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5.17 The 1991 Committee of Review of Commonwealth Criminal Law (the Gibbs Committee) noted that art 20 of the ICCPR requires the Commonwealth to prohibit ‘any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence’ and the offence it proposed was framed to reflect this.23 Section 80.2(5) is substantially similar to the offence proposed by the Gibbs Committee.
5.18 In its submission to the 2005 Senate Committee inquiry, Australian Lawyers for Human Rights (ALHR) accepted that if ‘the Government’s purpose is to limit speech or conduct capable of inciting violence’, this would be ‘legitimate’ and ‘consistent with Australia’s obligations under Article 20(2) of the ICCPR’.24 However, it implied that only the ‘urging’ offence in s 80.2(5) can be justified by reference to art 20 of the ICCPR. The other ‘new sedition powers do not achieve that aim in a way which has the minimal effect on human rights particularly freedom of speech’.25
5.19 A different criticism of s 80.2(5) is that it does not go far enough in implementing art 20(2) of the ICCPR. Section 80.2(5) operates only to protect ‘groups’, thereby excluding ‘incitements aimed to provoke individuals, or groups not mentioned in the legislation’.26 Moreover, as explained in Chapter 10, the requirement that the conduct must ‘threaten the peace, order and good government of the Commonwealth’ (s 80.2(5)(b)) might not cover ‘sporadic or isolated incitements to violence’ and is not supported by the Gibbs Committee recommendation or by international law.
Derogation from human rights: article 4 of the ICCPR
5.20 In certain emergency situations, a state may suspend its obligation to give full protection to certain rights recognised by the ICCPR. The purpose of this ‘derogation’
has been explained as follows:
21 Australian Government Attorney-General’s Department, Submission SED 92, 3 July 2006; Australian Government Attorney-General’s Department, Submission 290A to Senate Inquiry into Anti-Terrorism Bill (No 2) 2005, 22 November 2005.
22 Australian Government Attorney-General’s Department, Submission SED 92, 3 July 2006.
23 H Gibbs, R Watson and A Menzies, Review of Commonwealth Criminal Law: Fifth Interim Report (1991), [32.17]–[32.18].
24 Australian Lawyers for Human Rights, Submission 139 to Senate Inquiry into Anti-Terrorism Bill (No 2) 2005, 11 November 2005. See also Gilbert & Tobin Centre of Public Law, Submission 80 to Senate Inquiry into Anti-Terrorism Bill (No 2) 2005, 10 November 2005.
25 Australian Lawyers for Human Rights, Submission 139 to Senate Inquiry into Anti-Terrorism Bill (No 2) 2005, 11 November 2005.
26 B Saul, ‘Speaking of Terror: Criminalising Incitement to Violence’ (2005) 28 University of New South Wales Law Journal 868, 877.
5. International Framework 107 In a society subject to the rule of law, a state of emergency proclaimed under existing law enables the government to resort to measures of an exceptional and temporary nature in order to protect the essential fabric of that society.27
5.21 The power to derogate is subject to several qualifications and exceptions, and international law requires a state to follow an established procedure, set out in art 4, if it wishes to derogate from its obligations under the ICCPR.28
5.22 The issue of derogation from human rights obligations arose in testimony before and submissions to the 2005 Senate Committee inquiry.29 The AGD’s submission to that inquiry expressly disclaimed any need or intention for the Government to rely on the derogation provisions in art 4 to justify any restrictions contained in the AntiTerrorism Bill (No 2) 2005.30 Nor have the pre-conditions to the application of art 4 been undertaken: no public emergency within art 4(1) has been officially proclaimed;
nor has Australia given notice to the UN under art 4(3). Rather, the AGD submitted
A number of rights under the International Covenant on Civil and Political Rights may be restricted on the basis of national security. The Government is satisfied that, to the extent that any rights are restricted by the Bill, their restriction is justified on the basis of national security and, accordingly, is permitted under the ICCPR … The Government has not derogated from its ICCPR obligations. It is not necessary for there to exist an ‘emergency which threatens the life of the nation’ in order to justify the restriction of certain ICCPR rights on the basis of national security. The United Nations Human Rights Committee has stated that: ‘Derogation from some Covenant obligations in emergency situations is clearly distinct from restrictions or limitations allowed even in normal times under several provisions of the Covenant’.31 Freedom of expression: article 19 of the ICCPR
5.23 This part of the chapter considers the interaction between the sedition provisions and art 19 of the ICCPR, which protects freedom of expression. Analysis is also made of the equivalent provision in the Council of Europe’s Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (commonly referred to as the European Convention on Human Rights or the ECHR).32 27 N Jayawickrama, The Judicial Application of Human Rights Law (2002), 202.
28 See C Michaelsen, ‘International Human Rights on Trial—The United Kingdom’s and Australia’s Legal Response to 9/11’ (2003) 25 Sydney Law Review 275, 288–292.
29 Senate Legal and Constitutional Legislation Committee—Parliament of Australia, Provisions of the AntiTerrorism Bill (No 2) 2005 (2005), [2.26]–[2.31].
30 Australian Government Attorney-General’s Department, Submission 290B to Senate Inquiry into AntiTerrorism Bill (No 3) 2005, 24 November 2005.
32 Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 222, (entered into force generally on 3 September 1953).
108 Fighting Words Explanation of article 19 of the ICCPR
5.24 Concern has been expressed that the new sedition offences might be inconsistent
with art 19 of the ICCPR. Article 19 states:
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.
5.25 Under art 19, a restriction on a person’s right to express himself or herself freely is permissible only if that restriction is ‘provided by law’ and satisfies the test of necessity in art 19(3).
5.26 The test of necessity is crucial. In the case of sedition, the restrictions on the right to freedom of expression must be necessary ‘for the protection of national security or of public order … or of public health or morals’ within the meaning of art 19(3)(b).
5.27 The UN Human Rights Committee (UNHRC) considered art 19(3) and stated:
Paragraph 3 expressly stresses that the exercise of the right to freedom of expression carries with it special duties and responsibilities and for this reason certain restrictions on the right are permitted which may relate either to the interests of other persons or to those of the community as a whole. However, when a State party imposes certain restrictions on the exercise of freedom of expression, these may not put in jeopardy the right itself. Paragraph 3 lays down conditions and it is only subject to these conditions that restrictions may be imposed … 33
5.28 The question whether the sedition provisions satisfy the test of necessity in art 19(3)(b) determines whether they are inconsistent with the right of freedom of expression as recognised at international law. There seems to be general agreement that this is the appropriate question—both by those supporting and by those opposing the current sedition provisions in Australia.34 The Human Rights and Equal Opportunity 33 United Nations Human Rights Committee, General Comment 10: Article 19, 19th session, UN Doc HRI\GEN\1\Rev1 (1983), .
34 Australian Government Attorney-General’s Department, Submission 290A to Senate Inquiry into AntiTerrorism Bill (No 2) 2005, 22 November 2005; Australian Lawyers for Human Rights, Submission 139 to Senate Inquiry into Anti-Terrorism Bill (No 2) 2005, 11 November 2005; Gilbert & Tobin Centre of
5. International Framework 109 Commission (HREOC), in its submission to the 2005 Senate Committee inquiry,
framed the question as follows:
The sedition provisions will … only constitute a permissible restriction on freedom of expression to the extent that they can be said to be necessary for the purposes of protecting public order or national security. The word ‘necessary’ imports the principle of proportionality, which requires that any restriction must be proportionate to the legitimate ends sought to be achieved … [T]he restriction must represent the least restrictive means of achieving the relevant purpose. This is to ensure that the restriction does not jeopardise the right itself.35 Comparison with article 10 of the ECHR
5.29 In asking whether the sedition provisions satisfy the test of necessity in art 19(3)(b) of the ICCPR, it is useful to refer to the well-developed jurisprudence that considers art 10 of the ECHR, which is materially similar.
5.30 Article 10 of the ECHR states:
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
5.31 In Europe, sedition (along with the crimes of treason and espionage) is viewed as a political crime. This means that the crime is ‘directed at the security and structure of the state or the regime in official power’.36 To constitute the offence of sedition there must be a connection between the defendant’s conduct and the intention or effect of jeopardising the security or integrity of the state. For this reason, sedition is best characterised as a public order offence.
Public Law, Submission 80 to Senate Inquiry into Anti-Terrorism Bill (No 2) 2005, 10 November 2005;
Castan Centre for Human Rights Law, Submission 114 to Senate Inquiry into Anti-Terrorism Bill (No 2) 2005, 11 November 2005; Australian Capital Territory Human Rights Office, Letter of Advice to Chief Minister and Attorney-General of the Australian Capital Territory, 19 October 2005; L Lasry and K Eastman, Memorandum of Advice to Australian Capital Territory Chief Solicitor, (undated).
35 Human Rights and Equal Opportunity Commission, Submission 158 to Senate Inquiry into AntiTerrorism Bill (No 2) 2005, 11 November 2005.
36 P Lansing and J Bailey, ‘The Farmbelt Fuehrer: Consequences of Transnational Communication of Political and Racist Speech’ (1997) 76 Nebraska Law Review 653, 667–668.
110 Fighting Words
5.32 There has been no direct challenge to the legitimacy of domestic sedition legislation under the ECHR in either the European Court of Human Rights or the European Commission of Human Rights.37 However, the case of Piermont v France raised indirectly the issue of the interaction between domestic sedition provisions and the freedom of expression guarantees in art 10.38 The approach of the European Commission of Human Rights in this case indicates that a domestic sedition offence will not infringe art 10 if it makes sedition a public order offence and ensures that only people threatening public order are prosecuted.39
5.33 Although there are no European cases directly on point, the principles derived from other cases dealing with substantively similar issues provide some assistance in analysing the interaction between art 10 of the ECHR (and, by implication, art 19 of the ICCPR) and sedition provisions. On the whole, the national security and public safety exceptions to the operation of art 10 have been interpreted narrowly. However, the context is critical: where the provision in question limits expression of a political nature, the provision is more likely to fall foul of art 10 than other forms of expression.40
5.34 A number of decisions of the European Court of Human Rights have been particularly protective of political speech.41 For example, Vereinigung Demokratischer Soldaten Osterreichs and Gubi v Austria involved the refusal by the Austrian military to authorise the distribution of a publication, aimed at Austrian soldiers, which often included items critical of military life.42 The authorities claimed that the publication was prejudicial to national security. However, the European Court of Human Rights held that the publication did not prejudice national security and thus Austria was unable to avail itself of the exception in art 10(2).43