War on Terror threatens solutions to terrorism

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.

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.

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.

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.

Surveillance, policing and controlling finances alone will not beat terrorism. If we are to win the ‘war on terror’, it is essential that we understand the motivations and rationales behind it. In order to understand the mindset of a suicide bomber or a home grown terrorist, it is vital that academics are able to interview potential terrorists and have access to the books they read.

The Attorney-General has indicated he is happy to meet with academics and talk to them about their projects. But the role and obligations of academics should be clear on the face of the law. Where relevant, there should be an express exemption for their work.

Even this is not sufficient. There needs to be education about how the law applies to academics. It is difficult enough for legal academics to understand the hundreds of pages of terrorism laws, let alone academics in other disciplines.

It is reasonable that academics should be required to report information and answer questions that may prevent a terrorist attack. On the other hand, they should be able to pursue research into the ideology and causes of terrorism and the motivation and psychology of terrorists without the threat of interference from government or the fear of committing a terrorism offence.