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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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(2) Everyone has the right to freedom of expression. This right includes the freedom to seek, receive and impart information and ideas of all kinds, regardless of borders, whether orally, in writing or in print, by way of art, or in another way chosen by him or her.

–  –  –

7.58 The Chief Minister of the ACT submitted that the sedition provisions, ‘if passed locally [ie in the ACT], would be inconsistent with the Human Rights Act 2004’. In his view, they would fail the test of proportionality by the following chain of reasoning.

First, while it is legitimate for government to attempt to stop the spread of terrorism, it is ‘not legitimate to suppress mere commentary, even radical commentary, on such issues’. Secondly, there is no ‘rational connection between the offences and the legitimate objective of preventing the spread of terrorist activities’. Thirdly, the provisions do not represent the least restrictive means possible of achieving the legitimate aim of preventing terrorism because they are too vague and, potentially, too broad. In particular, the offences should contain a requirement that a person charged with a sedition offence must ‘intend that the conduct urged be in fact carried out’.

Moreover, ‘assist’ in s 80.2(7)–(8) ‘is too wide and too imprecise’. Fourthly, the defences do not provide adequate protection for legitimate expression.67

7.59 The Victorian Government has indicated its intention to enact a Charter of Human Rights and Responsibilities. A Bill for this purpose was introduced in the Victorian Legislative Assembly on 2 May 2006 and was enacted and assented to on 25 July 2006.68 The Explanatory Memorandum stated that the Bill was designed to ‘establish a framework for the protection and promotion of human rights’, based on those contained in the ICCPR.69 The Act contains a provision recognising freedom of

expression in a manner similar to art 19 of the ICCPR:

(1) Every person has the right to hold an opinion without interference.

(2) Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, whether within or outside Victoria and whether— (a) orally; or (b) in writing; or (c) in print; or (d) by way of art; or (e) in another medium chosen by him or her.

(3) Special duties and responsibilities are attached to the right of freedom of expression and the right may be subject to lawful restrictions reasonably necessary— (a) to respect the rights and reputation of other persons; or 67 J Stanhope MLA Chief Minister ACT, Submission SED 44, 13 April 2006.

68 Charter of Human Rights and Responsibilities Act 2006 (Vic).

69 Explanatory Memorandum, Charter of Human Rights and Responsibilities Bill 2006 (Vic).

154 Fighting Words

–  –  –

7.60 Governments in Tasmania, Western Australia and New South Wales also have indicated that they may consider the introduction of bills or charters of rights.71 However, recent news reports suggest that the current Australian Government intends to oppose—possibly, by way of legal challenge—any attempt by a state to introduce its own bill of rights.72

7.61 In most comparable foreign jurisdictions, freedom of expression is protected in a statutory or constitutional bill of rights. Some jurisdictions—including the United States, Canada,73 Germany74 and South Africa75—provide constitutional protection to freedom of expression. The archetypal constitutional articulation of freedom of

expression is the First Amendment to the United States Constitution, which 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.

7.62 Other jurisdictions such as the United Kingdom76 and New Zealand77 recognise freedom of expression in statutory bills of rights. Irrespective of whether it is protected by a constitutional or a statutory bill of rights, freedom of expression tends to be conceived, and protected, in a manner that is broadly consistent with the approach taken in art 19 of the ICCPR.78 In other words, freedom of expression is regarded as a human right of fundamental importance—though in certain circumstances this right must be reconciled with other competing rights or interests.

7.63 Submissions and consultations expressed a concern that the sedition provisions are made more problematic by the absence of a federal bill of rights in Australia.79 Some expressed this concern in general terms, with the argument essentially being that a bill of rights would provide an important counter-balance to any undesirable 70 Charter of Human Rights and Responsibilities Act 2006 (Vic) s 15.

71 E Hannan, ‘Minister Joins Bill of Rights Backers’, The Australian, 20 March 2006, 15; M Farr, ‘PM Will Fight States’ Push for Bill of Rights’, The Daily Telegraph (Sydney), 27 March 2006, 13.

72 See, eg, M Farr, ‘PM Will Fight States’ Push for Bill of Rights’, The Daily Telegraph (Sydney), 27 March 2006, 13; M Farr, ‘State Rights Push Wrong’, The Daily Telegraph (Sydney), 7 April 2006, 17.





73 Canadian Charter of Rights and Freedoms s 2(b).

74 Basic Law art 5(1).

75 Constitution of the Republic of South Africa 1996 s 16.

76 Human Rights Act 1998 (UK) ss 12–13, which should be read in conjunction with the Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 222, (entered into force generally on 3 September 1953) art 10.

77 New Zealand Bill of Rights Act 1990 (NZ) ss 13–14.

78 International Covenant on Civil and Political Rights, 16 December 1966, [1980] ATS 23, (entered into force generally on 23 March 1976). See Ch 5 for an analysis of art 19 of the ICCPR.

79 E Nekvapil, Submission SED 45, 13 April 2006; Public Interest Advocacy Centre, Submission SED 57, 18 April 2006; Media and Arts Organisations, Consultation, Sydney, 29 March 2006; New South Wales Council for Civil Liberties Inc, Submission SED 89, 3 July 2006.

7. Sedition and Freedom of Expression 155 incursions that the sedition provisions might make on people’s human rights.80 Others expressed a concern that it is inappropriate to justify Australia’s sedition legislation on the basis that other jurisdictions have similar legislation because those jurisdictions (most notably, the United Kingdom) do possess a bill of rights.81 ALRC’s views

7.64 An Australian bill of rights, if there were one, might well provide safeguards against the unwarranted and undesirable incursion of sedition laws into individuals’ human rights. However, the question whether Australia should enact a bill of rights falls well outside the Terms of Reference of this Inquiry.

7.65 Nevertheless, two points should be made. First, the fact that a jurisdiction has a bill of rights does not prevent that jurisdiction from taking robust anti-terrorism measures. This is evidenced by recent legislative amendments in the United States, the United Kingdom and elsewhere.82 This demonstrates that governments bound by constitutional or statutory bills of rights nevertheless consider it is possible to reconcile vigorous responses to terrorism with formal, enforceable requirements to respect an individual’s freedom of expression.

7.66 Secondly, the absence of a bill of rights at the federal level in Australia does not remove or lessen the importance of measuring the sedition provisions against accepted human rights standards. On the contrary, it means that a safeguard that exists in some other jurisdictions to prevent legislation from breaching human rights is not present in Australia. This in turn heightens the need for legislation that has the potential to impact on human rights to be carefully considered—both prior to enactment in Parliament and when the law is subject to later review—in order to ensure that it does not breach fundamental human rights, as recognised, for instance, in the ICCPR.

Sedition and freedom of expression generally

7.67 The sedition offences unquestionably involve some dilution of an absolute notion of freedom of expression. In criminalising certain categories of expression, the relevant statutory provisions must necessarily reduce the scope of lawful expression.

7.68 As a general proposition, this is neither unique nor illegitimate. The law in Australia and elsewhere has always imposed legal restrictions on certain forms of expression—for instance, where it is defamatory (civil liability), or indecent or obscene (criminal liability). The Privy Council, hearing an appeal from the High Court of

Australia in 1936, observed:

–  –  –

Free speech does not mean free speech; it means speech hedged in by all the laws against defamation, blasphemy, sedition and so forth; it means freedom governed by law …83

7.69 The question is whether the current sedition offences impose an unwarranted or unlawful burden on freedom of expression. Particular concern has been expressed that the sedition offences will impact negatively on members of the media and the arts.

However, other groups who are said to be at particular risk include academics,84 political activists, religious leaders and dissidents generally.

Submissions and consultations

7.70 Many stakeholders argued that the offences, taken as a whole, are likely to chill free speech within the community in a manner inconsistent with Australia’s status as a liberal democracy.85 This criticism was often linked to the more specific concern that the offences may be interpreted broadly, and unduly infringe upon freedom of expression.86 83 James v Commonwealth (1936) 55 CLR 1, 56.

84 See Australian Vice-Chancellors’ Committee, Submission SED 60, 25 April 2006; National Tertiary Education Union, Submission SED 118, 3 July 2006.

85 S Smith, Submission SED 04, 24 March 2006; B Ho, Submission SED 07, 9 March 2006; A Spathis, Submission SED 17, 10 April 2006; Law Society of Western Australia, Submission SED 19, 28 March 2006; letter accompanying National Tertiary Education Union, Submission SED 25, 10 April 2006;

Australian Writers’ Guild, Submission SED 29, 11 April 2006; Federation of Community Legal Centres (Vic), Submission SED 33, 10 April 2006; Screen Producers Association of Australia, Submission SED 35, 11 April 2006; Fitzroy Legal Service Inc, Submission SED 40, 10 April 2006; Victoria Legal Aid, Submission SED 43, 13 April 2006; J Stanhope MLA Chief Minister ACT, Submission SED 44, 13 April 2006; Australian Press Council, Submission SED 48, 13 April 2006; Australian Screen Directors Association, Submission SED 51, 10 April 2006; B Saul, Submission SED 52, 14 April 2006; Australian Muslim Civil Rights Advocacy Network, Submission SED 54, 17 April 2006; John Fairfax Holdings Ltd, News Limited and Australian Associated Press, Submission SED 56, 18 April 2006, which was endorsed in Australian Broadcasting Corporation, Submission SED 49, 20 April 2006; B Wright, Submission SED 58, 19 April 2006; National Legal Aid, Submission SED 62, 20 April 2006; Australian Vice-Chancellors’ Committee, Submission SED 60, 25 April 2006; Media and Arts Organisations, Consultation, Sydney, 29 March 2006; Media Organisations, Consultation, Sydney, 28 March 2006; Law Institute of Victoria, Submission SED 70, 28 June 2006.

86 Australian Society of Authors, Submission SED 24, 18 April 2006; letter accompanying National Tertiary Education Union, Submission SED 25, 10 April 2006; Professor JM Coetzee, Tom Keneally and David Williamson on behalf of Sydney PEN, Sydney PEN, Submission SED 27, 10 April 2006; Australian Writers’ Guild, Submission SED 29, 11 April 2006; National Association for the Visual Arts, Submission SED 30, 11 April 2006; Centre for Media and Communications Law, Submission SED 32, 12 April 2006;

Federation of Community Legal Centres (Vic), Submission SED 33, 10 April 2006; Australia Council for the Arts, Submission SED 34, 11 April 2006; New South Wales Council for Civil Liberties Inc, Submission SED 39, 10 April 2006; J Stanhope MLA Chief Minister ACT, Submission SED 44, 13 April 2006; Arts Law Centre of Australia, Submission SED 46, 13 April 2006; Australian Lawyers for Human Rights, Submission SED 47, 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; John Fairfax Holdings Ltd, News Limited and Australian Associated Press, Submission SED 56, 18 April 2006, which was endorsed in Australian Broadcasting Corporation, Submission SED 49, 20 April 2006; Public Interest Advocacy Centre, Submission SED 57, 18 April 2006;

Australian Vice-Chancellors’ Committee, Submission SED 60, 25 April 2006; Human Rights and Equal Opportunity Commission, Consultation, Sydney, 31 March 2006; Human Rights Lawyers, Consultation,

7. Sedition and Freedom of Expression 157

7.71 AMCRAN submitted that ‘the sedition offences lead to a significant chilling

effect on the Muslim community in expressing legitimate support for selfdetermination struggles around the world’.87 AMCRAN observed:

The offences have a particular effect on Muslim community groups who may wish to express solidarity with Muslims who live under oppressive regimes or various kinds of occupying forces. This is particularly the case as the law makes no distinction between legitimate liberation and independence movements and terrorism.88

7.72 There was particular concern about s 80.2(7)–(8), with a number of people arguing that these provisions are too broad, inhibiting freedom of expression to an unwarranted degree.89 The National Association for the Visual Arts (NAVA)

submitted:

Organizers and speakers at the huge protest marches and gatherings of thousands of Australian citizens which took place immediately prior to the commitment by the Australian government to join the ‘Coalition of the Willing’ in sending troops to Iraq, could now be regarded as urging conduct which assists a country at war with Australia and therefore seditious under this law.90



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