«Fighting Words REPORT A Review of Sedition Laws in Australia REPORT 104 July 2006 © Commonwealth of Australia 2006 This work is copyright. You may ...»
However, should there be any ambiguity in this regard, a court could look to extrinsic materials.18 In statements made after the enactment of the Anti-Terrorism Act (No 2) 2005 (Cth)—which would not strictly be relevant for the purposes of statutory interpretation19—the Attorney-General’s Department (AGD) and the Attorney-General 16 Nationwide News v Wills (1992) 177 CLR 1, 75; Australian Capital Television v Commonwealth (1992) 177 CLR 106, 138–139; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104, 130;
M Chesterman, Freedom of Speech in Australia: A Delicate Plant (2000), 23.
17 Coleman v Power (2004) 220 CLR 1, 53.
18 Acts Interpretation Act 1901 (Cth) s 15AB, which provides a non-exhaustive list of extrinsic material to which a court may have regard in construing legislation.
19 This is because a court is permitted to have regard only to such explanatory material as is produced prior to the enactment of the statutory provisions that the court is construing: Ibid s 15AB(2).
144 Fighting Words of Australia have sought to make clear that it was not the intention to criminalise mere criticism of the government.20
7.19 There is also some evidence for this in material that would be relevant for the purposes of s 15AB of the Acts Interpretation Act 1901 (Cth). For instance, the Supplementary Explanatory Memorandum, in explaining the amendment made to the defence to be inserted in s 80.3 of the Criminal Code following the 2005 Senate Committee inquiry, stated that this change was designed to ‘reassure those who publish reports or commentaries about matters of public interest’ that they ‘are not caught by the [sedition] provision, provided the publication is done in good faith’.21 In the 2005 Senate Committee inquiry, the AGD also suggested that the offence provisions were designed in such a way as to ensure that ‘people who make comments without seeking to incite violence or hatred will not be deprived of the freedom of speech’.22
7.20 The ALRC considers that the offences in s 80.2(1), (3) and (5) cannot properly be construed in such a way as to capture mere criticism of government action.
Consequently, these provisions are unlikely to breach the constitutional protection of freedom of political communication, as it has been articulated by the High Court.
However, even if the Crown advocated a contrary interpretation in the prosecution of one or more of these offence provisions, the court would be obliged to ‘read down’ the provision in question so that it remains consistent with the Constitution.23 The offences in section 80.2(7)–(8)
7.21 The ALRC is also of the view that the offences in s 80.2(7)–(8) are unlikely to infringe the Constitution.24 The threshold question (that is, the first limb of the Lange test) is whether each offence purports to cover ‘communication about government or political matters either in its terms, operation or effect’. If a court took a broad view of the word ‘assist’ in s 80.2(7)–(8), some forms of assistance to an enemy of Australia or to those engaged in armed hostilities against Australia may also fall within the ambit of constitutionally protected political discourse.
7.22 However, even if the first limb of Lange were satisfied, the more important question is whether the provisions satisfy the second limb of the Lange test, since these offences do not expressly state that the proscribed assistance must relate to ‘force or violence’.
20 Australian Government Attorney-General’s Department, Consultation, Canberra, 26 April 2006;
P Ruddock, ‘Opening Address’ (Paper presented at Security In Government Conference, Canberra, 9 May 2006), .
21 Supplementary Explanatory Memorandum, Anti-Terrorism Bill (No 2) 2005 (Cth).
22 Australian Government Attorney-General’s Department, Submission 290A to Senate Inquiry into AntiTerrorism Bill (No 2) 2005, 22 November 2005, Attachment A.
23 Acts Interpretation Act 1901 (Cth) s 15A.
24 In Ch 11, the ALRC recommends, for other reasons, that s 80.2(7) and (8) be repealed. See, Rec 11–1.
7. Sedition and Freedom of Expression 145
7.23 The High Court decision in Coleman v Power is relevant to this determination.25 That case dealt with s 7(1)(d) of the Vagrants, Gaming and Other Offences Act 1931 (Qld), which made it an offence if a person, in a public place, ‘uses any threatening, abusive, or insulting words to any person’.26 Gummow and Hayne JJ addressed the United States ‘fighting words’ cases—namely, the line of authority holding that the First Amendment to the United States Constitution does not protect expression that has
the purpose or effect of inciting violence. They then said:
The Australian constitutional and legal context is different from that of the United States. The United States decisions about so-called ‘fighting words’ find no direct application here.27
7.24 Gummow and Hayne JJ, with whom Kirby J agreed, assumed (but did not decide) that s 7(1)(d) of the Queensland Act ‘may, in some cases, burden a communication about government or political matters’.28 They then considered whether the provision, so construed, satisfied the second limb of the test in Lange.
They held that, by construing the term ‘insulting words’ in s 7(1)(d) so as to apply only to ‘words intended, or reasonably likely, to provoke unlawful physical retaliation’, the provision was ‘reasonably appropriate and adapted to serve the legitimate public end of keeping public places free of violence’.29
7.25 The ALRC considers that the burden on political expression caused by s 80.2(7)–(8) of the Criminal Code is likely to arise only in a relatively small number of situations, if at all. However, to the extent that it arises, the ALRC believes that these provisions either would not fall foul of the second limb in the Lange test or would be construed in such a way as to prevent prosecution in respect of non-violent urging that is ‘disproportionate’30 to serving a legitimate end in the Lange sense.
Conclusion on the question of constitutionality
7.26 The principal concern about the constitutionality of the offences in s 80.2 is the risk that they may be used in circumstances where the impugned conduct consists of ‘political speech’ that, in substance, neither incites violence nor directly threatens the institutions of government in Australia or the Australian Defence Force. This risk is most pronounced in relation to the offences in s 80.2(7)–(8). Putting to one side the 25 Coleman v Power (2004) 220 CLR 1.
26 The Queensland Parliament amended this provision in 2003, prior to the High Court’s decision in Coleman v Power.
27 Coleman v Power (2004) 220 CLR 1, 76.
28 Ibid, 78 (Gummow and Hayne JJ), 89 (Kirby J).
29 Ibid, 77–78 (Gummow and Hayne JJ), 98 (Kirby J).
30 This is the term preferred by Kirby J in Ibid, 90.
146 Fighting Words disincentives to prosecute an offence of this nature,31 such a situation is at least theoretically conceivable.
7.27 It is possible to imagine a person being prosecuted under s 80.2(7)–(8) for providing political advice to a country at war with Australia. However, the approach of the High Court in Coleman v Power demonstrates that, if an attempt were made to use these provisions to prosecute what might be described as protected political speech by a constitutionally impermissible means, a court would simply adopt a narrower construction of the offence provision. The result would not be invalidity; rather it would be a construction that makes clear that the scope of the provision is too narrow to permit such a prosecution.32
7.28 The High Court might, at some later stage, expand the constitutional protection to freedom of expression beyond the principles in Lange. However, the current state of the law makes it unlikely that a constitutional challenge to the validity of the sedition provisions would be successful. Consequently, the ALRC makes no recommendation to amend the sedition provisions specifically to avoid constitutional invalidity.
7.29 The ALRC does have other concerns about the framing, breadth and potential application of s 80.2(7)–(8), and their overlap with the similar provisions in s 80.1(1)(e)–(f) of the Criminal Code concerning treason. In Chapter 11, the ALRC recommends the repeal of s 80.2(7)–(8), and the reform of the treason offences.
Sedition and domestic protection of human rights
7.30 In Issues Paper 30 (IP 30), the ALRC asked whether any aspects of ss 80.2 to
80.6 of the Criminal Code were inconsistent with domestic legislation protecting human rights.33 The ALRC’s preliminary view, expressed in Discussion Paper 71 (DP 71), was that there was no relevant substantive inconsistency.34
7.31 As summarised in DP 71, responses to this question indicated no great concern about inconsistency between the sedition provisions and domestic human rights legislation.35 The ALRC did not receive any responses to DP 71 expressing a contrary position.
7.32 The Human Rights and Equal Opportunity Commission (HREOC) noted that there may be some inconsistency between these provisions and the Human Rights Act 2004 (ACT). However, the fact that the offences in s 80.2 are, in essence, public order 31 See the discussion in Ch 13 on the discretion of the Commonwealth Director of Public Prosecutions to refuse to prosecute.
32 See Coleman v Power (2004) 220 CLR 1, 53–56 (McHugh J), 78–79 (Gummow and Hayne JJ).
33 Australian Law Reform Commission, Review of Sedition Laws, IP 30 (2006), Question 23.
34 Australian Law Reform Commission, Review of Sedition Laws, DP 71 (2006), [7.33].
35 See: Ibid, [7.31]–[7.32]; Human Rights and Equal Opportunity Commission, Consultation, Sydney, 31 March 2006; New South Wales Young Lawyers Human Rights Committee, Submission SED 38, 10 April 2006.
7. Sedition and Freedom of Expression 147 offences of general application means that there is no substantive inconsistency with federal human rights legislation.36
7.33 The AGD rejected any suggestion that the sedition provisions are inconsistent with domestic protections of human rights, stating that any inconsistency could only arise if the sedition provisions ‘authorised behaviour that is currently unlawful’ under
anti-discrimination legislation. Moreover, the AGD stated:
The Government is satisfied that sections 80.2 to 80.6 of the Criminal Code are consistent with domestic human rights legislation and there has been no rolling back of any of Australia’s domestic human rights legislation.37 ALRC’s views
7.34 The ALRC concludes that there is no substantive inconsistency between the sedition provisions and domestic human rights legislation. This view applies with reference to the sedition provisions in their current form, and as they would appear if the amendments recommended by the ALRC were adopted.
7.35 In forming this view, it is necessary to put to one side the question whether the sedition provisions are compatible with the International Covenant on Civil and Political Rights 1966 (ICCPR)—an issue that is discussed in detail in Chapter 5.
Risk of unfair or discriminatory application of sedition laws
7.36 At an earlier stage of the Inquiry, the ALRC noted that concerns have been raised that some of the new offences may be applied disproportionately or unfairly to the disadvantage of particular groups within the Australian community. The ALRC asked whether this was a problem and, if so, what legal or administrative steps should be taken to address it.38
7.37 Australian law prohibits many forms of direct and indirect discrimination. At the federal level, the most important Acts are the Racial Discrimination Act 1975 (Cth) (RDA), the Sex Discrimination Act 1984 (Cth), the Disability Discrimination Act 1992 (Cth) and the Age Discrimination Act 2004 (Cth). Protections are also afforded by other federal laws dealing with discrimination in particular circumstances,39 and by state and territory anti-discrimination laws.40 36 Human Rights and Equal Opportunity Commission, Consultation, Sydney, 31 March 2006.
37 Australian Government Attorney-General’s Department, Submission SED 31, 12 April 2006.
38 Australian Law Reform Commission, Review of Sedition Laws, IP 30 (2006), Question 24.
39 See, eg, Human Rights and Equal Opportunity Commission Act 1986 (Cth); Workplace Relations Act 1996 (Cth) s 222.
40 See, especially, Anti-Discrimination Act 1977 (NSW); Anti-Discrimination Act 1991 (Qld); Equal Opportunity Act 1984 (SA); Racial Vilification Act 1996 (SA); Anti-Discrimination Act 1998 (Tas);
Equal Opportunity Act 1995 (Vic); Racial and Religious Tolerance Act 2001 (Vic); Equal Opportunity Act 1984 (WA); Discrimination Act 1991 (ACT); Anti-Discrimination Act 1992 (NT).
148 Fighting Words
7.38 Importantly for present purposes, s 9 of the RDA prohibits both direct and indirect discrimination ‘based on race, colour, descent or national or ethnic origin’.
Taking the example of racial discrimination, the difference between direct and indirect discrimination is as follows. Direct discrimination occurs where the rights of a person, X, are impaired because of conduct that distinguishes, excludes, restricts or prefers another person on the basis of certain grounds, such as X’s national origin.41 Indirect discrimination occurs where X cannot comply with a particular requirement or condition (which has the purpose or effect of impairing X’s rights), but a higher proportion of people that do not have X’s national origin could comply, and the condition is unreasonable in all the circumstances.42