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Classification (Publications, Films and Computer Games) Amendment (Terrorist Material) Bill 2007

CHAIR —Welcome. Thank you for being here. The Classification Review Board has lodged submission No. 12 with the committee. Do you wish to make any amendments or alterations?

Ms Shelley —Not to the submission, but with your permission I would like to make an opening statement.

CHAIR —You have that permission, and at the conclusion of that opening statement I will invite members of the committee to ask questions.

Ms Shelley —Thank you for inviting me to speak on behalf of the Classification Review Board. The review board, upon application, reviews decisions of the Classification Board. These two boards will apply the proposed section of the classification act prescribing material that advocates terrorist acts. As an independent statutory body, the review board does not make any comment on the policy behind the proposed provision and it has every intention of carefully applying any criteria parliament decides to create.

However, the review board has some concerns about how it might apply proposed section 9A. The review board is concerned about the definitions, particularly the definition of ‘advocates’, and the intricacy of the proposed criteria. If we turn to the definition of ‘advocates’, section 9A(2)(a) and (b) states that something that ‘directly or indirectly counsels or urges the doing of a terrorist act’ or ‘directly or indirectly provides instruction on the doing of a terrorist act’ will be proscribed. The difficulties with that are that these are potentially very broad categories, they may be difficult to apply objectively and, therefore, the proposed provision has the potential to lead to anomalous decision making.

Section 9A(2)(c) says that the review board must consider whether the material before it ‘directly praises the doing of a terrorist act in circumstances where there is a risk that such praise might have the effect of leading a person regardless of his or her age or any mental impairment ... to engage in a terrorist act.’ I am not sure if you are familiar with the current test that we use, but ‘reasonable adults’ are usually the class of persons whom we consider in the classification act as it stands. So this is a significant departure from our current practice.

To ensure consistency and that an objective test is applied, it seems probable to me that the review board—without wanting to try to forecast what the review board might do in some future application—would refuse classification to any material that praised a terrorist act. Otherwise, the review board would need to make an assessment of risk, including that at the lowest level. It would have to formally decide that there was a risk, no matter how slight, and whether a minor or a person with a mental impairment might be affected by that material. It is difficult to envisage an objective test that the review board could use to assess such a risk in regard to a young or mentally impaired person and in regard to their reaction to the praise of a terrorist act.

If parliament would prefer that we assess the risk of someone engaging in a terrorist act, perhaps the risk should be qualified with the words ‘substantial’ or ‘significant’. In that case, only material which praises terrorist acts and carries a substantial or significant risk would advocate terrorist acts. This would give the review board, and of course the Classification Board, discretion and perhaps avoid the provision catching material unintentionally. If you consider what material might be captured by such which carries any risk, I can think of some sermons on the topic of an eye for an eye and a tooth for a tooth that would be included, If you include any risk at all to a person of a young age or with a mental impairment who is not bringing risk to their decision making, it may well be that some of our more inflammatory Sunday speakers could well be advocating material which would be a terrorist act.

The proposed definition of a terrorist act comes from the Criminal Code. It has multiple elements and requires a detailed consideration of the nature of the action. The review board might not have evidence of some of these elements and might have limited means of investigating them. Currently, we are required to assess evidence put before us but we are not required to investigate to the extent that may be necessary under this proposal.

The definition also requires the review board to consider the intention of persons performing a terrorist act. This would be a hypothetical reader, viewer or computer gamer. It seems problematic to assess the intentions of persons acting in response to a publication, film or computer game. The review board would not have any evidence before it of such intentions and would have to consider likely intentions. I find it difficult to envisage how we could objectively make such an assessment. The explanatory memorandum suggests that the material itself need not evince any intention to inspire a specific terrorist act, and this might be hard to reconcile with the definition of a terrorist act, which seems to contemplate concrete acts of terrorism.

The intricacy of these new criteria are such that properly applying these definitions seems unnecessarily involved and complex. They are more complicated than other criteria within the act and the code currently. Furthermore, the proposed section will not be considered in isolation but somehow needs to be balanced with the considerations required under section 11 of the act, which allow adult Australians to read, see, hear and play what they wish. We already have limitations on that right to read, see, hear and play what we wish, but the complexity of this is adding another layer to the work of the review board.

Our members are chosen to reflect the ordinary Australian community and to make administrative decisions. We are not required to be lawyers, although members of the review board are, and we have some quite senior legal expertise on the review board currently. Given that we are not there as lawyers or legal experts but as ordinary Australians, the review board has concerns that the test within the proposed legislation is unnecessarily intricate and legalistic. Having stated that, I have every confidence that the review board, and the members of the review board, would carefully apply any criteria that the parliament sets and would endeavour to do its very best to satisfy parliament’s intention in all its classification decisions.

Senator LUDWIG —You raise an argument about the broad nature and you then offer a solution to that. Do you agree with the HREOC submission? They made the same point in a recommendation. They submitted that paragraph (c) of the definition should be amended from ‘risk that such praise might lead a person to engage in a terrorist act’ to ‘a substantial risk’. Are you familiar with that submission?

Ms Shelley —I have read it, but our submission to the committee was that ‘substantial risk’ should be included, so that is also our submission. If HREOC says the same thing—

Senator LUDWIG —There are two voices now.

Ms Shelley —They would say the same.

Senator LUDWIG —They also made an additional recommendation—they made three in total. The third recommendation was:

HREOC therefore recommends that the reference to ‘regardless of age or any mental impairment’ be deleted from paragraph 9(c) of the definition of ‘advocates’. HREOC recommends that paragraph 9(c) be reworded as follows …

(c) directly praises doing a terrorist act where there is a substantial risk that such praise might lead a person to engage in a terrorist act.

Have you had an opportunity to consider whether or not you have the same view? You indicated some difficulty with the way the Classification Board and the Classification Review Board would deal with the issues of mental impairment.

Ms Shelley —I cannot speak for the Classification Board—I would leave that to the director. But, with regard to the Classification Review Board, we have discussed the proposals and, as far as we can see, if we made a determination that there was praise of a terrorist act then we would have to refuse the work classification. We cannot work out any other way that we could, on a consistent basis, without some anomaly arising with different panels, apply any criteria which would lead to a consistent application of the act, apart from simply saying that, if there is praise, it must be refused.

Senator LUDWIG —Have you made an assessment of how many publications might come under that hammer?

Ms Shelley —That is not within our ambit. We simply review decisions of the Classification Board when someone has lodged an application for review. You may be aware that last year we had nine matters referred to us by the Attorney-General which would possibly have been captured by these proposals. Two of those were refused classification under the existing legislation and it is possible, though I have not read them again with these amendments in mind, that more of that material would be captured by these proposals. But I have not gone to it directly.

Senator LUDWIG —If you have anything further to say on it, feel free to provide a submission to the committee in the available time. It only relates to the review board decision. This will affect the decision the Classification Board makes—but, of course, you cannot speak about that, and I am not asking you to.

Ms Shelley —Okay.

Senator LUDWIG —The submission from the Gilbert + Tobin Centre of Public Law argued that, given the nature of terrorism, the bill would overly politicise the Classification Review Board. Do you have a view about that?

Ms Shelley —I think it would be a policy matter. I do not know that I could comment, Senator.

Senator LUDWIG —In your opening address you commented on how the ‘reasonable adult’ test would apply and expressed some concerns about it. Do you want to elaborate on that in any more detail?

Ms Shelley —At the moment there are two tests within the act. There are two audiences that we must consider depending on which section of the act applies. Normally we consider ‘reasonable adults’, which is a higher test to reach. Where it concerns material regarding the portrayal of persons under the age of 18, it is ‘a reasonable adult’. If you could consider a hypothetical ‘reasonable adult’, it would seem that that would be an easier test to meet. If you considered the material regarding, say, a child to be offensive, then a ‘reasonable adult’ is an easier test to meet than the one of ‘reasonable adults’, which envisages a whole class of persons. We apply those two tests, and there is currently quite a lot of case law around them in Australia, New Zealand, Canada and the United Kingdom which we can refer to and rely on. ‘A person regardless of his or her age and regardless of any mental impairment’ is a very different test because it requires you to consider not what a ‘reasonable adult’ would do but what a person who is presumably unreasonable and not an adult would do. I do not know how on earth you could objectively assess what an unreasonable person who is not an adult might do.

Senator LUDWIG —Did you provide a submission to the original discussion paper?

Ms Shelley —Yes, we did.

Senator LUDWIG —Were these matters raised in it?

Ms Shelley —Yes, they were.

Senator LUDWIG —Have you received a reply from the Attorney-General’s Department about any of these matters?

Ms Shelley —We have received acknowledgement regarding our submissions.

Senator LUDWIG —Have you taken the opportunity of writing to the Attorney-General separately from this expressing any views about how the scheme might work?

Ms Shelley —I took the opportunity to write to the Attorney-General—yes.

Senator LUDWIG —That is separate from both the discussion paper and from this process.

Ms Shelley —Yes.

Senator LUDWIG —Is that available for the public?

Ms Shelley —I assume it would be FOI-able. I do not know what other availability it might have.

Senator LUDWIG —Could you take it on notice and, if you can, make it available for the committee. I understand that you would have to, obviously, check.

Ms Shelley —I will do that.

Senator LUDWIG —Did the Attorney-General provide a reply?

Ms Shelley —I cannot recall directly, Senator. I would have to take it on notice and come back to you.

Senator LUDWIG —Yes, if you would not mind. It obviously encompasses two issues. If there is a reply, could it also be made available to the committee.

Ms Shelley —Certainly.

Senator KIRK —Thank you for your submission, Ms Shelley. I was interested in what you were saying just a moment ago and what you say in your submission about the very low threshold that this establishes. You talked about how with the ‘reasonable adult’ test there is a considerable amount of precedent to which the Classification Review Board can look when trying to interpret what it means. The way that you describe the lower threshold test as being the ‘unreasonable adult of virtually any age’ made me wonder whether any judicial precedent has considered this kind of lower threshold, which then made me wonder whether any precedent exists in any other jurisdiction—in other words, whether any other country has adopted the kind of low-threshold test that is being proposed by this bill.

Ms Shelley —My understanding is that this is a test that is in the Criminal Code. I am not sure if there have been any decisions under the Criminal Code. I would assume that, if there have been, they would be published and be available, but that is not something which I have searched for personally.

Senator KIRK —So it would seem that the Classification Review Board would perhaps need to look to those criminal precedents when trying to interpret—

Dr Byrne —If such existed, yes, we would.

Senator LUDWIG —Perhaps we can broadly step back and look at the consultative process that has occurred. When was it first raised with the Classification Review Board that there was likely to be a change or that, even more broadly, people were unhappy with the way Classification Review Board decisions were being dealt with in the instances of this type of terrorist material?

Ms Shelley —From personal recollection, it was when the Attorney announced that he would be looking at these changes. We were advised by the Attorney-General’s Department at that time.

Senator LUDWIG —Do you recall when that was? I will not pin you on a date but, more broadly, was it January 2006 or mid-July 2006?

Ms Shelley —No; it was this year.

Senator LUDWIG —And it had not been raised with the review board before then? I am happy for you to take it on notice and check the records.

Ms Shelley —I would be more satisfied if I could do that; thank you.

Senator LUDWIG —All right. What I wanted to establish after that was: in the consultative process or at any time were you consulted or did you simply see the discussion paper and then respond to it? I am happy for you to take that on notice also to check the record. I am trying to establish how effective the consultative process was and whether it was a two-way street—whether there were issues taken on board and shared, as a result of which we now have a bill.

Ms Shelley —As far as I am aware, it was the standard consultative process, where a discussion paper is put up, submissions are invited, those submissions are made public, some amendments are made as a result of the submissions or the process and then there is this further process. As far as I am aware, it is just the standard, open process that is used.

Senator LUDWIG —Were you consulted in respect of this bill?

Ms Shelley —Yes.

Senator LUDWIG —What form did that take? How were you consulted about this bill?

Ms Shelley —The Attorney-General’s Department advised us of the proposals and supplied copies of the amendments and of course we were invited to make the public submission, and we took the opportunity to do so.

Senator LUDWIG —Was that prior to it being tabled in parliament?

Ms Shelley —Yes, as far as I am aware. I would like to check that but I believe it was prior to it being tabled.

Senator LUDWIG —So you would have seen early drafts?

Ms Shelley —Yes.

Senator LUDWIG —The question then goes to whether or not any amendments that you offered were proposed or taken up at that point. I assume—and you can correct me if I am wrong—that your concerns have been consistent from the discussion paper right through to seeing the bill and that those would have been echoed to the Attorney-General’s Department on both accounts, in your submission to the discussion paper and in response to the bill.

Ms Shelley —Our submissions have been consistent throughout. There have been amendments made which envisage some exceptions, which you would have in the proposed legislation before you, but the changes have not gone to the key issues that we have raised.

Senator PARRY —I am not aware—and maybe I should be—of whether or not ‘reasonable adult’ is defined in the current act that governs your organisation.

Ms Shelley —It is defined via case law.

Senator PARRY —Currently, if a computer game came before the Classification Board for classification, how many people would view that?

Ms Shelley —I cannot comment on the processes of the Classification Board. The Classification Review Board has a separate process. If it came before us it would be a minimum of three people and a maximum—

Senator PARRY —I am sorry; excuse my ignorance. You are the Convenor of the Classification Review Board and the material does not come to you?

Ms Shelley —It comes to us on appeal, not in the first instance. We are the secondary decision maker.

Senator PARRY —Thank you. I did not realise that.

CHAIR —It is a reasonably recent change—is that correct?

Ms Shelley —As far as I am aware there has been a classification board or a similar body and a review body or review board for about 35 years.

Senator PARRY —So there is a classification board which does all of the classification—

Ms Shelley —Yes, that is correct.

Senator PARRY —and the Classification Review Board, which you represent, which reviews decisions that the classification board gets wrong or right or whatever that are appealed against.

Ms Shelley —And which are appealed.

Senator PARRY —Okay.

Senator LUDWIG —So Mr Cornall is the new Des Clark perhaps. They have rolled the policy-making body.

Senator PARRY —Okay.

Ms Shelley —Just to clarify: there have been no changes in the statutory boards. The statutory boards have been there for quite a long time. There has been no change to those.

Senator PARRY —Tell me whether you can or cannot answer this. What I am trying to get to is what the process is for computer games now. Can you answer that or not?

Ms Shelley —With computer games, as you are probably aware, there is a bit of a self assessment process whereby qualified assessors who are usually employed by the computer game companies make a full report. They assess the computer game and make a full report. This is then considered by the classification board—that is the primary decision maker—and then, if they agree with that, that is the classification it gets; if they do not, then they look at it themselves and make a decision. If anyone is unhappy with that decision and wants it reviewed then they make an application to the review board for a review of the decision. That is the body that I chair.

Senator PARRY —I have no questions for you in that case. They are all framed around the classification.

Senator TROOD —Is it right to say that, from the review board’s perspective, you would prefer to have legislation which you have to implement in terms which are familiar to you? In other words: applying definitions which you have applied over a long period of time and for which there is an understanding, either in legislation or by the common law, and have a use which is readily understandable to the members of the review board?

Ms Shelley —It is not a matter of familiarity. The classification act and the code and the guidelines which we have applied have changed almost every year since I have been convener. So for the past 5½ years there have been changes of one kind or another. It is not a matter of familiarity; it is a matter of clarity and an objective test which can be applied.

Senator TROOD —I thought I was helping you.

Ms Shelley —I am sorry.

Senator TROOD —Let me try again. You wish to apply tests which you understand—can I put it that way?

Ms Shelley —We wish to apply tests which are clear. If it is parliament’s intent that all material which praises terrorism is to be refused classification, that is what we will do.

Senator TROOD —I understand that, and we would all expect that of you because you are statutory agency.

Senator PARRY —But you would not do that; it is a different board that does that.

Ms Shelley —If the matter came to us for review, we would do that. We make classification decisions; we just make them at a tertiary level rather than at a primary level.

Senator TROOD —I understand your willingness to abide by whatever parliament dictates that you should. Of course there could be no question that you would do that. But in fulfilling your obligation, your preference obviously is for applying tests that have a meaning which are in relation to a common standard or something that you understand which is consistent with the act’s existing arrangements. For example, ‘reasonable adult’ is a phrase or a term with which you have familiarity, which you are used to applying and which has a meaning that you understand.

Ms Shelley —And has a substantial body of case law.

Senator TROOD —That is what I am saying: there is a body of knowledge around that phrase with which you are familiar.

Ms Shelley —That is correct.

Senator TROOD —That is what I was trying to get at originally. Therefore, in applying the parliament’s will, you could understand how to apply a ‘reasonable adult’ test because you are familiar with it—because you would know the body of law and the body of knowledge around it. If we can find some way of incorporating that phrase into the application of these provisions, you would have an objective test to apply.

Ms Shelley —If the phrase ‘a person, regardless of his or her age or mental impairment’ were removed, it would have the same impact.

Senator TROOD —Yes—

Ms Shelley —The difficulty is that, by the inclusion of that phrase—

Senator TROOD —Not necessarily. I can see how that would help you in some respect, but it would not necessarily help you in relation to provisions A and B, would it?

Ms Shelley —Certainly as a reasonable adult you would be assessing the risk. At the moment there is no opportunity to assess the risk.

Senator TROOD —I understand the point you are making. You are basically saying that there will always be a risk from our perspective and therefore we would be obliged to—

Ms Shelley —You would think that that would be logical, wouldn’t you?

Senator TROOD —I can see how a risk averse organisation might take that position. I do not have any difficulty understanding that at all. Can you explain to me what you—not the Classification Board but the review board—do in relation to an item that comes before you that has the possibility of, for example, corrupting a younger person, although I am not sure that that is the right word? It might pass a ‘reasonable adult’ test but, if it is out there, there is the danger that a precocious 16-year-old or even a 13-year-old could read this. What view does the review board take in relation to that kind of material?

Ms Shelley —We already apply that test under section 11 of the act, which is that we must have regard to the general standard of propriety and decency of the Australian community. We also have to consider any harm to minors. So we already have to take those considerations into account. The way that is usually dealt with when classifying something that is of harm to minors is by either putting an advisory classification on it such as M for ‘mature’, meaning that it is not recommended for persons under 15, or MA, which is legally restrictive and therefore means that you must be accompanied by an adult, or R for ‘restricted’, which means that it is only available to adults. So you can deal with the degree of harm to minors through advisory classifications. This gives you no opportunity to do that because you would either have to refuse it, or possibly you could restrict it. But if it praises a terrorist act, you would have to refuse it classification.

Senator TROOD —I appreciate the concerns that you are expressing. I am trying to seek a way around the problem.

Senator LUDWIG —I do not think it is concerns she is expressing. I think she is telling you what the view would be.

Senator TROOD —I understand that, but there must be a solution to this. Maybe that solution relates to ‘substantial or significant’. Perhaps the working in of—

Senator LUDWIG —Perhaps a cooperative scheme by the states.

Senator PARRY —How would that help?

CHAIR —We are still waiting.

Senator TROOD —I want to clarify the consequences of your rejecting an appeal. Presumably it allows for a judicial examination of your decision. Is that correct?

Ms Shelley —That is correct. It would go to the Federal Court.

Senator TROOD —Does that happen often?

Ms Shelley —Prior to my being convenor, it happened five times in 35 years. Since I have been convenor—and I do not take this as a reflection on my own performance—we have had, I think, four appeals in five years. I think it is because of the more contentious nature of the material which has been coming before the review board, including the two Islamic literature books last year and a number of other adult publications.

Senator TROOD —Were they appealed?

Ms Shelley —One appeal was dismissed by the Federal Court in regard to the Islamic books, but they have gone on to appeal that further. They have appealed the Federal Court’s decision.

Senator TROOD —I suppose my concern is that, if this legislation were to become overly complicated—and you have made the point that we now would seem to have to apply a multiplicity of tests with which we are unfamiliar—there is a danger that more of the decisions could end up being appealed. You may not be able to answer that question.

Ms Shelley —That is possible, but it is hard to envisage because we do not have the act in its final form at this stage.

Senator TROOD —This might be compromised foresight but, nevertheless, if you have to apply more complicated legislation and people are aggrieved by the result then it might end up being more often appealed that it would otherwise be.

Ms Shelley —That may be.

Senator TROOD —Are you aware of any legislation overseas—you have alluded to other jurisdictions in relation to the application of the reasonable adult test, for example—where there has been an attempt to try to work in the terrorism concerns?

Ms Shelley —I have not examined such legislation or case law in that regard, no.

Senator PARRY —I have now got my head around the fact that you are not the board that I thought you were. How many referrals to the Classification Board end up coming to you for review, as a percentage?

Ms Shelley —A very minor number. The Classification Board makes about 10,000 decisions a year and we generally make about 20.

Senator PARRY —I think we have the wrong board before us, but thank you.

CHAIR —I was a little confused about the changes made recently. Is it the secretariat of your board and the Classification Board that is being subsumed into the Attorney-General’s Department? Can you give us clarity on that?

Ms Shelley —It is only the policy and administrative staff that have been subsumed. The two classification boards are still independent boards and remain separate.

CHAIR —Yes, I am aware that they are independent boards, but the policy staff and the—

Ms Shelley —Secretariat administrative staff.

CHAIR —Okay, good.

Ms Shelley —So there have been no changes to either board.

CHAIR —Good. We are getting a lot of clarity on some of these matters this afternoon. I want to ask you about the federal legislation that is before us and whether it would fit underneath the national Classification Code and your guidelines, which are part of a cooperative that has been agreed to at a state and territory level. Do you see that as being able to fit underneath? I have the code and the guidelines in front of me, but this is legislation that sort of sits at the federal level. Do you have a response to that comment?

Ms Shelley —There have been regular amendments to the act over my term as convener and, obviously, once those amendments are made, they are simply applied. The code is a lesser instrument than an act, as you would know, but, because the act says that we must make decisions in accordance with the code, it still applies. If something is in the act, you look to the act and then the code and then the guidelines. It is a balancing act between all of them, but if one section of the act says, ‘This must be refused classification’, or that is how the review board reads it, we would apply that first. Currently, for example, if we find that a terrorist act is being incited or promoted within a publication, regardless of the fact that adults are allowed to read, see, and hear what they want, we then refuse it classification. We are well-used to balancing different sections of the act, the code and the guidelines. That is what we are trained to do.

CHAIR —I will be asking the Attorney-General’s Department what head of power we are acting on with respect to this legislation. I do not know if you have addressed your mind to that. We have a cooperative arrangement here and the different states and territories have obviously legislated to set up this system, which is a cooperative system, and yet we are acting at a federal level. Do you have a response to that? You may not have turned your mind to that question.

Ms Shelley —I am not a lawyer; I do not think that that is something I would be qualified to comment on.

CHAIR —Let us go to something that you might be able to comment on, and that is the decisions you made regarding The Signs of the Hour and The Grave.

Ms Shelley —I think they must have been decisions of the Classification Board.

CHAIR —So they did not come to your board?

Ms Shelley —No.

CHAIR —What about Join the Caravan?

Ms ShelleyJoin the Caravan and Defence of the Muslim Lands came to the review board.

CHAIR —And The Peaceful Pill?

Ms Shelley —That came to the review board.

CHAIR —Can you recall the reason for the decision to refuse classification?

Ms Shelley —Yes; It was because it promoted crimes.

CHAIR —What type of crimes?

Ms Shelley —Specifically the manufacture of barbiturates and then a whole lot of other crimes in relation to the coroners legislation. I think the book breached about 42 separate pieces of legislation.

CHAIR —Can you rule out that it related to incitement and encouragement of suicide?

Ms Shelley —Suicide, as you would know, is not an illegal act. It is not something which is proscribed by law. So if the book merely advocated lawful means of suicide then it would not have been refused classification. It was refused classification because it instructed in and promoted unlawful means of suicide.

CHAIR —I understand it related to the importation of barbiturates, as you have indicated, rather than the incitement or encouragement of suicide.

Ms Shelley —That is correct.

CHAIR —That is what I wanted to clarify with you. There would be a view, I would suggest, that others might have that the promotion of, incitement of or instruction in matters of crime or violence would include suicide. But the review board, it would appear, has a different view.

Ms Shelley —Suicide is not a crime, so you would have to look at it as if it were violence. We did not turn our minds to whether it was prohibited on that ground because there were so many other laws that it breached. I think it was a 22-page decision. I cannot remember all of it.

CHAIR —So you did not turn your minds to whether suicide came under an act of violence?

Ms Shelley —Only in a peripheral way. We did consider that an action which was so injurious to your health as to cause death, even though it might be peacefully carried out, could be defined as violence. But we did not refuse the book classification on that ground; we refused it classification on the ground that it promoted and instructed in matters of crime, specifically the manufacture and importation of barbiturates and a whole range of crimes in relation to the coroners act—deceptive conduct in relation to death.

CHAIR —I have actually read the decision and reasons for it. I am just wondering whether you have turned your mind to whether an act of suicide is actually an act of violence.

Ms Shelley —I think in the decision we did include a sentence saying that an action which was so injurious as to be fatal, even if it was quite a calm and peaceful action—as would be brought about by the plastic bag and helium gas death—could be considered to be violence. But, as I said, there were so many other grounds that we did not need to consider that one in detail.

Senator TROOD —In relation to proposed section 9A(2) of the bill—leaving aside the complications of proposed subsection (c), which I appreciate is a difficulty—subsections (a) and (b) state that you are required to refuse classification of something that advocates terrorism by directly or indirectly counselling terrorism. Would it present a problem for the review board to reach a conclusion as to whether or not something advocated terrorism through either of those things?

Ms Shelley —That was my submission. It is a very broad category and it is difficult to apply ‘indirectly counselling’ objectively.

Senator TROOD —So ‘advocates’ is not the issue for you, is it, because you are used to ‘incitement’, which is a similar idea?

Ms Shelley —We have ‘promote, incite and instruct’ currently.

Senator TROOD —’Promote, incite and instruct’ is not dissimilar to ‘advocate’. I allow the possibility that it has a different meaning in some law, but that is not the problem you have here. The problem is in relation to ‘directly or indirectly’—is that what you said?

Ms Shelley —The problem is ‘directly or indirectly counsels or urges’.

Senator TROOD —So it is the content of the proposed subsections rather than the advocacy part of it that causes you concern?

Ms Shelley —I would refer you to our submission. The fourth paragraph of our submission to you is that our concern is with the third element of the definition of ‘advocate’, where something:

... directly praises the doing of a terrorist act in circumstances where there is a risk that such praise might have the effect of leading a person (regardless of his or her age or any mental impairment—

Senator TROOD —I understand your concern about (c) and I appreciate that, but these are alternatives; they are not cumulative.

Ms Shelley —If you turn to the second page of our submission, you will see that the second paragraph at the top is what I said to you earlier, which is that these are potentially broad categories that will possibly be difficult to apply and they do not seem to require any assessment of the likelihood that someone might be led to engage in a terrorist act.

Senator TROOD —You do not have any means of judging those things? You do not have any existing test which you could apply which would give you guidance as to how to determine that?

Ms Shelley —We do not have to assess the likelihood because we are not required to assess it. It is only if we believe there is a risk when something directly or indirectly provides instruction on the doing of a terrorist act. At the moment you have to consider in some instances the effect of it and in other instances you have to consider what a reasonable adult would do. This definition requires you to consider all persons, regardless of their age or mental impairment, and it says ‘direct’ and ‘indirect’ and ‘counsels’ and ‘urges’.

Senator TROOD —Let me put this proposition to you: if the subsection of 9A(2) said something like ‘advocates the doing of an act by the standards generally accepted by an adult’ and was then followed by (a) and (b), would that help you?

Ms Shelley —Yes. That would be closer to the standard test that is currently applied, but it would then go away from the Criminal Code.

Senator TROOD —I understand that, but, as I said, I am here to help.

Ms Shelley —Thank you, Senator.

CHAIR —Senator Trood, that is an excellent sentiment. I have a quick final question on your classifications—MA, M and so on. Let us say that you are at the movie theatre and the film is rated M and is not recommended for viewing by persons under 15—who is responsible for a kid under 15? Is it the parent or the—

Ms Shelley —The parents are because that is an advisory classification. The government has advised through the statutory bodies that the government is not recommending that material to children under 15.

CHAIR —Let us say it is an R film and the kid is obviously under-age—do they have any responsibility?

Ms Shelley —Of course, the parents still have the responsibility but, in addition to that, the person screening the film is required to allow only adults in. As I understand it, they do regularly ask for confirmation of age for adult films.

CHAIR —Is that in separate legislation? Where is that provided for?

Ms Shelley —It is in the state legislation. The states are responsible for enforcement.

CHAIR —Thanks for your evidence.

Ms Shelley —My pleasure.

Proceedings suspended from 3.10 pm to 3.21 pm