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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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… adequately address incitements to violence and to the extent that the sedition laws go further they cannot be justified’.68 ALRC’s views

5.51 Any analysis of whether a particular statutory provision falls foul of art 19 of the ICCPR requires a balancing of competing interests. Even if a statutory provision is prima facie inconsistent with art 19(1) and (2), it is necessary to check this preliminary judgment against the considerations of art 19(3). However, this is not the only balancing exercise that needs to be undertaken. It is also necessary to take account of

the following principles:

• the ICCPR should not be interpreted in such a way as to elevate certain rights so as to permit the ‘destruction’ of any of the other rights and freedoms in the ICCPR;69

• any restriction on freedom of expression must not jeopardise the right itself;70 and

• the ‘exceptions [in art 19(3)] are to be construed strictly and narrowly’.71

5.52 The ALRC’s concerns about the compatibility of the sedition provisions with art 19 may be divided into two categories. The first relates to the offences in s 80.2(1), (3) and (5); and the second relates to the offences in s 80.2(7)–(8).

Offences in section 80.2(1), (3) and (5)

5.53 The ALRC is of the view that the wording of the offences in s 80.2(1), (3) and (5) contributes to a lack of clarity on the issue of intention, in that these offences may be interpreted to apply to conduct where the defendant does not in fact intend force or violence to occur. This lack of clarity causes friction with the requirement in art 19(3) that any restriction on freedom of expression be ‘provided by law’. In Sunday Times v United Kingdom, the expression ‘provided by law’ was considered in the context of art 10(2) of the ECHR, which is the equivalent of art 19(3) of the ICCPR.72 The

European Court of Human Rights stated:

In the Court’s opinion, the following are two of the requirements that flow from the expression ‘prescribed by law’. First, the law must be adequately accessible: the 68 J Stanhope MLA Chief Minister ACT, Submission SED 44, 13 April 2006.

69 International Covenant on Civil and Political Rights, 16 December 1966, [1980] ATS 23, (entered into force generally on 23 March 1976) art 5(1).

70 United Nations Human Rights Committee, General Comment 10: Article 19, 19th session, UN Doc HRI\ GEN\1\Rev1 (1983), [4].

71 Coleman v Power (2004) 220 CLR 1, 93.

72 Sunday Times v United Kingdom (1979) 2 EHRR 245. See also ARTICLE 19, Submission SED 14, 10 April 2006.

116 Fighting Words citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able—if need be with appropriate advice—to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.73

5.54 The ALRC has addressed this concern in Recommendations 8–1, 9–2, 9–5 and 10–2. In particular, Recommendations 9–2 and 9–5, if adopted, would have the effect of amending the offences in s 80.2(1), (3) and (5) to reinforce that the proscribed ‘urging’ must be intentional. This would have the benefit of removing the risk that a broader interpretation may be adopted.74 Offences in section 80.2(7)–(8)

5.55 The ALRC is also concerned that the use of the term ‘assist’ in s 80.2(7)–(8) may result in the offences being interpreted so broadly as to encompass non-violent criticism of the Australian Government and others. Such an interpretation would run a significant risk of falling foul of art 19 of the ICCPR. As stated earlier, the restrictions on freedom of expression permitted by art 19(3) are narrow. The equivalent jurisprudence relating to art 10 of the ECHR emphasises that any restriction on freedom of expression must be proportionate to the legitimate objective that the legislature is seeking to achieve. An anti-terrorism measure must not, for instance, jeopardise the jurisdiction’s fundamental democratic principles.75 Similarly, in the Australian context, it has been stated that in ‘reconciling the interests of national security and the freedom of the individual’ it is necessary to recognise ‘freedom of legitimate political dissent’ as one of the ‘essential requirements of democracy’.76

5.56 This is particularly so if the impugned expression were found to constitute political speech. Kirby J has stated that while prohibition of incitement to crime or violence falls within an exception to art 19(2) of the ICCPR, ‘expression characterised as political expression is clearly protected by art 19 of the ICCPR’.77

5.57 This concern is one of the factors underlying the ALRC’s recommendations to repeal s 80.2(7)–(8), and to modify the equivalent provisions in s 80.1(1)(e)–(f).78

5.58 Many of the arguments raised in the critique of s 80.2(7)–(8) also may be made in respect of the treason offences in s 80.1(1)(e)–(f). Consequently, the amendment suggested to the offence of treason in Recommendation 11–2 would have the effect of clarifying that only material assistance is intended to be captured by these offences (as 73 Sunday Times v United Kingdom (1979) 2 EHRR 245, 271.





74 For further explanation of these recommendations, see Chs 8, 9, 10.

75 Sunday Times v United Kingdom (1979) 2 EHRR 245; Handyside v United Kingdom (1976) 1 EHRR 737.

See also the analysis of the jurisprudence on the ECHR earlier in this chapter.

76 H Lee, P Hanks and V Morabito, In the Name of National Security: The Legal Dimensions (1995), 15.

77 Coleman v Power (2004) 220 CLR 1, 92–93.

78 See Recs 11–1, 11–2.

5. International Framework 117 amended). This would go some way to alleviating concerns that the offences may be used to prosecute legitimate expression of views that are not themselves encouragements to commit violence. Moreover, the addition of this element also responds to the concern expressed by a number of the participants in this Inquiry—and fortified by Principle 6 of the Johannesburg Principles—that these offences may be used in circumstances where there is no genuine threat of force or violence.

6. Sedition Laws in Other Countries

–  –  –

Introduction

6.1 This chapter adopts a comparative law approach, which stresses that useful lessons can be drawn from studying how other jurisdictions approach common problems.1 It examines how other jurisdictions seek to reconcile the need to proscribe conduct that might be described as seditious with the requirements of international law.2 This chapter also considers, and rejects, the idea of Australia enacting an offence of ‘glorifying’ or ‘encouraging’ terrorism.

6.2 Submissions to the Senate Legal and Constitutional Legislation Committee inquiry into the provisions of the Anti-Terrorism Bill (No 2) 2005 (Cth) (the 2005 Senate Committee inquiry) expressed concern that Australia was out-of-step with other jurisdictions in re-invigorating its sedition provisions.3 While there is some evidence 1 M Glendon, W Gordon and C Osakwe, Comparative Legal Traditions (2nd ed, 1994), 10.

2 This is consistent with the method suggested in K Zweigert and H Kötz, An Introduction to Comparative Law (3rd ed, 1998), 34–35.

3 Senate Legal and Constitutional Legislation Committee—Parliament of Australia, Provisions of the AntiTerrorism Bill (No 2) 2005 (2005), [5.32]–[5.42].

120 Fighting Words for this, the Attorney-General’s Department (AGD) argued that it was necessary to add the caveat that even if a number of jurisdictions no longer have an offence named ‘sedition’, it is still common to proscribe conduct that is, in substance, seditious.4 United Kingdom Common law sedition offences

6.3 The United Kingdom does not have a statutory offence of sedition. However, as discussed in Chapter 2, it has several common law sedition offences, such as the offence of uttering seditious words.

6.4 The common law sedition offences are generally considered to require an incitement to cause violence or disorder.5 According to Professor David Feldman,6 this gives these offences ‘a public-order aspect’, which means that they are probably compatible with art 10 of the European Convention on Human Rights (ECHR).7 However, a public order offence that detracts from freedom of expression must be ‘strictly necessary’ to avoid contravening art 10.8

6.5 In 1977, the Law Commission of England and Wales concluded that there was no need for an offence of sedition in the criminal code because conduct that would fall within its ambit would be caught by offences of incitement or conspiracy to commit the

relevant offence.9 Further, the Law Commission stated:

[I]t is better in principle to rely on these ordinary statutory and common law offences than to have resort to an offence which has the implication that the conduct in question is ‘political’.10

6.6 There have been relatively few prosecutions of sedition offences in the United Kingdom during the 20th century—fewer even than in Australia.11 It has been argued 4 Australian Government Attorney-General’s Department, Submission 290A to Senate Inquiry into AntiTerrorism Bill (No 2) 2005, 22 November 2005.

5 See, eg, Law Commission of England and Wales, Working Paper No 72 Second Programme, Item XVIII Codification of the Criminal Law—Treason, Sedition and Allied Offences (1977), [70]; J Boasberg, ‘Seditious Libel v Incitement to Mutiny: Britain Teaches Hand and Holmes a Lesson’ (1990) 10 Oxford Journal of Legal Studies 106, 107; H Fenwick, Civil Liberties (1994), 184.

6 D Feldman, Civil Liberties and Human Rights in England and Wales (2nd ed, 2002), 898.

7 That is, the Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 222, (entered into force generally on 3 September 1953). Article 10 is discussed in detail in Ch 5.

8 See, eg, Percy v Director of Public Prosecutions [2002] Crim LR 835, 835.

9 Law Commission of England and Wales, Working Paper No 72 Second Programme, Item XVIII Codification of the Criminal Law—Treason, Sedition and Allied Offences (1977), [77]–[78]. A similar view was expressed in L Leigh, ‘Law Reform and the Law of Treason and Sedition’ (1977) Public Law 128, 147.

10 Law Commission of England and Wales, Working Paper No 72 Second Programme, Item XVIII Codification of the Criminal Law—Treason, Sedition and Allied Offences (1977), [78].

11 L Maher, ‘The Use and Abuse of Sedition’ (1992) 14 Sydney Law Review 287, 294. See also E Barendt, Freedom of Speech (2nd ed, 2005), 162.

6. Sedition Laws in Other Countries 121 that sedition offences have been ‘superseded by public-order legislation, including the statutory crime of inciting racial hatred’.12

6.7 The most recent sedition case in the United Kingdom was R v Chief Metropolitan Stipendiary Magistrate; Ex parte Choudhury.13 In this case the applicant applied for summonses against the author and publisher of the book, The Satanic Verses, for the common law offence of seditious libel. The applicant argued that by publishing and distributing the book the defendants caused widespread discontent and disaffection among Her Majesty’s subjects, provoking acts of violence particularly between Muslim and non-Muslim people. The Divisional Court dismissed the application for judicial review of the magistrate’s refusal to issue the summonses.

Watkins LJ, on behalf of the Court, held:

Proof of an intention to promote feelings of ill will and hostility between different classes of subjects does not alone establish a seditious intention. Not only must there be proof of an incitement to violence in this connection, but it must be violence or resistance or defiance for the purpose of disturbing … some person or body holding office or discharging some public function of the state.14 Encouragement or glorification of terrorism offence Background to the new UK offence

6.8 While there is no statutory offence of sedition in the United Kingdom, in April 2006 legislation came into force making it an offence to encourage or glorify terrorism.15 There has not yet been a prosecution under this new provision.

6.9 Part of the impetus for the enactment of this offence came from the Council of Europe’s Convention on the Prevention of Terrorism (the European Convention on Terrorism), adopted in 2005.16 Article 5 of the Convention requires State parties to establish an offence of ‘public provocation to commit a terrorist offence’,17 which is defined as the distribution, or otherwise making available, of a message to the public, with the intent to incite the commission of a terrorist offence, where such conduct, whether or not directly advocating terrorist offences, causes a danger that one or more such offences may be committed.18 12 D Feldman, Civil Liberties and Human Rights in England and Wales (2nd ed, 2002), 899.

13 R v Chief Metropolitan Stipendiary Magistrate; Ex parte Choudhury [1991] 1 QB 429.

14 Ibid, 453.

15 Terrorism Act 2006 (UK).

16 Council of Europe Convention on the Prevention of Terrorism, 16 May 2005, CETS 196, (entered into force generally on 16 May 2005).

17 Ibid art 5(2).

18 Ibid art 5(1).

122 Fighting Words

6.10 Article 5(2) provides that public provocation to commit a terrorist offence is itself an offence only when committed ‘unlawfully and intentionally’. There are currently 31 signatories to the European Convention on Terrorism.

6.11 The Explanatory Report on the Convention provides examples of conduct that may amount to the indirect incitement of terrorism so as to fall within the ambit of art 5. These include ‘the dissemination of messages praising the perpetrator of an attack, the denigration of victims, calls for funding for terrorist organisations or other similar behaviour’ and ‘presenting a terrorist offence as necessary and justified’.19

–  –  –

6.13 Glorification is defined to include ‘any form of praise or celebration, and cognate expressions are to be construed accordingly’.20 Section 2 of the Act creates a separate offence of ‘dissemination of terrorist publications’, which also relies on the concept of glorification.21



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