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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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5.35 In contrast to the protection afforded to political expression, domestic legislation proscribing racial hatred is much less likely to fall foul of art 10. It has been noted that 37 E Barendt, Freedom of Speech (revised ed, 1996), 158. Barendt states that the position of the European Commission of Human Rights, as expressed in Arrowsmith v United Kingdom (1981) 3 EHRR 218, ‘strongly suggest[s] that such laws [as sedition] would be upheld as necessary restrictions to protect national security and public safety, or to prevent disorder and crime’.

38 Piermont v France (1993) 15 EHRR 76. The issue was raised indirectly because the applicant did not argue that the sedition provision was incompatible with art 10 of the ECHR, but rather that her impugned statements were ‘not in any way seditious and could not by themselves constitute a serious threat to public order’.

39 Ibid, 76.

40 D Feldman, Civil Liberties and Human Rights in England and Wales (2nd ed, 2002), 754.

41 See, eg, Lingens v Austria (1986) 8 EHRR 407; Vereinigung Demokratischer Soldaten Osterreichs and Gubi v Austria (1995) 20 EHRR 56; Vogt v Germany (1995) 21 EHRR 205 (criticism of candidates for elective office); Open Door Counselling and Dublin Well Woman Centre v Ireland (1992) 15 EHRR 244 (publication of information in Ireland about abortion services available in foreign jurisdictions).

42 Vereinigung Demokratischer Soldaten Osterreichs and Gubi v Austria (1995) 20 EHRR 56.

43 For further discussion, see Ch 7.

5. International Framework 111 the ‘weakest protection of all is accorded [by art 10] to racist expression and the promulgation of racial hatred’.44

5.36 On the whole, states have been able to use art 10(2) to criminalise the expression of racist views and hate speech, so long as the tests of legality, necessity and proportionality are satisfied.45 For example, it is an offence in a number of European countries to publish material denying that the Nazi Holocaust took place.46 The European Court of Human Rights has indicated that legislation that prohibits a person from denying the Holocaust will not contravene art 10 if it satisfies the test of proportionality.47 The test of necessity

5.37 Of the participants in the 2005 Senate Committee inquiry who commented on this issue, only the AGD expressed the view that all of the sedition provisions satisfy the test of necessity in art 19 of the ICCPR.48 Many participants who commented on this issue expressed concern, often in strong terms, that the new sedition offences might be inconsistent with art 19.49 IP 30 contains a summary of the views of those who argued before the 2005 Senate Committee inquiry that the sedition provisions (as they appeared in Schedule 7 of the Anti-Terrorism Bill (No 2) 2005 (Cth) at the time of that inquiry) were inconsistent with art 19.50

5.38 The Senate Committee did not itself express an opinion on this question in its report but, in recommending that Schedule 7 of the Bill be removed in its entirety, the 44 D Feldman, Civil Liberties and Human Rights in England and Wales (2nd ed, 2002), 760. See also E Barendt, Freedom of Speech (2nd ed, 2005), 171–172.

45 See Jersild v Denmark (1994) 19 EHRR 1.

46 See, eg, the relevant German legislation: Penal Code s 130(3). This must be read in conjunction with Basic Law art 1. See also France’s ‘Loi Gayssot’, which makes it an offence to contest the existence of certain crimes against humanity on the basis of which Nazi leaders were tried and convicted by the International Military Tribunal at Nuremberg. The Loi Gayssot is discussed in Human Rights and Equal Opportunity Commission, Human Rights Brief No 4: Lawful Limits on Fundamental Freedoms (2001) http://www.hreoc.gov.au/Human_RightS/briefs/brief_4.html at 14 March 2006.

47 See A Marshall Williams and J Cooper, ‘Hate Speech, Holocaust Denial and International Human Rights Law’ (1999) 6 European Human Rights Law Review 593, 603–609.

48 Australian Government Attorney-General’s Department, Submission 290A to Senate Inquiry into AntiTerrorism Bill (No 2) 2005, 22 November 2005; Australian Government Attorney-General’s Department, Submission 290B to Senate Inquiry into Anti-Terrorism Bill (No 3) 2005, 24 November 2005.

49 Human Rights and Equal Opportunity Commission, Submission 158 to Senate Inquiry into AntiTerrorism Bill (No 2) 2005, 11 November 2005; Australian Lawyers for Human Rights, Submission 139 to Senate Inquiry into Anti-Terrorism Bill (No 2) 2005, 11 November 2005; Law Council of Australia, Submission 140 to Senate Inquiry into Anti-Terrorism Bill (No 2) 2005, 11 November 2005; Sydney Centre for International and Global Law, Submission 188 to Senate Inquiry into Anti-Terrorism Bill (No 2) 2005, 17 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.

50 Australian Law Reform Commission, Review of Sedition Laws, IP 30 (2006), [5.35]–[5.39].

112 Fighting Words Committee acknowledged concerns about the related issue of the ‘potential impact of the sedition provisions on freedom of speech in Australia’.51

5.39 Given these concerns, the ALRC asked in IP 30 whether ss 80.2 and 80.3 of the Criminal Code are necessary for the protection of national security or public order within the meaning of art 19(3).52 Submissions and consultations





5.40 As with the response to the 2005 Senate Committee inquiry, the vast majority of stakeholders who commented on this issue in this Inquiry expressed concern that the sedition provisions are inconsistent with art 19.53

5.41 Only the AGD disagreed. Its initial response stated simply that ‘the Government is satisfied that sections 80.2 and 80.3 of the Criminal Code are consistent with its obligations under international law’.54 The AGD, in its second submission, elaborated

on this by submitting that the provisions strike an appropriate balance:

The sedition offences should be designed to ensure there are adequate safeguards in the legislation to ensure that these offences operate when it is necessary to do so to protect national security or public order—either because of a direct threat to Australia’s security or to the peaceful and effective functioning of society. This is outlined in the Discussion Paper (paragraph 10.68) as the elements of the offence, which need to be proven to the criminal standard, are such that a court must determine whether there is intention to urge violence, which requires consideration of each individual’s intention and will ensure that his or her freedom of speech is not compromised except when necessary.55

5.42 A number of submissions simply stated that the provisions—either in part or whole—fail the test of necessity.56 Other participants in this Inquiry offered a more 51 Senate Legal and Constitutional Legislation Committee—Parliament of Australia, Provisions of the AntiTerrorism Bill (No 2) 2005 (2005), [5.169].

52 Australian Law Reform Commission, Review of Sedition Laws, IP 30 (2006), Question 22.

53 ARTICLE 19, Submission SED 14, 10 April 2006; J Goldring, Submission SED 21, 5 April 2006; Pax Christi, Submission SED 16, 9 April 2006; Centre for Media and Communications Law, Submission SED 32, 12 April 2006; New South Wales Young Lawyers Human Rights Committee, Submission SED 38, 10 April 2006; Fitzroy Legal Service Inc, Submission SED 40, 10 April 2006; J Stanhope MLA Chief Minister ACT, Submission SED 44, 13 April 2006; Australian Lawyers for Human Rights, Submission SED 47, 13 April 2006; Combined Community Legal Centres Group (NSW) Inc, Submission SED 50, 13 April 2006; Australian Muslim Civil Rights Advocacy Network, Submission SED 54, 17 April 2006;

Public Interest Advocacy Centre, Submission SED 57, 18 April 2006; Law Institute of Victoria, Submission SED 70, 28 June 2006.

54 Australian Government Attorney-General’s Department, Submission SED 31, 12 April 2006.

55 Australian Government Attorney-General’s Department, Submission SED 92, 3 July 2006.

56 Centre for Media and Communications Law, Submission SED 32, 12 April 2006; Australian Muslim Civil Rights Advocacy Network, Submission SED 54, 17 April 2006; J Gilman, Submission SED 78, 3 July 2006. See also J Stanhope MLA Chief Minister ACT, Submission SED 44, 13 April 2006, who stated that the sedition offences would be incompatible with the Human Rights Act 2004 (ACT). As the relevant provisions of that Act are materially the same as the ICCPR, his reasoning in this regard is also relevant to the question whether the sedition provisions fail the test of necessity under art 19 of the ICCPR. His reasoning is summarised in Ch 7.

5. International Framework 113

detailed critique. As summarised below, the criticism falls into three main categories:

that there is an insufficient link between the offences in s 80.2 and violence; that the offences are insufficiently clear; and that the existing offences are sufficient.

Insufficient link with violence

5.43 In their submissions, ALHR, the Federation of Community Legal Centres and the New South Wales Young Lawyers Human Rights Committee argued that the problem lies in the fact that the offences do not require a direct connection between the offending conduct and actual terrorist activity or actual violence.57

5.44 Stakeholders submitted that further guidance might be gleaned from the Johannesburg Principles on National Security, Freedom of Expression and Access to Information (the Johannesburg Principles).58 These principles, like other international instruments, can be relevant in statutory construction.59 However, the AGD urged some

caution in the use of this document, stating:

The Department notes that this is a declaratory, non-binding document, which while persuasive, should not guide a nation state’s decisions as to what constitutes a threat to national security and how a Government should deal with such threats.60

5.45 For present purposes, the most applicable provision of the Johannesburg Principles is Principle 6. It states that, subject to Principles 15 and 16 (neither of which

is relevant here):

Expression may be punished as a threat to national security only if a government can

demonstrate that:

(a) the expression is intended to incite imminent violence;

(b) it is likely to incite such violence; and (c) there is a direct and immediate connection between the expression and the likelihood or occurrence of such violence.

57 Federation of Community Legal Centres (Vic), Submission SED 33, 10 April 2006; New South Wales Young Lawyers Human Rights Committee, Submission SED 38, 10 April 2006; Victoria Legal Aid, Submission SED 43, 13 April 2006; Australian Lawyers for Human Rights, Submission SED 47, 13 April 2006.

58 Australian Lawyers for Human Rights, Submission SED 47, 13 April 2006; B Saul, Submission SED 52, 14 April 2006; ARTICLE 19, Submission SED 14, 10 April 2006, citing the Johannesburg Principles on National Security, Freedom of Expression and Access to Information (1995) http://www.article19.

org/pdfs/standards/joburgprinciples.pdf at 20 April 2006. The Johannesburg Principles were adopted on 1 October 1995 by a group of experts in international law, national security, and human rights.

59 Acts Interpretation Act 1901 (Cth) s 15AB(1) (which addresses situations in which a statutory provision is ‘ambiguous’, ‘obscure’ or would give rise to ‘a result that is manifestly absurd or … unreasonable’);

Mabo v Queensland (No. 2) (1992) 175 CLR 1, [42] (Brennan J); D Williams, ‘Recognising Universal Rights in Australia’ (2001) 24 University of New South Wales Law Journal 771, 773.

60 Australian Government Attorney-General’s Department, Submission SED 92, 3 July 2006.

114 Fighting Words

5.46 ALHR submitted that the offences in s 80.2 fail the test of necessity, as coloured by Principle 6, in that s 80.2 contains ‘no requirement that the prosecution prove that the “urging” was likely to incite violence’ that is ‘imminent’, and there is no ‘requirement for proof of a “direct and immediate connection between the expression and the likelihood or occurrence of such violence”’.61 The non-government organisation, ARTICLE 19, made a similar argument.62 Instead, the s 80.2 offences ‘apply to expression which, viewed objectively, presents no threat whatsoever to the Australian population’. ALHR submitted that the offences should be redrafted in order to accord with the requirements in the Johannesburg Principles.63

5.47 ALHR was particularly concerned about s 80.2(7)–(8). It argued that these provisions fall foul of art 19 of the ICCPR because they are worded so broadly that conduct such as sending ‘stationery supplies’ or ‘“urging” others to engage in verbal support of an organisation or country’ conceivably could fall within the ambit of the provisions. Moreover, the provisions fall outside the art 19(3) exception because they do not require proof of ‘any direct or indirect connection with violence whether generally or specific’.64 Lack of clarity

5.48 ARTICLE 19 expressed concern about the vagueness of the sedition offences. It submitted that the statement in art 19(3) that any lawful restriction on freedom of expression must be ‘provided by law’ requires ‘substantially more than simply

enacting a legislative provision’. Instead, it imports two critical requirements:

In particular, the legislative provision must also meet certain standards of clarity and precision, to enable citizens to foresee the consequences of their conduct on the basis of the law. This also entails not permitting excessive discretion by public officials in determining whether the provision has been breached.65

5.49 ARTICLE 19 submitted that the term ‘assist’ in s 80.2(7)–(8) is particularly problematic in that it is so ‘vague’ as ‘potentially [to] prohibit a wide raft of legitimate speech’.66 Existing powers sufficient

5.50 Victoria Legal Aid also submitted that the provisions fail the test of necessity because ‘existing powers and offences are sufficient to deal with relevant conduct’.67 The Chief Minister for the ACT made a similar point, stating that the ‘existing offences

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