«Fighting Words REPORT A Review of Sedition Laws in Australia REPORT 104 July 2006 © Commonwealth of Australia 2006 This work is copyright. You may ...»
4.13 Douglas notes that even after the Communist Party Dissolution Act 1950 (Cth) was invalidated on constitutional grounds in the High Court,15 no attempt was made to use the unlawful associations provisions to prosecute communists.16 Criticisms of the unlawful associations provisions
4.14 In 1991, the Gibbs Committee recommended the repeal of Part IIA of the Crimes Act in its entirety since the unlawful associations provisions had been ‘little used since their introduction in 1926’. In its Discussion Paper, the Gibbs Committee stated that it was disposed to think that the activities at which these provisions are aimed can best be dealt with by existing laws creating such offences as murder, assault, abduction, damage to property and conspiracy and that there is no need for these provisions.17
4.15 In the final report, the Committee noted that all the submissions received in response to the proposal to repeal Part IIA endorsed that view.18 A separate recommendation was made in relation to ss 30J and 30K of the Crimes Act, which is discussed below.
4.16 A comprehensive survey of the history and use of the Part IIA provisions on unlawful associations by Douglas concluded that the case for retention is weak.19 Although drafted to be of general application, Part IIA was designed to deal with the threat posed by bodies such as the Communist Party of Australia (CPA)—‘centrally co-ordinated bodies with authoritative programs, proud of their revolutionary credentials’.20 However, these laws were not even effective against the CPA after it ‘abandoned hopes of imminent revolution’.21 It is therefore hard to see how Part IIA could be used against a movement less formally committed to modernist norms such as consistency, coherence, rationality or against a movement lacking the highly bureaucratised structure of the Communist Party.22
4.17 Douglas suggests that prosecutions may not have been attempted under Part IIA because of the likely political backlash and the difficulty of proving an offence. For example, he argues that the wording ‘by revolution or sabotage’ is unclear (without any 15 Australian Communist Party v Commonwealth (1951) 83 CLR 1.
16 R Douglas, ‘Keeping the Revolution at Bay: The Unlawful Associations Provisions of the Commonwealth Crimes Act’ (2001) 22 Adelaide Law Review 259, 261.
17 H Gibbs, R Watson and A Menzies, Review of Commonwealth Criminal Law: Fifth Interim Report (1991), [38.2]–[38.9].
18 Ibid, [38.8] 19 R Douglas, ‘Keeping the Revolution at Bay: The Unlawful Associations Provisions of the Commonwealth Crimes Act’ (2001) 22 Adelaide Law Review 259.
20 Ibid, 261, 295.
21 Ibid, 261, 295.
22 Ibid, 261, 295.
90 Fighting Words need to link to violent revolution). In the case of the CPA, the difficulty could arise as to whether a body was advocating revolution when its doctrine was that revolution could not happen until a state of affairs existed that had not yet arisen.23 There is also the need for the organisation to have indicated its unlawful purposes via its constitution or propaganda. Douglas suggests that without a clear constitution, the prosecution may have difficulty proving that the particular body sought to be banned produced the propaganda.24
4.18 There is a distinction between the unlawful associations provisions and the sedition offences (both the former ones under the Crimes Act and those under s 80.2 of the Criminal Code). Sedition offences traditionally have required that the defendant possesses a seditious intention and that the acts not be done in good faith. No comparable defence of good faith is available to a body or person prosecuted under Part IIA.25
4.19 Similar concerns were expressed about the unlawful associations provisions during the course of the 2005 Senate Committee inquiry into the Anti-Terrorism Bill (No 2) 2005 (the 2005 Senate Committee inquiry). It was said, for example, that:
The ability to ban ‘unlawful associations’ is linked to an archaic definition of ‘seditious intention’ that covers practically all forms of moderate civil disobedience and objection (including boycotts and peaceful marches).
4.20 It also was pointed out that retaining the concept of ‘seditious intention’ for the purposes of declaring associations unlawful under the Crimes Act ‘results in two inconsistent meanings of sedition in federal law (one in the Crimes Act, and another in the Criminal Code)’.27
4.21 During the 2005 Senate Committee inquiry, the Attorney-General’s Department indicated that the amendment to s 30A was merely a consequential one, was not intended to reinvigorate the use of the provision, and that ‘the Government has not fully considered the need for the retention of section 30A of the Crimes Act’.28
4.22 In Discussion Paper 71 (DP 71), it was noted that the use of the concept of ‘seditious intention’ was criticised by almost every submission that referred to the 23 Ibid, 265. This issue was discussed in the only case on Part IIA: R v Hush; Ex parte Devanny (1932) 48 CLR 487, 517–518.
24 Ibid, 290.
25 Ibid, 263.
26 Senate Legal and Constitutional Legislation Committee—Parliament of Australia, Provisions of the AntiTerrorism Bill (No 2) 2005 (2005), [5.160], citing C Connolly, Submission 56 to Senate Inquiry into AntiTerrorism Bill (No 2) 2005, 7 November 2005.
27 Senate Legal and Constitutional Legislation Committee—Parliament of Australia, Provisions of the AntiTerrorism Bill (No 2) 2005 (2005), [5.159], citing Gilbert & Tobin Centre of Public Law, Submission 80 to Senate Inquiry into Anti-Terrorism Bill (No 2) 2005, 10 November 2005.
28 Senate Legal and Constitutional Legislation Committee—Parliament of Australia, Provisions of the AntiTerrorism Bill (No 2) 2005 (2005), [5.164]–[5.166].
4. Unlawful Associations 91 issue.29 For example, the New South Wales Council for Civil Liberties argued that the re-enactment of the old definition of seditious intention is out of step with the new offence created under s 80.2.30
4.23 Victoria Legal Aid criticised the retention of the unlawful associations provisions as contrary to the principle of freedom of association under art 22 of the International Covenant on Civil and Political Rights 1966. Victoria Legal Aid agreed with the 2005 Senate Committee inquiry and the Gibbs Committee that Part IIA of the Crimes Act should be repealed.31
4.24 ARTICLE 19 also submitted that proscribing an organisation on the basis of ‘seditious intention’ is antithetical to modern criminal law provisions and inconsistent with standards under international law for the protection of the right to freedom of expression and the right of freedom of association.32 Terrorist organisations under the Criminal Code
4.25 The Terms of Reference ask the ALRC to consider whether Part IIA, as amended, is effective to address the problem of organisations that advocate or encourage the use of force or violence to achieve political objectives—particularly when the acts covered by the unlawful associations provisions are now dealt with by the offences banning terrorist organisations under the Criminal Code.
4.26 Section 100.1 of the Criminal Code defines a ‘terrorist act’ as an action or threat made with the intention of both ‘advancing a political, religious or ideological cause’ and ‘coercing, or influencing by intimidation’ a governmental authority in Australia or overseas. The section then spells out what falls within the definition of a terrorist act,
this being action that:
• causes serious physical harm to a person, causes death or endangers human life;
• causes serious damage to property;
• creates a serious risk to the health and safety of the public or a section of the public;
29 Australian Law Reform Commission, Review of Sedition Laws, DP 71 (2006), [11.24]–[11.29].
30 New South Wales Council for Civil Liberties Inc, Submission SED 39, 10 April 2006.
31 Victoria Legal Aid, Submission SED 43, 13 April 2006. See also National Association for the Visual Arts, Submission SED 30, 11 April 2006; B Saul, Submission SED 52, 14 April 2006.
32 ARTICLE 19, Submission SED 14, 10 April 2006.
92 Fighting Words
• seriously interferes with, seriously disrupts, or destroys, an electronic system;
• is not ‘advocacy, protest, dissent or industrial action’, and is not intended to have these consequences.33
4.27 Division 101 of the Criminal Code creates a number of serious associated
• engaging in a terrorist act;34
• providing or receiving training connected with terrorist acts;35
• possessing things connected with terrorist acts;36
• collecting or making documents likely to facilitate terrorist acts;37 and
• doing other acts in preparation for, or planning, terrorist acts.38 Terrorist organisations
4.28 Division 102 of the Criminal Code contains a regime for the Attorney-General to proscribe organisations that have a specified terrorist connection or that have endangered, or are likely to endanger, the security or integrity of the Commonwealth, and to make membership or other specified links with such organisations an offence.
4.29 There are two ways in which a group can be identified formally as a ‘terrorist organisation’ under Division 102. First, a group may be declared a terrorist organisation by a court, in connection with a conviction for a terrorist offence. Second, a group may be ‘listed’ as a terrorist organisation in a regulation promulgated by the Governor-General. Before an organisation can be listed, the responsible Minister (currently the Attorney-General) must be satisfied on reasonable grounds that the organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not the terrorist act has occurred or will occur).39
4.30 The Anti-Terrorism Act (No 2) 2005 added an additional criterion by which the Attorney-General can find that an organisation is a terrorist organisation, namely, where the organisation advocates the doing of a terrorist act (whether or not a terrorist
act has occurred or will occur). ‘Advocating a terrorist act’ is defined as directly or indirectly counselling or urging the doing of a terrorist act; directly or indirectly providing instruction on the doing of a terrorist act; or directly praising the doing of a terrorist act in circumstances where there is a risk that such praise might have the effect of leading a person to engage in a terrorist act.40
4.31 Regulations listing an organisation cease to have effect two years after their commencement—or earlier if the regulation is repealed or if the Minister is no longer satisfied that the organisation is directly or indirectly engaged in terrorism.41 An organisation may be re-listed after the initial two-year period by making a new regulation.42 Since 2004, regulations are also subject to review by the Parliamentary Joint Committee on Intelligence and Security, which may recommend disallowance.43 There are currently 19 organisations officially listed as terrorist organisations.44
4.32 After an organisation is designated a ‘terrorist organisation’, it becomes an
• to direct the activities of the organisation;45
• intentionally to be a member of the organisation;46
• to recruit persons to the organisation;47
• to receive training from, or provide training to, the organisation;48
• to receive funds from, or provide funds to, the organisation;49
• to provide support or resources to the organisation;50 or
• on two or more occasions, intentionally to associate with the terrorist organisation, or its members or leadership, with the intention that the association will assist the organisation to expand or to continue to exist.51 40 Ibid s 102.1(1A).
41 Ibid s 102.1(3)–(4).
42 Ibid s 102.1(3)(c).
43 Ibid s 102.1A.
44 The full list may be found at Australian Government Attorney-General’s Department, Listing of Terrorist Organisations www.ema.gov.au/agd/www/nationalsecurity.nsf at 26 July 2006.
45 Criminal Code (Cth) s 102.2, punishable by imprisonment for up to 10 or 15 years, depending upon the circumstances.
46 Ibid s 102.3, punishable by imprisonment for up to 10 years.
47 Ibid s 102.4, punishable by imprisonment for up to 15 or 25 years, depending upon the circumstances.
48 Ibid s 102.5, punishable by imprisonment for up to 25 years.
49 Ibid s 102.6, punishable by imprisonment for up to 15 or 25 years, depending upon the circumstances.
50 Ibid s 102.7, punishable by imprisonment for up to 15 or 25 years, depending upon the circumstances.
51 Ibid s 102.8, punishable by imprisonment for up to three years.
94 Fighting Words Unlawful associations and terrorist organisations compared Conceptual basis
4.33 The terrorist organisations and unlawful associations provisions are premised on different underlying concepts.52 Under s 103(1), a terrorist organisation is an ‘organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not the terrorist act has occurred or will occur)’ or an organisation that has been listed, as described above.
4.34 The definition of a terrorist act under s 100.1(1) is an action or threat 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.
4.35 As discussed above, an unlawful association is a body of persons that advocates or encourages overthrow of the Government, or advocates or encourages the doing of any act having or purporting to have as an object, the carrying out of a seditious intention. Unlike a terrorist organisation, an unlawful association does not need to act in advancement of a particular cause or with the intention to coerce or influence by intimidation a government, country or section of the community.
4.36 Section 30A(1A) requires a body to be declared an unlawful association by the Federal Court following a ‘show cause’ application by the Attorney-General under s 30AA.