25 May 2007
Material that Advocates Terrorist Acts Discussion Paper 2007
Below is a copy of EFA's submission to the Attorney-General's Department in response to the Material that Advocates Terrorist Acts Discussion Paper 2007.
- General Observations
- Problems with "indirectly"
- Problems with "praise"
Re: Proposal to amend Classification Code and Classification guidelines to ensure that material that advocates terrorist acts is refused classification
The proposed amendments to the classification guidelines have a number of serious problems. They may ensure that "material that advocates terrorist acts" can be refused classification, but only by broadening the scope of the guidelines to refuse classification to a huge range of material that would not be considered by an ordinary person to "advocate terrorist acts". The amendments will also complicate and politicise the operation of the classification system, introducing new opportunities for controversy.
Recent decisions by the Review Board of the Office of Film and Literature Classification show that the existing classification scheme is capable of dealing with advocacy of terrorism. Works such as Join the Caravan and Defense of the Muslim Lands have been refused classification under the existing scheme even though they only peripherally and indirectly advocate terrorism, and even though they are legally available in both the United Kingdom and the United States.
Recommendation: the proposed amendments are unnecessary and should be abandoned.
There is indeed strong public concern about terrorism, but this is part of broader concern about crime and violence. Material urging, instructing in, or praising terrorist acts does not attract greater opprobrium than material urging, instructing in, or praising non-terrorist mass-murders, tortures, and rapes.
Decisions about "terrorist acts" will inevitably be more controversial than decisions about "matters of crime or violence". This is likely to involve the government and reduce the independence of the Office of Film and Literature Classification, resulting in politicised classification decisions.
Recommendation: instruction or advocacy of "terrorist acts" should be handled as "matters of crime or violence", rather than as a special case.
It is true that "promotes, incites or instructs in matters of crime or violence" is not fully explained in the guidelines and its interpretation has often proved a challenge to classifiers. However, adding an additional category of material that involves the terms "terrorist act", "counsels or urges", "provides instruction" and "praises", is not going to simplify the situation. Indeed the proposed guidelines introduce a whole range of new problems.
Because of its use of the term "indirectly", the proposed definition of "advocate" is so broad as to allow conceivably any publication or film to be banned. "Indirect" is not defined, and the level of indirection possible is not limited. This in principle extends to, for example, books that explain how to find other books that counsel or instruct in terrorism, or even less direct connections.
The Communist Manifesto, for example, indirectly counsels revolutionary action and hence indirectly counsels terrorism aimed at achieving such; indeed it is known to have inspired terrorist acts. Any book that instructs in explosives manufacture is indirectly providing instruction in doing terrorist acts.
Allowing refusal of classification for "indirect" counsel or instruction changes the fundamental approach of the scheme, and will result application to a vastly broader range of materials. This is a drastic threat to freedom of speech.
Inclusion of "indirect counsel" of terrorism as a ground on which classification can be refused creates what is effectively an arbitrary standard. This is unlikely to achieve greater certainty or consistency in classification decisions.
Recommendation: the definition of "advocate" should be restricted to direct counsel or instruction.
The extension of "advocate" to cover praise as well as counsel and instruction is unprecedented and would create extraordinary problems. Counsel or instruction necessarily involve an intent to cause further terrorist acts, where praise may not. Further, counsel or instruction are forward-looking, where praise may be directed at historical events.
Some of the problems this attempt to ban praise of terrorism would raise can be seen in the debate over United Kingdom legislation that would have made "glorification of terrorism" an offence. This legislation was abandoned after broad opposition.
In so far as praise of terrorism may also counsel or urge further terrorism, it is covered under those other clauses. Praise of terrorism that does not directly counsel or urge further terrorist acts should not be banned: if "insidious encouragement" is so roundabout that it does not qualify as counsel or incitement, it not likely to be dangerous and will be hard to distinguish from innocent material.
Recommendation: the clause in the definition of "advocate" involving praise for terrorist acts should be deleted.
If this is not done, then this clause needs to be drastically modified.
Firstly, the universal scope of the definition of "terrorist act" is likely to cause problems. Some examples will give an idea of the historical and political problems which might arise.
Praise for the killing of Ali in 661 AD is clearly able and likely to inspire terrorist acts in the present, given the extent of Sunni-Shia tensions, but if that is considered a terrorist act then the proposed amendments to the classification guidelines would result in parts of the Islamic literary canon being banned. Whether this particular event qualifies as a terrorist act is debatable, but this is not the kind of decision the Office of Literature Classification is qualified to make, or should be put in the position of having to make.
Some actions of the African National Congress in South Africa were unarguably terrorist acts, and there are popular works glorifying those and other violent aspects of the struggle against apartheid. There are also widely disseminated films, books, and poetry which praise terrorist acts carried out by the Irish Republican Army. Such works obviously have some risk of inspiring further terrorist actions, and hence would have to be refused classification under the revised guidelines.
To try to avoid this kind of problem, and following the British "glorification of terrorism" legislation, the definition of "terrorist act" could be restricted so it applies only to recent events, possibly with lists including or excluding specific terrorist acts. As the debate over the British legislation demonstrated, however, this would be controversial.
Recommendation: the definition of "terrorist act" needs to be constrained, but we are unable to suggest wording for appropriate constraints.
The parenthetical "regardless of his or her age or mental impairment" clause in the definition of "advocate" raises the possibility that praise of a terrorist act could be banned merely because it might inspire someone who was mentally impaired to engage in a terrorist act.
We are not aware of any other area of law where reactions to material or events are judged by the standards of a mentally impaired person. Persons suffering mental impairment – which is not defined, but which we understand to include mental illness – can react in irrational, unpredictable, and disproportionate ways. The applicable test should be a “reasonable person” test.
Recommendation: the parenthesis in the definition of "advocate" should be deleted, and the definition should, implicitly or explicitly, be in the context of an ordinary reasonable person of sound mind.
The level of risk required is not identified. An unqualified “a risk” suggests that any risk, however small, is sufficient for material to be refused classification. We submit that a risk should have some substance before it warrants refusal of classification.
Recommendation: praise should only be deemed to advocate terrorism if there is a real and substantial risk of it leading a person to engage in a terrorist act.
Finally, someone may have praised a terrorist act with no intention of leading others to engage in further such acts, but this may inadvertently create some risk of inspiring others to such acts.
A eulogy, for example, might praise the death of a friend or relative who carried out a suicide bombing attack without any intent that others do likewise; the possibility that this might inspire copycat acts should not in itself be enough to refuse classification to the eulogy.
Recommendation: praise should only be deemed to advocate terrorism where there is intent, not just risk, that it lead people to engage in terrorist acts.
Before the Attorneys-General proceed with amendments to the Classification Code and Guidelines, there should be demonstration of a clear need for change. In this case, we would like to see a list of publications or films that have not been refused classification under the existing scheme but which it is felt should be refused classification; there should also be an analysis of possible overreach and attendant "collateral damage".