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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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7.73 The New South Wales Council for Civil Liberties and the Fitzroy Legal Service offered similar examples,91 and argued that criminalising such activity would be fundamentally anti-democratic.

7.74 A pragmatic argument for not criminalising expression that might be considered seditious is that the presence of strong legislation might in fact be counter-productive.92

Associate Professor Roger Douglas stated:

First, calls for violence may be an emotional substitute for actual violence … Second, violent rhetoric may sometimes best be left alone. Prosecutions may inflate the importance of defendants, and give them status among those who share their alienation … Third, violent rhetoric may constitute a useful sign that something is wrong. No doubt it will assist security, which will be alerted to the need to investigate what underlies the rhetoric. It may also be an invitation to examine grievances.

Fourth, governments may conclude that prosecutions for violent rhetoric are likely to Sydney, 29 March 2006; Media Organisations, Consultation, Sydney, 28 March 2006; Law Institute of Victoria, Submission SED 70, 28 June 2006.

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

88 Ibid.

89 National Association for the Visual Arts, Submission SED 30, 11 April 2006; New South Wales Council for Civil Liberties Inc, Submission SED 39, 10 April 2006; Arts Law Centre of Australia, Submission SED 46, 13 April 2006; Australian Press Council, Submission SED 48, 13 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.

90 National Association for the Visual Arts, Submission SED 30, 11 April 2006.

91 New South Wales Council for Civil Liberties Inc, Submission SED 39, 10 April 2006; Fitzroy Legal Service Inc, Submission SED 40, 10 April 2006.

92 See, eg, New South Wales Council for Civil Liberties Inc, Submission SED 89, 3 July 2006; R Douglas, Submission SED 87, 3 July 2006.

158 Fighting Words have political costs. These include criticisms to the effect that the government is persecuting its enemies, and the risk that the prosecution will fail, in which case the government will appear to have suffered a defeat.93

7.75 Most critics of s 80.2(7)–(8) argued for repeal.94 Others put as their preferred position95—or as a second preference if repeal were unavailable96—that these provisions be amended to ensure they only capture conduct intended to lead to violence.

7.76 In response, the AGD provided its own hypothetical examples, drawing the

following distinction:

Where someone places a notice on the internet calling for a more restrictive immigration policy in relation to young people from certain countries, it might enrage many young people from those countries, but it would not amount to sedition if it was genuinely about immigration policy. Therefore people who are merely criticising government policy or urging a change to the law have a defence available to them.97 ALRC’s views

7.77 Among the provisions that are the subject of this Inquiry, s 80.2(7)–(8) of the Criminal Code have the greatest potential to cause incursions into the right to freedom of expression. The ALRC shares the concern that these provisions do not draw a clear enough distinction between legitimate dissent—speech that ought not to be interfered with in a liberal democracy—and expression whose purpose or effect is to cause the use of force or violence within the state. Lee, Hanks and Morabito make the point in

the following terms:

A distinction has to be made between, on the one hand, those who wish to overthrow the democratic system or use violence or threats of violence to violate democratic procedures and, on the other hand, those who seek radical change in the social, economic or political arrangements within the democratic system. Such a distinction must not be abandoned, even though difficulty may arise in particular cases.98

7.78 For the reasons discussed in Chapter 11, the ALRC recommends the repeal of s 80.2(7)–(8). Further, the ALRC recommends that the similar treason offences in s 80.1(1)(e)–(f) be modified to make it clear that mere rhetoric or expressions of dissent are not caught. The prosecution should have to prove beyond reasonable doubt 93 R Douglas, Submission SED 87, 3 July 2006.

94 See, eg, New South Wales Council for Civil Liberties Inc, Submission SED 39, 10 April 2006; Fitzroy Legal Service Inc, Submission SED 40, 10 April 2006.

95 Australian Major Performing Arts Group, Submission SED 61, 16 April 2006; N Roxon MP Shadow Attorney-General, Submission SED 63, 28 April 2006.

96 New South Wales Council for Civil Liberties Inc, Submission SED 39, 10 April 2006; Victoria Legal Aid, Submission SED 43, 13 April 2006; Australian Press Council, Submission SED 48, 13 April 2006;

Australian Screen Directors Association, Submission SED 51, 10 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.

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





98 H Lee, P Hanks and V Morabito, In the Name of National Security: The Legal Dimensions (1995), 17.

7. Sedition and Freedom of Expression 159 that the defendant has materially assisted an enemy to wage war—for instance, through the provision of funds, troops, armaments or strategic information.99

7.79 As discussed in detail in Chapters 8–10, the ALRC also recommends reframing the elements required for liability under s 80.2(1), (3) and (5) of the Criminal Code. In recognition of the need for clear protection for freedom of expression, the ALRC recommends that the prosecution should be required to prove that the person intended that the force or violence urged will occur (Recommendation 8–1).

7.80 Under Recommendation 12–2, the trier of fact, in considering this element of the offence, would be required to consider the context—that is, whether the conduct in question was done: in the development, performance, exhibition or distribution of an artistic work; or in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or in connection with an industrial dispute or an industrial matter; or in the dissemination of news or current affairs.

7.81 Finally, Recommendation 4–1 calls for the repeal of the provisions in Part IIA of the Crimes Act concerning unlawful associations, which should answer the concerns of universities, theatre owners, art galleries and others that they might be prosecuted for hosting conduct by others that has an underlying ‘seditious intention’.

Journalism and the arts

7.82 Particular concerns have been expressed to the Inquiry that the sedition offences may impact negatively on the right to freedom of expression enjoyed by journalists and their publishers, as well as people engaging in or facilitating artistic expression—all of whom may be exposed to restrictions on freedom of expression because their role often involves reporting or reflecting unpopular or dissenting viewpoints.

7.83 One particular suggestion was for the Criminal Code to be amended specifically to provide that the offences currently located in s 80.2 would not apply to journalists, the media and artists. Such an exemption is often referred to as a ‘carve-out’ and would render the relevant offences inoperable as against a specified class of persons.

7.84 This suggestion is considered, but rejected, in Chapter 12. There are three problems with such a provision. First, its scope—in terms of the people to whom the exemption would apply—is difficult to determine and involves a high degree of subjectivity. Secondly, it would be anomalous in the context of the criminal law for journalists and artists to be permitted to engage in conduct that would be criminal if

–  –  –

committed by someone else. Thirdly, there is a concern that a person, who is in fact engaging in dangerous conduct that ought to be criminalised, might be able to take advantage of such a provision to escape prosecution.

Journalists

7.85 Submissions to the Inquiry identified particular concern that the sedition provisions could leave the established media organisations liable to prosecution for carrying out their functions of news reporting and the dissemination of bona fide comment on matters of public interest or importance.100 The general concern, as expressed in the joint submission of Fairfax, News Ltd and AAP, is that there is ‘a real risk’ that a comment made, letter or advertisement published, wire service story or interview reproduced, factual report carried, video-tape footage published, editorial opinion expressed, or feature film or documentary screened could by reason of its subject matter, prominence, content, tone, wording, manner of promotion and ultimate authorship be thought capable of being held by a jury to amount to ‘urging’ of a proscribed kind … particularly if it were perceived to form part of an ongoing campaign.101

7.86 Several specific concerns also were identified. First, the provisions could lead to self-censorship because media organisations are uncertain about how broadly the provisions will be interpreted. Essentially, the concern seems to be that ‘fear of inadvertently breaching the law is likely to impact on the willingness of many in the community to publicly express their views and their opposition to government actions

and programs’.102 The Media, Entertainment and Arts Alliance (MEAA) submitted:

Part of the uncertainty stems from the wording, including the offences of ‘urging’ others to use ‘force or violence’ and the question of intent. It is hard to control or predetermine how individuals will interpret the various layers of meaning that comprise an actor’s performance or a playwright/screenwriter’s script.103

7.87 Another concern relates to the potential breadth of the ‘urging’ offences in s 80.2 of the Criminal Code. The MEAA asked whether journalists ‘who directly quote 100 Media Entertainment and Arts Alliance, Submission SED 28, 10 April 2006; Victoria Legal Aid, Submission SED 43, 13 April 2006; Australian Screen Directors Association, Submission SED 51, 10 April 2006; B Saul, Submission SED 52, 14 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; Free TV Australia, Submission SED 59, 19 April 2006; Australian Vice-Chancellors’ Committee, Submission SED 60, 25 April 2006; N Roxon MP Shadow AttorneyGeneral, Submission SED 63, 28 April 2006; Media Organisations, Consultation, Sydney, 28 March 2006; Human Rights Lawyers, Consultation, Sydney, 29 March 2006.

101 John Fairfax Holdings Ltd, News Limited and Australian Associated Press, Submission SED 56, 18 April

2006. Agreement with this position was expressed in Australian Broadcasting Corporation, Submission SED 49, 20 April 2006. See also Free TV Australia, Submission SED 59, 19 April 2006.

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

103 Media Entertainment and Arts Alliance, Submission SED 28, 10 April 2006. See also, Victoria Legal Aid, Submission SED 43, 13 April 2006; Public Interest Advocacy Centre, Submission SED 57, 18 April 2006.

7. Sedition and Freedom of Expression 161 other people in their stories’ are likely to commit an urging offence, albeit ‘unwittingly’.104 Fairfax, News Ltd and AAP expressed a similar fear, noting that it might become increasingly difficult for the media lawfully to ‘facilitate or contribute to debate on the topic of “terrorism”’.105

7.88 Thirdly, the offences of assisting the enemy in s 80.2(7)–(8) are potentially so broad as to capture conduct that should not be criminalised. The MEAA hypothesised

as follows:

A play sympathetic to Iraqi Insurgents; an article celebrating the Eureka Stockade that draws parallels with the current workplace struggles; cartoonists and commentators giving drawn, written or verbal support or encouragement to groups deemed to be ‘enemies’ of the Commonwealth … could all conceivably be caught by this offence.

Of major concern is that the ‘enemy’ does not have to be an organisation or a country with which a state of war has been declared. It can be one ‘specified by Proclamation made for the purpose of paragraph 80.1(1)(e) to be an enemy at war with the Commonwealth.106

7.89 The AGD rejected criticism that the sedition provisions unduly infringe upon the

ability of the media to operate freely:

Given that the sedition offences always involve intentionally urging violence (either directly or indirectly by assisting an enemy), it is unlikely that the conduct of journalists and media organisations would be captured within these offences.107

7.90 The AGD’s submission also pointed out that, in any event, under existing law ‘the defence of good faith would protect journalists and media organisations that act in good faith’.108 The arts

7.91 A number of stakeholders expressed the concern that the sedition provisions are likely to ‘chill’ free artistic expression by encouraging artists and authors to engage in self-censorship or risk facing prosecution.109 There was a concern that the offences may be interpreted so as to criminalise certain forms of satire, parody and ridicule.110 104 Media Entertainment and Arts Alliance, Submission SED 28, 10 April 2006. See also Free TV Australia, Submission SED 59, 19 April 2006.

105 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.



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