«Fighting Words REPORT A Review of Sedition Laws in Australia REPORT 104 July 2006 © Commonwealth of Australia 2006 This work is copyright. You may ...»
Although this provision is designed to provide an additional safeguard for a person charged with a sedition offence,33 concerns have been expressed that s 80.5 could contribute to a perception there may be a political element in the decision whether or not to prosecute. Such concerns are understandable, and contribute to the ALRC’s recommendation that this consent requirement be repealed.34 Moreover, the ALRC believes that a provision such as s 80.5 is unnecessary for four further reasons. First, the independence and apolitical nature of the office of the Director of Public Prosecutions are enshrined by statute. Secondly, a specific
requirement for the Attorney-General to consent to prosecution is most often imposed when an offence has a significant extraterritorial operation. The Attorney-General’s consent to prosecution would still be required under s 16.1 of the Director of Public Prosecutions Act 1983 (Cth), where the alleged conduct occurs wholly in a foreign country and the person charged is not an Australian citizen, resident or body corporate incorporated in Australia. Thirdly, if the ALRC’s recommendation to repeal s 80.5 were accepted, s 8 of the Director of Public Prosecutions Act 1983 (Cth) would still provide another mechanism for the Attorney-General to intervene in prosecutions under s 80.2. Given that this power is subject to parliamentary scrutiny, the ALRC believes it is a preferable alternative to s 80.5. Fourthly, the ALRC is strongly influenced by the fact that the run of new terrorism offences in Part 5.3 of the Criminal Code do not require the Attorney-General’s consent to a prosecution (unless s 16.1 applies). Logic suggests that the same position apply to the Division 80.2 offences of urging political or inter-group force or violence.
Net effect of the recommendations A number of major and minor changes are proposed for Division 80 of the Criminal Code, on treason and sedition. Appendix 1 of this Report contains the provisions in Division 80 as they currently exist. Appendix 2 sets out these provisions as they would appear if the ALRC’s recommendations were implemented, with the changes highlighted. It is recommended that most of Part IIA of the Crimes Act (on unlawful associations) be repealed, with two offences (ss 30J and 30K) to be reviewed.
List of Recommendations The relevant sections of the Criminal Code, amended in accordance with these recommendations, are set out in Appendix 2.
2. Origins and History of Sedition Law 2–1 The Australian Government should remove the term ‘sedition’ from federal criminal law. To this end, the headings of Part 5.1 and Division 80 of the Criminal Code (Cth) should be changed to ‘Treason and urging political or inter-group force or violence’, and the heading of s 80.2 should be changed to ‘Urging political or inter-group force or violence’.
3. Australian Sedition Laws and Related Provisions 3–1 The Australian Government should initiate a review of the remaining offences in Part II of the Crimes Act 1914 (Cth) to determine which offences merit retention, modernisation and relocation to the Criminal Code (Cth), and which offences should be abolished. This review should include the offences in ss 24AA, 24AB and 25–29 of the Crimes Act. (See also Recommendation 4–2).
3–2 The Australian Government should initiate a process through the Standing Committee of Attorneys-General to remove the term ‘sedition’ from state and territory laws and to modernise and harmonise the relevant laws in keeping with the recommendations in this Report.
4. Unlawful Associations 4–1 Sections 30A, 30AA, 30AB, 30B, 30D, 30E, 30F, 30FA, 30FC, 30FD, 30G, 30H and 30R of Part IIA of the Crimes Act 1914 (Cth), concerning unlawful associations, should be repealed.
4–2 The Australian Government should include ss 30J and 30K of the Crimes Act in the review of old provisions of the Crimes Act called for in Recommendation 3–1.
7. Sedition and Freedom of Expression 7–1 Peak arts and media organisations should provide educational programs and
material to their members to promote a better understanding of:
(a) the scope of federal, state and territory laws that prohibit the urging of political or inter-group force or violence; and (b) any potential impact of these laws on the activities of their members.
8. The Sedition Offences 8–1 Section 80.2 of the Criminal Code (Cth) should be amended to provide that, for a person to be guilty of any of the offences under s 80.2, the person must intend that the urged force or violence will occur.
9. Urging Political Force or Violence 9–1 The heading of s 80.2(1) of the Criminal Code (Cth) should be changed to refer to urging the overthrow by ‘force or violence’ of the Constitution or Government.
9–2 The word ‘intentionally’ should be inserted in s 80.2(1) of the Criminal Code before the word ‘urges’ to clarify the fault element applicable to urging the use of force or violence.
9–3 Section 30C of the Crimes Act 1914 (Cth), concerning ‘advocating or inciting to crime’, should be repealed.
9–4 The heading of s 80.2(3) of the Criminal Code should be changed to refer to urging interference in parliamentary elections by ‘force or violence’.
9–5 Section 80.2(3) of the Criminal Code should be amended to:
(a) insert the word ‘intentionally’ before the word ‘urges’ to clarify the fault element applicable to urging the use of force or violence; and (b) apply to interference with the lawful processes for a referendum on a proposed law for the alteration of the Constitution.
10. Urging Inter-Group Force or Violence 10–1 The heading of s 80.2(5) of the Criminal Code (Cth) should be changed to refer to urging ‘inter-group force or violence’.
10–2 Section 80.2(5) of the Criminal Code should be amended to:
(a) insert the word ‘intentionally’ before the word ‘urges’ to clarify the fault element applicable to urging the use of force or violence; and (b) add ‘national origin’ to the distinguishing characteristics of a group for the purposes of the offence.
10–3 As a consequence of Recommendation 10–2, s 80.2(6) of the Criminal Code should be amended to apply recklessness to the element of the offence under s 80.2(5) that it is a group distinguished by national origin that a person urges another to use force or violence against.
10–4 The Australian Government should consider extending the offence in
s 80.2(5) of the Criminal Code to circumstances in which:
(a) a person urges another person (as distinct from a group) to use force or violence against a group in the community that is distinguished by race, religion, nationality, national origin or political opinion; and (b) a person urges a group that lacks one of the specified distinguishing characteristics to use force or violence against a group in the community that is distinguished by race, religion, nationality, national origin or political opinion.
10–5 The Australian Government should continue to pursue other strategies, such as educational programs, to promote inter-communal harmony and understanding.
11. Assisting the Enemy and Related Treason Offences 11–1 Section 80.2(7), (8) and (9) of the Criminal Code (Cth), concerning the offences of urging a person to assist the enemy and urging a person to assist those engaged in armed hostilities against the Australian Defence Force, should be repealed.
11–2 The treason offences in s 80.1(1)(e)–(f) of the Criminal Code should be
(d) provide that the Proclamation under s 80.1(1)(e)(ii) must have been made before the relevant conduct was engaged in.
11–3 In considering the recommendations of the Security Legislation Review Committee (the Sheller Committee) on the law of treason, the Australian Government should take into account relevant recommendations and commentary in this Report.
11–4 Section 80.1 of the Criminal Code should be amended to apply only to a person who, at the time of the alleged offence, is an Australian citizen or resident.
12. Defences and Penalties 12–1 Section 80.3 of the Criminal Code (Cth) concerning the defence of ‘good faith’ should be amended so that it does not apply to the offences in s 80.2.
12–2 Section 80.2 of the Criminal Code should be amended to provide that in determining whether a person intends that the urged force or violence will occur for the purposes of s 80.2(7), the trier of fact must have regard to the context in which the conduct occurred, including (where applicable) whether
the conduct was done:
(b) 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 (c) in connection with an industrial dispute or an industrial matter; or (d) in the dissemination of news or current affairs.
13. Consent to Prosecution 13–1 Section 80.5 of the Criminal Code (Cth), regarding the requirement of the Attorney-General’s written consent to a prosecution under Division 80, should be repealed.
1. Introduction to the Inquiry
Background to the Inquiry The Crimes Act provisions on sedition
1.1 The criminal offence of sedition developed in England in the 17th and 18th centuries, emerging out of the laws against treason and libel, and aimed at shielding the Crown (and its institutions and officers) from criticism that might lessen its standing and authority among its subjects.
Crimes Act 1914 (Cth) in 1920.1 Section 24A(1) originally defined ‘seditious intention’
as an intention to effect any of the following purposes:
(a) to bring the Sovereign into hatred or contempt;
(b) to excite disaffection against the Sovereign or the Government or Constitution of the United Kingdom or against either House of Parliament of the United Kingdom;
(c) to excite disaffection against the Government or Constitution of any of the King’s Dominions;
(d) to excite disaffection against the Government or Constitution of the Commonwealth or against either House of the Parliament of the Commonwealth;
(e) to excite disaffection against the connexion of the King’s Dominions under the Crown;
(f) to excite His Majesty’s subjects to attempt to procure the alteration, otherwise than by lawful means, of any matter in the Commonwealth established by law of the Commonwealth; or (g) to promote feelings of ill-will and hostility between different classes of His Majesty’s subjects so as to endanger the peace, order or good government of the Commonwealth.2
1.3 Sections 24C and 24D created offences for various acts done with a seditious intention, with a maximum penalty of imprisonment for three years. Section 24F created a number of specific defences for acts done in ‘good faith’.
1.4 In 1986, following the recommendations of the Hope Royal Commission, the Intelligence and Security (Consequential Amendments) Act 1986 (Cth) amended the sedition provisions in the Crimes Act: (1) to make clear that the prosecution carried the burden of proving an accused had a ‘seditious intention’ in relation to the offences in ss 24C–24D; and (2) to delete s 24A(b), (c) and (e), which referred to exciting disaffection in the United Kingdom or the King’s Dominions.
The Gibbs Committee
1.5 In 1991, the Committee of Review of Commonwealth Criminal Law chaired by former Chief Justice Sir Harry Gibbs (the Gibbs Committee) considered the sedition provisions in ss 24A–24F of the Crimes Act.3 In a preceding discussion paper, the Gibbs Committee had expressed the view that those provisions were couched in
archaic language and required modernisation and simplification—but should then be retained in the Crimes Act.4
1.6 In its Fifth Interim Report, the Gibbs Committee confirmed this criticism, noting that the definition of ‘seditious intention’ was ‘expressed in archaic terms and [was] misleadingly wide’.5 However, the Committee confirmed its view that Commonwealth law must continue to make it an offence to incite the overthrow or supplanting by force or violence of the Constitution or Government.
1.7 The Gibbs Committee also recognised Australia’s international obligations under art 20 of the International Covenant on Civil and Political Rights 1966 and art 4 of the International Convention on the Elimination of All Forms of Racial Discrimination 1966 to prohibit incitement to national, racial and religious hatred (see Chapters 5 and 10).6
1.8 Consequently, the Gibbs Committee’s final recommendation was that it should
be a crime, punishable by a maximum of seven years’ imprisonment:
to incite by any form of communication:
(a) the overthrow or supplanting by force or violence of the Constitution or the established Government of the Commonwealth or the lawful authority of that Government in respect of the whole or part of its territory;
(b) the interference by force or violence with the lawful processes for Parliamentary elections; or (c) the use of force or violence by groups within the community, whether distinguished by nationality, race or religion, against other such groups or members thereof.7 11 September 2001 and beyond