War on Terror threatens solutions to terrorism

The requirement that the academic collects the document with the intention of using it to assist in preparation of a terrorist act is a defence only if the academic can raise a reasonable possibility that, in collecting the document, he or she did not intend to facilitate or assist in the doing of a terrorist act. The prosecution must refute this beyond a reasonable doubt, but the defendant must argue his or her innocence first.

Academics may again run into trouble if they praise someone else’s terrorist act. Under the Criminal Code the Attorney-General can ban an organisation not only because it engages in terrorism but because it advocates the doing of a terrorist act. Advocacy extends to where an organisation ‘praises’ someone else’s terrorist act and there is a mere ‘risk’ that this might lead another person again to commit such an act.

An example could be where an organisation praises (perhaps in conferring an honorary degree) Nelson Mandela’s resistance against apartheid in South Africa (something that amounts to terrorism under Australian law). There may be a risk that this could inspire someone else in Australia or in other parts of the world to take up arms against a similarly abhorrent regime.

Even if academics do not commit an offence in carrying out their research or teaching, they can still be taken into custody and questioned by ASIO. It is not necessary that the academic is suspected of any wrongdoing, only that there are reasonable grounds for believing the warrant will ‘substantially assist the collection of intelligence in relation to a terrorism offence’ and that ‘relying on other methods of collecting that intelligence would be ineffective’.

An academic who is researching terrorist organisations or even just alienation in parts of the Australian community may interview people associated with such organisations. ASIO may be interested in such interviews but unable to obtain such a candid interview themselves. It is possible that they would use a questioning warrant to bring an academic in for questioning and obtain copies of their research and interviews.

This possibility is not remote. The Australian Federal Police has already used its separate powers to interview a terrorism studies student. In 2005, a Monash University student was questioned by the police after purchasing and borrowing books on Palestinian suicide bombings, a subject he was researching for his course on terrorism. Following this, the academic teaching the course, Dr David Wright-Neville, said he would warn his students that they were probably being monitored.

The Australian National University is developing protocols on how to deal with security agencies’ interest in academic research. It has warned its PhD students to inform interviewees, where relevant, that any information they provide might be passed on to security agencies.

An academic can also be detained for up to a week under ASIO’s powers if the Attorney-General is satisfied that if they are not immediately taken into custody they may destroy something they may be asked to produce. If an academic is to be questioned about their research, detention could occur where it is thought an academic might destroy their notes to protect an interviewee to whom the academic had promised anonymity.

It would be surprising to see academics charged with terrorism offences. Attorney-General Philip Ruddock has said he does not expect that ‘genuine’ academics would break the law. However, this is not clear from the legislation and there is no guarantee of how this or future governments will apply the law.

Regardless of whether academics actually commit terrorism offences, the risk can lead to self-censorship. Such laws inevitably have a ‘chilling’ effect on what academics say and the research they undertake. Academics are less likely to use robust critical speech about the ‘war on terror’ or may even shy away from undertaking terrorism research in the first place. When people do not have free on-the-spot legal advice, they may not act for fear of the consequences.

There is likely to be a further chilling of academic research if the government enlists the help of universities in policing terrorism. The government is having discussions with the Australian Vice-Chancellors’ Committee about a briefing paper that encourages universities to play a greater role in combating terrorism. This includes asking universities to watch suspect students, staff and their family members, and calling on researchers to share findings from sensitive projects with the government prior to publication.

Academics play an important role in ensuring that Australians are protected from terrorism. ‘Safeguarding Australia’, including ‘Protecting Australia from terrorism and crime’, is a National Research Priority for ARC funding. However, if academics do not have access to relevant books, cannot conduct interviews and fear that they may have to hand over their research to intelligence agencies, they may become reluctant or even unable to undertake research in the field.