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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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6.14 The creation of an offence of encouraging or glorifying terrorism was controversial.22 An offence of condoning or glorifying terrorism was initially included in the Racial and Religious Hatred Bill 2005 (UK). However, it was heavily criticised23 20 Terrorism Act 2006 (UK) s 20(2).

21 There are also other references to ‘glorification’. See Ibid ss 3, 21.

22 See, eg, Amnesty International, UK: Human Rights: A Broken Promise, 23 February 2006 (2006) http://web.amnesty.org/library/Index/ENGEUR450042006?open&of=ENG-GBR at 1 March 2006.

23 See B Saul, ‘Speaking of Terror: Criminalising Incitement to Violence’ (2005) 28 University of New South Wales Law Journal 868, 870–871; E Barendt, ‘Threats to Freedom of Speech in the United Kingdom’ (2005) 28 University of New South Wales Law Journal 895.

124 Fighting Words and abandoned prior to enactment.24 A similar offence, referring to encouragement or glorification of terrorism, was then introduced in a narrower form in the Bill that became the Terrorism Act 2006 (UK).25 This Bill was initially rejected by the House of Lords on 28 February 2006 (by a majority of 160 to 156) and was the subject of vigorous debate in both Houses of Parliament. Although the European Convention on Terrorism provided some impetus for offences prohibiting the encouragement of terrorism, s 1(5)(a) of the Terrorism Act 2006 makes it clear that it is not limited by the scope of this Convention.

6.15 The primary criticism of this new offence is that it impacts too heavily on freedom of expression. During parliamentary debates about the offence, Ralf Dahrendorf, a member of the House of Lords, stated that ‘rants should be rejected with argument, not with police and prisons’.26

6.16 The United Kingdom Parliament’s Joint Committee on Human Rights expressed concern that the new offence of ‘encouragement’ of terrorism was not sufficiently certain to satisfy art 10 of the ECHR, which requires interferences with freedom of expression to be ‘prescribed by law’. The Committee expressed concern about the

following factors:

(i) the vagueness of the glorification requirement, (ii) the breadth of the definition of ‘terrorism’ and (iii) the lack of any requirement of intent to incite terrorism or likelihood of such offences being caused as ingredients of the offence.27

6.17 Professor Eric Barendt has stated that an offence of glorification of terrorism would make the government ‘the judge of acceptable history’ and could blur the line ‘between extremist political speech … and criminal speech’.28 Submissions and consultations

6.18 In this Inquiry, the ALRC asked whether there was a need in Australia for an offence dealing directly with ‘glorification or encouragement’ of terrorism along the lines of the new UK offence.29 Those stakeholders who commented on this issue unanimously opposed the introduction of a new offence of encouraging or glorifying terrorism in Australia.

24 See Racial and Religious Hatred Act 2006 (UK).

25 B Saul, ‘Speaking of Terror: Criminalising Incitement to Violence’ (2005) 28 University of New South Wales Law Journal 868, 871.

26 R Dahrendof, Free Speech on Trial (2005) Project Syndicate http://www.project-syndicate.org/ commentary/dahrendorf45 at 27 February 2006.

27 House of Lords and House of Commons Joint Committee on Human Rights, Counter-Terrorism Policy and Human Rights: Terrorism Bill and Related Matters, Third Report of Session 2005–06 (2005), 3.

28 E Barendt, ‘Threats to Freedom of Speech in the United Kingdom’ (2005) 28 University of New South Wales Law Journal 895, 896–897.

29 Australian Law Reform Commission, Review of Sedition Laws, IP 30 (2006), Question 9.

6. Sedition Laws in Other Countries 125

6.19 The AGD informed the ALRC that it had no intention of enacting such an

offence.30 It submitted that:

A number of alternatives to the words ‘advocates’ and ‘praise’ were considered during development of the [Anti-Terrorism Act (No 2) 2005 (Cth)], including ‘glorify’ or ‘condone’. It was considered that these terms were less precise than ‘praise’ and could generate difficulties of proof, particularly in the context of a criminal prosecution, where it must be proved beyond a reasonable doubt. It is likely that, given its ordinary meaning, ‘glorify’ would be read down in a way that would be more restrictive than ‘praise’, while condone could include implications and may be too broad.31

6.20 A non-government organisation, ARTICLE 19, submitted that criminalising the glorification of terrorism violates the Johannesburg Principles on National Security, Freedom of Expression and Access to Information (Johannesburg Principles) because ‘there is an insufficient connection between the speech and a likelihood of imminent

violence’.32 In addition, it stated:

The UK offences of ‘glorification’ and ‘encouragement’ are both vaguely worded and broad in scope, failing to meet the ‘provided by law’ test. … The concept of ‘glorification’ also removes the requirement of mens rea, a fundamental component of a society governed by the rule of law.33

6.21 The Australian Muslim Civil Rights Advocacy Network also opposed the introduction of such an offence and noted that concerns had been expressed in the United Kingdom that such an offence would disproportionately target Muslims,34 while another stakeholder submitted that introducing a glorification offence would be particularly undesirable ‘in the absence of any entrenched protection of human rights in Australia’.35 ALRC’s views

6.22 The ALRC is firmly of the view that an offence of ‘glorification’ or ‘encouragement’ of terrorism should not be introduced into Australian law. There are two particular problems with introducing such an offence in the Australian context.

6.23 The first problem is that the term ‘glorification’ is vague and is not used elsewhere in the Criminal Code. The Criminal Code does enable an organisation to be listed as a terrorist organisation if it ‘directly praises’ the doing of a terrorist act where 30 Australian Government Attorney-General’s Department, Submission SED 31, 12 April 2006; Australian Government Attorney-General’s Department, Consultation, Canberra, 26 April 2006.

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

32 ARTICLE 19, Submission SED 14, 10 April 2006. The Johannesburg Principles are discussed in Ch 5.

33 Ibid.

34 Australian Muslim Civil Rights Advocacy Network, Submission SED 54, 17 April 2006.

35 B Saul, Submission SED 52, 14 April 2006.

126 Fighting Words there is a risk that such praise might lead a person to engage in a terrorist act.36 However, although the word ‘praise’ is similar to the word ‘glorify’, it is used in a provision designed to assist the Attorney-General to determine whether or not an organisation is a terrorist organisation.37 It is not used in a provision that imposes criminal liability on an individual or organisation for praising terrorist acts.

Accordingly, there is no precedent in Australia for the offence of glorifying terrorism, and the Criminal Code provisions that refer to the praising of terrorism would provide limited assistance in determining the meaning of any offence of glorification of terrorism.

6.24 The second and more significant problem with introducing an offence of glorification of terrorism is that it could represent an unwarranted incursion into freedom of expression and the constitutionally protected freedom of political discourse.38 In the United Kingdom, courts must interpret statutory provisions so that they are consistent with the human rights protections in the ECHR.39 Thus, a crucial safeguard against an overly broad interpretation of an offence of glorification of terrorism would be absent if such an offence were enacted in Australia.

6.25 In Discussion Paper 71 (DP 71), the ALRC agreed with those who had submitted that there is no present need to introduce into Australian law an offence of encouragement or glorification of terrorism along the lines of s 1 of the Terrorism Act 2006 (UK).40

6.26 Submissions received and consultations undertaken in response to DP 71 have (with one exception) remained uniformly opposed to the enactment of a glorification or encouragement of terrorism offence.41 The exception was the Executive Council of Australian Jewry, which stated that the inclusion of such an offence ‘would address serious problems which Jewish communities throughout the world are increasingly encountering’.42 The ALRC notes these concerns but feels that they are better addressed through other legislative means, such as the offence of urging inter-group violence in s 80.2(5) of the Criminal Code, and anti-discrimination legislation.

6.27 The near unanimity of opposition to the introduction of a glorification offence fortifies the ALRC’s preliminary view that such an amendment would be undesirable.

In light of this, the ALRC recommends that no such offence be enacted.

36 Criminal Code (Cth) s 102.1(1A)(c).

37 See especially Ibid s 102.1(2).

38 Public Interest Advocacy Centre, Submission SED 125, 7 July 2006. See also Ch 7.

39 Human Rights Act 1998 (UK) s 3.

40 Australian Law Reform Commission, Review of Sedition Laws, DP 71 (2006), Proposal 6–1.

41 See, eg, Law Institute of Victoria, Submission SED 70, 28 June 2006; Queensland Council for Civil Liberties, Submission SED 101, 3 July 2006; Media Entertainment and Arts Alliance, Submission SED 117, 3 July 2006; National Tertiary Education Union, Submission SED 118, 3 July 2006; Public Interest Advocacy Centre, Submission SED 125, 7 July 2006.

42 Executive Council of Australian Jewry, Submission SED 116, 3 July 2006.

6. Sedition Laws in Other Countries 127 Recommendation 6–1 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 Australian law.

United States of America Background

6.28 The Sedition Act of 1798 was the first piece of legislation proscribing sedition in the United States.43 Since the passage of this Act, the offence of sedition has been removed from the statute books and re-introduced from time to time, and it has also fallen into disuse at other times.44 Sedition prosecutions were common in the United States during World War I and immediately following World War II.45 However, ‘modern-day sedition trials are almost unheard of’ in the United States.46

6.29 The critical issue in determining the validity of United States sedition laws has been whether or not they are compatible with the First Amendment to the United States Constitution.47 The First Amendment provides strong protection to a broad spectrum of expression, for which there is no direct parallel in the Australian Constitution.48 As Douglas J explained in the United States Supreme Court, even expression that is designed to undermine the government is protected by the First Amendment.

The word ‘revolution’ has of course acquired a subversive connotation in modern times. But it has roots that are eminently respectable in American history. This country is the product of revolution. Our very being emphasizes that when grievances pile high and there are no political remedies, the exercise of sovereign powers reverts to the people. Teaching and espousing revolution—as distinguished from indulging in overt acts—are therefore obviously within the range of the First Amendment.49

6.30 In Keyishian v Board of Regents, the United States Supreme Court held that an offence of uttering seditious words was so broad that the ‘the possible scope of 43 H Keehn, ‘Terroristic Religious Speech: Giving the Devil the Benefit of the First Amendment Free Exercise and Free Speech Clauses’ (1998) 28 Seton Hall Law Review 1230, 1240.

44 For detailed accounts of the history of United States sedition legislation, see Ibid, 1241–1245; Z Chafee, Free Speech in the United States (2nd ed, 1954); J Rudanko, The Forging of Freedom of Speech: Essays on Argumentation in Congressional Debates on the Bill of Rights and on the Sedition Act (2003).

45 J Cohan, ‘Seditious Conspiracy, the Smith Act, and Prosecution for Religious Speech Advocating the Violent Overthrow of the Government’ (2003) 17 St John’s Journal of Legal Commentary 199, 202.

46 Ibid, 202.

47 The First Amendment states: ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances’.

48 The Australian Constitution contains an implied protection of political communication but this is much more confined than the First Amendment. See Ch 7.

49 WEB Du Bois Clubs v Clark 389 US 309 (1967), 315–316.

128 Fighting Words “seditious” utterances or acts has virtually no limit’. Accordingly, the provision fell foul of the First Amendment protection of free speech.50 Brennan J held that the provision cast ‘a pall of orthodoxy’51 enabling selective prosecution of people who articulated views critical of the government. This has been described in the United States literature as ‘viewpoint discrimination’.52

6.31 The most recent Supreme Court case dealing with the constitutionality of sedition law is Brandenburg v Ohio in 1969.53 In this case, the Court refined and clarified earlier tests of constitutionality. It held that three elements were required before a law criminalising the advocacy of illegal conduct could be valid: there must be express advocacy of law violation; the advocacy must call for immediate law violation;

and the law violation must be likely to occur.54 More generally, the United States Supreme Court has tended to invalidate criminal laws that detract from freedom of expression—and especially political expression—unless they criminalise conduct that is ‘inherently likely to cause violent reaction’.55 Current US sedition offence

6.32 There is a federal offence of ‘seditious conspiracy’ in the United States Code,

§ 2384, which provides:

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