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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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100 Fighting Words example, under s 498 of the Act, the Minister may make a declaration terminating access to protected industrial action during a bargaining period if, for example, the industrial action threatens the life, personal safety or health, or the welfare of the population or is causing serious damage to the Australian economy. If a person contravenes such an order, a civil penalty may be imposed.79

4.62 However, there is no direct equivalent of these emergency powers within the existing industrial relations laws, nor any criminal penalties for incitement of an illegal strike or lockout. The necessity of criminal sanctions in this context and the appropriate prohibitions on serious industrial action fall outside the Terms of Reference for this Inquiry.

4.63 In Chapter 3, the ALRC recommends that the Australian Government initiate a review of a range of offences in the Crimes Act to determine which warrant retention, relocation to the Criminal Code, or repeal.80 In DP 71, the ALRC proposed that ss 30J and 30K should be included in this process.81 This proposal was supported in a number of submissions to the Inquiry,82 and the ALRC remains of the view that these two sections should be included in the broader review called for in Chapter 3 of this Report.

Recommendation 4–2 The Australian Government should include ss 30J and 30K of the Crimes Act in the review of old provisions of the Crimes Act called for in Recommendation 3–1.

79 The penalty cannot be more than 300 penalty units for a body corporate or 60 penalty units in any other case: Workplace Relations Act 1996 (Cth) s 499(7).

80 Rec 3–1.

81 Australian Law Reform Commission, Review of Sedition Laws, DP 71 (2006), Proposal 11–2.

82 Australian Press Council, Submission SED 66, 23 June 2006; Victoria Legal Aid, Submission SED 79, 3 July 2006; R Douglas, Submission SED 87, 3 July 2006; Media Entertainment and Arts Alliance, Submission SED 117, 3 July 2006; Law Institute of Victoria, Submission SED 70, 28 June 2006; Public Interest Advocacy Centre, Submission SED 125, 7 July 2006.

5. International Framework

–  –  –

Introduction

5.1 International law is relevant to an analysis of Australian sedition laws in two seemingly contradictory ways. First, international law sets out a number of requirements with which Australia is obliged to comply to protect the human rights of people subject to Australian law. Secondly, international law increasingly recognises the need for states to take action to counter the threat of terrorism.

5.2 Any measures taken by the Australian Government—such as the enactment of sedition laws—must be compatible with Australia’s obligations under international law to respect human rights, including freedom of expression.

5.3 This chapter considers the status of international law and its interaction with Australian domestic law. The chapter then goes on to consider the interaction between international law and Australia’s sedition provisions.

102 Fighting Words Status of international law

5.4 The status of international law, and the intersection of international law with Australian domestic law, are explained in detail in Issues Paper 30 (IP 30).1 However,

the following essential points should be noted:

• In Australian law, international treaties are not self-executing.2 This means that Australia’s ratification of a treaty does not automatically make it part of Australian domestic law. Rather, the provisions of the treaty become part of Australian law only to the extent that they are implemented by Australian legislation.3

• The International Covenant on Civil and Political Rights 1966 (ICCPR)4 is an example of a treaty that has been ratified by Australia but has not been fully implemented into Australian law.

• Australian courts cannot refuse to recognise or apply an Australian statutory provision merely because the provision is inconsistent with a principle of international law, or an international treaty to which Australia is a party.5

• Australia’s international law obligations are relevant to the interpretation of Australian statutes,6 particularly where the meaning of the statutory provision is ambiguous, obscure or where the ordinary process of construction would give rise to ‘a result that is manifestly absurd or … unreasonable’.7 International obligations are also relevant to the development of the common law.

–  –  –

• An inconsistency between an Australian statutory provision and Australia’s international obligations may have consequences at the international level. It 1 Australian Law Reform Commission, Review of Sedition Laws, IP 30 (2006), [5.3]–[5.11].

2 This contrasts with some countries, such as the United States: see United States Constitution art II, s 2.

3 Dietrich v The Queen (1992) 177 CLR 292, 305.

4 International Covenant on Civil and Political Rights, 16 December 1966, [1980] ATS 23, (entered into force generally on 23 March 1976).

5 Polites v Commonwealth (1945) 70 CLR 60, 69; Horta v Commonwealth (1994) 181 CLR 183, 195.

6 For a detailed exposition of the influence of international law (and especially international human rights law) on Australian municipal law, see R Piotrowicz and S Kaye, Human Rights in International and Australian Law (2000).





7 Acts Interpretation Act 1901 (Cth) s 15AB. See also Lim v Minister for Immigration (1992) 176 CLR 1, 38.

8 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, [30] (Gleeson CJ).

5. International Framework 103 may, for instance, lead to proceedings being commenced against Australia in a United Nations (UN) tribunal or committee.

International law and terrorism United Nations response to the threat of terrorism

5.5 Since the terrorist attacks in New York and Washington DC on 11 September 2001, there has been an increasing focus on the threat of terrorism in international law and international relations. The UN Security Council has called on all UN member states to take anti-terrorism measures, some of which are relevant to sedition.

5.6 Security Council Resolution 1456 states that all UN Members ‘must take urgent action to prevent and suppress all active and passive support of terrorism’.9 On 14 September 2005, the Security Council issued Resolution 1624:

Condemning in the strongest terms all acts of terrorism irrespective of their motivation, whenever and by whomsoever committed, as one of the most serious threats to peace and security, and reaffirming the primary responsibility of the Security Council for the maintenance of international peace and security under the Charter of the United Nations, Condemning also in the strongest terms the incitement of terrorist acts and repudiating attempts at the justification or glorification (apologie) of terrorist acts that may incite further terrorist acts, Deeply concerned that incitement of terrorist acts motivated by extremism and intolerance poses a serious and growing danger to the enjoyment of human rights, threatens the social and economic development of all States, undermines global stability and prosperity, and must be addressed urgently and proactively by the United Nations and all States, and emphasizing the need to take all necessary and appropriate measures in accordance with international law at the national and international level to protect the right to life.10

5.7 In the same resolution, the Security Council called on all States to adopt such measures as may be necessary and appropriate and in accordance with

their obligations under international law to:

(a) Prohibit by law incitement to commit a terrorist act or acts;

(b) Prevent such conduct;

(c) Deny safe haven to any persons with respect to whom there is credible and relevant information giving serious reasons for considering that they have been guilty of such conduct.11

–  –  –

5.8 Decisions of the UN Security Council are binding on Australia as a member state of the UN.12 Therefore, one possible effect of these resolutions may be to provide additional constitutional justification—if this is needed—for the enactment of legislation dealing with sedition. In other words, in the unlikely event that the Commonwealth Parliament is not otherwise empowered to enact certain of the sedition provisions, the Commonwealth could rely on the ‘external affairs’ power in s 51(xxix) of the Australian Constitution to the extent that those laws implement Australia’s obligations under international law.13

5.9 However, these developments do not give Parliament carte blanche to legislate in any way it sees fit in responding to the threat of terrorism. Neither Resolution 1456 nor Resolution 1624, in its terms, provides justification for breaching existing

international norms.14 Resolution 1456 provides:

States must ensure that any measure taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, in particular international human rights, refugee, and humanitarian law … 15

5.10 The Security Council likewise makes clear that any measures taken by states in furtherance of Resolution 1624 must be ‘in accordance with their obligations under international law’. The Resolution also explicitly notes ‘the right of freedom of expression’ in art 19 of the Universal Declaration of Human Rights 1948 and art 19 of the ICCPR, and states that ‘any restrictions thereon shall only be such as are provided by law and are necessary on the grounds set out in paragraph 3 of Article 19 of the ICCPR’.16

5.11 Similarly, the UN General Assembly and the UN Commission on Human Rights (UNCHR) have passed a number of resolutions stating that anti-terrorism measures must not violate human rights.17 For instance, the UNCHR has urged states to fulfil their obligations under the Charter of the United Nations in strict conformity with international law, including human rights standards and obligations and 12 Charter of the United Nations, 26 June 1945, [1945] ATS 1, (entered into force generally on 1 November

1945) art 25. For a discussion of the nature and effect of Security Council resolutions, see B Simma, The Charter of the United Nations: A Commentary (2nd ed, 2002), vol 1, 453–460.

13 Given that the earlier statutory offence of sedition was found to be within the Commonwealth’s legislative power (see R v Sharkey (1949) 79 CLR 121), it is unlikely that the amended sedition offences would be found to be unconstitutional.

14 This is also consistent with international law more generally: see L Lasry and K Eastman, Memorandum of Advice to Australian Capital Territory Chief Solicitor, (undated), citing United Nations SecretaryGeneral, Protecting Human Rights and Fundamental Freedoms while Countering Terrorism, UNGA, 60th session, UN Doc A/60/374 (2005); Ireland v United Kingdom (1978) 2 EHRR 25.

15 United Nations Security Council, Resolution 1456, UN SC, 4688th mtg, UN Doc S/Res/1456 (2003), [6].

16 United Nations Security Council, Resolution 1624, UN SC, 5261st mtg, UN Doc S/Res/1624 (2005).

17 See, eg, United Nations General Assembly, Resolution 58/174, UNGA, 77th plenary mtg, UN Doc A/Res/58/174 (2004); United Nations Commission on Human Rights, Resolution 2003/37, 58th mtg, UN Doc Res/2003/37 (2003); United Nations Commission on Human Rights, Resolution 2003/68, 62nd mtg, UN Doc Res/2003/68 (2003).

5. International Framework 105 international humanitarian law, to prevent, combat and eliminate terrorism in all its forms and manifestations, wherever, whenever and by whomever committed, and calls upon States to strengthen, where appropriate, their legislation to combat terrorism in all its forms and manifestations … 18 Balancing anti-terrorism measures with human rights

5.12 The ALRC recognises the importance of balancing the need for measures to reduce the risk of terrorism with the need to protect human rights in accordance with Australia’s obligations at international law. This is highlighted in the material discussed above, and by participants in this Inquiry. For instance, a non-government

organisation, ARTICLE 19, stated in its submission that:

Enacting legislation in order to protect national security requires a careful balancing act between legitimate security measures and maintaining international obligations for the protection of human rights.19

5.13 The balancing process is also an accepted part of Australian law. In Alister v The

Queen, Brennan J described the balance as follows:

It is of the essence of a free society that a balance is struck between the security that is desirable to protect society as a whole and the safeguards that are necessary to ensure individual liberty. But in the long run the safety of a democracy rests upon the common commitment of its citizens to the safeguarding of each man’s liberty, and the balance must tilt that way … 20

5.14 This balance is reflected in the approach the ALRC has taken to reform of sedition laws in this Inquiry, and particularly in the recommendations that affect the right to freedom of expression.

Incitement to violence: article 20 of the ICCPR

5.15 Article 20 of the ICCPR states:

1. Any propaganda for war shall be prohibited by law.

2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

5.16 In its submission to this Inquiry, and to the Senate Legal and Constitutional Legislation Committee inquiry on the provisions of the Anti-Terrorism Bill (No 2) 2005 (the 2005 Senate Committee inquiry), the Attorney-General’s Department (AGD) asserted that some of the sedition provisions—and especially the new offence in

–  –  –

s 80.2(5) of the Criminal Code—fall within the ambit of art 20.21 The AGD further stated that ‘in any case [s 80.2(5)] is not contrary to Australia’s international obligations’.22



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