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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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Cooper v The Queen (1961) 105 CLR 177. For a discussion of this case, see W Stent, ‘An Individual vs the State: The Case of BL Cooper’ (1980) 79 Overland 60.

80 See H Lee, Emergency Powers (1984), 92. The opinion of the Attorney-General has never been published.

81 See M Armstrong, D Lindsay and R Watterson, Media Law in Australia (3rd ed, 1995), 150.

82 Law Reform Commission of Canada, Crimes Against the State, Working Paper 49 (1986), 45; Law Reform Commission (Ireland), Report on the Crime of Libel, LRC 41–1991 (1991), 10; Law Commission of England and Wales, Working Paper No 72 Second Programme, Item XVIII Codification of the Criminal Law—Treason, Sedition and Allied Offences (1977), 48.

83 Law Commission of England and Wales, Working Paper No 72 Second Programme, Item XVIII Codification of the Criminal Law—Treason, Sedition and Allied Offences (1977), 48; Law Reform Commission of Canada, Crimes Against the State, Working Paper 49 (1986), 36.

84 Law Reform Commission (Ireland), Report on the Crime of Libel, LRC 41–1991 (1991), 10; Law Commission of England and Wales, Working Paper No 72 Second Programme, Item XVIII Codification of the Criminal Law—Treason, Sedition and Allied Offences (1977), 48.

85 Law Reform Commission (Ireland), Report on the Crime of Libel, LRC 41–1991 (1991), 10; Law Reform Commission of Canada, Crimes Against the State, Working Paper 49 (1986), 39.

60 Fighting Words Hope Royal Commission

2.43 In 1984, the Royal Commission on Australia’s Security and Intelligence Agencies, chaired by New South Wales Justice Robert Hope (the Hope Commission), examined federal sedition law as part of its review of national security offences relevant to the Australian Security Intelligence Organisation.86 The Hope Commission criticised the High Court decisions in Burns v Ransley87 and R v Sharkey,88 stating that ‘mere rhetoric or statements of political belief should not be a criminal offence, however obnoxious they may be to constituted authority’.89

2.44 The Hope Commission recommended that the sedition provisions be amended to include the common law requirement of intention to create violence, public disturbance or disorder.90 It also recommended the removal of those provisions referring to seditious intention in relation to ‘any of the Queen’s dominions’, thus narrowing the scope of the offences to seditious words or acts directed against the Australian Government or Constitution.91 The federal provisions were amended in accordance with the Hope Commission’s recommendations in 1986.92 Gibbs Committee

2.45 Australia’s federal sedition provisions also were reviewed by the Committee of Review of Commonwealth Criminal Law (the Gibbs Committee) in 1991.93 The Committee criticised the federal provisions for being archaic and excessively wide, and recommended that they be ‘rewritten to accord with a modern democratic society’.94 The Gibbs Committee considered that a separate offence of sedition should be retained, but limited to inciting violence for the purpose of disturbing or overthrowing constitutional authority.95 The Gibbs Committee therefore recommended the

replacement of the existing provisions with the following offences:

• inciting the overthrow or supplanting by force or violence of the Constitution or the established Government of the Commonwealth or the lawful authority of that Government in respect of the whole or part of its territory;

• inciting interference by force or violence with the lawful processes for Parliamentary elections; and 86 Royal Commission on Australia’s Security and Intelligence Agencies, Report on the Australian Security Intelligence Organization (1985).

87 Burns v Ransley (1949) 79 CLR 101.

88 R v Sharkey (1949) 79 CLR 121.

89 Royal Commission on Australia’s Security and Intelligence Agencies, Report on the Australian Security Intelligence Organization (1985), [4.101].

90 Ibid, [4.101].

91 Ibid, [4.98].

92 Intelligence and Security (Consequential Amendments) Act 1986 (Cth) ss 11–14.

93 H Gibbs, R Watson and A Menzies, Review of Commonwealth Criminal Law: Fifth Interim Report (1991).

94 Ibid, [32.13].

95 Ibid, [32.13]–[32.18].

2. Origins and History of Sedition Law 61

• inciting the use of force or violence by groups within the community, whether distinguished by nationality, race or religion, against other such groups or members thereof.96 Legislative amendments in 2005

2.46 The Gibbs Committee recommendations were not acted upon at the time.

However, in September 2005 the Australian Government announced its intention to modernise the federal sedition provisions and adapt them to the counter-terrorism context.97 To some extent, the amendments reflected international initiatives to criminalise activity deemed to promote terrorist violence.98

2.47 The legislation passed in the Australian Parliament in late 2005 repealed the old sedition offence in s 24A of the Crimes Act and replaced it with five new offences, now found in s 80.2 of the Criminal Code (Cth). As detailed in Chapter 3, the new offences attempt to shift the focus away from ‘mere speech’ towards ‘urging’ other persons to use ‘force or violence’ in a number of specified contexts.

2.48 The Australian Government stated that some of the amendments to the sedition provisions effected by the Anti-Terrorism Act (No 2) 2005 (Cth) were in accordance with the Gibbs Committee recommendations.99 Prior to this amendment, Australia’s sedition laws—like those in the United Kingdom and Canada—were thought to be suspended somewhere ‘between obsolescence and abolition’.100





2.49 Despite having fallen out of use in the past 50 years, the Australian Government stated that in the counter-terrorism context, ‘sedition is just as relevant as it ever was’,101 particularly to ‘address problems with those who communicate inciting messages directed against other groups within our community, including against Australia’s forces overseas and in support of Australia’s enemies’.102 96 Ibid, [32.18].

97 J Howard (Prime Minister), ‘Counter-Terrorism Laws Strengthened’ (Press Release, 8 September 2005).

98 See, eg, Council of Europe Convention on the Prevention of Terrorism, 16 May 2005, CETS 196, (entered into force generally on 16 May 2005) art 5(2), which requires state parties to criminalise public provocation to commit a terrorist offence. See the detailed discussion in Chs 5 and 6.

99 Explanatory Memorandum, Anti-Terrorism Bill (No 2) 2005 (Cth), 88.

100 L Maher, ‘Dissent, Disloyalty and Disaffection: Australia’s Last Cold War Sedition Case’ (1994) 16 Adelaide Law Review 1, 73. See also E Barendt, Freedom of Speech (2nd ed, 2005), 163; ARTICLE 19 (Global Campaign for Free Expression), Memorandum on the Malaysian Sedition Act 1948 (2003) http://www.suaram.net/suaram%20A19%20sedition%20memo.pdf at 20 January 2006; M Armstrong, D Lindsay and R Watterson, Media Law in Australia (3rd ed, 1995), 150; Lord Denning, Landmarks in the Law (1984), 295; H Lee, Emergency Powers (1984), 92.

101 Senate Legal and Constitutional Legislation Committee—Australian Parliament, Anti-Terrorism Bill (No 2) 2005: Transcript of Public Hearing, 14 November 2005, 4 (G McDonald).

102 J Howard (Prime Minister), ‘Counter-Terrorism Laws Strengthened’ (Press Release, 8 September 2005).

62 Fighting Words Do we need the term ‘sedition’?

Characterising the offences in s 80.2

2.50 There is little doubt that, on any dispassionate analysis, the new sedition laws introduced in 2005 are better than the laws they replaced—both in terms of the technical operation of the provisions and their protection of human rights. Three of the new offences contained in s 80.2 of the Criminal Code shift the emphasis from speech that is merely critical of the established order to exhortations to use force or violence against established authority, voters or particular groups within the community.103 It is very difficult to understand why exhortations to use force or violence should not be prohibited by federal law, provided that the offences are properly framed.104

2.51 Thus, as a result of the amendments to the old Commonwealth sedition provisions in 2005, the offences in s 80.2 are now conceptually closer to the criminal laws of incitement and riot than they are to ‘sedition’, as the term has traditionally been understood.

2.52 Notwithstanding this amendment, a great deal of the debate and media coverage continued to assert that a person could fall foul of the new laws by saying such things as ‘the Government was wrong to send troops to Iraq’, or ‘Australia needs to cut its ties with the British Crown’, or that a university lecturer would be in trouble for asking students of politics or rhetoric to ‘study the speeches of Hitler’.105 Such analysis of the coverage of the current sedition provisions is wrong in law: the substantive provisions demonstrate that mere criticism of government action—unless it urges force or violence and is outside the parameters of the defence in s 80.3—will not be caught by the main offence provisions.

2.53 As explained earlier in this chapter, the history of sedition prosecutions indicates that, perhaps to a greater extent than any other offence except treason, sedition is a quintessentially ‘political’ crime, in that this offence has been used to criminalise expression that is critical of the established order. This has helped fuel concerns expressed by members of the community, and politicians across party lines, that there is potential for the law to over-reach, and to inhibit freedom of expression and free association.

2.54 Some of the concern expressed by stakeholders and commentators clearly stems from the context in which the new laws emerged. Although the changes made in 2005 largely track the 1991 recommendations of the Gibbs Committee, sedition laws were not modernised as part of a general ‘tidy up’ of federal criminal law. Rather, the new 103 As explained in Ch 11, the other two offences (s 80.2(7) and (8)) are very similar to the existing treason offences in s 80.1(1)(e) and (f).

104 As explained in Chs 5 and 7, freedom of expression has never been considered an absolute right. It has always been subject to limitations, particularly involving the maintenance of public order and the prevention of violence.

105 See, eg, B O’Keefe, ‘Sedition Threatens Uni Debate’, The Australian (Sydney), 3 May 2006, 23.

2. Origins and History of Sedition Law 63 sedition offences were contained in the Anti-Terrorism Act 2005 (Cth), which also introduced into the Criminal Code a range of extraordinary new powers, mechanisms and offences—such as control orders (Div 104) and preventative detention orders (Div 105)—that required a constitutional referral of powers from the states.

2.55 Thus the view of opponents and proponents of the legislation was that, while sedition offences may have been regarded as a ‘dead letter’ in western countries in recent decades, their modernisation and re-enactment in November 2005 signalled that they were now more likely to be used.

Submissions and consultations

2.56 Partly in response to widespread concern over the continued use of the term ‘sedition’ in the Criminal Code, with reference to its problematic history, the ALRC asked in Issues Paper 30 whether the term ‘sedition’ should be retained in the Code.106

2.57 Responses to this question almost uniformly favoured the removal of the term ‘sedition’.107 The most frequently expressed concerns were that the term did not accurately reflect the nature of the offences, as amended in 2005;108 and that it was undesirable to maintain a link with the concept of sedition, given its history.109

2.58 The Attorney-General’s Department (AGD), however, favoured the retention of the term ‘sedition’. At the Senate Legal and Constitutional Legislation Committee inquiry into the provisions of the Anti-Terrorism Bill (No 2) 2005 (Cth) (the 2005 Senate Committee inquiry), the AGD acknowledged that there may have been a trend away from using the term sedition, but said the focus should be on the substance of the relevant offence.110

2.59 The AGD disagreed with both of the reasons, described above, for removing the term ‘sedition’. On the question whether sedition is an accurate label to describe the

relevant provisions, the AGD stated:

106 Australian Law Reform Commission, Review of Sedition Laws, IP 30 (2006), Question 2.

107 J Pyke, Submission SED 18, 10 April 2006; J Goldring, Submission SED 21, 5 April 2006; A Steel, Submission SED 23, 18 April 2006; Australian Society of Authors, Submission SED 24, 18 April 2006;

National Association for the Visual Arts, Submission SED 30, 11 April 2006; Centre for Media and Communications Law, Submission SED 32, 12 April 2006; Federation of Community Legal Centres (Vic), Submission SED 33, 10 April 2006; Fitzroy Legal Service Inc, Submission SED 40, 10 April 2006;

B Saul, Submission SED 52, 14 April 2006; National Legal Aid, Submission SED 62, 20 April 2006.

108 J Pyke, Submission SED 18, 10 April 2006; J Goldring, Submission SED 21, 5 April 2006; A Steel, Submission SED 23, 18 April 2006; National Association for the Visual Arts, Submission SED 30, 11 April 2006; Centre for Media and Communications Law, Submission SED 32, 12 April 2006; Fitzroy Legal Service Inc, Submission SED 40, 10 April 2006; B Saul, Submission SED 52, 14 April 2006;

National Legal Aid, Submission SED 62, 20 April 2006.

109 New South Wales Bar Association, Submission SED 20, 7 April 2006; Centre for Media and Communications Law, Submission SED 32, 12 April 2006; Federation of Community Legal Centres (Vic), Submission SED 33, 10 April 2006; Law Institute of Victoria, Submission SED 70, 28 June 2006;

R Douglas, Submission SED 87, 3 July 2006.

110 Australian Government Attorney-General’s Department, Submission 290A to Senate Inquiry into AntiTerrorism Bill (No 2) 2005, 22 November 2005.

64 Fighting Words [Sedition] is a legal term used by other legal systems to broadly describe conduct which urges violence or the use of force which is aimed at threatening the peace, order and good government of a nation.111

2.60 The AGD said that its rationale for retaining the name ‘sedition’ was that ‘it is important that the criminal law uses terms that have a long established meaning’.112 On



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