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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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the link with the historical use of sedition, the AGD stated:

In the past, urging violence against the monarch was a very real attack on the fabric of society and in contemporary society the same is also true of people who do urge violence against groups in a society which is made up of different cultures and religions.113

2.61 Consistently with the bulk of the views received on this issue, in Discussion

Paper 71 (DP 71) the ALRC proposed:

The Australian Government should remove the term ‘sedition’ from federal criminal law. To this end, the headings of Part 5.1 and Division 80 of the Criminal Code (Cth) should be changed to ‘Treason and offences against political liberty’, and the heading of s 80.2 should be changed to ‘Offences against political liberty and public order’.114

2.62 The proposal to remove the term ‘sedition’ received near unanimous support from those who have specifically commented on this issue.115 Most also endorsed the alternative phrasing proposed by the ALRC,116 but some suggested alternatives. These alternatives included ‘Advocating Terrorism’ or ‘Incitement to Terrorist Acts’;117 and ‘Offences against constitutional government and public order’.118 Although preferring to retain the term ‘sedition’, the AGD submitted that, if this term were to be discarded, a preferable description would be ‘“urging violence” rather than “Offences against political liberty and public order” as the latter description applies to a much larger group of offences’.119 111 Australian Government Attorney-General’s Department, Submission SED 31, 12 April 2006.

112 Ibid.

113 Ibid.

114 Australian Law Reform Commission, Review of Sedition Laws, DP 71 (2006), Proposal 2–1. The ALRC also proposed that ‘The Australian Government should initiate a process through the Standing Committee of Attorneys-General to remove the term “sedition” from state and territory laws and to modernise and harmonise the relevant laws in keeping with the proposed changes to federal law’: Proposal 2–2.

115 Arts Law Centre of Australia, Submission SED 65, 6 June 2006; Law Institute of Victoria, Submission SED 70, 28 June 2006; J Gilman, Submission SED 78, 3 July 2006; Australian Screen Directors Association, Submission SED 85, 3 July 2006; R Douglas, Submission SED 87, 3 July 2006; Sydney PEN, Submission SED 88, 3 July 2006; R Connolly and C Connolly, Submission SED 90, 3 July 2006;

J Pyke, Submission SED 100, 3 July 2006; Artsource, Submission SED 113, 3 July 2006; Australia Council for the Arts, Submission SED 114, 3 July 2006; Media Entertainment and Arts Alliance, Submission SED 117, 3 July 2006; National Tertiary Education Union, Submission SED 118, 3 July 2006;

National Legal Aid, Submission SED 124, 7 July 2006; Public Interest Advocacy Centre, Submission SED 125, 7 July 2006.

116 Arts Law Centre of Australia, Submission SED 65, 6 June 2006; Law Institute of Victoria, Submission SED 70, 28 June 2006.

117 J Gilman, Submission SED 78, 3 July 2006.

118 J Pyke, Submission SED 100, 3 July 2006.

119 Australian Government Attorney-General’s Department, Submission SED 92, 3 July 2006.

2. Origins and History of Sedition Law 65

2.63 The NSW Council for Civil Liberties also preferred that the term ‘sedition’ be

retained, submitting:

To rename the sedition offences in Chapter 5 of the Criminal Code, ‘Offences against political liberty and public order’ disguises the fact that the true nature of the legislation remains sedition. The offences, in fact, continue to infringe fundamental political liberties, not protect them as the proposed title indicates. CCL opposes this proposal and considers it an attempt to conceal the true nature of the legislation and mislead the public.120 ALRC’s views

2.64 The ALRC considers that governments have a right, and in many cases a duty, to legislate to protect the institutions of democracy (responsible government, independent courts, free elections) from attack by force or violence; and similarly to protect the personal integrity of citizens (especially vulnerable or unpopular groups) from attack by force or violence. Indeed, this is recognised in a number of submissions, including those advocating the removal of the term ‘sedition’.121

2.65 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. The question of whether to retain the term ‘sedition’ in the Criminal Code matters because it has a bearing on the popular understanding and judicial interpretation of the relevant provisions.

2.66 As a technical matter, the reference to sedition in the headings of Part 5.1 and Division 80 has consequences for the interpretation of the provisions in that Part;122 however, the heading of s 80.2 does not form part of the Act.123 As a practical matter, this may not make a great deal of difference. A court faced with interpreting the provisions in Part 5.1 will focus primarily on the plain meaning of the words. The court will have regard to the purpose of the legislation124 and may utilise relevant extrinsic material—such as second reading speeches, explanatory memoranda, and the reports of parliamentary committees and law reform commissions—if this aids interpretation.125 Further, federal statutes must be construed subject to the Australian Constitution— which, as interpreted, contains an implied freedom of political speech126—and there is a strong tradition in the common law that provisions imposing criminal liability must be narrowly construed by the courts.





2.67 It is unclear why, after substantially modifying the offences in 2005, the Australian Government chose to retain the term ‘sedition’ to describe the new offences.

On the contrary, there are strong reasons not to retain this term. As elaborated below, 120 New South Wales Council for Civil Liberties Inc, Submission SED 89, 3 July 2006.

121 See, eg, Centre for Media and Communications Law, Submission SED 32, 12 April 2006.

122 Acts Interpretation Act 1901 (Cth) s 13(1).

123 Ibid s 13(3).

124 Ibid s 15AA.

125 Ibid s 15AB.

126 See Ch 7.

66 Fighting Words the term ‘sedition’ does not accurately describe the offences in s 80.2; and the continued use of this term is problematic because of the history of sedition as an offence.

‘Sedition’: an inaccurate description

2.68 In light of the amendments in 2005, ‘sedition’ is not an accurate description of the offences in s 80.2. There are several factors at play here. As explained earlier, the crime of sedition traditionally has been used to criminalise expression that is merely critical of government and established authority. By framing the principal offences (other than s 80.2(7) and (8), which are dealt with in Chapter 11) as proscribing the urging of force or violence, the Australian Parliament made a significant change that distinguishes the present offences from the sedition offences of the past.

2.69 Parliament also included a new offence in s 80.2(5)—namely, urging inter-group force or violence. This is a public order offence aimed at punishing and deterring violence between different groups in the Australian community and bears little relationship with historical conceptions of ‘sedition’.

2.70 In addition, sedition is not necessary as a descriptor. Although Part 5.1 and Division 80 of the Criminal Code are now headed ‘Treason and sedition’ and s 80.2 is headed ‘Sedition’, no reference is made to ‘sedition’ within any of the substantive provisions of the Code.127 A parallel might be drawn here with the United States ‘seditious conspiracy’ offence, which refers to the term only in the title of the offence, but not in the text of the provision itself. It has been suggested that this is because the term ‘sedition’ does not convey a clear legal meaning.128 Sedition and its historical baggage

2.71 Another consequence of retaining the term ‘sedition’ goes more to the broad social understanding of the law than to its technical construction. 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.

2.72 The ALRC is confident that these recommendations will achieve the desired aim in terms of technical improvements to the law. 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 much too closely associated in the public mind with its 127 Part IIA of the Crimes Act 1914 (Cth) on unlawful associations relies on the concept of a ‘seditious intention’, which is defined in s 30A. However, in Rec 4–1 the ALRC calls for repeal of these provisions.

128 See J Cohan, ‘Seditious Conspiracy, the Smith Act, and Prosecution for Religious Speech Advocating the Violent Overthrow of the Government’ (2003) 17 St John’s Journal of Legal Commentary 199, and the discussion of the US law of sedition in Ch 6.

2. Origins and History of Sedition Law 67 origins and history as a crime rooted in criticising—or ‘exciting disaffection’ against— the established authority.

2.73 Chapters 5 and 7 consider in some detail the extent to which freedom of expression is guaranteed by international law and by domestic law. Australians place a high premium on freedom of expression and robust debate. We demand that our public institutions be open, transparent and accountable, and we reserve the right to criticise the most senior officials when we believe they have erred. The cultural preference is for challenging unpopular or radical views in the marketplace of ideas, rather than in the criminal courts.

2.74 For these reasons, the ALRC recommends that the term ‘sedition’ no longer be used in federal criminal law. To this end, Part 5.1 and Division 80 of the Criminal Code should be renamed ‘Treason and urging political or inter-group force or violence’, and the heading of s 80.2 should be changed to ‘Urging political or intergroup force or violence’.

–  –  –

Introduction

3.1 This chapter summarises the current federal sedition provisions and other related aspects of federal law, including the offences of treason, treachery and interfering with elections. These provisions are found in the Criminal Code (Cth), the Crimes Act 1914 (Cth) and other federal legislation. The chapter also considers state and territory laws on sedition, treason and related matters.

3.2 A deeper analysis of the current sedition offences and recommendations for their reform are contained in Chapters 8–11. Chapter 12 considers the defence and penalties relating to these offences.

–  –  –

including those that advocate the doing of acts that have as an object the carrying out of a ‘seditious intention’.1 Part IIA is considered in Chapter 4.

New sedition offences in the Criminal Code

3.4 The new federal sedition offences were enacted by Schedule 7 of the AntiTerrorism Act (No 2) 2005 (Cth) and commenced on 11 January 2006. The Act contains measures designed to respond to the threat of terrorism by criminalising terrorist acts and conferring further powers on law enforcement and intelligence agencies.2

3.5 Schedule 7 repealed the sedition offences found in ss 24A–24F of the Crimes Act3 and replaced them with the new offences that are now located in Part 5.1 of the Criminal Code. This is in keeping with the Australian Government’s policy of shifting updated offences and provisions dealing with criminal responsibility from the Crimes Act to the Criminal Code, with the former now mainly concerned with matters of practice and procedure.4

3.6 The stated purposes of the new sedition provisions are to modernise the language of the offences and to ‘address problems with those who incite directly against other groups within the community’.5

3.7 Five new offences were created in s 80.2 of the Criminal Code under the heading ‘Sedition’. The first, under the sub-heading Urging the overthrow of the

Constitution or Government, provides:

(1) A person commits an offence if the person urges another person to overthrow by

force or violence:

(a) the Constitution; or (b) the Government of the Commonwealth, a State or a Territory; or (c) the lawful authority of the Government of the Commonwealth.

(2) Recklessness applies to the elements of the offence under subsection (1) that it

is:

(a) the Constitution; or 1 Crimes Act 1914 (Cth) s 30A(1)(b).

2 Explanatory Memorandum, Anti-Terrorism Bill (No 2) 2005 (Cth). See also Ch 1.

3 See Ch 2 for a brief history of the old sedition offences. A new s 30A(3) has been inserted into the Crimes Act, defining ‘seditious intention’. However, this is applicable only in relation to the offences of ‘unlawful association’ (see Ch 4).

4 Explanatory Memorandum, Anti-Terrorism Bill (No 2) 2005 (Cth). In its Inquiry into the sentencing of federal offenders, the ALRC recommended the repeal of Part IB of the Crimes Act and its replacement by

a dedicated federal sentencing Act: Australian Law Reform Commission, Same Crime, Same Time:

Sentencing of Federal Offenders, ALRC 103 (2006), Rec 2–1.

5 Commonwealth, Parliamentary Debates, House of Representatives, 3 November 2005, 103 (P Ruddock– Attorney-General).

3. Australian Sedition Laws and Related Provisions 71 (b) the Government of the Commonwealth, a State or a Territory; or (c) the lawful authority of the Government of the Commonwealth that the first-mentioned person urges the other person to overthrow.

3.8 The second offence, Urging interference in Parliamentary elections, in

s 80.2(3)–(4), states:

(3) A person commits an offence if the person urges another person to interfere by force or violence with lawful processes for an election of a member or members of a House of the Parliament.



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