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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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106 Media Entertainment and Arts Alliance, Submission SED 28, 10 April 2006. See also 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. A similar concern is expressed by Free TV Australia, Submission SED 59, 19 April 2006.

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

108 Ibid.

109 Confidential, Submission SED 12, 4 April 2006; Australian Society of Authors, Submission SED 24, 18 April 2006; Media Entertainment and Arts Alliance, Submission SED 28, 10 April 2006; Australian Writers’ Guild, Submission SED 29, 11 April 2006; Centre for Media and Communications Law, 162 Fighting Words

7.92 The Australian Writers’ Guild submitted that the chilling effect of the sedition

provisions will lead to self-censorship, which will have the following effect:

If writers know that their works have little chance of being produced as they may be perceived as risky, seditious or confrontational, there is less likelihood of writers creating such works and of striving only to meet the requirements of broadcasters and publishers. Stories will remain untold. Voices will remain unheard. Audiences will not be challenged, ideas will not be thrust forward. Life will become increasingly unexamined. And Australia will not only lose a richness and diversity in terms of the kinds of films, television programmes, theatre and interactive content available to them, there is the real chance that we will also lose a vast amount of skills.111

7.93 The Arts Law Centre of Australia submitted that the sedition provisions might impact disproportionately on impecunious artists because they will be ‘unwilling to risk incurring fees for legal advice, let alone defending actions’.112

7.94 A further risk—one that NAVA submitted is already a reality—is that those who facilitate the exhibition and performance of artistic works (such as gallery owners and theatre companies) will refuse to deal with certain works if they are fearful that they may be interpreted as being seditious.113

7.95 During consultations, a number of hypothetical scenarios were raised. Some stakeholders expressed the fear that mere discussion of certain matters related to terrorism could be caught by the new sedition provisions. NAVA offered the following

hypothetical example:

An artist might represent the events of September 11 intending this to be critical of what happened. However, a viewer may think that the artist is in support of the perpetrators. The artist could be accused of being responsible for urging another person to commit similar offences, as a result of the viewer interpreting their artwork in an unintended way.114 Submission SED 32, 12 April 2006; Screen Producers Association of Australia, Submission SED 35, 11 April 2006; Victoria Legal Aid, Submission SED 43, 13 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 Press Council, Submission SED 48, 13 April 2006; Australian Screen Directors Association, Submission SED 51, 10 April 2006; Media and Arts Organisations, Consultation, Sydney, 29 March 2006; Independent Producers Initiative Inc, Submission SED 76, 3 July 2006.

110 Media and Arts Organisations, Consultation, Sydney, 29 March 2006; Cameron Creswell Agency Pty Ltd, Submission SED 26, 10 April 2006; Media Entertainment and Arts Alliance, Submission SED 28, 10 April 2006; Australian Writers’ Guild, Submission SED 29, 11 April 2006; New South Wales Council for Civil Liberties Inc, Submission SED 39, 10 April 2006; N Roxon MP Shadow Attorney-General, Submission SED 63, 28 April 2006; Independent Producers Initiative Inc, Submission SED 76, 3 July 2006.

111 Australian Writers’ Guild, Submission SED 29, 11 April 2006. A similar point is made in Australian Press Council, Submission SED 48, 13 April 2006.

112 Arts Law Centre of Australia, Submission SED 46, 13 April 2006.

113 National Association for the Visual Arts, Submission SED 30, 11 April 2006. NAVA gives the example of the difficulty faced by two artists in finding a venue to exhibit their performance, which was ‘much like a school chemistry lesson and demonstrated how to make chemical explosives including fire bottles, Molotov cocktails, light-bulb bombs, etc’.

114 Ibid.

7. Sedition and Freedom of Expression 163

7.96 The Cameron Creswell Agency Pty Ltd was concerned that ‘a telemovie about the recent events on Palm Island that contained a (possibly fictional, possibly real) character who called for the overthrow of the government’ or ‘a film like Syriana with its sympathetic portrayal of Islamic suicide bombers’ might fall foul of the sedition provisions.115

7.97 NAVA gave the following example from recent events:

In late December 2005 NAVA learned of an incident where an invited video artist visiting from overseas was taking documentary video footage in public places. Twice in 10 days the artist was told that his/her name would be sent for possible inclusion in a terrorist watch list. In the first instance, despite previously having been given official authorisation, the artist was apprehended by a security official who took his/her ID details. Some of the video footage had to be deleted. The second time the same artist was baled up by the police while videoing road signs in a regional town in NSW and the same threat made.116





7.98 A number of submissions noted that the effect of the sedition offences on chilling free expression would likely be much greater than the risk of actual prosecutions and convictions.117 Suggestions for reform

7.99 A number of stakeholders proposed legislative reform to dilute the potential negative impact of the sedition provisions. NAVA favoured repealing the offences in s 80.2 of the Criminal Code but argued in the alternative for an amendment to these provisions to make clear that ‘urging’ for the purposes of s 80.2 means ‘intentional urging or inciting politically motivated violence’.118

7.100 NAVA also proposed a program of education and policy to augment legislative

reform in this area, stating:

The Federal Government should provide authoritative guidelines and an education campaign to inform the police, security staff and community interest groups and institutions about what is the appropriate course of action when a complaint is made by members of the community about an artwork.119 115 Cameron Creswell Agency Pty Ltd, Submission SED 26, 10 April 2006. See also Australian Lawyers for Human Rights, Submission SED 47, 13 April 2006.

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

117 Arts Law Centre of Australia, Submission SED 46, 13 April 2006; Australian Screen Directors Association, Submission SED 51, 10 April 2006.

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

119 Ibid.

164 Fighting Words ALRC’s views

7.101 Sedition laws historically have been used in Australia and elsewhere in a manner that did not pay due regard to the modern conception of freedom of expression.

In order to sever this historical connection, the ALRC recommends removal of the term ‘sedition’ from Australian criminal law.120 Moreover, as explained in Chapter 2, the ALRC considers that ‘sedition’ is no longer an accurate description of the offences in s 80.2 of the Criminal Code, particularly in view of the statutory refinements recommended in this Report. Chapters 8–10 contain several recommendations aimed at tightening the elements and interpretation of the ‘urging force or violence’ offences in order to minimise any adverse impact on freedom of expression. Specific recognition is given to the nature of the work of journalists, artists, academics, social critics and others.

7.102 As explained in later chapters, the ALRC recommends amendments to s 80.2 that will require the prosecution to prove that the defendant intended that the urged force or violence will occur. In considering this matter, the trier of fact must take into account the context in which the statements were made, including whether this was in connection with media reporting or commentary, or expressed through visual or dramatic art.121 Recommendation 11–2 makes clear that the treason offences relating to ‘assisting the enemy’ deal with the provision of material assistance (such as guns, funds and intelligence) rather than with the mere expression or reporting of dissenting views.

7.103 This general pattern of recommendations, which was set out in DP 71, was strongly supported in submissions—by arts organisations and performers,122 and by the media and news reporting organisations.123

7.104 The ALRC’s recommendations, if adopted, will significantly reform federal sedition laws, further protecting freedom of expression. Nevertheless, artists and members of the media will not enjoy the full benefit of this reform if they do not properly understand the nature of the offences as amended—particularly given the risk of self-censorship discussed earlier in this chapter.

7.105 In response to this concern, it was suggested that, if the ALRC’s recommendations were adopted, Australia’s peak arts and media organisations should participate in the education process by informing their members of the nature and 120 See Rec 2–1 and accompanying text.

121 Rec 12–2.

122 See, eg, Australian Screen Directors Association, Submission SED 85, 3 July 2006; Australian Film Commission, Submission SED 86, 20 July 2006; M Carter, Submission SED 93, 3 July 2006; Music Council of Australia, Submission SED 95, 3 July 2006.

123 See, eg, John Fairfax Holdings Ltd and others, Submission SED 91, 3 July 2006.

7. Sedition and Freedom of Expression 165 effect of the amendments to the relevant law.124 The ALRC endorses this suggestion and therefore makes the following recommendation.

Recommendation 7–1 Peak arts and media organisations should provide educational programs and material to their members to promote a better

understanding of:

–  –  –

Introduction

8.1 This chapter and the following three chapters present the ALRC’s recommendations for reform of the existing sedition offences, which were inserted in s 80.2 of the Criminal Code (Cth) by Schedule 7 of the Anti-Terrorism Act (No 2) 2005 (Cth).1 These offences are:

• urging another person to overthrow the Constitution or Government by force or violence (s 80.2(1));

• urging another person to interfere with parliamentary elections by force or violence (s 80.2(3));

• urging another person to engage in inter-group violence (s 80.2(5));

• urging another person to assist an enemy at war with Australia (s 80.2(7)); and

–  –  –

• urging another person to assist those engaged in armed hostilities against the Australian Defence Force (ADF) (s 80.2(8)).

8.2 As discussed in Chapter 2, the ALRC considers that it is not appropriate for the offences set out in s 80.2 to be described as ‘sedition’. Rather, to the extent that the offences should be retained, they should be characterised as offences of urging political or inter-group force or violence.

8.3 The ALRC recommends the retention, in modified form, of the present offences dealing with urging force or violence to overthrow the Constitution or Government and urging the use of force or violence to interfere in parliamentary elections.2 The reform of these offences is discussed in Chapter 9. The ALRC also recommends the retention, in modified form, of the present offence dealing with inter-group violence.3 This offence, and its relationship with anti-vilification laws, is discussed in Chapter 10.

8.4 In Chapter 11, the ALRC recommends the repeal of the offences of urging a person to assist the enemy or those engaged in armed hostilities with the ADF.4 In connection with this reform, the ALRC recommends amendments to the crime of treason set out in s 80.1 of the Criminal Code. Chapter 11 also examines the extraterritorial application of the offences in ss 80.1 and 80.2.

8.5 This chapter considers a number of matters that are common to several of the offences in s 80.2. These matters relate to the physical and fault elements of the offences and include: the distinction between the offences under review and the offence of incitement; the role of intention and recklessness as fault elements; and the interpretation of certain common terms used in the offence provisions.

Incitement and the sedition offences

8.6 Much conduct covered by the offences in s 80.2 of the Criminal Code will also constitute incitement to commit other offences. Some of the relevant offences under Commonwealth law that most closely relate to the offences in s 80.2 are set out in

detail in Chapter 3. These include:

• the offence of treason under s 80.1 of the Criminal Code;

• terrorism offences under Part 5.3 of the Criminal Code;

• the offences of causing harm to Commonwealth officials under Part 7.8 of the Criminal Code;

–  –  –

• offences against the government under Part II of the Crimes Act 1914 (Cth);

• offences concerning the protection of the Constitution and public services under Part IIA of the Crimes Act;

• offences under the Commonwealth Electoral Act 1918 (Cth);

• offences under the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth); and

• ordinary criminal offences prohibiting harm, or threats of harm, against persons or property.

8.7 Part 2.4 of the Criminal Code extends criminal responsibility, including in relation to attempt, conspiracy and incitement of criminal offences. Incitement is set

out in s 11.4 of the Criminal Code, which provides that:

(1) A person who urges the commission of an offence is guilty of the offence of incitement.

(2) For the person to be guilty, the person must intend that the offence incited be committed.



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