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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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(4) Recklessness applies to the element of the offence under subsection (3) that it is the lawful processes for an election of a member or members of a House of Parliament that the first-mentioned person urges the other person to interfere with.

3.9 The third offence, Urging violence within the community, in s 80.2(5)–(6),

states:

(5) A person commits an offence if:

(a) the person urges a group or groups (whether distinguished by race, religion, nationality or political opinion) to use force or violence against another group or other groups (as so distinguished); and (b) the use of the force or violence would threaten the peace, order and good government of the Commonwealth.

(6) Recklessness applies to the element of the offence under subsection (5) that it is a group or groups that are distinguished by race, religion, nationality or political opinion that the first-mentioned person urges the other person to use force or violence against.

–  –  –

3.12 Each of the five offences carries a maximum penalty of imprisonment for seven years. This is consistent with the recommendation in 1991 of the Committee of Review of Commonwealth Criminal Law (the Gibbs Committee), which argued that ‘the more specific nature of the proposed offence[s]’ warranted an increase from the maximum penalty of imprisonment for three years specified for the old sedition offences under ss 24A–24D of the Crimes Act.6 Other features of the provisions Fault elements

3.13 There has been considerable confusion in the public debate over the fault elements required for the new sedition offences. Much of this uncertainty stems from a lack of understanding about how the physical and fault elements work under the Criminal Code.7

3.14 The fault element for the act of ‘urging’ another person to engage in the relevant conduct is intention.8 Three of the new sedition offences expressly contain recklessness as a fault element in relation to some of the physical elements required to constitute the offence—that is, the circumstances or results arising from the person’s ‘urging’. The application of fault elements to the offences is discussed in detail in Chapter 8.

Extraterritorial application

3.15 The sedition and treason offences under Division 80 of the Criminal Code are characterised as ‘Category D’ offences—as are the terrorism offences created in 20029 in Divisions 101–104 of the Criminal Code.10 This designation means that, by virtue of

s 15.4 of the Criminal Code, the offences apply:

• whether or not the conduct constituting the offence occurs in Australia; and

• whether or not a result of the conduct constituting the alleged offence occurs in Australia.

6 H Gibbs, R Watson and A Menzies, Review of Commonwealth Criminal Law: Fifth Interim Report (1991), 307, [32.19].

7 See Ch 8.

8 Criminal Code (Cth) s 5.6.

9 Security Legislation Amendment (Terrorism) Act 2002 (Cth) sch 1.

10 Criminal Code (Cth) ss 101.1(2), 101.2(5), 101.4(4), 101.5(4), 101.6(3), 102.9, 103.1(3), 104.8. See the discussion below.

3. Australian Sedition Laws and Related Provisions 73

3.16 The implications of this extraterritorial application are considered in Chapter 11.

Attorney-General’s consent

3.17 Under s 80.5 of the Criminal Code, proceedings for a sedition offence may not be commenced without the written consent of the Attorney-General. According to the Explanatory Memorandum to the Anti-Terrorism Bill (No 2) 2005 (Cth), this provision is designed to provide an additional safeguard to a person charged with a sedition offence.11 This matter is discussed further in Chapter 13.

Defences

3.18 Section 80.3 of the Criminal Code provides for specific defences to the treason and sedition offences in Division 80, where the acts in question were done ‘in good faith’. The provisions in s 80.3 substantially replicate those in the old s 24F of the Crimes Act.

3.19 Under s 80.3, comments made in good faith must, for example, point out mistakes in government policy,12 urge people lawfully to change laws or policies,13 or comment on matters that produce feelings of hostility between groups with a view to bringing about removal of those matters.14 Section 80.3(1)(f) also allows the publication in good faith of a report or commentary about a matter of public interest.

3.20 In deciding whether an act was done in good faith, the court may look to matters such as whether the act was done: with a purpose intended to be prejudicial to the safety or defence of the Commonwealth;15 to assist an enemy of Australia;16 or with the intention of causing violence or creating public disorder or a public disturbance.17

3.21 Defences and recommendations for reform are discussed in detail in Chapter 12.

Related federal legislation

3.22 The previous sedition offences in the Crimes Act were part of a grouping of offences relating to the security and defence of the Commonwealth. In 1991, the Gibbs Committee recommended reform of these provisions to modernise their language, clarify their terms and bring greater consistency to their penalties.18 However, aside 11 Explanatory Memorandum, Anti-Terrorism Bill (No 2) 2005 (Cth), 93.





12 Criminal Code (Cth) s 80.3(1)(a).

13 Ibid s 80.3(1)(c).

14 Ibid s 80.3(1)(d).

15 Ibid s 80.3(2)(a).

16 Ibid s 80.3(2)(b).

17 Ibid s 80.3(2)(f).

18 H Gibbs, R Watson and A Menzies, Review of Commonwealth Criminal Law: Fifth Interim Report (1991), Chs 30–37.

74 Fighting Words from amendments such as removal of the death penalty, many of these offences have remained unaltered since their enactment in 1920. The response to modern terrorist threats against the state has generally been to enact a new set of offences in the Criminal Code rather than to rely on these older provisions.19

3.23 Some submissions and commentary suggested that the sedition provisions in s 80.2 are unnecessary as they overlap with existing federal offences, or may be covered by the offence of incitement to commit an existing offence. Under s 11.4 of the Criminal Code it is an offence to urge the commission of another offence.

Therefore, some conduct covered by the offences in s 80.2 of the Criminal Code could overlap with conduct that constitutes incitement to commit other offences—for example, the terrorism offences under Part 5.3 of the Criminal Code.

3.24 This section of the chapter considers those existing offences in the Criminal Code, the Crimes Act and other federal legislation, and their interaction with the sedition provisions. The relationship between sedition and incitement to other offences is considered in greater detail in Chapter 8.

Criminal Code Treason

3.25 The offence of treason was moved from the Crimes Act into the Criminal Code in 2002.20 Section 80.1 of the Code substantially replicates the former treason offence in s 24 of the Crimes Act, although some amendments were made in accordance with the recommendations of the Gibbs Committee, and the language was modernised and made consistent with the drafting style of the Criminal Code.21

3.26 Under s 80.1(1), a person commits treason if he or she:

• causes the death of, harm to, or imprisons or restrains the Sovereign, the heir apparent of the Sovereign, the consort of the Sovereign, the Governor-General or the Prime Minister;

• levies war, or does any act preparatory to levying war, against the Commonwealth;

• engages in conduct that assists, by any means whatever, with intent to assist, an enemy at war with the Commonwealth;

19 Part 5.3 of the Criminal Code sets out a raft of terrorism offences. The operation and effectiveness of the counter-terrorism laws have been reviewed recently as a statutory requirement of the Security Legislation Amendment (Terrorism) Act 2002 (Cth): Security Legislation Review Committee, Report of the Security Legislation Review Committee (2006).

20 Security Legislation Amendment (Terrorism) Act 2002 (Cth) sch 1.

21 Explanatory Memorandum, Security Legislation Amendment (Terrorism) Bill 2002 (Cth).

3. Australian Sedition Laws and Related Provisions 75

• engages in conduct that assists, by any means whatever, with intent to assist, another country or organisation engaged in armed hostilities against the Australian Defence Force (ADF);

• instigates a person who is not an Australian citizen to make an armed invasion of the Commonwealth or a Territory of the Commonwealth; or

• forms an intention to do any of the above acts and manifests that intention by an overt act.

3.27 The maximum penalty for an act of treason is imprisonment for life. Under s 80.1(1A), the offence of assisting the enemy does not apply where the person engages in the relevant conduct ‘by way of, or for the purposes of, the provision of aid of a humanitarian nature’.22 In common with the sedition offences, the defence of ‘good faith’ is available under s 80.3.

3.28 There is significant overlap between treason in s 80.1 and the sedition offences in s 80.2(7)–(8) of the Criminal Code, particularly in relation to the provisions concerning assisting the enemy or those engaged in armed hostilities against the ADF.

Under s 80.2(7), it is an offence for a person to urge another to assist an organisation or country at war with the Commonwealth, and under s 80.

1(1)(e) it is treason to engage in conduct that assists, by any means whatever, an enemy at war with the Commonwealth.

3.29 In Chapter 11, the ALRC concludes that the offences in s 80.2(7) and (8) are inappropriately broad and should be repealed. The ALRC also highlights related concerns with aspects of the treason offences, and makes a number of recommendations for reform, which complement the recommendations made by the Security Legislation Review Committee (the Sheller Committee) in its broader review of security laws.23 Terrorism offences

3.30 Part 5.3 of the Criminal Code was enacted in 2002 as part of the Australian Government’s counter-terrorism legislative package.24 The Criminal Code was amended to: transfer the offence of treason from the Crimes Act to the Criminal Code (as mentioned above); introduce a definition of a ‘terrorist act’ to the Code and create specific terrorism offences; and introduce an administrative power to proscribe terrorist organisations.

22 The defendant bears the evidential onus under s 13.3 to raise this matter, after which the prosecution must negate it beyond reasonable doubt.

23 See Security Legislation Review Committee, Report of the Security Legislation Review Committee (2006).

24 Security Legislation Amendment (Terrorism) Act 2002 (Cth).

76 Fighting Words

3.31 Section 100.1 of the Criminal Code defines a ‘terrorist act’ as an action or threat that is made with the intention both of ‘advancing a political, religious or ideological cause’ and ‘coercing, or influencing by intimidation’ a governmental authority in Australia or overseas. Under s 100.1(2), action falls within the definition of a terrorist act where it causes serious physical harm or death to a person, or endangers human life; causes serious damage to property; creates a serious risk to the health and safety of the public; or seriously interferes with, disrupts, or destroys an electronic system.

However, s 100.1(3) provides that action does not constitute a terrorist act if the relevant conduct is ‘advocacy, protest, dissent or industrial action’ and does not possess the requisite intent spelt out in s 100.1(3)(b).

3.32 Division 101 creates a number of serious offences, including:

• engaging in a terrorist act;25

• providing or receiving training connected with a terrorist act;26

• possessing things connected with a terrorist act;27

• collecting or making documents likely to facilitate a terrorist act;28 or

• doing other acts in preparation for, or planning, a terrorist act.29

3.33 Urging someone to overthrow the Australian Government by force or violence under s 80.2(1) would cover some of the same conduct required to establish the offence of incitement to commit a terrorist act. However, the practical steps to be taken in proving an offence under s 80.2(1) would be quite different to those under Division 101. Under the sedition offences, there is no need to prove a particular ideological or political intention on the part of the person undertaking the terrorist act.

Proving that a person who urges the commission of a terrorism offence is guilty of the offence of incitement under the Criminal Code requires evidence that the person intended that the offence incited be committed.30 The offences under s 80.2 currently require only an intention to urge the conduct, not an intention that the crime urged be committed. This distinction is discussed in greater detail in Chapter 8.

Causing harm to public officials

3.34 Sections 147.1–147.2 of the Criminal Code make it an offence to harm or threaten to harm a Commonwealth public official. These offences apply where the 25 Criminal Code (Cth) s 101.1, punishable by a maximum of life imprisonment.

26 Ibid s 101.2, punishable by imprisonment for up to 15 or 25 years, depending upon the circumstances.

27 Ibid s 101.4, punishable by imprisonment for up to 10 or 15 years, depending upon the circumstances.

28 Ibid s 101.5, punishable by imprisonment for up to 10 or 15 years, depending upon the circumstances.

29 Ibid s 101.6, punishable by a maximum of life imprisonment.

30 Ibid s 11.4(2).

3. Australian Sedition Laws and Related Provisions 77 person threatens or harms the official because of the official’s status or because of his or her conduct in an official capacity. Penalties of imprisonment for 10–13 years apply depending on whether the person is a Commonwealth law enforcement officer or another public official. It is also an offence to harm or threaten a former Governor-General, former Minister or a former Parliamentary Secretary.31 Crimes Act 1914

3.35 Even after the relocation of the treason and sedition offences to the Criminal Code, Part II of the Crimes Act retains a number of other serious ‘offences against the government’, which may be related to sedition.

Treachery



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