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115 Executive Grant of Clemency, issued by President William J Clinton, 11 August 1999; US Department of Justice, Office of the Pardon Attorney ‘News Advisory’ (Press Release, 11 August 1999). Many opposed these grants of clemency on grounds that the 11 members were dangerous criminals: see H Krent, ‘Conditioning the President’s Conditional Pardon Power’ (2001) 89 California Law Review 1665, 1667.
138 Fighting Words descent convicted of sedition during World War I in the United States state of Montana were posthumously pardoned.116 Africa
6.64 A number of countries in Africa still possess sedition offences that remain in operation. These offences tend to be based on, or derived from, British colonial-era sedition laws.117 On the whole, they more closely resemble the relatively strict provisions in jurisdictions such as Hong Kong,118 than Australia’s updated offences in s 80.2 of the Criminal Code.
6.65 Nevertheless, people continue to be prosecuted for sedition in African countries.
For instance, in November 2005 it was reported that the Ugandan Government had brought 13 charges of sedition against a journalist, Andrew Mwenda. The charges related to comments he made on 10 August 2005 regarding a helicopter crash that killed Sudanese Vice-President, John Garang; the national holiday that was granted in honour of the victims; and threats by President Yoweri Museveni to shut any news outlet that ‘plays around with regional security’. The prosecution alleged that the comments intended ‘to bring into hatred or contempt and excite disaffection against the person of the president and the government as by law established’ and that the comments ‘were likely to create despondency …, raise discontent and promote feelings of hostility’ among certain ethnic groups.119
6.66 In Nigeria, two reporters were charged in mid-2006 with sedition for allegedly revealing that technical problems with the aeroplane of Nigerian President, Olusegun Obasanjo, forced it to make an emergency landing within weeks of going into service.120 116 For an analysis of this decision and the Montana wartime sedition law, see J Robbins, ‘Pardons Granted 88 Years After Crimes of Sedition’, New York Times (online), 3 May 2006, www.nytimes.com.
117 See Ch 2.
118 See the discussion earlier in this Chapter.
119 S Muyita, ‘Govt Slaps 13 More Charges on Mwenda’, Daily Monitor (online), 2 November 2005, www.monitor.co.ug.
120 ‘Journalists’ Wings Clipped for Expose on Luxury Jet’, Calgary Herald (online), 2 July 2006, www.
7. Sedition and Freedom of Expression
7.1 This chapter 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.
7.2 Almost all other comparable foreign jurisdictions incorporate a general right to freedom of expression in a statutory or constitutional bill of rights.1 As discussed later in this chapter, no Australian jurisdiction except the Australian Capital Territory (ACT) and Victoria currently possess bills of rights—and so (except in these jurisdictions)
there are no formal, legislative guarantees of protection for freedom of expression in Australia.
7.3 Freedom of expression is nevertheless given some limited forms of protection in Australian law—particularly under the Australian Constitution, which is discussed below. The common law, and some federal, state and territory legislation, also provide limited protection to certain categories of expression.2 For instance, all Australian jurisdictions are subject to at least one ‘Freedom of Information’ regime, the objectives of which include fostering public debate and discussion.3
7.4 Also relevant is the common law principle that the law permits everything except that which is expressly forbidden.4 This means that, unless explicitly prohibited by laws (such as those proscribing defamation, offensive behaviour, obscenity or sedition), individuals are allowed to say what they want.
7.5 Strong concern has been voiced since November 2005 about the impact of the sedition provisions on freedom of expression. This criticism falls within a number of
• The sedition provisions are, in whole or in part, inconsistent with the Australian Constitution.
• There is insufficient statutory protection of human rights at the federal level and, as a result, there are inadequate safeguards to prevent an overly broad interpretation of the offence provisions.
• There is a risk that the sedition offences will be applied unfairly or in a discriminatory manner against certain groups in the Australian community.
• The sedition laws have the potential to restrict the expression of views that ought to be permitted in a liberal democracy such as Australia. This criticism may be linked to the more specific concern that the drafting of some or all of the offences is open to differing constructions. The offences may be interpreted broadly, with the consequence that they may impinge unduly on freedom of expression.
2 See M Chesterman, Freedom of Speech in Australia: A Delicate Plant (2000), 7–13.
3 Freedom of Information Act 1982 (Cth); Freedom of Information Act 1989 (ACT); Freedom of Information Act 1989 (NSW); Information Act 2002 (NT); Freedom of Information Act 1992 (Qld);
Freedom of Information Act 1991 (SA); Freedom of Information Act 1991 (Tas); Freedom of Information Act 1982 (Vic); Freedom of Information Act 1992 (WA).
4 Clough v Leahy (1904) 2 CLR 139, 157; Malone v Metropolitan Police Commissioner  Ch 344, 357.
7. Sedition and Freedom of Expression 141
• The sedition provisions give inadequate protection to established media organisations in carrying out their functions of news reporting and the dissemination of bona fide comment on matters of public interest.
• The sedition provisions are likely to ‘chill’ free artistic expression by forcing artists and authors to engage in self-censorship or risk facing prosecution. A related fear is that the scope of the sedition provisions is uncertain and, if interpreted broadly, may cover satire and ridicule, which ought not to be proscribed. Similarly, there is concern that visual artists, whose work is inevitably open to multiple interpretations, could risk prosecution.
7.6 Some of these concerns are interrelated. All are addressed in this chapter, along with consideration of some of the ALRC’s recommendations for reform.
Freedom of expression and the Constitution
7.7 The Constitution gives express recognition to a limited number of human rights, though none expressly mentions freedom of expression. It has been argued that some provisions—especially s 116, which relates to religious freedom5—have the potential to provide some direct protection to freedom of expression.6 However, the courts have not interpreted s 116 in this way.
7.8 Of greater constitutional significance is the protection given to political expression. Notwithstanding the absence of explicit constitutional protection for free speech, in a series of cases culminating in Lange v Australian Broadcasting Corporation, the High Court has held that the Constitution must be read as impliedly protecting a particular category of expression—namely, political communication.7 The
test for constitutionality was said to involve two limbs:
First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 for submitting a proposed amendment of the Constitution to the informed decision of the people.8 5 Australian Constitution s 116 states: ‘The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth’.
6 The suggestion was made that s 80.2(5) of the Criminal Code (Cth) might be inconsistent with s 116 of the Constitution: Gilbert & Tobin Centre of Public Law, Submission 80 to Senate Inquiry into AntiTerrorism Bill (No 2) 2005, 10 November 2005.
7 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.
8 Ibid, 567.
142 Fighting Words
7.9 As was pointed out in Coleman v Power, the Lange test should be applied such that ‘if the first [question] is answered “Yes”, and the second “No”, the law is invalid’.9 In other words, to the extent that a statutory provision under challenge fails to meet these requirements, it will be invalid under the Constitution.
7.10 Some stakeholders expressed concern in this Inquiry that the sedition provisions may be unconstitutional. The joint submission of Fairfax, News Ltd and AAP, with which the Australian Broadcasting Corporation (ABC) agreed,10 argued that ‘there can be no question but that the provisions burden such [political] discourse; the real question is whether they are reasonably adapted to serve a legitimate end’.11
7.11 The submission argued that the provisions are unconstitutional on the following
Given the burden which these offence provisions would appear to impose on discussion in the media of matters necessary and desirable to the effective exercise of their franchise by electors, as required by the Constitutional principle of responsible and representative government, the relevant provisions of the Act appear to exceed what is reasonably required, and not to be reasonably adapted, to serve the legitimate end (anti-terrorism) which the Act seeks to achieve.12
7.12 Some other stakeholders express more muted concern about the constitutionality of the sedition offences.13 ALRC’s views
7.13 In considering the scope of the constitutional protection of freedom of expression, it is important to bear in mind two propositions. The first is that the constitutional protection given to freedom of political communication is not absolute or unqualified; it extends only to what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution.14 In the specific context of the sedition provisions, the limited nature of the constitutional protection of freedom of expression was acknowledged in the Senate Legal and Constitutional Legislation Committee inquiry into the Anti-Terrorism Bill (No 2) 2005 (the 2005 Senate Committee inquiry).15 9 Coleman v Power (2004) 220 CLR 1, 78.
10 Australian Broadcasting Corporation, Submission SED 49, 20 April 2006.
11 John Fairfax Holdings Ltd, News Limited and Australian Associated Press, Submission SED 56, 18 April
2006. See also Australian National University Academics, Consultation, Canberra, 27 April 2006;
Australian Broadcasting Corporation, Submission SED 49, 20 April 2006.
12 John Fairfax Holdings Ltd, News Limited and Australian Associated Press, Submission SED 56, 18 April 2006.
13 See, eg, ARTICLE 19, Submission SED 14, 10 April 2006.
14 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 561; Langer v Commonwealth (1996) 186 CLR 302; Coleman v Power (2004) 220 CLR 1, 77; M Chesterman, Freedom of Speech in Australia: A Delicate Plant (2000), 25.
15 Senate Legal and Constitutional Legislation Committee—Parliament of Australia, Provisions of the AntiTerrorism Bill (No 2) 2005 (2005), [5.75].
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7.14 The second proposition is that the implied constitutional right encompasses the right (technically vested in people possessing the right to vote in Australian elections) to engage in public criticism of the official conduct of elected representatives.16
7.15 For a legislative provision to be unconstitutional, it is necessary to show something more than that it merely burdens a broad notion of freedom of political communication. Rather, it would be necessary to demonstrate that the provision infringes the constitutional right to engage in public criticism of the government or government action. The ALRC considers that the sedition provisions cannot reasonably be construed in this way, whether viewed in their current form or in the amended form recommended by the ALRC.
7.16 In the absence of Australian case law since the 1950s dealing with sedition, let alone cases considering the updated sedition offences in s 80.2 of the Criminal Code (Cth), it is difficult to assess with complete certainty the scope of operation of the sedition provisions. It is necessary, therefore, to apply the normal processes of statutory interpretation to the relevant offences.
The offences in section 80.2(1), (3) and (5)
7.17 The offences in s 80.2(1), (3) and (5) each purport to criminalise the urging of conduct by ‘force or violence’. This is quite different from the kind of criticism of government that the cases on the constitutional protection of freedom of political
communication aim to protect. As McHugh J stated in Coleman v Power:
Regulating political statements for the purpose of preventing breaches of the peace by those provoked by the statements is an end that is compatible with the system of representative government established by the Constitution.17
7.18 The sedition offences appear to fit comfortably within McHugh J’s statement.