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War on Terror threatens solutions to terrorism

By George Williams and Edwina MacDonald - posted Monday, 2 October 2006


Australia’s response to the ‘war on terror’ is threatening academic freedom. Researchers run the risk of committing an offence and being jailed, or being brought in for questioning by ASIO. While the risk of jail is low, the lack of clarity in the law combined with its severe impact is leading to self-censorship.

Academic freedom is essential to the work of Australian universities. Their role in educating students and advancing human knowledge depends upon academics and students working and learning in an environment in which they can freely exchange ideas, challenge conventional wisdom and debate controversial issues.

However, recent changes to the Australian Research Council and the allocation of research funding allow for greater political interference. The pressure on universities to become more like commercial enterprises, such as the need to support core activities no longer funded by compulsory student union fees, is also a continuing cause for concern.

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Further threats have emerged after September 11. In the wake of the 7 July 2005 London bombings, the Federal Parliament enacted new sedition laws. The new offences include where a person urges ‘another person to overthrow by force or violence’ the Constitution, a state, territory or Commonwealth government, or the authority of the Commonwealth government.

The law provides a defence for a person who acts in ‘good faith’ in specified circumstances – pointing out errors in legislation, for example, or urging someone to attempt lawfully to bring about a change to a law, or publishing a report or commentary on a matter of public interest. The defence is limited and does not expressly include many forms of communication like artistic speech or academic or scientific discussion.

Academics are routinely involved in scrutinising and criticising government action and policies. Without an express exception for academic debate, it is uncertain whether academics will contravene the sedition laws. For example, would an academic commit an offence if he or she included in an exam question someone else’s words urging another person to overthrow a government by force?

It would be unlikely that the academic would be found to have intentionally urged another person to carry out such actions merely by publishing them in this way. However, the breadth of the offence leaves room for doubt. The offence does not require that the academic actually intend that the violence occur. Further, such an example would not fall within the good faith exception – an exam paper is not intended to bring about a change to the law and is not a report or commentary.

In cases where sedition laws do not apply, the government has been able to ban books on security grounds. In July 2006, the Classification Review Board ‘refused classification’ for two Islamic books, Defence of the Muslim Lands and Join the Caravan, that encourage suicide bombing and call for Muslims to engage in acts of violence.

In New South Wales and Victoria, for example, a person who sells a book that has been refused classification or who leaves such a book in a public place can be punished by up to two years in jail. Banned publications are also prohibited from being imported into Australia without the Attorney-General’s permission.

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Once a book is refused classification, an academic would need to apply for a special exemption from the Attorney-General to obtain it. By limiting academics’ access to books on terrorism, the government is also limiting their ability to understand and criticise the ideas expressed in them. It is likely that we will see an extension of these laws. The Attorney-General has announced that he is pushing for censorship laws to be reviewed to determine whether they deal adequately with the threat of terrorism.

Other sections of the Criminal Code make it an offence to possess a thing, or collect or make a document that is ‘connected with preparation for, the engagement of a person in, or assistance in a terrorist act’. The defendant must have known or been reckless as to the connection, but the offence is committed even if the document is not connected to a specific terrorist act.

The effect of such open-ended drafting is to expose to liability an academic who, for example, downloads for research purposes from the internet a document providing instructions on bomb construction. Because there is a substantial risk that other people may be using that information to plan some sort of terrorist activity, the person may be liable even though his or her reason for obtaining the document is innocent.

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A shorter version of this article was published in The Australian on 25 September 2006.



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About the Authors

George Williams is the Anthony Mason Professor of law and Foundation Director of the Gilbert + Tobin Centre of Public Law at the University of New South Wales.

Edwina MacDonald is based at the Gilbert and Tobin Centre of Public Law, UNSW.

Other articles by these Authors

All articles by George Williams
All articles by Edwina MacDonald

Creative Commons LicenseThis work is licensed under a Creative Commons License.

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