taken on its recommendations.

 

JULY 10, 2006: The banning of books: Attorney-General Philip Ruddock referred the eight books earlier cleared by the AFP, DPP and Classification Board to the Review Board of the Office of Film and Literature Classification, which re-examines decisions of the Classification Board.

It unanimously banned two of the books – Defence of the Muslim Lands and Join the Caravan, both by Shahee Dr Sheikh Abdullah Azzam (Assam Publications, London, 1996; new edition, 2002) – on the grounds that they promote jihad (holy war undertaken by Muslims against unbelievers) and incite terrorism.

The publisher's foreword states that the books bring "together verses from the Qur'an, authentic ahadith[Islamic rules and regulations] and quotes from the books of over fifty classical scholars in order to explain a number of misunderstood issues on the subject of jihad".

In the language of the Board, the books "have been refused classification". This means that they can no longer be sold within or imported into Australia. The Board gave the other six books "unrestricted classification". The Review Board concluded:

Defence of the Muslim Lands promotes and incites in matters of crime or violence, specifically terrorist acts and martyrdom operations ... While the document was written in 1984 and much of the content was regarding the jihad in Afghanistan, this revised edition was published in 2002 with a publisher's forward explaining how it is just as relevant today in Islamic conflicts all over the world ... There is also some level of instruction on how to go about martyrdom operations and their benefits on pages sixty-four and sixty-five. This is not detailed, however, in the context of the document as a whole, and due to the tone of glorification and justification of these martyrdom operations, this has increased.

One of the statements in the book which worried the Classification Review Board says: "Jihad and the rifle alone. No negotiations. No conferences. No dialogue." This reminded me of those Right-to-Life anti-abortion campaigners who use the bumper sticker "We don't listen. We don't discuss. We don't negotiate."

The most explicit instruction in Defence of the Muslim Lands is about a page in length, and is not typical of the rest of the book. Appendix C is entitled "The Islamic Ruling on Martyrdom Operations", and the description of martyrdom operations is specific. It states in full (and constitutes the pages central to the ban):

The form that (martyrdom or self-sacrifice operations) usually takes nowadays is to wire up one's body, or a vehicle or suitcase with explosives, and enter into amongst a conglomeration of the enemy, or in their vital facilities, and to detonate in an appropriate place there in order to cause the maximum losses the enemy ranks, taking advantage of the element of surprise and penetration ... another technique is for an armed mujahid to break into the enemy barracks or area of conglomeration and fire at them at close range, without having prepared any plan of escape, not having considered escape a possibility ...

As for the effects of these operations on the enemy, we have found, through the course of our experience that there is no other technique which strikes as much terror into their hearts, and which shatters their spirit as much. On account of this they refrain from mixing with the population, and from oppressing, harassing and looting them. They have also become occupied with trying to expose such operations before they occur which has distracted them from other things. Praise is to Allah. On the material level, these operations inflict the heaviest losses on the enemy, and are lowest in cost to us. The cost of equipment is negligible in comparison to the assault; in fact the explosives and vehicles were captured war-booty such that we return them to the Russians in our special way.

That's as strong as it gets. I think anyone who watched television would know this much. At its meeting in June 2006, the Review Board received an oral submission from the New South Wales Council for Civil Liberties in addition to its written submission, although the Council considers that it had a very limited opportunity to make its case and the Review Board did not heed its submissions. It considers the banning of these books unnecessary and counter-productive: "While the material in question may be politically and socially controversial, as it does not present a threat to Australian society, it ultimately serves an educational purpose. The material provides people in Australia with insight into the views that underlie the current political climate and the motivations of those that oppose the liberal western tradition."

The Council has filed an appeal with the Federal Court against the ban.

 

FRANK MOORHOUSE DOWNLOADS the banned books: While writing this essay, I downloaded both books from the internet.

I have read them. I downloaded earlier editions, and also looked at the editions examined by the Review Board. I find the Board's findings and media releases misleading. There are no instructions, for instance, on how to make a bomb. Both books read to me as theological guidance about when the joining of armed jihadis permissible under Islamic law. They read more like, say, a Catholic theological text on what constitutes a just war.

When I told my friends that I had downloaded the books from the internet and printed them out, they said I should expect a raid from ASIO or the Attorney-General. That we should make jokes about this – if, indeed, that is what they were – and that this could be a possibility also reflects an uncomfortable atmosphere of wariness.

From my reading of Join the Caravan, I thought the most dangerous lines for an Islamic youth to read were: "Do not think glory to be a wine-skin and a songstress, For glory can come only through war and severe fighting."

If I were an Islamic youth, I would say: "So they have wine skins and songstresses – sounds good to me. Maybe a better proposition than joining the jihad."

These are the first books banned in Australia since 1973.

 

JULY 2006: THE Attorney-General calls for tougher laws to ban extremist books: Philip Ruddock was not content with having banned two of the eight books: he wanted more.

Following the refusal of the Review Board to ban the other six books, he called for tougher laws to ban "extremist" books. He raised the issue at a ministerial meeting of Attorneys-General in July 2006. There was some unwillingness by the states to go along with his request, but they agreed to draw up new guidelines.

Along with material which "promotes, incites or instruct in matters of crime or violence" and which "urges or advocates" terrorist acts, Ruddock asked the states to ban material "counselling, urging, proving instruction or praising terrorist acts". But he added: "We are not about curtailing freedom of speech."

The Attorney-General does not seem concerned that it is not only the would-be, hypothetical terrorist who is deprived of these books: citizens are deprived of learning about the nature of terrorism, the thinking of Islamic extremists, their arguments, their psychology. I honestly found that the two banned books enlarged my understanding of the minds of Islamist fighters and the way its leadership thinks. I was not converted.

 

JULY 31, 2006: No speech is no free speech: I learned from the online magazine Crikey that blogger Katherine Wilson decided to check the allegations that the thirteen Muslim men arrested under Australia's anti-terror laws had been subjected to Guantánamo Bay-style conditions. After all, she says: "It's always tempting to suspect these sorts of complaints are cooked up to secure a sympathy vote." On the face of it, the allegation seems "pretty overblown", wrote Wilson. "So in April, I joined a group of people for a trip to Victoria's Barwon Prison, near Geelong, to learn more. We met some women who'd come to support their husbands and sons: the same men facing trial now. I was pretty concerned by what these women claimed. There was a limit to what they could say, because provisions in the new terror laws limit free speech. They were evidently nervous about saying much ..."

 

SO WHAT DO we have going on here? Security agents arrest a man who sat in a room writing an essay and putting it on the net; a well-known book and magazine publisher, a university professor, and a documentary film-maker have their computers cleansed; a man charged with nothing is threatened if he publishes a book; a radio station has a tape seized; young demonstrators are threatened under the sedition act; a well-known satirist has his website closed down; women outside a prison are frightened about "saying too much"; the government's Security Legislation Review Committee is alarmed that the Attorney-General wants to further restrict free speech; books are banned against much legal and other advice; and the Attorney-General moves the formerly independent censoring agencies into his department.

"Nervous about saying much?" I thought to myself. "This is not the sort of society I want to live in."

The banning is not only irrational it is also bad politics. The raids on the Islamic community and the banning of Islamic books provide a lesson to young members of the Islamic community who see these actions as exposing the hypocrisy of official Australian commitment to "free speech". We only ban their books. So far.

As for "discordant messages." Maybe what I am writing now is "discordant" to the Minister?

In the case of satirist, Richard Neville, it seems that the Prime Minister's office was sending another message: "See, we can do this if want to. We can shut down anyone." It is an example of a government – which has begun to confuse, intentionally or not, satirical attacks against it with threats to "the system", which gradually becomes expressed as threats "against our way of life".

And as for the case of the student Abrahamif surveillance there must be, the best is neither seen nor heard.

The wording of the Attorney-General's replies to reporters' questions on national security is in the tone of the emerging suppressive climate.

It is a "snakes on the plane" analogy. The airline public relations person denies it. The government authority says, "We will take care of it, no need for passengers to know more than we tell them". But the passengers say, "If there are snakes on the plane we need to know everything about the snakes".


Maxim: Restricting freedom of expression mimics the enemy: it is bad politics.

 

Remind me, why do we defend free speech?

 

"FREEDOM OF EXPRESSION may be described as the freedom par excellence; for without it no other freedom could survive," Enid Campbell and Harry Whitmore wrote in Freedom in Australia (Sydney University Press, 1966). This is an often-expressed sentiment which is probably correct, yet sometimes we do not make the best arguments for it.

As I see it, the liberal democrat strives to prove and to establish that, as a society, we can survive, flourish and be safe and orderly while still holding to and maximising freedom of expression. To a degree, the defence of freedom of expression is a question of political judgement, aspiration and faith.

Freedom of expression as it evolved in English-speaking countries was connected with the idea that individuals could have opinions or desires apart from those of their church and aristocratic leadership. Strivings for freedom of expression originally focused on political and religious opinion – what could be spoken in the contests for power and change – and then moved in our times to argument over which rights were necessary for the full exercise of democracy.

Coming from this is the liberal democratic position that freedom of speech is an assertion of what could be called humanness, the expression of the spirit of "being truly alive", truly free, truly confident, truly safe – which in turn seems to have evolved as a Western proposition about the psychological nature of personality.

And so some of us argue that it is also related to what might be called the mental health of a society. John Stuart Mill, in On Liberty (1859), made this observation when he wrote: "We have now recognised the necessity to the mental well-being of mankind (on which all their other well-being depends) of freedom of opinion and freedom of the expression of opinion ..."

Mental well-being in a society is a difficult thing to demonstrate, but we know it has to do with not being afraid of speaking out, of reading books we wish to read, of writing what we think is of value, of contesting, of scepticism, of humour.

Part of the social health argument is that the restriction of freedom of expression debases society because authoritarian methods engender abuse and social friction at what is sometimes called the "sharp end" of policy – where policy is implemented in face-to-face situations.

I have in mind the abuse and misuse which occur when officials and others feel empowered by the expressed attitudes of political and media leadership (not only by legislation) – officious bureaucrats, security people, police officers, individual soldiers, prison guards, customs officials, airport security guards. These interfaces are fragile enough at the best of times.

If it is okay for officers of the federal Attorney-General's Department or ASIO to raid bookshops and take over publishers' computers and to question students about their reading matter, if it's okay for airline passengers to be pushed around, then those prone to bigoted behaviour also feel so empowered and authorised.

We reduce abuse by putting in place legal procedures, by training, by selective recruitment to security agencies. But we do it most effectively when governments avoid blundering into the nerve centres of society, such as freedom of expression.

The temptation and pressure, at times of heightened civic fear, are for government agencies to jettison the nuances of legality – those legalities which were put in place because of the injustices their absence caused in the almost forgotten past. We then begin to accept invasion of privacy and the misuse of "clear and present danger" rules, and the creation of vague new crimes.

We have taken centuries of mistake and struggle and injustice to arrive at these rules, practices and customs which make for an open society. But more, the abandonment of these legal safeguards in the interests of public safety paradoxically makes the society more unsafe. We run increased risk of harm from wrongful arrest and mistreatment when they are not in place – a different form of harm from terrorism, but still physical harm or damage to people's minds: innocent people will be hurt.

 

THERE ARE ARGUMENTS for freedom of expression which say that it makes us politically and even economically more efficient, more effective as a society. Justice Brandeis of the US Supreme Court observed: "Freedom to think as you will and speak as you think are indispensable to the discovery and spread of political truth ..."

It is expressed in the term "the market place of ideas", the concept that the competition of ideas progresses the society through eradication of error, rethinking, correction and change. It is, in a way, an extension of the free market philosophy to the intellectual realm except that many exponents of the free market do not believe in free-ranging, robust freedom of expression.

The NSW Council for Civil Liberties used this utilitarian position to argue against banning the Islamist books. "A citizenry well-informed by a range of competing ideas and a variety of information will always be better equipped to deal with challenges posed by people who oppose Australia's liberal democratic tradition."

Passionate believers in a cause hope, of course, that by allowing their enemy's ideas to have free play they will be defeated, not that the enemy will win. People rarely change their mind on the spot in the heat of argument, but many exchanges – no matter how seemingly mindless and bitter and irrational – do involve an exposure to opposing ideas, and a transfer of information, and somehow a modification of our position. Perhaps.

US Secretary of Defense Donald Rumsfeld believes in the marketplace of ideas. On February 17, 2006 he stated: "In this war, some of the most critical battles may not be fought in the mountains of Afghanistan or the streets of Iraq, but in the newsrooms in places like New York and London and Cairo and elsewhere ... we have an advantage as well, and that is, quite simply, that the truth is on our side, and ultimately, in my view, truth wins out. I believe with every bone in my body that free people, exposed to sufficient information, will, over time, find their way to right decisions."

Although I would classify the US administration as moralistically authoritarian in its behaviour, it is restrained by the First Amendment.

 

THE ARGUMENT IS that, even if one example of censorship may be widely acceptable, it is sometimes best opposed because of the dangers of encroachment, the fear that suppression keeps on spreading beyond its first rationale.

When the Nazis came for the communists,

I remained silent;

I was not a communist.

When they locked up the social democrats,

I remained silent;

I was not a social democrat.

When they came for the trade unionists,

I did not speak out;

I was not a trade unionist.

When they came for the Jews,

I did not speak out;

I was not a Jew.

When they came for me,

there was no one left to speak out

We could add another line to Pastor Martin Niemöller's poem: "When they came for the Muslims."

Our experience with censorship is that it creeps as the censorship bureaucracy grows and finds work for itself by seizing on moral panic or public anxiety as an excuse. Canadian authorities began censoring sexually arousing gay publications, and eventually began censoring publications dealing with anal health.

This, more than ever, is a danger because of the growth of the security and espionage bureaucracy. Australia now has six agencies. The budgets of ASIO (responsible for covert national security policing within Australia), the Australian Secret Intelligence Service (responsible for covert overseas operations) and ONA (which reports to the Prime Minister's Office about national security) have doubled since 2001. Staff numbers have also more than doubled; ASIO had about five hundred officers five years ago, and now has over a thousand and is projected to increase to more than 1800 in the next five years.

We used to sing an American ballad with the line "there's a man going round taking names, and he decides who to free, and who to blame". I think that increased surveillance and intelligence-gathering is inescapable but, as we saw in the Cold War, part of the work of ASIO in particular was eventually directed into secretly policing free speech and interfering with writers, publishing and academic appointments.

 

IT IS TRUE historically that there have been reversals of creep. The 1970s shows that the banning of books does social and intellectual damage until, like some crazy animal, it consumes so much that it becomes ridiculous and self-destructs.

Censorship usually shrinks only when the censors lose enough battles, or – as with prohibition of alcohol – more and more people break the law, or the debates extinguish themselves and are considered unthreatening.

Recent Australian experience, despite the dramatic gains in freedom from the 1970s, shows that censorship will creep back. Since 1988, films have increasingly been banned (five in the last ten years – not many but too many), and for the first time since 1973, books are being banned again.

The Office of Film and Literature Classification raided the PolyEster Bookshop in Melbourne in November 2005, and confiscated videos and books relating to drug use. "I think it's because they say the books encourage the committing of a crime," owner Paul Elliott said. "I still sell The Anarchist Cookbook." The bookshop describes itself as "Anarchist, sex'n'doogs, totally weird shit". It was the second raid.

The number of mainstream novels, films and television programs which show people how to commit crimes is beyond calculation, along with endless plans of how to commit the "perfect crime".

Part of the creep is that restrictive legislation tends to expand the boundaries of vilification – of what those in power consider unreasonable opinions, polemical, passionate argument, the intemperate, satire, heretical humour, fictional exposition and representation. And we find media practitioners engaging in sub-legislative censorship – excluding material "just in case" it infringes the law and causes trouble for, say, the books or magazines they are publishing: what is sometimes called the chilling effect on public discussion.

During the Cold War, the restrictions on freedom of expression crept to involve not only members of the Communist Party but also what were loosely and dangerously called "fellow travellers" – non-authoritarian socialists, rebels with and without a cause, and so on.

The other consequence of the suppression of "unacceptable messages" is that it does not eliminate these messages, but rather gives them a potent subterranean existence beyond the reach of intellectual refutation by open discussion and social contest. It makes surveillance more difficult by driving the enemy underground.

Finally, the other bad consequence is that it further alienates the Islamic minority. The climate followed by the anti-terrorist laws have led to non-Islamic Australians demonising Muslims and their religion. Arabs, Jews, Israelis and others "of Middle Eastern appearance" have felt denunciation and abuse.

In the non-Islamic community, censoring of the Islamist books indirectly confirms and authorises racial and ethnic prejudice among citizens who are so inclined.

 

Censorship is wrong-headed

 

THE CORE PROBLEM is that the simple thinking behind censorship misunderstands the nature of communication. Censors believe that they understand the message that is being sent, the message that is being received and what the effect of that message will be on the recipient. In truth, they are all unknowable.

In story-telling, as in all communication, it is not possible to know what is being received and taken from a story. Even in the most basic story-telling, a person may identify with all – victim and aggressor, child and parent, male and female – or none of the characters.

To put it bluntly, the receiver of a media message modifies and interprets it. Those who study communication have long shown that there cannot be a "solitary" or "virginal" recipient of a media message – not even a child. Communications theory tells us that, although we might read or watch "alone", we receive the message through social and personal screens put in place by the wider society as well as our primary groups and the experiences which formed us – family, friends, education, workplace, ethics.

People are not sponges. In a relatively open society, every message is in collision. Even in the most closed of families or sects, forbidden messages ooze through. Only totalitarian states are single-message, and then things go horribly wrong. Paradoxically, censorship systems always edge towards the creation of "single-message" or single-morality states.

The publications and broadcasts of those who support terrorism do not so much cause terrorism as reveal its nature. That a book would make someone a terrorist is like using the defence in court that "the Bible made me do it".

One book can make a difference to our thinking, but only if it fits with an upbringing, a culture within our primary groups and a mass of other influences and social conditions. We may feel that a book or a speaker's words have "changed our lives", but only if the book or the speaker crystallises the myriad influences and unconscious processes which have formed our thinking and which have led us to the particular book or particular speaker at this time.

Yes, media does make up part of the confluence which forms our personality and our attitudes, but mainly we choose it because it reinforces and endorses our predilections.

We do evolve through study and observation and intake of messages, and that is why censorship is not in our interests as informed citizens. In attempting to block media reinforcement of anti-social behaviour, governments simultaneously blind their citizens. We are denied the full picture.

Regardless of how obnoxious some films and publications are, no government or committee can ever be trusted with choosing which books we can read or which films we may see. Would the banning of Mein Kampf have stopped the rise of the Nazis? Could we understand the Nazi mentality without knowledge ofMein Kampf? Could we understand communism without having read the Communist Manifesto?


Maxim: Censorship is bad science; bad for public awareness.

 

SOME EXCEPTIONS TO free speech are accepted by consensus: information which endangers the armed forces in times of conflict (this does not mean the suppression of debate about the rights or wrongs of a conflict or the suppression of the views of the enemy); misleading, false product information which might be physically injurious; the spreading of information useful to those who would inflict physical violence on the society (I have in mind information about, say, how to make postal bombs); the suppression of the names of children in juvenile courts; and suppression of paedophile information networks which are intended to lead to sexually abusive behaviour against children.

Some exceptions to free speech are more contentious – it is still possible to be held in contempt of court or Parliament, rules which in my view should be abolished given that we are a sophisticated and robust society. Information on suicide methods is still banned. Technical information on the weapons systems of our armed forces is probably best safeguarded from the public, although some pacifists would want to be free to disrupt war plans. During the Cold War, an organisation called Spies for Peace, believed making scientific military information public would lead to a safer world by taking the advantage away from any single warlike state.

Then there is the slogan "With freedom comes responsibility". The question has always to be asked: "To be responsible to whom? In whose interests?"

Editorial judgement is not censorship: it is usually tied to professional assessment of what the audience wants or can bear. Mainstream media professional codes try to ensure that all stakeholders get a fair hearing, that reporters are trained in techniques for gathering a picture of what accurately seems to be the case, restrain their known biases and that, if reporters offer an opinion, it is empirical counsel rather than an insinuated ideological position.

But tuning to a particular audience, and by so doing excluding some material, information and opinions and including others, is not censorship.

As editors or writers, we cannot always be asking ourselves: "How will this be read in Tehran?" although, because of the internet, we must assume that it will be read in Tehran – as the Danish cartoons demonstrated. The assumed audience boundaries for any information have been fractured by the internet. In my view, the demand that journalists or artists be "responsible" is usually the state asking them to do the censoring. It is more insidious because it is silent and hidden. As we would have said back in my Balmain anarchist days, it is the "state within".

I would argue, however, that those who are given privileged access to limited public communication networks such as radio and free-to-air TV should be required to behave with civility and professional fairness.


Maxim: Restricting freedom of expression does not diminish the threat: it diminishes the citizen.

 

Sticks and stones

 

THE FIRST PROBLEM of the freedom of expression debate is that of racial and religious vilification laws – or what is called "hate speech" – which are connected to the anti-terrorist legislation and to ideas of social order.

We all wish that hate speech did not exist. There are very distasteful, stupid, infuriating and threatening things said. Civic restraint is a hard lesson to learn, both by citizens and by governments, and it is never learned by loonies and bigots.

Some people, including American theorist and maverick Stanley Fish in his 1992 essay There's No Such Thing as Free Speech (Oxford University Press) and members of the US Supreme Court, have argued for two classes of speech – a lower order and higher order. The lower order would include things such as invective and racial slurs, while the higher order would include areas such as political and religious discourse. I suppose I shy away from this distinction because of the difficulty of making it. I also tend to see "lower order" speech as inarticulate, imperfect discussion (if never "discourse").

Literary group English PEN launched a campaign in January 2005 to stop the British Government introducing legislation that could make it illegal to express provocative views on a person's religion. It argued in an open letter to the Home Secretary:

... the proposed amendment to the bill is misguided ... It creates a climate which engenders events such as the recent Sikh riot in Birmingham. Here a violent mob, on the grounds that a play offended their religion, successfully prevented its performance, acted as censors, and threatened the life of its author.

However, the signal the offence clause sends out to religious leaders is broad. It serves as a sanction for censorship of a kind which would constrain writers and impoverish our cultural life. Rather than averting intolerance, it would ... encourage the culture of intolerance that already exists in all religions. Finally, as writers of many faiths and none, we must emphasise that if religious leaders had their way, we would have little literature, less art and no humour.

The Australian experience with religious vilification legislation has been cited in the British debate. In 2005, the Islamic Council of Victoria v Catch the Fire Ministries Inc case – the first under Victoria's Racial and Religious Tolerance Act – saw an evangelical Christian group found guilty of the vilification of Muslims because, in summary, it proclaimed in a seminar, newsletter and article that Muslims should be regarded as untrustworthy because Islam authorised them to lie to facilitate the spread of their faith.

The case was first decided in favour of the Islamic Council of Victoria; however, an appeal against was heard on August 23, 2006 and the justices reserved their decision.

This is an example of the government requiring the courts to decide what is acceptable truth.

Salman Rushdie's life was threatened by Islamic extremists because of his novel The Satanic Verses. He required years of special police protection. Opposing religious vilification laws, he said recently: "The idea that any kind of free society can be constructed in which people will never be offended or insulted is absurd. So too is the notion that people should have the right to call on the law to defend them against being offended or insulted. That seems to me a crucial distinction: people must be protected from discrimination by virtue of their race, but you cannot ring-fence their ideas. The moment you say that any idea system is sacred, whether it's a religious belief system or a secular ideology, the moment you declare a set of ideas to be immune from criticism, satire, derision, or contempt, freedom of thought becomes impossible."

The problem lies in interpretation: zealous public intervention by pro-censorship lobby groups which in turn push the police into action waste time, unfairly catch people up in legal action, or even lead to temporary loss of liberty.

This may be seen as "part of the process" of establishing freedom of expression, but if the legalistic tangle is made dense enough and expensive enough, it impedes freedom. John Stuart Mill argued:

I do not pretend that the most unlimited use of the freedom of enunciating all possible opinions would put an end to the evils of religious or philosophical sectarianism. Every truth which men of narrow capacity are in earnest about, is sure to be asserted, inculcated, and in many ways even acted on, as if no other truth existed in the world, or at all events none that could limit or qualify the first. I acknowledge that the tendency of all opinions to become sectarian is not cured by the freest discussion, but is often heightened and exacerbated thereby; the truth which ought to have been, but was not, seen, being rejected all the more violently because proclaimed by persons regarded as opponents. But it is not on the impassioned partisan, it is on the calmer and more disinterested bystander, that this collision of opinions works its salutary effect.

 

THE ONLY NEW argument in favour of freedom of expression which I've come across while writing this essay was constructed by John Durham Peters in his book Courting the Abyss (University of Chicago Press, 2005). He calls it "abyss-redemption", and sees social value in looking at that which is ugly, frightening and shameful about the human species – gazing unflinchingly at evil, whether visiting the German concentration camp sites or listening to a racist speaker. I certainly learned from reading the two banned Muslim books. Peters quotes Emerson, who says "it behoves the wise man to ... familiarise himself with the vision of violent death".

An example of turning away from the abyss comes from the 9/11 experience and the attempted removal of images of the two hundred or more people jumping from the twin towers from the media record, and then the denial by some authorities that anyone jumped -"they were blown out". This distortion of reality was intended to create an image of American heroic solidarity in the face of the threat, and to avoid the suggestion of cowardice or immoral suicide.

We all know how ugly hate speech can be, yet there is no comfortable, pragmatic, legal answer to it. If – as I do – you come from a mainstream, privileged ethnic group, and have mixed and lived among tolerant sub-groups, you rarely experience it. But as a writer (and personally) I have had media, parliamentary and public abuse directed against me. No matter how resilient and protected you feel, it is still disturbing.

It would be almost intolerable if it were directed against someone every day in everyday situations – something which less privileged people can experience.

The nearest to a pragmatic argument for not trying to criminalise hate speech is the problem of erosion of boundaries and definition of hate speech, fiction, satire, humour and polemic.

The playground adage, "sticks and stones may break my bones but names will never hurt me", is a way of giving a child words as armour to protect them and prepare them for life in a robust, free-speech society. Words can hurt, but the adage remains a good basic rule.

In a case this year in Western Australia, a white woman said she was not offended by some Aboriginals calling her "a white slut". She told the court that she put it down to "a schoolyard insult" (this came up after the police took the matter came to court because the girl was also assaulted by the Aboriginal group).

Professor Meaghan Morris, in "Sticks & Stones & Stereotypes", a fine essay about the nature of speech codes (published in Phillip Adams' edited collection The Retreat from Tolerance, ABC Books, 1997), argues that what is dismissed as "political correctness" is one way we reduce the ugly use of hate speech in day-to-day life.

It is not a bad thing that hate speech is frowned on, or that people are rebuked or ostracised for it: it is a bad thing to bring the law into it, which over-complicates, trips up and intimidates and so affects the fabric of freedom of expression.

Morris argues that there is nothing wrong with "speech guidelines" (not enforced codes). "It boils down to four basic principles," she says, "... don't harp about people's differences when it isn't necessary; do try to treat everyone equally and fairly; don't use euphemisms for disabilities or make jocular remarks to people you don't know about their race, their looks, or their sexuality; do call people whatever they prefer to be called, and if you don't know, ask them."

We also hope that an ethos of civility ultimately overcomes hate speech – that it is compensated for by apology from those third parties who witness it, by spontaneous citizen defence of the targets in workplaces and public places, and by the expressions of sympathy and solidarity by fellow citizens to the victims.

During the Pauline Hanson One Nation campaigns, laden with racist overtones, one Asian woman told a reporter that her mouth was tired from smiling back to people on her train who gave her encouraging smiles. I too remember going out of my way to let those of Asian origin know that I did not support One Nation.

Then there is the solution of television personality Andrew Denton: "Form a group of fundamentalist moderates and our job will be to travel the world and slaughter everyone who can't see both sides of the argument."


Maxim: Policing hate speech is an even bigger problem than hate speech.

 

Fighting words

 

IN MY EXPLORATION of freedom of expression, I found that the second hot spot in the debate is incitement to violence. Is incitement to violence a different class of free speech, and should it be censored?

Legally, two types of incitement are talked about: that which incites to violence in localised and specific sites and atmospheres such as a bar or a neighbourhood; and that which incites in a generalised, national or international way.

I agree with censoring or placing obstacles in the way of speech that has no purpose other than to instruct in techniques of violence (though I can see that all martial arts manuals and firearms manuals may be suspect) – speech that places us, me, you in real harm's way.

The fighting words doctrine was first articulated in a judgment of the US Supreme Court in 1942. Chaplinsky was convicted of violating a New Hampshire statute that prohibited the use of offensive, insulting language towards persons in public places after making several inflammatory comments to a city official. The court upheld the statute as constitutional, stating:

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libellous, and the insulting or "fighting" words – those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order.

Yet, despite its earlier decision, the Supreme Court has not subsequently upheld any convictions for fighting words, and instead seems to have moved to the minority opinion of Justice Holmes, who said: "Every idea is an incitement to somebody ... Since one's beliefs are subject to change ... since the course of change is unpredictable, it would be unwise to institutionalise beliefs we may not hold at a later date, instead we should leave the winnowing process to the marketplace of ideas unregulated by transient political pressures ... that merely causes anger or outrage does not amount to fighting words."

The court concluded that speech is protected unless the expression is "likely to produce a clear and present danger of a intolerable evil that rises above mere inconvenience or annoyance", and explicitly stated that it would not assume that certain words inevitably provoked violent reactions; rather, its analysis focused on the context in which the words were uttered, not merely the words themselves.

John Stuart Mill wrote a century earlier: "Strange it is, that men should admit the validity of the arguments for free discussion, but object to their being ‘pushed to an extreme'; not seeing that unless the reasons are good for an extreme case, they are not good for any case."

A more pragmatic reason for not restricting this form of speech is that, by its existence, it assists the security agencies to more quickly identify the potential threat.

Some types of violence and illegal behaviour have been accepted by the liberal democratic tradition, such as armed rebellion against oppressive governments, civil disobedience, secession, uprising against invading force or an occupying force, and illegal behaviour such as strikes, refusal to obey orders, just mutiny, unpermitted publication, publishing banned material, whistle-blowing, and leaking of documents. It is unrealistic to think that a government with authoritarian tendencies is likely to tolerate many of these.

 

Three dangerous words

 

THERE ARE THREE key words (and their synonyms) in the anti-terrorist legislation on which the new threats to freedom of expression pivot. As mentioned already, they are urging, assisting and glorifying. Arguments over legal interpretations of words quickly fall out of the court room into the world, where they are interpreted by writers and editors – those who professionally work with words – as well as by all of us as citizens who also argue and live out our lives by language.

With all due respect, legal argument over these sorts of words in this sort of climate can become Jesuitical, and in fact is beyond legal resolution. While the pragmatic sense of juries is fairly reliable, the jettisoning of the legislation around these words is the safest path.

In the examination of the dangerous words, I draw heavily on the thinking of Professor David Weisbrot, who summarised the Australian Law Reform Commission's (ALRC) position on the free-speech problems surrounding the words.

The ALRC was established in 1975 as a statutory corporation, and it conducts inquiries into law reform at the request of the Attorney-General. While accountable to the federal Parliament for its budget and activities, the ALRC is not under the direct control of the government. The ALRC recommendations provide advice, but do not automatically become law. However, this body has a strong record of having its advice taken up.

The first word is urging (which also sometimes includes the words incitement and counselling). The ALRC accepts the offences of "urging force or violence", but wants the government to seriously limit the ways in which these offences will operate. It argues that the laws should make it clear that a person charged with the offence must have intentionally – that is, directly – urged the use of force or violence, and also at the same time intended that the violence would occur.

The Commission recommends that juries be instructed to take into account whether the communication was an artistic work, or made for academic or scientific purposes, and whether the communication was in the public interest. It also wants communications which relate to an industrial dispute exempted from anti-terrorist legislation.

The ALRC points out: "Considerable concern has been expressed about the new ‘sedition' offences of urging another to ‘assist' an enemy engaged in armed hostilities against the Australian defence forces." It suggests a number of critical changes to the anti-terrorist legislation.

It says: "There is significant concern that such a blanket prohibition on conduct that ‘assists' the enemy impinges on freedom of expression, to the extent that it might be understood to include dissenting opinions about government policy. For example, it may be said that strong criticism of Australia's military interventions in Afghanistan or Iraq ‘gives aid and comfort' to (or ‘assists') the enemy."

The ALRC proposes that the law be reframed to make it clear that the offences must intentionally and materially assist an enemy to wage war on Australia or to engage in armed hostilities against the ADF.

It argues that rhetoric or dissent do not amount to assistance. The assistance must be of the sort which enables the enemy to wage war or engage in armed hostilities – through, say, the provision of funds, troops, armaments or strategic advice.

Earlier this year, the British Government made it a criminal offence to engage in the encouragement orglorification of terrorism. Glorification is defined to include "any form of praise or celebration". This law has been highly controversial, and drew criticism in the House of Lords and the [Parliament's Joint Committee on Human Rights on the grounds that the terminology is too vague, there is no requirement that the person intended to incite terrorism and the prohibition intrudes into free speech.

The ALRC agrees that it is undesirable to introduce an offence of glorification or encouragement of terrorism here. It says that "an offence of glorification of terrorism could be an unwarranted incursion into freedom of expression".There is something of a dodge by the ALRC here because it chooses to ignore the fact that the Attorney-General's Department believes that the existing Australian law already "appropriately encapsulates ... glorification of [terrorist] acts".

I find the ALRC's legally nuanced definitions of assist and urge acceptable but – as it does – I worry about the word glorify.

The courts are an honourable backstop of high integrity in this country, but the aim of legislation should be to ensure that, as far as possible, freedom of expression should not have to defend itself, should not have to reach the courts.


Maxim: The possibility of legal action can suffocate freedom of expression.

 

Curiosities of free speech

 

WRITING THIS ESSAY has led me to discover what I have called the curiosities of free speech, and here I owe a debt to the perverse thinking of Stanley Fish.

Is free speech really part of the Western tradition and heritage in the way we proclaim? Why do we claim that it is "part of the Western tradition" when we are still arguing about it and fighting for it? Is it what our forebears fought and died for? Were they fighting for sexually explicit free expression at Gallipoli? For the right to be blasphemous? Was it ever a war aim? Was it ever the driving motivation of those fighting world wars or other conflicts?

In Australia, not everyone advocates wide-ranging freedom of expression. They never have.

As noted already, the referendum to ban the Communist Party divided Australia down the middle – 2,317,927 voted in favour, 2,370,009 against. The decision hung on the votes of just 52,082 people.

Australians would probably say quickly that they are, in principle, for freedom of expression, and probably have in mind the freedom to criticise the party in power. And if presented with tough examples of freedom of expression – say, in the arts – they would say: "Ah, that is not what I mean by free speech." Most are probably not in favour of wider free speech, and they tend to blow whichever way the current moral or political panic suggests.

The most extensive survey I could find on the anti-terrorist laws is a Foxtel poll in February 2006: 72 per cent said the anti-terrorist laws were too lenient, while only 17 per cent said they were too harsh.

Most Australians are for wide freedom of sexual expression. Surveys of Australian adults since at least 1992 have shown support for the availability of X-rated material (67-83 per cent). Nevertheless, X-rated material cannot legally be sold or exhibited in any state, although it is available in the territories.

Despite the grand declarations over the last few hundred years, there has been a never-ending struggle for free speech. The "Western tradition" is a tradition of dispute about free speech, not a free speech heritage. In the persistent historical practice by governments, we in fact have a Western tradition of suppression of free speech. In the English culture, free speech fights go back to the 1600s at least. There has only been one golden age for free speech, which was the 1970s (and maybe Elizabethan England).

Professor Julius Stone, discussing the UN Charter, described the Western relationship to free speech as being "the long wavering of English legislative and judicial opinion with regard to ... the birthright of freedom".

Why do we in the West say it is a "universal right" or a "birthright" when overwhelmingly most people in the world do not feel that way, do not value free speech as some of us conceive it?

It is a concept first formulated by the philosopher John Locke, who enumerated "rights which humans are conceived to have in virtue of their humanity – not from law or convention". Freedom of expression is a human convention which philosophers and others have formulated, and about which they have attempted to convince their fellow humans.

So far unsuccessfully.

 

THE SECOND CURIOSITY is about agenda. Is anyone ever fighting just for free speech, or are they always fighting for another agenda and using free speech as a temporary ally or as a cloak? Stanley Fish's core argument is that when we fight for free speech we are always fighting for something else. There is always another agenda. When the communists were fighting for freedom of speech in the 1950s, they were fighting for the conditions which would allow a communist state to emerge. They were not for freedom of speech within a communist state. The communists would not fight for free speech for others. Nor would Islamists. Or most fundamentalist Christians.

When many of us were fighting for free speech in the 1960s and 1970s, we were fighting for something called "sexual liberation", for the rearrangement of society in many ways including greater sexual freedom. But this was a fight where free speech was one of the direct ends. It was a requirement for and basis of the other wider agenda of sexual liberation. Fish is not tight in his argument here. There are some people for whom freedom of expression is the central issue – some writers and some in the arts (not puritanical writers, not religious artists) – and some pure libertarians.

What, then, is the other agenda underlying the current free speech campaigns?

If I were to identify the other agenda of some of those opposing the restrictions to free expression during this national security crisis, it would be that it is used as a way of expressing general resistance to the Bush/Howard/Blair uses of military power, their world-view and their foreign policies.

Some of those using the free speech cloak are expressing rage and frustration with this foreign policy. They are motivated at least as much by political opposition as a desire to protect free speech.

You can be both.

 

THE LAST CURIOSITY is that those who defend free speech are not necessarily believers in it. In the three cases of free speech issues over the last fifty years, neither the communists nor those currently most directly affected by the national security legislation (the Islamic community) care about free speech. They are fighting for other things, are often hostile to free speech in their own organisations, but need it to achieve other ends. Similarly, fundamentalist Christians are likely to advocate censorship of sexual and blasphemous material.

Curiously, the things which Islamist terrorists oppose are also those things which most organised religions also detest about Western society – homosexuality, freedom of choice, non-marital sex, materialism, immodesty, aspects of mass media, freedom of the arts, female equality.

These positions are also to be found on the edges of both sides of Australian politics. In my understanding, the real clash of civilisations which is looming is between the libertarian, secular traditions of government and theologically-based agendas, whether they be Islamic or Christian or other.

 

Security before principle

 

THE INCIDENTS THAT I have analysed as infringements of freedom of expression are, I think, part of a mind-set in the government, and to a large degree also in the opposition.

I could have included as an incident the draft-in-confidence Anti-Terrorism Bill of 2005. I am concerned that the Attorney-General, the Cabinet and public service advisers were able to create a document such as the original Bill, which showed such insensitivity to – even ignorance of – the theory and history of freedom of expression. In its drafting, the Bill abandoned what should have been inherent scruples.

The Attorney-General kept the draft confidential until the ACT Chief Minister posted it on his website and invited comments. That the legislation designed to restrict freedom of expression was made available by the most accessible of technology was a lesson lost on those in government who reacted with ferocity to its release and then excluded the ACT Chief Minister from discussions of the legislation.

Others closer to government are also worried about the mind-set of those drafting the legislation and the behaviour of the government empowered by it. The Security Legislation Review Committee noted this in its report:

The history of law and government around the world is replete with examples of official exercise of power without adequate regard to the effect on the civil rights of members of the public. Though those examples that occur in Australia are arguably individual and isolated, they are nevertheless real. It is not unfair to observe that, at times, submissions made by government agencies in favour of the current legislation did not adequately acknowledge that risk ... Those submissions, while emphasising the importance of human rights, at times passed over the invasive effect of particular legislation on human rights, and said little about the particular steps that might be taken by their agencies to alleviate such effects.

The Human Rights and Equal Opportunity Commission expressed similar disquiet.

This is worrying. Even if the government listened to all the advice from concerned parties and amended the legislation accordingly it would still be worrying because they have shown us how they think and the sort of society with which they are happy.

There is another dangerous manifestation of this thinking. In the Black Inc case, the publisher, the author, and others whose computers had been cleansed were asked by the Attorney-General's Department to sign a "Deed of Agreement" in which one of the clauses required the signatories never reveal that the act of censorship had ever occurred.

Carmel Travers and Andrew Wilkie say that they both refused and the clause was dropped, but as Wilkie says, "the very fact that they tried to get that signed was frightening." Even so, Wilkie did not feel it was safe to show me the rest of the Deed.

In the Khazaal case the terms of his bail require that he not speak about the matter to anyone other than his lawyers – a direct suppression of his freedom of speech.

We find the same mind-set in the 1950s, during the attempts to ban the Communist Party of Australia. The official case stated: "It would be impossible to put a communist out of a key industrial union position except by proving, by all the technical rules of evidence, that he had performed a specific act ... to track down what they are doing we need a security service of a special and secret kind ... Do you really think that we must under all circumstances concede freedom of speech to the enemies of free speech?"

Clearly, similar thinking is alive again. It is grim that the proponents are impelled by good intention: to protect public safety and to defeat a real enemy.

The government is not evil or stupid. But it could be argued that decent people are behaving badly or wrongly, acting on thoughtless authoritarian reactions or ignorance. The political dictum Salus populi suprema lex – security before principle – is dangerously alive.

 

INTERESTINGLY, SOME COLOUMNISTS have begun to dismiss those who are concerned about the limitations of freedom as "the civil liberties lobby". "The scaremongering Jeremiahs among Australia's civil libertarians have generated much more heat than light on the question of anti-terrorism legislation," was the view of Ted Lapkin, director of policy analysis at the Australia/Israel and Jewish Affairs Council.

If there was ever any civil liberty organisation in Australia strong enough to qualify as a lobby, I would have expected columnists (who are people who have a hugely privileged freedom of expression) would wish to identify with it. The civil liberty organisations are, in fact, state-based, small groups of lawyers and concerned citizens. There is no national organisation. I rejoined the NSW Council for Civil Liberties this year. I first joined it when it was begun by the late Professor Ken Buckley in 1963, but my membership had long lapsed.

In some of the expressed attitudes of the government and commentators in their defence of the retraction of freedom of expression, I detect an irresponsible, emotional drive to retaliation against the freedoms won in the 1970s – a revenge, if you like, against Whitlam.

These commentators may speak from a position of true anxiety about terrorism, yet their retreat from the classical aspiration towards freedom of speech – while sneering at those who react perhaps too loosely and rhetorically – reveals another agenda: an unwavering commitment to the government. They tend to see the civil libertarians as simply against the government they support.

In some cases, they are correct. But I would still expect columnists to be among those most concerned about freedom of expression. I prefer writers who react with a push-button response in defence of freedom of speech, especially when confronted by those who react instinctively or by personality in favour of suppression.

Those in power, or friends of those in power, like to see their opponents and critics suppressed, discomfited and disadvantaged, and often are happy when they disappear from the forums or lose their platform, their talents damaged or thwarted, whether they are part of the immediate threat or not. But it helps to have a threat.

The authoritarian personality, found so often – even in democratic governments – prefers, if it can, to enforce its positions rather than to face strenuous and frustrating arguments for hearts and minds. As psychologists have demonstrated, we are all inclined to screen out "dissonance" – challenge and interference – from our reality. Governments do it by these methods: censorship, removal of critics from positions of cultural influence, fiscal suppression and impairing the operations of organisations critical of them.

Add to this the widening use of confidentiality agreements and curbs on freedom of information legislation. As Andrew Podger, president of the Institute of Public Administration Australia and former public service commissioner, said in August 2006: "As the courts have widened the scope of Freedom of Information, governments and public servants have responded by limiting records, making records more bland and tightening security classification of records."

The eighteenth-century French penal code included escalating punishments for blasphemy. For the first offence, a fine; for the second, third, fourth and fifth offences, heavier fines; for the sixth offence, upper lip cut off; for the seventh offence, lower lip cut off; and for the eighth, the tongue removed. The English historian Lytton Strachey once commented: "After that the imagination of the law gives out."


Maxim: Instead of cutting off lips or cutting out tongues, governments suppress critics by cutting off funding.

 

The innocent have nothing to fear

 

THIS IS THE catch-cry of all law enforcement. However, it is not true: once caught up in an investigation, the innocent frequently become victimised and sometimes wrongly convicted.

Julian Baggini, editor of The Philosophers' Magazine, argues that the catch-cry is an example of "false dichotomy": "You are presented with a simple either/or choice. Either you're guilty, and so should be exposed; or you are innocent, in which case nothing will be exposed, and so you have nothing to worry about."

Philosophically, liberal democrats hold that the intrusion of police, security personnel and government in our daily lives should be kept to a very precisely formulated minimum. That the innocent have nothing to fear is used to authorise random and unlimited intrusion.

The point is that legislation which impedes freedom of expression does hurt the innocent by creating what civil libertarians would see as false offences, and by so doing degrades the life of the citizen. The restriction on policing agencies and the strong barriers between them and the citizen create this sense of social wellbeing and protect us (and yes, make it harder work to catch crooks).

This is heightened when the intrusions are to do with our freedom of speech and our freedom of association.

Another false dichotomy is the "give me liberty or give me death" slogan, which during the Cold War was stated as "better dead that red" (better to die fighting for the freedoms of democracy than to live under a totalitarian government).

Defending his new restrictive laws, Attorney-General Ruddock turned this completely around when he said (and the Prime Minister has said this too): "The most important liberty is life."

Life is not usually defined as a "liberty", but a pre-condition to the construction of "rights" – that is, for negotiated "living arrangements" of people in society once they have a life.

Fear of terrorist attack cannot be used as a single, overriding arbiter of all national policing policy.

To quote another classical statement of this position often wrongly attributed to Voltaire: "I disapprove of what you say, but I will defend to the death your right to say it." When we quote this, do we really believe that we would die for some of the things people say under freedom of expression? I doubt it. This is a favourite part of the rhetoric about the "Western tradition" and the "Australian love of free speech". It has become mantra without felt meaning.

Prime Minister Howard has stated that Voltaire's sentiment is "the cornerstone of Australian democracy". Somehow I don't think so.

 

Why then is the government doing this?

 

RACISIM IS ONE of the most carelessly used political expressions in Australia, and is sometimes used by civil libertarians in the present situation. There may be an authoritarian mind-set at work in the Australian government but it is not fascist (I hope I'm right about this).

There is value in using the Nazi-Italian fascist states as warning templates to test a nation state, including our own, and assess its directions or its tendencies. But it is tricky. To use textbook language, fascism means a single-party state, a powerful nationalist ideology, the suppression of all opposition, compulsory engagement of the citizens in political activities to support the party in power, political tests for appointments, placement of the military at the centre of national values, and often, expansionist policies.

But while in Australia there is not a fascist plan for total control of the state, say, as described in the Niemöller poem, bureaucratic creep driven by moral panic and threat does create an ever-enlarging censorship environment and with it a feeling of being unfree.

And Richard Evans in his 2005 book, The Third Reich in Power (Penguin) says something that I thought cautionary. Speaking of Germany in the mid 1930s he wrote, "increasingly rules were relaxed, laws dispensed with, scruples abandoned..."

Some are arguing that the threat is exaggerated by the present government as a way of keeping us in a state of fear which will in turn make us conservative in voting behaviour, reluctant to change government in a time of perceived crisis. As the humorist Hilaire Belloc wrote, "Always keep a hold of nurse/ for fear of finding something worse.". I consider this a far-fetched argument.

The most obvious answer (and the one I favour) is that we have a government which is wanting to show thatit is doing something about the terrorist threatBut the incidents and behaviour which I have analysed demonstrate that when it comes to freedom of expression doing something is not only irrational, but it also sets in motion many bureaucracies which come into bumbling ham-fisted friction with the citizens and the ethos. Bumbling too, can be dangerous.

And, as we have seen, it is what they choose to do that is frightening.

But the core rationale used by the government and many commentators for restricting freedom of expression and abandoning safeguards to civil liberty is that September 11, 2001, changed the world forever.

 

A new world

 

THE EVENTS OF September 11, 2001, when two aircraft crashed into the twin towers of the World Trade Center in New York, is taken by some media commentators to be a point of existential change in the universe. You have only to turn to the media on any day to grab a few examples of this perception. It is a dramatic thing to say, and many have said it – seemingly for the frisson of saying it. It is a journalistic flourish, and a dangerous one. An example is from a column by Janet Albrechtsen in The Australian on July 20, 2005 argued that "we need laws that may have been unthinkable before September 11, 2001".

If the terrorists get control of and use weapons of mass destruction, will the world have "changed forever"? Conceivably, a number of terrorist-executed nuclear explosions in the capital cities of the Western world could force us into a new type of situation.

But we have to keep reminding ourselves that the issue is not whether there is a threat: it is why freedom of expression has to be suppressed in the face of this threat.

The world-has-changed-forever proposition, if right, is vitally central to our discussion; if wrong, it is a very dangerous and reckless statement. Many governments have used the argument over the last century that the situation was "unprecedented", and that consequently all the wisdom and laws about free expression and civil liberty were no longer relevant (this is not to say that nothing is unprecedented, but calling something "unprecedented" does not necessarily justify change).

One of the parts of the "change forever" position is that terrorism is "wholly unlike ordinary crimes such as bank robbery, rapes, and murder", as visiting American professor Thane Rosenbaum said this year. How is it wholly unlike ordinary crimes?

It requires surveillance and intelligence work; it requires identifying possible suspects; it requires forensic work; it requires the marshalling of evidence; and it requires arrests and the convincing of the courts of guilt – all are involved in ordinary crime.

But even if it were granted that the world has changed forever, does that mean that the conditions of our civic life must necessarily go in the direction that those who seek serious changes in our civil liberties argue?

The-world-has-changed-forever talk would mean that events have changed the political or social fundamentals, which in turn requires changes to the arrangements between government and citizens, parliament and government, legal system and citizens, police and citizens, the freedom of artists and the media.

More specifically, this sort of talk calls for a serious shift of powers to the executive government, away from parliament, away from the legal system and away from the citizens, to the security services, the military, the civil police and to private security services – that is, towards a very severe authoritarian state.

Fellow at the Centre for Independent Studies, Owen Harries wrote in The Australian on May 15, 2002:

With all due respect, this was and is nonsense. It reflects not the reality of the matter but the difficulty that intellectuals habitually have in distinguishing between the state of their minds and the state of the world. It also reflects what philosopher John Anderson termed the ‘parochialism of the present', a condition resulting from a combination of ignorance of history and an egotistical insistence on exaggerating the importance of events that more or less directly involve oneself. Horrifying and atrocious as the acts of terror were, it should be remembered that they have happened at a time when people who experienced the Somme and Verdun, the Holocaust and Hiroshima, are still alive.

Paul Sheehan in Sydney Morning Herald, July 30-31, 2005, tried to bring some proportion to the assessment of the terrorist threat.

During past fifty years 134,000 people died on roads, tens of thousands were maimed or crippled and hundreds of thousands were seriously injury – all absorbed and normalised as the cost of the primacy of the motor vehicle in our culture. Compare the cost with the numbers of Australians killed in actual wars and terrorist attacks during the Cold war era and its aftermath – the Korean war, the Vietnam war, the Malayan insurgency, the East Timor intervention, the Gulf war, the Afghanistan war, the Iraq war, the World Trade Centre bombings, the Bali bombings and the London bombings. In all, this, the Australian death toll comes to slightly more than a 1,000...

The US Centre for Disease Control and Prevention says that an American has more chance of dying from falling off a ladder than from a terrorist attack.

It seems to me that radical Islamist terrorists are not a threat to "national security" as we usually conceive it – that is, likely to do great military damage to our nation state, or seriously disrupt day-to-day economic activity, or civic life. They are probably likely to be an occasional threat to us, to our safety, as Western individuals in a civilian life.

Of course, the world changes all the time – there have been remarkable shifts in the relationship, say, of the sexes, and from the impact of technologies, and in the realignment of allies, and in scientific advances.

The circumstances of living do change, but I cannot see that the fundamental civic values – say, aspiring to freedom of speech – have changed, at least, not in the vision and understanding of liberal democrats.

 

AS I WORKED on this essay, I saw that the internet played a part in quite a few of the incidents – Khazaal's posting of his document on the internet, the Prime Minister's shutting down of Richard Neville's site, my downloading of the banned books, the availability of books on the internet, posting the draft legislation, and so on. I became aware that the internet is perhaps an example of how the world has changed politically, universally, qualitatively, "forever".

It is at present argued that censorship is now a futile waste of time because everything that is banned, leaked or forbidden finds its way on to the internet (we should regret this in a way, because it makes, say, bomb-making just so much easier). This is not a philosophical argument against censorship, but may be, I suppose, called a pragmatic argument against governments wasting time on censorship.

The internet may be qualitatively different from other media or "common carriages" – those technologies offering service on a non-discriminatory basis, neutral as to use and user such as mail (mostly) and telephone (mostly).

The internet is at present an arena of open access for public expression, which is fairly much a technological anarchy without the possibility of full control by a government. According to my technical advisers, governments are passing control legislation which cannot technologically be enforced; it is therefore token action. Perhaps technological developments will ultimately place the internet under government control, but the feeling among technocrats is that it will always be a cat-and-mouse game with governments chasing wily nerds who wriggle free of control and spread their know-how to the world. The success or otherwise of China in controlling the internet will be a test case of government control.

Perhaps the speed and the breadth of the spread of information on the internet is so different to other technologies as to be a qualitative change.

If the internet is an arena of anarchy where anything can be said with limited possibility of policing, then we will see the end of all barriers to freedom of expression, good and bad. Governments and companies will be even further exposed by leaks, either made in error or for gain, or made by whistleblowers in the organisations who discover abuses and plots against citizens (and the bigger the security agencies, the more leaks about blunders and injustices there will be).

If, in reality, defamation, sexual imagery and fantasy, national security information, other types of secret information, government confidentiality, medical and pharmaceutical information, and privacy are no longer in the control of governments or subject to professional codes, should this cause governments or legal systems to abandon efforts to secure or police these?

Should we, as a society, now assume that there is no longer any possibility of control of internet communication? Already the mainstream news media are having trouble with their credibility as the internet reveals their deficiencies. On questions of national security, governments are being exposed as untrustworthy.

It could mean that, for a time, we live in two worlds – the older technologies, printing, radio, television (each of which, incidentally, has different controls and codes), and the internet where anything can be found.

In the bail hearing for Khazaal, arrested for making and possessing a book, his solicitor Christopher Murphy held up documents he had downloaded from the internet:

I hold here "The Terrorist Handbook"; I hold here the "CIA Improvised Sabotage Device" which teaches how to make bombs ... there is a lot of this stuff out there...

Bench: Mr Murphy you don't have to persuade me that terrorism and terrorist manuals have been generally around for a long, long time before Guy Fawkes and such...

It could well be that this is the last essay ever written about censorship. Censorship may be a dead issue. But not just yet.

 

The crossing of the line

 

SO WHERE HAVE we arrived at? I think the incidents of interference with freedom of expression create an alarming pattern. And in that pattern of behaviour I believe that the government has crossed a line.

As I have reported, so do the Australian Law Reform Commission, the Security Legislative Review Committee, the Human Rights Commission, the Press Council, arts and journalism organisations, and civil liberties groups.

I started this essay in part because I needed to test the old arguments we use in defence of freedom of expression, which had become rhetorical, unexamined and untested. I wondered whether they were adequate when faced with the deaths, woundings and destruction caused by zealots in cities such as New York, London, Madrid, Denpasar and Bombay.

Yes, we can survive as an evolving liberal humanist democracy without perfect free speech, but why diminish it? Why is the government doing this? I could find no reason within the terrorist threat (I can imagine no threat which requires that freedom of expression as I have outlined it need be restricted). I fell back on what I have called the authoritarian mind-set.

This authoritarian drift which I have described has already increasingly hit resistance, which will cause more legal conflict and challenge and rebellion from writers and the arts community. As ever, writers, journalists, songwriters, satirists, comedians and citizens will speak their minds and break the restrictive laws as they see fit. The government will probably have to send some of us to jail. And the government will increasingly be as much at war with its citizens as it is with the terrorists.

In the aftermath of the London train bombings, many praised Londoners' determination to go on with ordinary life, to get to work, to travel on buses and trains, and to ignore the threat (although, as one Londoner said sardonically in a radio interview, working people had little option).

It is the same with freedoms: we have to go on with defending and exercising these – especially when the Islamist terrorists and, infuriatingly, paradoxically, our present government are demanding that we should restrict these freedoms.

In the past, when we have lowered the standards of civil liberties and human rights – say, with the indigenous population, with the "white Australia" policy, during World War II with internment of those of German, Japanese or Italian origins, during the McCarthyist period of the Cold War, and in the recent behaviour of the Department of Immigration – grave injustices have occurred and we as a society have been shamed and later been forced to compensate and apologise.

We should heed the lesson from these errors against civility and justice. The rule is that lower codes of civil liberty inevitably do grave damage to innocent people by design, by accident or by abuse. And we should try to be just and humane in our conduct towards our perceived enemies and real enemies, regardless of their behaviour and their standards.

It is always better to treat matters of public order and safety with the use of the traditional processes of police detection and criminal investigation inside the traditional legal processes, rather than as matters requiring secret police, government regulation outside parliamentary discussion, appointed tribunals, and military solutions.

While conceding the need for increased surveillance and intelligence-gathering, those doing the surveillance have to be kept within strict oversight and publicly exposed when they endanger or abuse civil liberties. Precision in legislation is critical and surveillance should steer well clear of civil liberty and freedom of speech infringement, and be focused on behaviour which is dangerous to public safety.

Another way for the government to clear national security documents for publication which would be more trustworthy could involve writers' organisations and the media in oversight of a renovated, more sophisticated, D-Notice system. Such a system operated from 1950 to 1982, with consultation between the government and the media about publication of sensitive national security information.

It also seems prudent that Parliament examine making the oversight bodies – SLRC, OFLC and ALRC – responsible to Parliament and not to the Attorney-General. Increasingly, it is the Attorney-General who tells us what we can read and know.

The time, it is to be hoped, is gone by, when any defence would be necessary of the "liberty of the press" as one of the securities against corrupt or tyrannical government.

No argument, we may suppose, can now be needed, against permitting a legislature or an executive ... to prescribe opinions to them, and determine what doctrines or what arguments they shall be allowed to hear.

 

THOSE WORDS WERE written by John Stuart Mill in 1859. No, John Stuart Mill, the time has not gone by.

When in doubt, liberal democrats should opt for the widest freedom of speech as our default position – just as the medical profession opts for preservation of life. As I said earlier, the liberal democrat strives to prove and to establish that a society can survive, flourish, and be safe and orderly while still maximising freedoms of expression and those other freedoms which rest on freedom of expression.


Maxim: Whatever the risk, whatever terrorist action transpires in Australia, the case for freedom of expression remains unchanged except for one thing: to reinforce its centrality to civilised life.

Maxim: It is the best (and worst) of us as writers and as citizens who ultimately 
define our freedom of expression by what we do with it.

 

September 2006

From Griffith REVIEW Edition 14: The Trouble with Paradise © Copyright 2006 Griffith University & the author.

 

 

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 (seeDefending 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.

THOSE 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..."


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

Griffith Review