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Seen but not heard

By George Williams - posted Friday, 4 August 2006


The ASIO detention regime makes it an offence to disclose "operational information" about a person's detention within two years of that person being detained. Operational information is defined very widely to include information that ASIO "has or had" or "an operational capability, method or plan" of ASIO's. Revealing such information, even the mere fact that someone was detained, can incur up to five years' imprisonment. There are no exceptions for fair reporting, such as a story that reveals that ASIO has abused its powers or mistreated (or even tortured) detainees.

If someone is mistreated while being detained, we may have to wait at least two years to find this out. Combined with the secrecy that surrounds so many of our new terror laws, and the fact that it is a crime to even identify an ASIO officer, this is a grave threat to government accountability.

Then there is the sedition law passed in Australia late last year. This law criminalises people for what they say if, among other things, they urge by force or violence the overthrow of the constitution or the government. The penalty is jail for up to seven years. Sedition had, at least until recently, been regarded as a discredited offence because of its use in Australia and other nations against political oppositions. Those charged with sedition include Mahatma Gandhi, Nelson Mandela and even Peter Lalor after the 1854 Eureka Stockade.

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To define terrorism is notoriously hard, and our law provides no leeway for why someone has committed violence or damaged property. Former South African leader and Nobel Peace Prize winner Mandela was called a terrorist by many during his fight against the apartheid regime. He would certainly have been classified as such under Australia's new laws.

Sedition has been re-enacted in a form that suggests that it is an important part of the Federal Government's war on terror. While it has been "modernised", it provides few exceptions. There is no clear protection for academic works or even comedy or satire. Black humour, such as on ABC TV's The Chaser's War on Everything, that uses the words or an image of Osama bin Laden has the potential to become a criminal offence.

Attorney-General Philip Ruddock has said he will not use the sedition law in such circumstances. But there is no guarantee about how this or future governments will apply the law, and this also neglects the larger problem of self-censorship. Sedition and other laws have an inevitable chilling effect on what we say. Artists and commentators are now less likely to use robust critical speech about the war on terror or other sensitive topics due to concern they may breach the law. When people do not have free on-the-spot legal advice, they may not speak for fear of the consequences.

Exactly how the new sedition law will make Australians safer from terrorism has not been made clear. Indeed, there is a risk that the law will further ostracise members of those communities that feel, rightly or wrongly, that they are already the target of government action. There is also the potential that the law will push speech underground that promotes political violence rather than enabling it to be contested in public debate. Unfortunately, banning speech can even make the ideas it embodies more popular to some.

These examples, among many others, demonstrate how fragile freedom of speech is in Australia. They expose how we assume, rather than actually protect, freedom of speech. The changes since September 11 are especially troubling. To a greater extent even than nations such as Britain and the US, our law has come to reflect the maxim of President George Bush that "you're either with us or against us".

Unlike Australia, those nations protect free speech through a clear statement of law. The US has its 1791 constitutional Bill of Rights; Britain has an act of Parliament, the 1998 Human Rights Act.

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In Australia, the vulnerability of freedom of speech and other rights, such as to vote and freedom of association, has led to renewed calls for a rights bill or charter. While John Howard has said that this will never occur under his watch, change is afoot. The ACT was the first to move, with its Human Rights Act passed in 2004. Victoria has followed, with its Charter of Human Rights and Responsibilities enacted just this week. Tasmania has also begun an inquiry into a charter and Western Australia may not be far behind.

These new laws are ordinary acts of parliament that can be changed but cannot bind the Federal Government. Nonetheless, they provide better protection than is now the case for freedom of speech. They show that the status quo in Australia is shifting. In the meantime, though, there is less space for comment by the critical writer or thinker. Such a person may see shades of grey rather than black and white, or right and wrong.

If Philip Ruddock gets his way there may soon be more books that we cannot buy. TV shows like Big Brother may also only be able to provide more sanitised version of reality.

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First published in the Sydney Morning Herald on July 29, 2006.



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About the Author

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.

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