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February 6, 2011 / Siobhan Argent

Anti-terrorism laws and the implications for Australian publishing


The maintenance of a democratic society depends upon the ability of journalists/writers, broadcasters, public speakers, and general print and electronic media publishers to act as a counterbalance against state power in Western democracies. But in the aftermath of the September 11 attacks, as well as the terrorist attacks on Madrid, London and Bali, an atmosphere of paranoia and fear has shifted this balance. The introduction of anti-terrorism laws, new sedition laws,  and laws related to the preservation of national security have eroded the civil liberties of citizens of Western democracies by preventing publishers from exercising their rights without fear of serious repercussions. As a result of anti-terrorism legislation, self-censorship has become more prevalent in Western democracies, where the ability of the media to act as a check against government despotism has been diminished. Updated sedition laws in Australia, as well as post-September-11 anti-terrorism legislation in Australia and the United States, is being interpreted in a way that threatens to undermine publishers and punish them for their political, ideological or religious considerations. This essay will focus primarily on Australian anti-terrorist-related legislation and its effect on publishers, but the United States will also provide useful examples of the widespread denigration of civil liberties such as free speech and freedom of association.

In democratic countries, the power of the media to criticise the government’s actions is crucial to the maintenance of basic democratic rights. As Christopher Warren, Federal Secretary of the Australian Media, Entertainment and Arts Alliance (MEAA) argues, ‘questioning, challenging, and probing: that’s what our democratic society needs from its media’[1].

But when September 11 and the attacks in Madrid, London and Bali triggered the onslaught of anti-terrorism legislation in many Western countries, the Western media began to lose some of its power to keep their governments in check. Jenny Hocking argues that the climate of fear created by recent terrorist attacks made the creation of laws infringing liberty almost inevitable:

‘To witness the collapse of the World Trade Centre…was to be propelled towards reaction. The fear, insecurity and uncertainty… became part of a seamless rush to action…A tough governmental response was entirely predictable’[2].

This clearly visible threat to Western democracy on September 11, 2001, has since been utilised by Western governments, including the U.S, U.K and Australia, as a ‘pretext to make far-reaching inroads into basic civil liberties’[3]. In this essay, there will be a focus on Australian anti-terrorism legislation, coupled with supporting examples from the United States. These case studies will show that publishers in Western democracies such as the United States and Australia must now work within an environment of government intimidation, preventing publishers from acting as an effective check against government despotism.

The introduction of new anti-terrorism-related laws within Western democracies has created a climate within Western media, and particularly in Australia, which threatens to destabilise the media’s capacity to counter-balance the power of the government. A strong indicator of the diminished freedoms of Australian publishers comes from an MEAA report on press freedom in Australia in 2006. This report recognised that the new anti-terrorism legislation compromised the democratic rule of law, arguing that the imprisonment of a journalist for publishing something in the public interest should be unacceptable, ‘especially in Australia, where the right to inform and be informed is a cornerstone of our democracy’[4].

Australia’s reaction to the threat of terrorism has been noticeable; Julian Burnside has noted that the new Australian Security and Intelligence Operations (ASIO) legislation has tipped the balance away from democratic principles and towards the need to protect national security[5], in the face of growing concern over ongoing terrorist attacks. The Australian Security and Intelligence Operations Legislation Amendment Act 2003, for example, gags publishers from releasing information about the ‘active operation of the national security force under warrant for up to two years, “even if the operation is in violation of international human rights conventions”’[6]. The same act also prohibits the disclosure of any information relating to an ASIO warrant until 28 days after it has been issued. Even if arbitrary arrests are made, or maltreatment is suffered at the hands of ASIO officers, nothing can be published for 28 days, allowing ASIO’s conduct to escape public scrutiny[7] through publication of information relating to their activities. Such legislation reduces the media’s ability to act as a counterbalance against the government’s abuse of power, because a publisher’s ability to publicise the government’s activities has been compromised.

The same idea can also be applied in the United States, where anti-terrorism legislation provides many examples of the gagging of publishers. One such example is the gag order placed on David Hicks as part of his plea bargain[8]. It essentially prevented Hicks, essentially  a free man after his release, to enjoy the right to free speech[9] in America, negating his basic civil liberty to publish information relating to a matter of public interest. As David Flint, former chairman of the Australian Press Council notes, publishers and citizens must maintain their right to freedom of speech and opinion in order to maintain basic democratic principles:

‘In seeing [Hicks], in hearing him, and in reading him, we, and not just the government, Australian or American, will be able to make the judgment we are entitled to make as free citizens as to whether he is still a danger, whether he is genuinely contrite, and whether he was fairly detained’[10].

The risk presented by such gag orders is that, in denying the fundamental right of free speech to a free man, publishers will be gagged and, in this manner, prevented from controlling government despotism through the publication of works critical government activities. As Michael de Percey notes, the rush to pass legislation through in the climate of fear after September 11 ‘may have evoked Sir Thomas More’s fear that in “cutting down” the rule of law to “get after the devil”, citizens have “nowhere to hide” from the abuse of state power’[11].

However, this is not the only way in which anti-terrorism legislation gags publishers. Sedition laws, particularly the recently-updated sedition legislation passed in Australia, allow the government to threaten publishers with severe penalties for publishing anti-terrorism-related material the government does not want to publicise.

The intention of current sedition laws is to protect the government from ‘an enterprise or words intended to bring the…Government…into hatred or contempt, or to excite disaffection against it, with an intention to incite [my italics] violence or to create public disturbance or disorder’[12]. However, history shows us that sedition laws have been one of the government’s most effective political tools for silencing the dissent of journalists and publishers. Christopher Warren, federal secretary of MEAA, claims that the updated sedition laws are used to ‘silence writers, journalists and creators. They are tools of censorship, not of public protection’[13]. As Michael Head argues, sedition law has become an even more powerful tool against political dissent in a climate of almost McCarthyist paranoia about terrorism:

‘The new legislation will punish violent or other criminal activity far more severely if offenders are motivated by political, religious or ideological considerations than if they are acting out of other motives such as revenge, rage, greed etc. This indicates that it is the motive, be it political, religious or ideological — rather than the conduct itself — that the government is seeking to punish. One can only conclude that the ‘war on terrorism’, like the ‘war on communism’ waged a half century ago, is being used for political ends’[14].

As it currently stands, the law is clear on the punishment for sedition: the subject of a detention order and their lawyer face the threat of five years’ imprisonment if they reveal information relating to the warrant[15]. And the penalties for publishing information relating to the activities of the ASIO[16] are severe enough to gag the suspect from speaking out, because ‘no matter how arbitrary their arrest, or what maltreatment they may have suffered, suspects can go to jail for up to five years if they talk about their experience’[17]. The threat posed to publishers of sensitive information related to anti-terrorism have a diminished capacity to operate within the public sphere, given that the penalties for publication are, in this respect, quite clear.

While sedition legislation may not be the primary legislation used in this instance, Guantanamo Bay’s inmates are a prominent reminder of the state-enforced silencing of possible dissenters through anti-terrorism legislation. Rather than being used to jail suspected terrorists, only 8 per cent of people detained at Guantanamo were al Qaeda fighters, with about 60 per cent being detained on the grounds that they ‘associated’ with Al Qaeda or the Taliban[18]. The vast majority of people detained in connection with the September 11 attacks were being held on routine immigration charges under unprecedented secrecy, with the government refusing to disclose their names or the details of their trials[19].

Australia’s updated sedition legislation and the U.S’s imprisonment of people accused of unproven associations with al Qaeda and the Taliban sends a clear, threatening message to Western publishers. While Australia and the United States each have their own way of gagging publishers through anti-terrorism-related legislation, self-censorship of the press presents a major problem for Western democracies in the climate after September 11.

One major threat to democratic governance in Australia after the implementation of anti-terrorism laws is fact that the laws are vulnerable to being widely interpreted, resulting in the likely self-censorship of the media. Media law commentator Richard Ackland notes that the anti-terrorist legislation ‘is so vague, wide and discretionary, the fear is that it will cause the media to chill off a story and back away. The net effect will be to persuade them not to take the risk’[20]. Self-censorship as a result of the new legislation is one of the biggest problems surrounding anti-terrorism laws and their ramifications for publishers within Western societies. As ABC-TV journalist Liz Jackson points out, ‘It’s the freedom of the media to tell the full story, not the jailing of the journalist, that is at stake’[21]. Stephen Keim SC noted that the wide spread of anti-terrorism legislation makes it difficult for publishers to gain the full extent of limitations imposed on their press freedoms:

‘Australia’s anti-terrorist legislation is not composed of a single definition or a single Act of Parliament. It combines wide definitions of terrorism with an unnecessary emphasis on religious or political motives…It imposes procedural limitations on access to information that the potential to jeopardize justice’[22].

The Anti-Terrorism (No. 2) Bill 2005, for example, leaves a publisher of information relative to ASIO activities liable for ‘reckless disclosure’. This effectively leaves journalists without proper defences against the government’s attempt to censor publishers through anti-terrorism-related laws, because as the MEEA notes, ‘there is nothing in the [Anti-Terrorism (No. 2) Bill 2005) to suggest that publishing ‘operational information’ that is in the public interest is defensible against the definition of “reckless” disclosure’[23]. And the updated sedition legislation has changed ‘incite’ to ‘urges’, causing concern among the press because ‘urge’ has no clear definition[24]. This is a major threat to democratic society, because as Julian Burnside argues, unofficial intimidation of public debate can be more of a threat to freedom of expression for publishers than clear-cut legislation:

‘The ABC is a fairly good example of what…has [been] referred to as the “pre-emptive buckle”. Without anyone bringing up pressure to bear, the people in the ABC tend to err on the side of caution rather than cop a spray afterwards…self-censorship in the public sector and certainly in the commercial sector is a serious risk’[25].

This argument is particularly pertinent in the case of Dr. Mohamed Haneef[26], because ASIO detention laws and government secrecy prevented the media from investigating the full extent of the possible injustices inflicted upon the terrorist suspect. Haneef was fortunate that, in his case, Australian journalists were prepared to ask the difficult questions that enforced government accountability[27]. The power of the Australian government’s new anti-terrorism-related legislation (including sedition laws and ASIO-related laws) makes it extremely difficult for a publisher to ascertain to what extent their freedom to publish has been compromised. This makes publishers more likely to self-censor, gagging themselves from publishing information that might result in their own persecution.

In the United States, the threat of constant surveillance is one tactic being employed to monitor possible terrorist threats, encouraging self-censorship within groups that may disagree with the government’s policies. The mere possibility that federal agents may be monitoring speech is likely to silence minority viewpoints and discourage exercise of civil liberties such as free speech and freedom of expression[28]. After the September 11 attacks occurred, for example, federal officials argued that FBI guidelines on surveillance of political groups was interpreted too narrowly; as a result, the FBI was given greater leeway on their surveillance activities[29]. In this manner, the wide interpretation of anti-terrorism legislation prevents groups dissenting against the government in Australia and the U.S from justifying publication of their material, political or otherwise, under the threat of constant surveillance and long periods of detention or imprisonment.

Anti-terrorism legislation operates in many ways to gag publishers in Western democracies. The United States government’s attack on civil liberties is a particularly pertinent example of the gagging of publishers, but Australian journalists, writers, broadcasters, and general print and electronic media publishers have also suffered as a result of the terrorist attacks on and following September 11. The paranoia and fear in the aftermath of the four major terrorist attacks created an atmosphere of fear in which a citizen’s (and thus a publisher’s) right to free speech took second place to national security. Anti-terrorism, sedition and national security laws threaten a publisher with severe penalties for publishing information relative to government’s anti-terrorist activities, but the laws themselves remain so open to interpretation that publishers are unable to discern what may or may not be able to be published. An atmosphere of self-censorship within publishing has developed as a result, effectively gagging publishers from publishing information relating to anti-terrorism activities. Without publishers enforcing government accountability in case such as Dr. Haneef’s and David Hicks’, a cornerstone of democratic law is lost, since governments can act with impunity from public dissent in their approach to combating terrorism. As this essay demonstrates, anti-terrorism legislation in the United States and, most importantly, in Australia, acts to gag publishers from freely publishing information of public interest, essentially diminishing the role of the media to act as a vital counterbalance against government despotism.

Bibliography

 

Alexander, Yonah; Brenner, Edgar H.; The United Kingdom’s Legal Responses to Terrorism, London, Cavendish Publishing, 2003.

Aprhys, Alison, ‘The Silent Summer’, Eureka Street, January-February 2006, pp. 12-13.

 

Bailey, Stephen; Taylor, Nick; Bailey, Harris and Jones: Civil Liberties, Cases, Materials and Commentary, sixth edition, Oxford, Oxford University Press, 2009.

Bronitt, Simon; Stellios, James; ‘Sedition, security and human rights: “unbalanced” law reform in the “war on terror”, Melbourne, Melbourne University Law Review, 30, pp. 923-60.

 

Butler, Des; Rodrick, Sharon; Australian Media Law, third edition, Sydney, Lawbook Co., 2007, chapter eight, pp 333-352. 

 

Cole, David; Dempsey, James X.; Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security, New York, the New Press, 2002.

 

De Percey, Michael, ‘National Security versus Civil Liberties: Towards and Australian Bill of Rights’, presented at the Australasian Political Studies Associated Conference, 2004, pp. 1-25. 

 

Di Marzo, Rosina; Dobbie, Mike; Millerd, Abby; Ie, Amelia; ‘The Media Muzzled: Australia’s 2006 Press Freedom Report’, Sydney, Media, Entertainment and Arts Alliance, 2006, pp. 1-15.

Dornin, Tim, ‘David Hicks Keen to Clear Name: Father’, Sydney Morning Herald, 23 January 2009.

 

Etzioni, Amitai, How Patriotic is the Patriot Act? Freedom Versus Security in the Age of Terrorism, New York, Routledge, 2004.

Flint, David, ‘David Flint: Hicks gag affects our liberties, too’, The Australian, 2 April 2007, < http://www.theaustralian.news.com.au/story/0,20867,21486072-7583,00.html&gt;, (accessed 5 June 2009).

Fonseca, Sandra, ‘Terrorism Powers and the Implications for Democracy’, <http://www.safecom.org.au/terrorlaws-fonseca.htm#burnside&gt;, 24 November 2005, (accessed 5 June 2009).

Georgiou, Petro, ‘Terrorism laws, civil liberties and multiculturalism’, presented at the ‘Laws for Insecurity?’ Forum, 17 November 2005, pp. 1-9.

Keim, Stephen, ‘Whither Now? Pondering the Haneef Case’, Bulletin (Law Society of South Australia), volume 30, April 2008, pp. 18-22.

Knoll, David, ‘Free Speech, Anti-terrorism Laws and Racial Vilification’, <http://www.onlineopinion.com.au/view.asp?article=36&gt;, 11 August 2005, (accessed 28 May 2009).

Haubrich, Dirk, ‘Modern Politics in an Age of Global Terrorism: New Challenges for Domestic Public Policy’, Political Studies, Volume 54, 2006, pp. 399-423.

Head, Michael, ‘Counter-Terrorism Laws: A Threat To Political Freedom, Civil Liberties And Constitutional Rights’, Chapter 2, Melbourne University Law Review, Volume 34, 2002, < http://www.austlii.edu.au/au/journals/MULR/2002/34.html&gt;, (accessed 1 June 2009).

Head, Michael, ‘The Political Uses and Abuses of Sedition: The Trial of Brian Cooper’, Australian Journal of Legal History, Volume 11, 2007, pp. 63-78.

Heyman, Philip B; Kayyem, Juliette N., Protecting Liberty in an Age of Terror, Cambridge, MIT Press, 2005.

Hocking, Jenny, Terror Laws: ASIO, Counter-Terrorism and the Threat to Democracy, Sydney, UNSW Press, 2004.

Jackson, Liz, ‘Unknown Unknowns’, featured in Rosina Di Marzo et al., ‘The Media Muzzled: Australia’s 2006 Press Freedom Report’, Sydney, Media, Entertainment and Arts Alliance, 2006.

Law Council of Australia, ‘Anti-Terrorism (No. 2) Bill 2005’, submission to Senate Legal and Constitutional Committee (Australia), 11 November 2005.

Nette, Andrew, ‘A Short History of Sedition Laws in Australia’, Australian Universities Review, volume 48, number 2, 2006, pp. 18-19.

(No author listed), ‘Information Sheet – Sedition Law in Australia’, (PDF), Arts Law Centre of Australia, 2006, pp. 1-3.

Norris, Pippa; Kern, Montague; Just, Marion; Framing Terrorism, Routledge, New York, 2003.

Pearson, Mark, The Journalist’s Guide to Media Law: Dealing with Legal and Ethical Issues, Sydney, Allen and Unwin, 2007.

Rivers-Pitt, William, The Greatest Sedition is Silence, London, Pluto Press, 2003.

Sales, Leigh, Detainee 002, Melbourne, Melbourne University Publishing, 2007.

 

Warren, Christopher; Walters, Emma; Di Marzo, Rosina; Johnson, Alex; ‘Turning Up The Heat: The Decline of Press Freedom in Australia 2001-2005’, (PDF), Media, Arts and Entertainment Alliance, 2005, pp. 1-24.

Welch, Matt, ‘The War on Sedition’, Reason, Volume 37, Issue 9, February 2006, <http://www.reason.com/news/show/36229.html&gt;, (accessed 3 June 2009).

Zifcak, Spencer, ‘Anti-Terrorism Legislation and the Protection of Human Rights’, Legaldate, March 2006, Volume 18, Issue 1, pp. 1-3.


[1] Rosina Di Marzo, Mike Dobbie, Abby Millerd, Amelia Ie, ‘The Media Muzzled: Australia’s 2006 Press Freedom Report’, Sydney, Media, Entertainment and Arts Alliance, 2006, P. 3.

[2] Jenny Hocking, Terror Laws: ASIO, Counter-Terrorism and the Threat to Democracy, UNSW Press, Sydney, 2004, p.1

[3] Michael Head, ‘The Political Uses and Abuses of Sedition: The Trial of Brian Cooper’, Australian Journal of Legal History, Volume 11, 2007, p. 76.

[4] Rosina Di Marzo, et al., ‘The Media Muzzled: Australia’s 2006 Press Freedom Report’, 2006, P. 7.

[5] Sandra Fonseca, ‘Terrorism Powers and the Implications for Democracy’, < http://www.safecom.org.au/terrorlaws-fonseca.htm#burnside&gt;, 24 November 2005, (accessed 5 June 2009).

[6] Mark Pearson, The Journalist’s Guide to Media Law: Dealing with Legal and Ethical Issues, Allen and Unwin, Sydney, 2007, p. 314.

[7] Rosina Di Marzo et al., ‘The Media Muzzled: Australia’s 2006 Press Freedom Report’, 2006, p. 7.

[8] David Hicks was captured in Afghanistan in 2001 by U.S. forces and imprisoned for five years without trial. In March 2007, under a plea bargain, he was sentenced to seven years jail but ordered to serve just nine months, with the rest of his sentence suspended. A controversial part of his plea bargain included a gag order that prevented him from speaking to the press. For more information, see Tim Dornin, , ‘David Hicks Keen to Clear Name: Father’, Sydney Morning Herald, 23 January 2009

[9] David Flint, ‘David Flint: Hicks gag affects our liberties, too’, The Australia, 2 April 2007, < http://www.theaustralian.news.com.au/story/0,20867,21486072-7583,00.html&gt;, (accessed 5 June 2009).

[10] Ibid.

[11] Michael de Percey, ‘National Security versus Civil Liberties: Towards and Australian Bill of Rights’, Australasian Political Studies Associated Conference, 2004, pp. 2-3.

[12] Des Butler, Sharon Rodrick, Australian Media Law, third edition, Sydney, Lawbook Co., 2007, chapter eight, pp. 355.            

[13] Alison Aprhys, ‘The Silent Summer’, Eureka Street, January-February 2006, P. 12.

[14] Michael Head, ‘Counter-Terrorism Laws: A Threat To Political Freedom, Civil Liberties And Constitutional Rights’, Chapter 2, Melbourne University Law Review, Volume 34, 2002, < http://www.austlii.edu.au/au/journals/MULR/2002/34.html&gt;, (accessed 1 June 2009).

[15] Rosina Di Marzo, et al., ‘The Media Muzzled: Australia’s 2006 Press Freedom Report’, 2006, p. 5.

[16] Mark Pearson, The Journalist’s Guide to Media Law: Dealing with Legal and Ethical Issues, 2007, p. 314.

[17] Ibid, p. 315.

[18] Leigh Sales, ‘Detainee 002’, Melbourne, Melbourne University Publishing, 2007, P. 132.

[19] David Cole; James X. Dempsey; Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security, New York, the New Press, 2002 P. 149.

[20] Alison Aprhys, ‘The Silent Summer’, 2006, p. 13.

[21] Liz Jackson, ‘Unknown Unknowns’, featured in Rosina Di Marzo et al., ‘The Media Muzzled: Australia’s 2006 Press Freedom Report’, Media, Entertainment and Arts Alliance, 2006, p. 5.

[22] Stephen Keim, ‘Whither Now? Pondering the Haneef Case’, Bulletin (Law Society of South Australia), volume 30, April 2008, p. 21.

[23] Rosina Di Marzo, et al., ‘The Media Muzzled: Australia’s 2006 Press Freedom Report’, p. 7.

[24] (No author listed), ‘Information Sheet – Sedition Law in Australia’, Arts Law Centre of Australia, 2006, p. 3.

[25] Sandra Fonseca, ‘Terrorism Powers and the Implications for Democracy’, 24 November 2005, (accessed 5 June 2009).

[26] In 2007, Dr. Haneef was held in detention and charged with an offence against the anti-terrorism provisions of the Criminal Code 1901 for allegedly giving his SIM card to his cousin. The SIM card was suspected to have been part of a terrorist plot in Britain but this later proved to be an unfounded allegation. For a helpful run-down on the Haneef case, see Stephen Keim, ‘Whither Now? Pondering the Haneef Case’, Bulletin (Law Society of South Australia), volume 30, April 2008, pp. 18-22.

[27] Ibid, p. 21.

[28] Philip B. Heymann and Juliette N. Kayyem, Protecting liberty in an age of terror, MIT Press, Cambridge, 2005, p.93.

[29] Ibid, p. 95.

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