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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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In Chapter 6, the ALRC agrees with the clear view that emerges from the consultations and submissions that an offence of ‘encouragement’ or ‘glorification’ of terrorism, along the lines of s 1 of the Terrorism Act 2006 (UK), should not be introduced into federal law.14 Freedom of expression Chapter 7 analyses the interaction between the sedition provisions and freedom of expression in Australian domestic law. The chapter analyses the character and extent of any chilling effect on freedom of expression caused by the sedition provisions and discusses the interaction between the sedition provisions and other domestic legislation that protects human rights.

In Chapter 7, the ALRC recommends that peak arts and media organisations should provide educational programs and material to their members to promote a better understanding of the scope of laws that prohibit the urging of political or inter-group force or violence and any potential impact of these laws on the activities of their members.15 Urging political or inter-group force or violence Under the Terms of Reference, the central questions for this Inquiry are whether the new sedition regime (taking together the offences in s 80.2 and the ‘good faith’ defence in s 80.3) is well-articulated as a matter of criminal law, and strikes an acceptable balance in a tolerant society.

While freedom of expression must be respected, it is also well understood that a liberal democratic society legitimately can place some limits on the exercise of free speech (for example, through civil defamation laws and criminal prohibitions on incitement to commit a crime). The test in international human rights law is whether such limits are necessary and reasonably justifiable in a democratic society.

Intention and ulterior intention In Chapter 8, the ALRC recommends a fundamental change to the operation of the offences in s 80.2(1), (3) and (5). This recommendation is that s 80.2 of the Criminal

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Code should be amended to provide that, for a person to be guilty of any of the offences, the person must intend that the urged force or violence will occur.16 This amendment would help remove from the ambit of the offences any rhetorical statements, parody, artistic expression, reportage and other communications that the person does not intend anyone will act upon, and it would ensure there is a more concrete link between the offences and force or violence. At the same time, this ‘ulterior intention’ falls short of that required to prove incitement—and does not require any connection with the commission of another specific offence.

In addition, the ALRC recommends that the offences in s 80.2(1), (3) and (5) be amended to make it clear the person must intentionally urge the use of force or violence.17 While it is arguably clear that intention is the fault element by virtue of the operation of general criminal responsibility provisions in s 5.6 of the Criminal Code, the ALRC considers it would be best for the fault element to be stated expressly in the reframed offences.

Urging political force or violence In Chapter 9, the ALRC recommends the retention of the basic offences contained in s 80.2(1) (urging the overthrow by force or violence of the Constitution or Government) and s 80.2(3) (urging interference in parliamentary elections by force or violence). The headings of both offences should be amended to refer explicitly to urging the use of ‘force or violence’.18 In addition to the amendments concerning intention and ulterior intention, s 80.2(3) should be extended to cover urging another to use force or violence to interfere with a constitutional referendum. The similar offence in s 30C of the Crimes Act should be repealed as redundant.19 Urging inter-group force or violence Chapter 10 considers the offence in s 80.2(5) of urging inter-group force or violence.

Section 80.2(5) covers circumstances in which a person urges a group to use force or violence against another group distinguished by race, religion, nationality or political opinion. The rationale for the creation of this offence, the historical link between sedition offences and inter-group violence, and the relationship between s 80.2(5) and anti-vilification laws are discussed.

The ALRC recommends the retention of this offence. In addition to the common amendments concerning intention and ulterior intention, s 80.2(5) should be amended to include ‘national origin’ among the distinguishing features of a group for the

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purpose of the offence.20 As with the other offences, the heading should be amended to refer explicitly to urging the use of ‘force or violence’.21 In Chapter 10 the ALRC also recommends that the Australian Government consider extending the offence to circumstances in which (a) a person urges another person (as distinct from a group) to use force or violence against a group distinguished by the specified distinguishing characteristics; and (b) a person urges a group that lacks one of the specified distinguishing characteristics to use force or violence against a group in the community that is so distinguished.22 Assisting the enemy and treason The ALRC has significant concerns about the offences currently contained in s 80.2(7)–(8), which are discussed in Chapter 11. These two offences do not require the urging of force or violence; rather it is an offence merely to ‘assist’ an enemy at war with Australia or an entity that is engaged in armed hostilities against the Australian Defence Force (ADF). Unlike the three offences considered above, the ‘assisting’ offences were not recommended by the Gibbs Committee.

The ALRC agrees with the run of submissions and commentary that point to the undesirable breadth of the term ‘assists’, which is not defined in the Criminal Code.

There is an express exemption in s 80.2(9) for providing ‘aid of a humanitarian nature’.

However, significant problems remain with the offences as drafted and the ALRC recommends their repeal.23 Two of the treason offences set out in s 80.1 of the Criminal Code are framed in similar terms to the sedition offences in s 80.2(7)–(8) and carry a maximum penalty of life imprisonment. The ALRC cannot recommend repeal of the ‘assisting’ offences in s 80.2, without recommending amendments to remedy the same inadequacies in the parallel treason provisions.

First, a blanket prohibition on conduct that ‘assists’ the enemy may unduly impinge on freedom of expression, to the extent that it captures merely dissenting opinions about government policy. For example, it may be said colloquially that strong criticism of Australia’s recent military interventions in Afghanistan or Iraq ‘gives aid and comfort’ to—and thus ‘assists’—the enemy.

Secondly, there is no requirement to show that the defendant’s conduct assisted the enemy to wage war against Australia or engage in armed hostilities against the ADF; it would be sufficient to prove that the person urged another to assist an enemy that

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happened to be at war with Australia or an entity happened to engage in armed hostilities against the ADF.

To remedy these concerns, the ALRC recommends that s 80.1(1)(e)–(f) be reframed to make clear that the offences consist of intentionally and materially assisting an enemy to wage war on Australia or to engage in armed hostilities against the ADF.24 The addition of the term ‘materially’ is intended to indicate that mere rhetoric or expressions of dissent do not amount to ‘assistance’ for these purposes; rather, the assistance must enable the enemy or entity to wage war or engage in armed hostilities, such as through the provision of funds, troops, armaments or strategic advice or information.

The ALRC also recommends that s 80.1 be amended to require that the accused person be an Australian citizen or resident at the time of the alleged conduct.25 Such a qualification is common in other countries, and consistent with the nature and historical origins of the concept of treason, which has at its centre the violation of a duty of allegiance to one’s country.26 Apart from the value of this change as a matter of principle, it also will help avoid the potential for anomalous cases in practice, given that the offence has extraterritorial application. For example, virtually all enemy combatants who are foreign nationals could be swept up by the existing treason offence, even if they arrived in Australia many years after hostilities have ceased.

The ALRC’s recommendations in Chapter 11 complement recommendations for reform of the treason offences made by the Security Legislation Review Committee (the Sheller Committee), chaired by the Hon Simon Sheller QC, as part of a broader review of security laws.27 However, there are a number of other aspects of the treason offences that, while not related directly to this Inquiry, appear to warrant further attention. For example, some of the language in s 80.1 is archaic, and is inconsistent with the modern terminology and concepts used in the Criminal Code. There are also questions about the appropriateness of the good faith defences, which remain applicable to s 80.1; and about the penalty of life imprisonment for accessories after the fact or those guilty of ‘misprision of treason’ (failure to report the matter to a police officer as soon as possible).

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The ALRC recommends that, in considering the recommendations of the Sheller Committee on the law of treason, the Australian Government should take into account relevant recommendations and commentary in this Report.28 Extraterritorial application Chapter 11 also deals with the extraterritorial application of the sedition and treason offences. Common law countries traditionally have based criminal jurisdiction on considerations of territorial sovereignty, and have been suspicious of jurisdictional claims that smack of ‘universality’. However, there has been a recent trend towards the extraterritorial application of criminal laws, generated by both: (a) rapid developments in transport and communications technology; and (b) increased concerns over serious crimes that may be perpetrated across borders, such as genocide, people smuggling, child sex tourism, sex slavery, hostage taking and terrorism.

Under s 80.4 of the Criminal Code, treason and sedition offences are subject to ‘extended geographical jurisdiction—category D’, which is defined in s 15.

4 to mean that the law applies: (a) whether or not the conduct constituting the alleged offence occurs in Australia; and (b) whether or not a result of the conduct constituting the alleged offence occurs in Australia.

Government policy is that sedition should be a category D offence because offences may be committed from an external location via the internet or telephone.29 For example, someone overseas could establish a website that urges others to use force or violence to interfere in Australian parliamentary elections, or could send SMS text messages to associates in Australia, urging them to use force or violence against a particular racial or ethnic group. As a practical matter, of course, enforcement will be difficult unless the alleged offender is physically within the jurisdiction to face the Australian courts, which may require instituting extradition proceedings pursuant to a treaty.

The ALRC has no problem in principle with this policy choice in relation to sedition.

As noted above, the ALRC can see some anomalies potentially arising in the prosecution of treason offences under s 80.1 of the Criminal Code if the provisions are given extraterritorial effect. However, the ALRC recommends that this issue should be addressed in another way, by adding a requirement to s 80.1 that the treason offences only apply to a person who is an Australian citizen or resident at the time of the conduct in question.30 28 Rec 11–3.

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

30 Rec 11–4.

18 Fighting Words Intention and the defences In considering whether the person intended the urged force or violence to occur, context is critical. In Chapter 12, the ALRC recommends that the trier of fact should be required to have regard to the context in which the conduct occurred, including (where applicable) whether the conduct was done: (a) in the development, performance, exhibition or distribution of an artistic work; (b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; (c) in connection with an industrial dispute or an industrial matter; or (d) in the dissemination of news or current affairs.31 Given the effect of these changes, the ‘good faith’ defence in s 80.3 is inappropriate to the offences in s 80.2.32 Most submissions and consultations raise serious questions about the nature and application of the existing provisions in s 80.3. There is a strong view that such a defence is inherently illogical: a person would need to point to evidence (which the prosecution would have to negative beyond reasonable doubt) showing that, while he or she intentionally urged another person to use force or violence to overthrow the Constitution (for example), this was done ‘in good faith’.

The ALRC’s recommendations meet these concerns by building the contextual issues into the required elements of the offences, rather than relying on an affirmative defence.

Requirement of Attorney-General’s consent Chapter 13 considers the requirement, under s 80.5, for the written consent of the Attorney-General to a prosecution for an offence under Division 80 of the Criminal Code. In practice, this provision would be used only in the rare situation where the Director of Public Prosecutions has made a decision that the evidence available and the public interest warrant criminal proceedings, but the Attorney-General believes otherwise.

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