«Fighting Words REPORT A Review of Sedition Laws in Australia REPORT 104 July 2006 © Commonwealth of Australia 2006 This work is copyright. You may ...»
55 See Butterworths, Halsbury’s Laws of Australia, vol 21 Human Rights, [130–12075], citing Cooper v The Queen (1961) 105 CLR 177.
56 Criminal Code 1899 (Qld) s 52.
57 Ibid s 52(1)–(2).
58 Ibid s 44(b).
59 Criminal Code 1913 (WA) s 52.
60 Ibid s 52.
61 Ibid s 44.
3. Australian Sedition Laws and Related Provisions 83
3.64 In Tasmania, the Criminal Code (Tas) provides for the offences of carrying into execution a seditious intention and publishing words or writing expressive of a seditious intention.62 The definition of ‘seditious intention’ refers to sedition directed against the Sovereign or the Constitution or Government of the United Kingdom, the Commonwealth or Tasmania; or against the United Kingdom, Commonwealth or Tasmanian Parliaments; or against the administration of justice in the United Kingdom, the Commonwealth or Tasmania.63
3.65 In addition, Chapter V of the Tasmanian legislation, dealing with treason,64 includes an offence directed to ‘inciting traitorous conduct’, which may best be
characterised as a sedition provision. It applies to any person who ‘advisedly attempts’:
(a) to seduce any person serving in His Majesty’s forces by sea or land from his duty and allegiance to His Majesty;
(b) to incite any such person to commit an act of mutiny or any traitorous or mutinous act; or (c) to incite any such person to make or endeavour to make a mutinous assembly, or to commit any traitorous or mutinous practice whatever …65
3.66 Northern Territory legislation provides for offences in relation to engaging in a seditious enterprise or publishing seditious words.66 Both offences are punishable by imprisonment for a maximum of three years.67 The definition of ‘seditious intention’ refers to sedition directed at the Northern Territory government or legislative assembly, or at the administration of justice in the Territory—but there is no reference to the Sovereign.68
3.67 South Australia abolished the common law offence of seditious libel in 1992, along with a number of other common law offences.69 The ACT abolished the common law offence of seditious libel in 1996 as part of a measure intended to remove ‘outdated common law rules’.70
3.68 The abolition of seditious libel in the ACT was a by-product of defamation law reform.71 In 1995, the Community Law Reform Committee of the ACT recommended 62 Criminal Code 1924 (Tas) s 67.
63 Ibid s 66(1)(b). Section 68 of the Code also creates an offence in relation to libels on foreign powers where any person, without lawful justification, publishes writing tending to degrade, revile, or expose to hatred or contempt the people or government of any foreign State, or any officer or representative thereof.
64 Ibid ch V: ‘Treason and Other Crimes Against the Sovereign’s Person or Authority’.
65 Ibid s 62.
66 Criminal Code 1993 (NT) ss 45–46.
67 Ibid s 24E.
68 Ibid s 44. Compare Crimes Act 1914 (Cth) s 24A.
69 Criminal Law Consolidation Act 1935 (SA) sch 11.
70 Law Reform (Abolitions and Repeals) Act 1996 (ACT) s 4.
71 Explanatory Memorandum, Law Reform (Abolition and Repeals) Bill 1995 (ACT).
84 Fighting Words abolition of seditious libel—along with the other common law misdemeanours of criminal, blasphemous and obscene libel—in the course of its defamation inquiry. The Committee considered that these offences were ‘no longer appropriate in the ACT’.72 ALRC’s views
3.69 In Chapter 2, the ALRC recommends that the term ‘sedition’ be removed from the federal statute book.73 The historical association of the term with suppression of political dissent gives rise to serious concerns within the community that the law might inhibit freedom of expression and freedom of association. In consultations in this Inquiry it appeared that much of the concern about the new offences emanates from the fact they are still referred to as ‘sedition’ offences.
3.70 Consideration of state and territory sedition laws indicates that they are as contentious as—or in many cases more contentious than—the original federal Crimes Act provisions. The fact that these sedition provisions have not occasioned any public outcry is likely to be because they have not been ‘updated’—and few people are aware of their existence. Nonetheless, the reasoning that supports the ALRC’s recommendation to remove of the term sedition from federal legislation applies equally to the state and territory provisions. Removal of the term from state and territory laws was widely supported in submissions to the Inquiry.74
3.71 The ALRC therefore recommends that, in the interests of improving and harmonising the laws in this area across Australia, the Australian Government should initiate a process through the Standing Committee of Attorneys-General to remove the term ‘sedition’ from state and territory laws.
Recommendation 3–2 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 recommendations in this Report.
72 Community Law Reform Committee of the Australian Capital Territory, Defamation, CLRC 10 (1995), 17.
73 Rec 2–1.
74 Arts Law Centre of Australia, Submission SED 65, 6 June 2006; Australian Press Council, Submission SED 66, 23 June 2006; A Levy, Submission SED 72, 29 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; The Arts Industry Council of South Australia, Submission SED 112, 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.
4. Unlawful Associations
4.1 The Terms of Reference direct the ALRC to consider the operation of Part IIA of the Crimes Act 1914 (Cth) dealing with unlawful associations.
4.2 Part IIA contains 16 sections (ss 30A–30R) and was inserted into the Crimes Act in 1926, apparently in response to federal government concerns about radical trade unionism, the rise of communism and the potential for revolutionary activity.1 Schedule 7 of the Anti-Terrorism Act (No 2) 2005 (Cth) amended s 30A of the Crimes Act to insert a definition of ‘seditious intention’ into the sections, following the repeal of the sedition provisions in s 24A.
4.3 As the changes to Part IIA were consequential rather than substantive, they have not attracted the same attention or criticism as the sedition provisions. Despite being
invoked only rarely, these provisions have not been without controversy—and in 1991 the Committee of Review of Commonwealth Criminal Law (the Gibbs Committee) recommended their repeal.2
4.4 This chapter considers the unlawful associations provisions as they currently stand and the new definition of ‘seditious intention’ inserted into s 30A. It compares their operation with the terrorist organisation offences added to the Criminal Code (Cth) in 2002 and concludes that the unlawful associations provisions have been superseded and should be repealed. The chapter then considers the three stand alone offences in Part IIA that are not directly linked to unlawful associations, and recommends that they be subject to repeal or review, in line with the recommendation made in Chapter 3 for a review of certain offences in the Crimes Act.
Unlawful associations provisions
4.5 Section 30A of the Crimes Act declares as ‘unlawful associations’:
(1) (a) any body of persons, incorporated or unincorporated, which by its
constitution or propaganda or otherwise advocates or encourages:
(i) the overthrow of the Constitution of the Commonwealth by revolution or sabotage;
(ii) the overthrow by force or violence of the established government of the Commonwealth or of a State or of any other civilized country or of organized government; or (iii) the destruction or injury of property of the Commonwealth or of property used in trade or commerce with other countries or among the States;
or which is, or purports to be, affiliated with any organization which advocates or encourages any of the doctrines or practices specified in this paragraph;
(b) any body of persons, incorporated or unincorporated, which by its constitution or propaganda or otherwise advocates or encourages the doing of any act having or purporting to have as an object the carrying out of a seditious intention.
(2) Any branch or committee of an unlawful association, and any institution or school conducted by or under the authority or apparent authority of an unlawful association, shall, for all the purposes of this Act, be deemed to be an unlawful association.
4.6 Under s 30A(1A) a body is an unlawful association if it is so declared by the Federal Court of Australia, following a ‘show cause’ application by the AttorneyGeneral pursuant to s 30AA. An earlier version of this provision was introduced in 1932 to address the uncertainty that might arise if a body that had, by virtue of its attributes, become an unlawful association but had subsequently changed its policies
and activities in relevant ways, and thus should no longer be deemed to be an unlawful association.3
4.7 Following the relocation of the sedition provisions from the Crimes Act to the Criminal Code, a new definition of ‘seditious intention’ was inserted as s 30A(3) of the Crimes Act. This definition is the ‘modernised’ version of s 24A of the Crimes Act that was recommended by the Gibbs Committee.4
4.9 If a body is an unlawful association, whether by virtue of s 30A(1), (1A) or (2), a number of criminal offences may apply, as specified in ss 30AB–30FC. These
• failure to provide information relating to an unlawful association upon the request of the Attorney-General;5
• being an officer, member or representative of an unlawful association;6
• giving contributions of money or goods to, or soliciting donations for, an unlawful association;7
• printing, publishing or selling material issued by an unlawful association;8 or 3 R Douglas, ‘Keeping the Revolution at Bay: The Unlawful Associations Provisions of the Commonwealth Crimes Act’ (2001) 22 Adelaide Law Review 259, 263.
4 See discussion in Ch 3.
5 Crimes Act 1914 (Cth) s 30AB, with a maximum penalty of imprisonment for six months.
6 Ibid s 30B, imprisonment for up to one year; and see s 30H regarding proof of membership.
7 Ibid s 30D, imprisonment for up to six months.
8 Ibid ss 30E, 30F, 30FA, imprisonment for up to six months.
88 Fighting Words
• allowing meetings of an unlawful association to be held on property owned or controlled by a person.9 History of the unlawful associations provisions
4.10 The unlawful associations provisions arose in the context of government concern about radical trade unionism and revolutionary politics. Following the Australia-wide strike by the seamen’s union in 1925, the Bruce-Page Government sought to introduce a number of legislative measures designed to regulate trade unions and their leaders in Australia.10
4.11 The unlawful associations legislation was based on a similar Canadian model, although the penalties in Australia were considerably lighter. The Canadian legislation was repealed in 1936.11 Some amendments were made to Part IIA in 2001, in part to bring some of the language into line with the concepts and terminology used in the Criminal Code.12
4.12 Only one person has ever been convicted in Australia of an offence under the unlawful associations provisions—and that conviction was overturned on appeal.13 Roger Douglas notes that it was largely the threat of prosecution that was used to discourage people from making premises and public halls available to communists for
Between 1932–37, Part IIA was used to discourage the renting of meeting halls to communists, and, more importantly, as the basis of banning the postal transmission of communist publications. Between 1935–37, the Commonwealth made a half-hearted attempt to seek a declaration banning the Friends of the Soviet Union (and, almost incidentally, the Communist Party of Australia). But, with the settlement of that litigation, governments largely lost interest in the Act, and never again were any attempts made to enforce the unlawful associations provisions of Part IIA.14 9 Ibid s 30FC, imprisonment for up to six months.
10 R Douglas, ‘Keeping the Revolution at Bay: The Unlawful Associations Provisions of the Commonwealth Crimes Act’ (2001) 22 Adelaide Law Review 259, 260.
11 Ibid, 260. Similar provisions in other countries have also been repealed or limited, based on the right of freedom of association. For example, the United States Subversive Activities Control Act (1950) was repealed after the fall of the Soviet Union: L Donahue, ‘Terrorist Speech and the Future of Free Expression’ (2005) 27 Cardozo Law Review 233, 246. India’s Unlawful Activities (Prevention) Act (1967) was modernised in 2004 to apply to terrorist offences: C Kumar, ‘Human Rights Implications of National Securities Laws: Combating Terrorism While Preserving Civil Liberties’ (2005) 33 Denver Journal of International Law and Policy 195, 209.
12 Australian Government Attorney-General’s Department, A Guide to Framing Commonwealth Offences:
Civil Penalties and Enforcement Powers (2004) sch 10.
13 R v Hush; Ex parte Devanny (1932) 48 CLR 487: see R Douglas, ‘Keeping the Revolution at Bay: The Unlawful Associations Provisions of the Commonwealth Crimes Act’ (2001) 22 Adelaide Law Review 259, 261.
14 R Douglas, ‘Keeping the Revolution at Bay: The Unlawful Associations Provisions of the Commonwealth Crimes Act’ (2001) 22 Adelaide Law Review 259, 261.
4. Unlawful Associations 89