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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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Seditious conspiracy If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.56

6.33 There are three principal elements to the offence. First, there must be a ‘conspiracy’ involving two or more persons occurring within United States territory or jurisdiction. Secondly, the conspiracy must oppose the United States government or threaten its laws or property. Thirdly, the use of force must be part of the conspiracy plot. The term ‘seditious’ is only referred to in the title and not in the text of § 2384.

50 Keyishian v Board of Regents 385 US 589 (1967), 598–599 (Brennan J).

51 Ibid, 603.

52 See I Hare, ‘Method and Objectivity in Free Speech Adjudication: Lessons from America’ (2005) 54 International and Comparative Law Quarterly 49, 57.

53 Brandenburg v Ohio 395 US 444 (1969).

54 B Schwartz, ‘Holmes versus Hand: Clear and Present Danger or Advocacy of Unlawful Action’ (1994) Supreme Court Review 209, 240; 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, 1245.

55 See, eg, Cohen v California 403 US 15 (1971), 20.

56 Crimes and Criminal Procedure Code of 1948 (1994) 18 USC § 2384.

6. Sedition Laws in Other Countries 129 This may be ‘because the word “seditious” in and of itself does not sufficiently convey what conduct it forbids’.57

6.34 In United States v Rahman a radical Islamic cleric, Sheik Omar Abdel Rahman, and a number of other defendants were convicted of seditious conspiracy pursuant to § 2384 of the United States Code. Rahman was said to have incited members of his group during his sermons to undertake subversive activities, such as plotting to blow up the headquarters of the United Nations and other buildings in New York City. In his sermons, Rahman told his followers to, among other things, ‘do jihad with the sword, with the cannon, with the grenades, with the missile … against God’s enemies’.58 Further, he stated that ‘being called terrorists was fine, so long as they were terrorizing the enemies of Islam, the foremost of which was the United States and its allies’.59

6.35 Rahman’s sentence and the constitutionality of § 2384 were affirmed by the Court of Appeals for the Second Circuit.60 The Court held that the fact that his speech or conduct was ‘religious’ did not immunise him from prosecution under generally applicable criminal statutes.61

6.36 One commentator has predicted that ‘prosecutions of seditious conspiracy are more likely to occur in a climate of society’s heightened apprehension about terrorist plots against the nation’.62 The Smith Act

6.37 The Alien Registration Act of 1940, or ‘Smith Act’,63 has been described as the ‘companion statute’ to the law on seditious conspiracy.64 While the Smith Act does not use the term ‘sedition’, it creates an offence of advocating the overthrow of

government. The relevant provision states:

Whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States or the government of any State, Territory, District or Possession thereof, or the government of any political subdivision therein, by force or violence, or by the assassination of any officer of any such government; or 57 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, 208.

58 United States v Rahman 189 F 3d 88 (1999), 104.

59 Ibid, 107.

60 Ibid.

61 Ibid, 117.

62 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, 203.

63 Named after Representative Howard W Smith of Virginia.

64 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, 230–231.

130 Fighting Words Whoever, with intent to cause the overthrow or destruction of any such government, prints, publishes, edits, issues, circulates, sells, distributes, or publicly displays any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or attempts to do so; or Whoever organizes or helps or attempts to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any such government by force or violence; or becomes or is a member of, or affiliates with, any such society, group, or assembly of persons, knowing the purposes thereof— Shall be fined under this title or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction.65





6.38 The relevant provisions of the Smith Act have been interpreted in a similar manner to the seditious conspiracy provisions, such that they apply ‘only to concrete violent action as distinguished from the teaching of

Abstract

principles related to the forcible overthrow of the government’.66 Purely ‘academic discussion’ is not enough to support a prosecution.67

6.39 However, the Smith Act does not appear to require proof to the same level of specificity as is required to prosecute under § 2384. Rather, it catches ‘the mere teaching or advocacy of the violent overthrow of the government’.68 The constitutionality of the Smith Act was affirmed by the United States Supreme Court in

1951.69 The Court later refined the meaning of advocacy to require that ‘those to whom the advocacy is addressed must be urged to do something, now or in the future, rather than merely to believe in something’.70

6.40 The Australian sedition offences in s 80.2 of the Criminal Code—with their primary focus on the urging of force or violence—thus seem to resemble the US Smith Act provisions more closely than the offence provision in § 2384, notwithstanding that the Smith Act does not mention the term ‘sedition’. Nevertheless, the recent prosecution history discussed later in this chapter shows that § 2384 remains actively enforced in respect of offences involving advocacy of unlawful violence, whereas the Smith Act seems to have fallen into disuse. This may be an example of the phenomenon identified by Professor Chafee, namely, that the operation of sedition laws is unpredictable.

–  –  –

It is an outstanding feature of every sedition act that the way it is enforced differs from the way it looks in print as much as a gypsy moth differs from the worm from which it has grown.71 Hong Kong

6.41 As part of the transitional arrangements that followed China’s resumption of sovereignty over Hong Kong on 30 June 1997, a statute entitled the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China 1997 (the Basic Law) was enacted. Its effect was to retain the existing legal edifice for at least 50 years (art 5) subject to certain qualifications, including that Hong Kong’s law must be amended to conform to the Basic Law itself (art 8). Article 23 of the Basic Law

provides:

The Hong Kong Special Administrative Region shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People’s Government, or theft of state secrets, to prohibit foreign political organizations or bodies from conducting political activities in the Region, and to prohibit political organizations or bodies of the Region from establishing ties with foreign political organizations or bodies.

6.42 In September 2002, the Hong Kong government published its proposals to implement art 23. On 25 February 2003, these proposals were included in the National Security (Legislative Provisions) Bill. The reaction to this Bill was ‘deafening and swift’, with 500,000 people marching against the Bill on 1 July 200372—‘the largest protest march ever held against the Hong Kong government’.73 Ultimately, the Bill was withdrawn from the Legislative Council.

6.43 Accordingly, Hong Kong retains colonial era offences of sedition, which criminalise any seditious act, seditious words or dealings with a seditious publication.74

The term ‘seditious intention’ is defined in s 9(1) as follows:

A seditious intention is an intention— (a) to bring into hatred or contempt or to excite disaffection against the person of Her Majesty, or Her Heirs or Successors, or against the Government of Hong Kong, or the government of any other part of Her Majesty’s dominions or of any territory under Her Majesty’s protection as by law established;

71 Z Chafee, Free Speech in the United States (2nd ed, 1954), 459.

72 R Wacks, ‘National Security and Fundamental Freedoms: Hong Kong’s Article 23 under Scrutiny—A Review’ (2006) Public Law 180, 181. See also T Kellogg, ‘Legislating Rights: Basic Law Article 23, National Security, and Human Rights in Hong Kong’ (2004) 17 Columbia Journal of Asian Law 307, 308.

73 C Petersen, ‘Introduction’ in F Hualing, C Petersen and S Young (eds), National Security and Fundamental Freedoms: Hong Kong’s Article 23 under Scrutiny (2005) 1, 3.

74 Crimes Ordinance (HK) s 10(1), (2).

132 Fighting Words (b) to excite Her Majesty’s subjects or inhabitants of Hong Kong to attempt to procure the alteration, otherwise than by lawful means, of any other matter in Hong Kong as by law established; or (c) to bring into hatred or contempt or to excite disaffection against the administration of justice in Hong Kong; or (d) to raise discontent or disaffection amongst Her Majesty’s subjects or inhabitants of Hong Kong; or (e) to promote feelings of ill-will and enmity between different classes of the population of Hong Kong; or (f) to incite persons to violence; or (g) to counsel disobedience to law or to any lawful order.

6.44 The colonial authority used this offence to suppress internal dissent.75 It has been described as ‘archaic’, out of step with the approach of most other jurisdictions,76 and ‘draconian’.77 It is also said to have a ‘chilling effect on free speech’.78 The offence was used in the 1960s, but rarely thereafter.79

6.45 It has been observed that unlike most statutes dealing with sedition, the Hong Kong law does not require proof of an intention to incite violence, and thus presents a relatively low bar to prosecution.80 The Bill that was proposed to implement art 23 of the Basic Law did not incorporate a requirement of an intention to incite violence—a factor contributing to the disquiet that led to its abandonment.81 Canada

6.46 In a 1986 working paper, the Law Reform Commission of Canada (LRCC) described the offence of sedition as ‘an outdated and unprincipled law’, asking ‘is it not odd that our Criminal Code still contains the offence of sedition which has as its very object the suppression of [freedom of political expression]?’82 75 See F Hualing, ‘Past and Future Offences of Sedition in Hong Kong’ in F Hualing, C Petersen and S Young (eds), National Security and Fundamental Freedoms: Hong Kong’s Article 23 under Scrutiny (2005) 217, 226–228.

76 T Kellogg, ‘Legislating Rights: Basic Law Article 23, National Security, and Human Rights in Hong Kong’ (2004) 17 Columbia Journal of Asian Law 307, 325.

77 Yan Mei Ning on behalf of the Hong Kong News Executives’ Association, On Sedition, Police Investigation Power and Misprision of Treason [Legal Opinion], 1 December 2001, [7].

78 Ibid, [7].

79 F Hualing, ‘Past and Future Offences of Sedition in Hong Kong’ in F Hualing, C Petersen and S Young (eds), National Security and Fundamental Freedoms: Hong Kong’s Article 23 under Scrutiny (2005) 217, 229.

80 T Kellogg, ‘Legislating Rights: Basic Law Article 23, National Security, and Human Rights in Hong Kong’ (2004) 17 Columbia Journal of Asian Law 307, 327; F Hualing, ‘Past and Future Offences of Sedition in Hong Kong’ in F Hualing, C Petersen and S Young (eds), National Security and Fundamental Freedoms: Hong Kong’s Article 23 under Scrutiny (2005) 217, 248.

81 T Kellogg, ‘Legislating Rights: Basic Law Article 23, National Security, and Human Rights in Hong Kong’ (2004) 17 Columbia Journal of Asian Law 307, 328.

82 Law Reform Commission of Canada, Crimes Against the State, Working Paper 49 (1986), 35–36.

6. Sedition Laws in Other Countries 133

6.47 Sedition law is particularly problematic given that s 2(b) of the Canadian Charter of Rights and Freedoms recognises the ‘fundamental … freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication’. The LRCC went on to note that the leading Canadian authority on sedition, Boucher v The Queen,83 construed the relevant provisions narrowly. As a

result, the LRCC concluded:

Applying [the Supreme Court of Canada’s] narrow definition, there no longer seems to be a need for a separate offence of sedition, because the only conduct that would be proscribed by it could just as well be dealt with as incitement …, conspiracy …, contempt of court, or hate propaganda …. Clearly, legislative revision is in order.84

6.48 Nevertheless, sedition remains a part of Canadian criminal law,85 although there does not appear to have been a prosecution for sedition in Canada since the 1950s. This may be due, at least in part, to the Supreme Court of Canada’s finding that the sedition provisions do not have any reach beyond those allied offences noted by the LRCC.



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