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3.36 Under s 24AA, a person commits ‘treachery’ if he or she acts with intent to overthrow the Constitution by revolution or sabotage, overthrow the government of a state or the Commonwealth by an act of force or violence, or participates in acts of war against proclaimed countries. The maximum penalty is life imprisonment.

3.37 The Gibbs Committee was of the view that, given its similarity to the treason offence, the offence of treachery should be repealed and a new provision created, making it an offence for an Australian citizen or resident to help a state or any armed force against which any part of the ADF is engaged in armed hostilities.32 This wording is now part of the treason and sedition offences in the Criminal Code.

Sabotage

3.38 Under s 24AB, a person commits an act of ‘sabotage’ if he or she destroys, damages or impairs any article used by the ADF or that relates directly to the defence of the Commonwealth, with the intention of prejudicing the safety or defence of the Commonwealth. Sabotage carries a maximum penalty of 15 years imprisonment.

3.39 As with the treachery offence, the Gibbs Committee noted that no prosecution had ever been brought under s 25AB, and that a simplified and narrower version of the offence should be adopted.33

3.40 In common with the new sedition offences, a prosecution for treachery or sabotage may be instituted only with the written consent of the Attorney-General.34

Inciting mutiny

3.41 Section 25 of the Crimes Act creates an offence of inciting disaffection with, or attempting to interfere with the operations of, the ‘Queen’s Forces’, including inciting mutiny or ‘seducing’ any person in the military ‘from his duty and allegiance’.35 The maximum penalty is life imprisonment. The Gibbs Committee recommended repeal of this provision on the basis that the Defence Force Discipline Act 1982 (Cth) already contains offences of mutiny and incitement to mutiny.36 Assisting prisoners of war to escape

3.42 Section 26 makes it an offence, with a maximum penalty of life imprisonment, for a person to assist prisoners of war to escape. The Gibbs Committee noted the severity of the penalty for this offence, and compared it with the five-year penalty for assisting a civilian prisoner to escape under s 46 of the Act. The Committee concluded that this offence should be removed from an Act of general application such as the Crimes Act.37 Unlawful drilling 3.43 ‘Unlawful drilling’ involves training or drilling others ‘to the use of arms or the practice of military exercises, movements, or evolutions’,38 contrary to a proclamation of the Governor-General. No proclamation for the purpose of this section has ever been made. There is some overlap between this provision and offences under the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), which is discussed below.

Intentionally damaging or destroying Commonwealth property

3.44 Under s 29, a person who intentionally destroys or damages any property, whether real or personal, belonging to the Commonwealth or to any Commonwealth public authority is guilty of an offence, punishable by imprisonment for up to 10 years.

Offences under Part IIA of the Crimes Act

3.45 Part IIA of the Crimes Act contains a range of provisions concerning unlawful associations. Chapter 4 considers this area of the law in detail, and Chapter 8 deals with s 30C (advocating overthrow of the Constitution), which substantially overlaps with the offence in s 80.2(1).

35 Ibid s 25. The ‘Queen’s Forces’ is defined to mean the Australian Defence Force or ‘the armed forces of the United Kingdom or any British possession’.

36 H Gibbs, R Watson and A Menzies, Review of Commonwealth Criminal Law: Fifth Interim Report (1991), [34.12].

37 Ibid, [35.7].

38 Military evolutions are training exercises to accustom troops to the different movements required, for example, in defensive or offensive operations.

3. Australian Sedition Laws and Related Provisions 79 Electoral offences

3.46 As discussed above, one of the new sedition offences (s 80.2(3) of the Criminal Code) involves urging others to interfere by force or violence with parliamentary elections. Under s 28 of the Crimes Act, it is also an offence (punishable by imprisonment for three years) where a person ‘by violence or by threats or intimidation of any kind, hinders or interferes with the free exercise or performance, by any other person, of any political right or duty’.

3.47 A related summary offence also exists under s 327(1) of the Commonwealth Electoral Act 1918 (Cth), which provides that a person ‘shall not hinder or interfere with the free exercise or performance, by any other person, of any political right or duty that is relevant to an election under this Act’. The penalty for breach is a fine of $1,000, or imprisonment for six months, or both. Under the Referendum (Machinery Provisions) Act 1984 (Cth), a mirror offence provides that a person shall not hinder or interfere with the free exercise or performance, by any other person, of any political right or duty that is relevant to an election or referendum’.39 These offences are considered in more detail in Chapter 8.

Crimes (Foreign Incursions and Recruitment) Act 1978

3.48 The Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) contains a number of offences preventing persons from recruiting, training or organising people in

Australia for armed incursions or operations in another country. It is an offence to:

• enter into a foreign state and engage in hostile activity in that foreign state (s 6);

• enter into a foreign state with the intent to engage in hostile activity in that foreign state (s 6);

• undertake preparation for the above purpose, including training, giving money or goods to any body or association promoting these activities (s 7);

• recruit persons to join organisations engaged in hostile activities against foreign governments (s 8); or

• recruit persons to serve in or with an armed force in a foreign state (s 9).

3.49 ‘Hostile activities’ under the Act include activities done with the intention of:

achieving overthrow by force or violence of the government of the foreign state;

causing the public of the foreign state to be in fear of suffering death or injury; causing

the death or injury to the head of state or public officials; or damaging the foreign government’s property.40

3.50 The Act does not apply to acts done in defence of Australia, or in the course of a person’s duty to the Commonwealth.41 An offender must be an Australian citizen, ordinarily resident in Australia, or present in Australia for purposes connected with the offence.42 Proceedings under the Act require the Attorney-General’s written consent.43

3.51 The offences under s 80.2(7) and (8) of the Criminal Code overlap to some extent with these provisions. Under s 9(d) of the Crimes (Foreign Incursions and Recruitment) Act, it is an offence to do ‘any act or other thing with the intention of facilitating or promoting the recruitment of persons to serve in any capacity in or with such an armed force’. Presumably this could include urging another to assist the enemy or those engaged in armed hostilities with the ADF under s 80.1(1)(e)–(f) or s 80.2(7) and (8).

ALRC’s views

3.52 It is outside the Inquiry’s Terms of Reference to conduct a full review of all federal law relating to the security of the Commonwealth. Nevertheless, it is clear that, while attention has been given to the modernisation of some of the Crimes Act offences, many still languish as ‘dead-letter’ laws that are never prosecuted. These provisions are couched in archaic language and many of them effectively have been superseded by new provisions in the Criminal Code and elsewhere.

3.53 In Discussion Paper 71 (DP 71), the ALRC proposed that these offences be reviewed by the Australian Government to determine which offences merit retention, modernisation and relocation to the Criminal Code, and which should be abolished because they are redundant or otherwise inappropriate.44 This proposal was supported in a number of submissions.45

3.54 Consequently, the ALRC recommends that the Australian Government initiate a review of the remaining offences contained in Part II of the Crimes Act. As discussed in Chapter 4, this review should also encompass ss 30J and 30K, located in Part IIA of the Crimes Act.

40 Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) s 6(3).

41 Ibid s 5.

42 Ibid ss 6(2), 7(2).

43 Ibid s 10.

44 Australian Law Reform Commission, Review of Sedition Laws, DP 71 (2006), Proposal 4–1.

45 Arts Law Centre of Australia, Submission SED 65, 6 June 2006; Australian Press Council, Submission SED 66, 23 June 2006; Law Institute of Victoria, Submission SED 70, 28 June 2006; Victoria Legal Aid, Submission SED 79, 3 July 2006; Sydney PEN, Submission SED 88, 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.

3. Australian Sedition Laws and Related Provisions 81 Recommendation 3–1 The Australian Government should initiate a review of the remaining offences in Part II of the Crimes Act 1914 (Cth) to determine which offences merit retention, modernisation and relocation to the Criminal Code (Cth), and which offences should be abolished. This review should include the offences in ss 24AA, 24AB and 25–29 of the Crimes Act.

(See also Recommendation 4–2).

State and territory sedition laws

3.55 Federal sedition law proscribes, among other things, urging the overthrow by force or violence of ‘the Government of the Commonwealth, a State or a Territory’.46 However, the Australian Parliament did not intend to ‘cover the whole field’47 in relation to sedition, which would have rendered the relevant state and territory laws inoperative under s 109 of the Australian Constitution.48

3.56 Section 80.6 of the Criminal Code states that the treason and sedition provisions of Division 80 are ‘not to apply to the exclusion of a law of a State or a Territory to the extent that the law is capable of operating concurrently’ with them.

3.57 Commonwealth, state and territory laws define sedition in different terms. For example, some state laws seek to protect the Sovereign, Government and Constitution of the United Kingdom from seditious conduct.49 In contrast, the Criminal Code provisions apply only to sedition against the Australian Constitution or the Government of the Commonwealth or an Australian state or territory.50

3.58 In New South Wales and Victoria, the common law offence of seditious libel remains in effect.51 In New South Wales, the common law offence is referred to by the Imperial Acts Application Act 1969 (NSW), which states that following a conviction for seditious libel the court may give an order for the seizure of all copies of the libel.

The Act refers to seditious libel as tending to bring into hatred or contempt the person of Her Majesty, Her heirs or successors, or the government and constitution of the State of New South Wales as by law established, or either House of Parliament, or to excite Her Majesty’s subjects to 46 Criminal Code (Cth) s 80.2(1)(b) (emphasis added).

47 See Viskauskas v Niland (1983) 153 CLR 280, 291.

48 Section 109 provides that the laws of the Commonwealth shall prevail over those of a state, to the extent of any inconsistency.

49 Criminal Code 1899 (Qld) s 44(b); Criminal Code 1913 (WA) s 44; Criminal Code 1924 (Tas) s 67.

50 Criminal Code (Cth) s 80.2(1). See also the references to the states and territories in the good faith defence: s 80.3.

51 See Butterworths, Halsbury’s Laws of Australia, vol 21 Human Rights, [130–12080].

82 Fighting Words attempt the alteration of any matter as by law established, otherwise than by lawful means …52

3.59 The provision does not appear to codify the law of seditious libel, as it does not establish or define an offence, but simply provides for court orders consequential to a conviction.53

3.60 In Victoria, s 316 of the Crimes Act 1958 (Vic) makes it an offence to take an oath to, among other things, ‘engage in any mutinous or seditious enterprise’. The nature of a seditious enterprise is not defined, leaving this to the common law.

3.61 Queensland, Western Australia, Tasmania and the Northern Territory have statutory sedition offences. The offence provisions, and the relevant defences, are framed in a similar manner to those in the repealed Crimes Act 1914 (Cth) provisions54—which were based on similar provisions in the Criminal Code (Qld).

However, these state and territory laws do not require an intention to cause violence or disorder to be proved in order for a person to be convicted of sedition.55

3.62 In Queensland, sedition offences are contained in the Criminal Code (Qld).56 The offences concern engaging in a seditious enterprise or publishing seditious words, and are punishable by imprisonment for a maximum of three years (or seven years if previously convicted).57 The definition of ‘seditious intention’ refers to sedition directed at the Sovereign, Government or Constitution of the United Kingdom or of Queensland, or against the Parliaments of the United Kingdom or Queensland, or against the administration of justice.58

3.63 In Western Australia, the Criminal Code (WA) provides for the offences of conspiring to carry into execution a seditious enterprise and publishing seditious words.59 The offences are punishable by imprisonment for a maximum of three years.60 The definition of ‘seditious intention’ refers to sedition directed against the Sovereign or the Constitution or Government of the United Kingdom, the Commonwealth or Western Australia; the Parliament of the United Kingdom, the Commonwealth or Western Australia; or against the administration of justice.61 52 Imperial Acts Application Act 1969 (NSW) s 35(1).

53 For more on the interpretation of s 35, see G Griffith, Sedition, Incitement and Vilification: Issues in the Current Debate: Briefing Paper No 1/06 (2006) NSW Parliamentary Library Research Service, 18.

54 Crimes Act 1914 (Cth) ss 24A–24D, 24F.