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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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7.39 There are two ways in which unlawful discrimination might arise. The first is where the legislation in question is directly or indirectly discriminatory. In this situation, the solution would be to amend the legislation. The second is where the legislation itself is neither directly nor indirectly discriminatory; however, those responsible for enforcing it may be doing so in a discriminatory manner. To take a hypothetical example: the offence of tax fraud is not itself discriminatory; nevertheless if it were apparent that the authorities were targeting only members of a particular racial group, this would give rise to discrimination against that group. The solution would not be to amend the legislation (unquestionably, there should be an offence of tax fraud). Rather, it would be necessary to direct attention to those who enforce the law, and to take steps to prevent them from enforcing the law unequally.

Submissions and consultations

7.40 Submissions to the Inquiry demonstrated a concern that the sedition provisions, in their application, could have an unfair or indirectly discriminatory impact on certain groups within the Australian community, particularly those who are already disadvantaged or marginalised.43 The AGD did not share this view, stating that the offences do not ‘expressly or impliedly discriminate against any racial, ethnic or religious groups’ and that they ‘apply equally to any group or groups’.44

7.41 Some of those critical of the provisions argued that this is an inevitable incident of the legislative framework. For example, the Federation of Community Legal Centres (Vic) (Federation of CLCs) submitted:

41 Racial Discrimination Act 1975 (Cth) s 9(1).

42 Ibid s 9(1A).

43 Federation of Community Legal Centres (Vic), Submission SED 33, 10 April 2006; New South Wales Young Lawyers Human Rights Committee, Submission SED 38, 10 April 2006; E Nekvapil, Submission SED 45, 13 April 2006; Arts Law Centre of Australia, Submission SED 46, 13 April 2006; Combined Community Legal Centres Group (NSW) Inc, Submission SED 50, 13 April 2006; B Saul, Submission SED 52, 14 April 2006; Australian Muslim Civil Rights Advocacy Network, Submission SED 54, 17 April 2006; Public Interest Advocacy Centre, Submission SED 57, 18 April 2006; G Zdenkowski, Submission SED 64, 3 May 2006.

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

7. Sedition and Freedom of Expression 149 This potential for politicised and discriminatory prosecution is not simply an unintended by-product of the sedition laws. In our view it is the very nature of the laws, insofar as they are intended to prosecute political speech, that they be prosecuted in a politicised manner.45

7.42 A similar point was made by the New South Wales Young Lawyers Human Rights Committee, and others, who pointed to the fact that public order offences, and particularly those directed ‘against publicly insulting or offensive speech’, historically have been disproportionately and unfairly enforced.46

7.43 A number of stakeholders asserted that there has been disproportionate ‘targeting’ of individuals of Muslim faith or those of Middle Eastern origin.47 The Australian Muslim Civil Rights Advocacy Network (AMCRAN) described this as a

form of ‘social exclusion’.48 The Federation of CLCs submitted:

The current climate of institutionalised ‘Islamophobia’ and the widely held perception of a link between Islam and terrorism creates a grave risk that Muslim individuals may be disproportionately prosecuted with sedition offences (as it would seem Communist Party members were in the past). Statements made by Muslims before a Muslim audience may be more readily regarded as seditious than similar such statements made by other community members. The statements of Muslim community members may be perceived through the lens of the highly politicised concept of ‘extremism’ and as a result assessed as ‘terrorist’ or seditious.49

7.44 The Public Interest Advocacy Centre (PIAC) stated that the establishment of a permanent police taskforce to work in Muslim communities in southwest Sydney has caused greater scrutiny of this section of the broader community. PIAC submitted that this, coupled with the fact that s 80.2 of the Criminal Code requires the AttorneyGeneral to give consent only to the prosecution of a sedition offence (with no such requirement in respect of arrest, detention or charge), ‘leads to a very real risk that action will be taken against members of this community by police in reliance on the provisions even if there is limited likelihood of a prosecution being approved by the Attorney-General’.50 45 Federation of Community Legal Centres (Vic), Submission SED 33, 10 April 2006.

46 New South Wales Young Lawyers Human Rights Committee, Submission SED 38, 10 April 2006. See also E Nekvapil, Submission SED 45, 13 April 2006.

47 Federation of Community Legal Centres (Vic), Submission SED 33, 10 April 2006; New South Wales Young Lawyers Human Rights Committee, Submission SED 38, 10 April 2006; Fitzroy Legal Service Inc, Submission SED 40, 10 April 2006; E Nekvapil, Submission SED 45, 13 April 2006; Combined Community Legal Centres Group (NSW) Inc, Submission SED 50, 13 April 2006; Australian Muslim Civil Rights Advocacy Network, Submission SED 54, 17 April 2006; Public Interest Advocacy Centre, Submission SED 57, 18 April 2006; P Emerton, Submission SED 108, 3 July 2006.

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

49 Federation of Community Legal Centres (Vic), Submission SED 33, 10 April 2006. See also E Nekvapil, Submission SED 45, 13 April 2006; Australian Muslim Civil Rights Advocacy Network, Submission SED 54, 17 April 2006.

50 Public Interest Advocacy Centre, Submission SED 57, 18 April 2006.

150 Fighting Words

7.45 The Combined Community Legal Centres Group (NSW) Inc cited the concluding observations of the Committee on the Elimination of Racial Discrimination

in 2005, as relevant to Australia:

The Committee notes with concern reports that prejudice against Arabs and Muslims in Australia has increased and that the enforcement of counter-terrorism legislation may have an indirect discriminatory effect against Arab and Muslim Australians.

The Committee … recommends that the State party increase its efforts to eliminate such prejudice and ensure that enforcement of counter-terrorism legislation does not disproportionately impact on specific ethnic groups and people of other national origins.51

7.46 AMCRAN expressed its concern about the undesirable eventuality of ‘the criminalisation of statements made by Muslims as “incitement” where there may otherwise be no evidence of violent acts which threaten the safety of the public’.52 Suggestions for reform

7.47 Suggestions were made to counteract the threat of unfair enforcement of the sedition offences. These fall into two categories: education and external monitoring.

7.48 In relation to the former, it was suggested that education programs should be developed to inform the Muslim community of ‘what may be covered by the legislation and what the legal rights of those affected are’,53 and that law enforcement authorities be given more cross-cultural training.54 Emrys Nekvapil submitted that these provisions are likely to hamper inter-community dialogue, stating that ‘creating self-censorship around opinions in support of an enemy can only inhibit exactly that dialogue which is required at all levels to bring about understanding and the peaceful resolution of differences’.55

7.49 The AGD also recognised that education and communication in this area represents an ‘important aspect of ensuring that this legislation is applied fairly’. The

AGD pointed to the establishment of the following program:

The Australian Federal Police delivers a cultural diversity program to all new recruits and provides a booklet on Cultural Diversity as a ready reference to different cultures.

This booklet, A Practical Reference to Religious Diversity for Operational Police and Emergency Services, is produced by the Australasian Police Multicultural Advisory Bureau. In furtherance to this, a program focusing on Islamic culture will be delivered 51 Combined Community Legal Centres Group (NSW) Inc, Submission SED 50, 13 April 2006 citing Committee on the Elimination of Racial Discrimination, Concluding Observations, UN Doc CERD/C /AUS/CO/14 (2005), [13].

52 Australian Muslim Civil Rights Advocacy Network, Submission SED 54, 17 April 2006. See also P Emerton, Submission SED 108, 3 July 2006.

53 E Nekvapil, Submission SED 45, 13 April 2006.

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

55 E Nekvapil, Submission SED 45, 13 April 2006.

7. Sedition and Freedom of Expression 151 across the organisation to all employees, with the first of many courses commencing this financial year.56

7.50 Some people expressed doubt about whether education would be effective in this area. Patrick Emerton supported ‘community education to improve intercommunal harmony’ but he was ‘not certain that the political impact of such education will be as great as the impact that the passage of this legislation already has had’.57 The Queensland Council for Civil Liberties doubted that education would be an effective means ‘significantly [to] diminish the possibility that this legislation will be used in a discriminatory fashion’. It drew a parallel with other education programs, which it did

not believe were effective:

When one looks for example, at the misuse of powers such as move-on powers, recently granted to Police in State jurisdictions, it seems clear that despite relevant education programs these powers are overwhelmingly used against particular groups in society, namely the young, indigenous, disadvantaged and homeless.58

7.51 In relation to monitoring, PIAC submitted that the government should ‘monitor the impact of these provisions through collection of statistics on who is being subject to these measures and whether they are being abused’.59 Similarly, Emrys Nekvapil suggested the establishment of ‘accessible complaint mechanisms for people targeted by these laws’ and ‘a comprehensive system of reporting and recording all incidents, investigations and crimes under the new sedition legislation’.60

7.52 The AGD noted that a person who feels they have suffered indirect discrimination in contravention of the RDA may complain to HREOC or initiate action in the courts.61 It also would be possible to take a complaint to the Commonwealth Ombudsman or to seek disciplinary action against an Australian Federal Police officer.

ALRC’s views

7.53 One concern of the ALRC is the risk that the decision about whom to prosecute for a sedition offence may be tainted by political considerations—either in appearance or in reality. As outlined in Chapter 2, the law of sedition was used in earlier times to criminalise political dissent in a manner that seems incompatible with contemporary notions of free speech in a liberal democracy.

7.54 The recommendations in this Report deal with this risk in two ways. First, in Chapter 2 the ALRC recommends that term ‘sedition’ should be removed from the 56 Australian Government Attorney-General’s Department, Submission SED 31, 12 April 2006.

57 P Emerton, Submission SED 108, 3 July 2006.

58 Queensland Council for Civil Liberties, Submission SED 101, 3 July 2006.

59 Public Interest Advocacy Centre, Submission SED 57, 18 April 2006.

60 E Nekvapil, Submission SED 45, 13 April 2006.

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

152 Fighting Words statute book, thereby severing the tie with the old jurisprudence, which pays insufficient regard to freedom of expression and freedom of association.62 Secondly, in Chapter 13 the ALRC recommends that the current provisions dealing with the Attorney-General’s consent for prosecution should be repealed.63 The ALRC endorses the independent role of the Commonwealth Director of Public Prosecutions (CDPP) in making prosecutorial decisions and considers that, in the particular context of these offences, the requirement for the Attorney-General to consent to prosecution should be removed in order to avoid any perception that there may be a political element in the decision whether or not to prosecute.

7.55 The ALRC is of the view that the sedition provisions are themselves neither directly nor indirectly discriminatory. As Gummow, Hayne and Heydon JJ stated in Purvis v New South Wales, a ‘central purpose’ of the RDA is ‘to require that people not be treated differently’ on the grounds prescribed in the Act.64 It cannot reasonably be said that the statutory provisions promote an object, or tend towards consequences, inconsistent with the operative purpose of the RDA. Although the sedition offences are not structured in such a way as to promote unlawful discrimination, this is not to say that discrimination in this area is impossible. On one level, any offence may be applied in a discriminatory manner to target particular groups. Again, if that occurs, there are avenues of redress through HREOC and the federal courts.

7.56 The ALRC is conscious of the genuinely held concern that the sedition offences may operate unfairly, particularly against people of the Muslim faith or those from a Middle Eastern background. However, as explained below, the ALRC considers that the most appropriate way to deal with the risk of unfair application of the sedition provisions is through a prosecutorial system free of political interference and through education and related strategies. For this reason, the ALRC recommends that the Australian Government continue to pursue strategies, such as educational programs, to promote inter-communal harmony and understanding.65 Absence of bills of rights in Australia

7.57 As previously noted, the ACT and Victoria are the only Australian jurisdictions that currently possess bills of rights.66 Section 16 of the Human Rights Act 2004 (ACT)

specifically recognises freedom of expression, stating that:

(1) Everyone has the right to hold opinions without interference.

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