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«Fighting Words REPORT A Review of Sedition Laws in Australia REPORT 104 July 2006 © Commonwealth of Australia 2006 This work is copyright. You may ...»

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Fighting Words


A Review of Sedition

Laws in Australia


July 2006

© Commonwealth of Australia 2006

This work is copyright. You may download, display, print and reproduce this material

in whole or part, subject to acknowledgement of the source, for your personal, noncommercial use or use within your organisation. Apart from any use as permitted under

the Copyright Act 1968 (Cth), all other rights are reserved. Requests for further

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ISBN 0-9758213-5-0 Commission Reference: ALRC 104 (Final Report) The Australian Law Reform Commission was established on 1 January 1975 by the Law Reform Commission Act 1973 (Cth) and reconstituted by the Australian Law Reform Commission Act 1996 (Cth). The office of the ALRC is at Level 25, 135 King Street, Sydney, NSW, 2000, Australia.

All ALRC publications can be made available in a range of accessible formats for people with disabilities. If you require assistance, please contact the ALRC.

Telephone: within Australia (02) 8238 6333 International +61 2 8238 6333 TTY: (02) 8238 6379 Facsimile: within Australia (02) 8238 6363 International +61 2 8238 6363 E-mail: info@alrc.gov.au ALRC homepage: www.alrc.gov.au Printed by Ligare Pty Ltd The Hon Philip Ruddock MP Attorney-General of Australia Suite MF 21 Parliament House Canberra ACT 2600 31 July 2006 Dear Attorney-General Review of Sedition Laws On 1 March 2006, you issued terms of reference for the Commission to undertake a review of federal sedition laws.

On behalf of the Members of the Commission involved in this Inquiry, including Justice Susan Kenny and Justice Susan Kiefel, and in accordance with the Australian Law Reform Commission Act 1996, we are pleased to present you with the final report in this reference, Fighting Words: A Review of Sedition Laws in Australia (ALRC 104, 2006).

Yours sincerely [signed] Professor David Weisbrot President [signed] [signed] Brian Opeskin Associate Professor Les McCrimmon Deputy President Commissioner Contents Terms of Reference 5 List of Participants 7 Executive Summary 9 List of Recommendations 21

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I, Philip Ruddock, Attorney-General of Australia, having regard to:

• the circumstances in which individuals or organisations intentionally urge others to use force or violence against any group within the community, against Australians overseas, against Australia’s forces overseas or in support of an enemy at war with Australia; and

• the practical difficulties involved in proving a specific intention to urge violence or acts of terrorism;

refer to the Australian Law Reform Commission (‘the Commission’) for inquiry and report, pursuant to subsection 20(1) of the Australian Law Reform Commission Act 1996, the operation of Schedule 7 of the Anti-Terrorism Act (No 2) 2005 and Part IIA of the Crimes Act 1914.

1. In performing its functions in relation to this reference, the Commission will


(a) whether the amendments in Schedule 7 of the Anti-Terrorism Act (No 2) 2005, including the sedition offence and defences in sections 80.2 and

80.3 of the Criminal Code Act 1995, effectively address the problem of urging the use of force or violence;

(b) whether ‘sedition’ is the appropriate term to identify this conduct;

(c) whether Part IIA of the Crimes Act 1914, as amended, is effective to address the problem of organisations that advocate or encourage the use of force or violence to achieve political objectives; and (d) any related matter.

2. The Commission will identify and consult with relevant stakeholders.

3. The Commission is to report no later than 30 May 2006.

Dated 1st March 2006

–  –  –

Australian Law Reform Commission Division The Division of the ALRC constituted under the Australian Law Reform Commission

Act 1996 (Cth) for the purposes of this Inquiry comprises the following:

Professor David Weisbrot (President) Mr Brian Opeskin (Deputy President) Associate Professor Les McCrimmon (Commissioner) Justice Susan Kenny (part-time Commissioner) Justice Susan Kiefel (part-time Commissioner) Senior Legal Officers Bruce Alston Kate Connors Legal Officers Melissa Lewis (until April 2006) Edward Santow Research Manager Jonathan Dobinson (until April 2006) Lani Blackman (from April 2006) Librarian Carolyn Kearney Project Assistants Alayne Harland Tina O’Brien

–  –  –

Advisory Committee Members David Bernie, New South Wales Council of Civil Liberties Professor David Brown, Law School, University of New South Wales Damian Bugg QC, Commonwealth Director of Public Prosecutions Emeritus Professor Michael Chesterman, Administrative Decisions Tribunal (NSW) Kate Eastman, New South Wales Bar Dr David Neal SC, Victorian Bar Mark Polden, John Fairfax Holdings Ltd Padma Raman, Equal Opportunity Commission of Victoria Chief Judge Michael Rozenes, County Court of Victoria Michael Sexton QC, Solicitor-General for New South Wales Hon John von Doussa, President, Human Rights and Equal Opportunity Commission Bret Walker SC, New South Wales Bar Neil Williams SC, New South Wales Bar Executive Summary

–  –  –

Introduction The primary purpose of this Executive Summary is to explain the principles and assumptions that underlie the pattern of law reform recommendations made in this Report. In so doing, the Executive Summary discusses the ALRC’s recommendations for reform of the existing sedition offences in s 80.2 of the Criminal Code (Cth) and related matters, including recommendations for reform of the treason offences in s 80.1. The ALRC also recommends the repeal of the unlawful associations provisions contained in Part IIA of the Crimes Act 1914 (Cth).

The term ‘sedition’ Chapter 2 discusses the historical link between sedition law and the suppression of political dissent. In this historical context, the offence of sedition can be seen as a ‘political’ crime, punishing speech that is critical of the established order.

Stakeholders, including politicians across party lines, have expressed concerns that there is potential for sedition law to inhibit freedom of expression and free association.

10 Fighting Words Australians place a very high premium on freedom of expression and on the importance of robust political debate and commentary. The free exchange of ideas— however unpopular or radical—is generally healthier for a society than the suppression and festering of such ideas.

At the same time, all liberal democratic societies place some limits on the exercise of freedom of expression—as authorised under all international human rights conventions (see Chapters 5 and 6)—for example, through civil defamation laws and prohibitions on obscenity, serious racial vilification or incitement to commit a crime.

Much of the concern about the new offences in s 80.2 of the Criminal Code is triggered by the fact that they are still referred to as ‘sedition’ offences. It is not clear why, after modifying the offences substantially, the Australian Government chose to retain the term ‘sedition’ to describe the new offences—especially since one of the new offences deals with urging inter-group violence rather than with the security of the institutions of the Commonwealth.

In this Report, the ALRC makes a range of recommendations to improve the existing law. Some of these represent technical refinements to the drafting. Mainly, however, the recommendations are aimed at ensuring there is a bright line between freedom of expression—even when exercised in a challenging or unpopular manner—and the reach of the criminal law, which should focus on exhortations to the unlawful use of force or violence.

It would be unfortunate, however, if continued use of the term ‘sedition’ were to cast a shadow over the new pattern of offences. The term ‘sedition’ is too closely associated in the public mind with its origins and history as a crime rooted in criticising—or ‘exciting disaffection’ against—the established authority. Consequently, in Chapter 2, the ALRC recommends that the term ‘sedition’ no longer be used in federal criminal law.1 Review of old Crimes Act provisions In the course of this Inquiry, the ALRC came across a large number of old provisions in Part II of the Crimes Act that are related to sedition and treason laws. These include the offences of ‘treachery’ (s 24AA), sabotage (s 24AB), assisting prisoners of war (s 26), unlawful military drills (s 27), interfering with political liberty (s 28), and damaging Commonwealth property (s 29).

All of these provisions are couched in archaic language, and many of them may have been superseded by new and better laws. As discussed in Chapter 3, it is beyond the Inquiry’s Terms of Reference to conduct a systematic review of these provisions.

However, the ALRC recommends that the Australian Government initiate a review to

–  –  –

determine which of these offences merit retention, modernisation and relocation to the Criminal Code, and which should be abolished because they are redundant or otherwise inappropriate.2 State and territory sedition laws The ALRC’s review in Chapter 3 shows that most states and territories still have sedition laws in the old and more objectionable form. In the interests of improving and harmonising the laws in this area across Australia, the ALRC recommends that the Australian Government initiate a process through the Standing Committee of Attorneys-General to remove the term ‘sedition’ from state and territory laws.3 Unlawful associations Chapter 4 deals with the unlawful associations provisions in Part IIA of the Crimes Act. These provisions were introduced in 1926 to deal with the perceived threat of the Communist Party of Australia and radical trade union activity, but they rarely have been used. Canadian provisions that served as a model for Part IIA were repealed in 1936.

The Terms of Reference for the Inquiry asked the ALRC to consider Part IIA because the declaration of an ‘unlawful association’ may proceed from a finding that the members of a group share a ‘seditious intention’, as defined in s 30A of the Crimes Act.

Once a body is declared to be an unlawful association, a number of criminal offences may be applicable, including: failure to provide information relating to an unlawful association upon the request of the Attorney-General;4 being an officer, member or representative of an unlawful association;5 giving contributions of money or goods to, or soliciting donations for, an unlawful association;6 printing, publishing or selling material issued by an unlawful association;7 and allowing meetings of an unlawful association to be held on property owned or controlled by the defendant.8 In 1991, the Gibbs Committee considered the ‘little used’ unlawful associations provisions, commenting in a discussion paper that it was ‘disposed to think that the activities at which these provisions are aimed can best be dealt with by existing laws … and that there is no need for these provisions’.9 In its final report, the Gibbs

–  –  –

Committee noted that all the submissions received in response to the proposal to repeal Part IIA endorsed that view, and the Committee so recommended.10 In 2002, a comprehensive set of provisions dealing with ‘terrorist organisations’ was introduced into the Criminal Code (Division 102). No attempt was made to adapt the unlawful associations provisions for this purpose, but neither were they repealed. The criteria for declaring that a group is a ‘terrorist organisation’ do not rely on the concept of sedition or seditious intention; rather, the group must be directly or indirectly engaged in planning, fostering or advocating ‘terrorist acts’ (as defined in s 100.1).

The ALRC agrees with the Gibbs Committee and the clear view expressed in consultations and submissions that the unlawful associations provisions are anachronistic and unnecessary. There is little point in seeking to modernise these provisions since that work already has been done in developing the terrorist organisations provisions in the Criminal Code, which are better suited to contemporary circumstances. Consequently, the ALRC recommends that the unlawful associations provisions of Part IIA of the Crimes Act be repealed.11 International framework Chapter 5 analyses the interaction between Australian sedition law and international law. The chapter considers the two principal applications of international law in this context. These are: Australia’s obligations to respect human rights; and the growing recognition at international law of the need for states to take action to counter the threat of terrorism.

In particular, the chapter assesses the extent to which federal sedition law is compatible with art 19 of the International Covenant on Civil and Political Rights 1966.12 The ALRC concludes that, if the pattern of recommendations in this Report were adopted, this would remedy any inconsistencies (potential or actual) between federal sedition law and the International Covenant.

Glorification of terrorism Chapter 6 describes the nature and use of sedition laws (or the equivalent) in a range of other countries. Among other things, the chapter considers s 1 of the Terrorism Act 2006 (UK), which makes it a criminal offence in the United Kingdom to encourage or glorify terrorism.13

–  –  –

This law has been very controversial in the United Kingdom—including in the House of Lords and the Parliament’s Joint Committee on Human Rights—drawing criticism that: the terminology used is too vague and too broad; there is no requirement that the person intends to incite terrorism; and the prohibition improperly intrudes into protected free speech (under art 10 of the European Convention on Human Rights).

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