«Fighting Words REPORT A Review of Sedition Laws in Australia REPORT 104 July 2006 © Commonwealth of Australia 2006 This work is copyright. You may ...»

Recommendation 27. The committee recommends that Schedule 7 be removed from the Bill in its entirety.23 Recommendation 28. The committee recommends that the Australian Law Reform Commission conduct a public inquiry into the appropriate legislative vehicle for addressing the issue of incitement to terrorism. This review should examine, among other matters, the need for sedition provisions such as those contained in Schedule 7, as well as the existing offences against the government and Constitution in Part II and Part IIA of the Crimes Act 1914.24 Recommendation 29. If the above recommendation to remove Schedule 7 from the

Bill is not accepted, the committee recommends that:

• proposed subsections 80.2(7) and 80.2(8) in Schedule 7 be amended to require a link to force or violence and to remove the phrase ‘by any means whatever’;

• all offences in proposed section 80.2 in Schedule 7 be amended to expressly require intentional urging; and

• proposed section 80.3 (the defence for acts done ‘in good faith’) in Schedule 7 be amended to remove the words ‘in good faith’ and extend the defence to include statements for journalistic, educational, artistic, scientific, religious or public interest purposes (along the lines of the defence in section 18D of the Racial Discrimination Act 1975).25 Recommendation 30. The committee recommends that the amendments in Schedule 1 of the Bill, relating to advocacy of terrorism, be included in the proposed review by the Australian Law Reform Commission as recommended above in relation to Schedule 7.26

1.29 The Government accepted a significant proportion of the recommendations in the Committee’s report, and these were reflected in the final version of the Bill. The Act was passed into law on 6 December 2005—with only Green and Australian Democrat Senators voting against it—and entered into force on 11 January 2006.

1.30 The Government did not accept Recommendation 27, to remove Schedule 7 from the Bill in its entirety. Instead, some recommended changes were made to the wording of the offences and the defence in Schedule 7, and the Attorney-General confirmed his earlier undertakings that, ‘given the considerable interest in the

provisions’, they would be subject to a review.27 Ultimately, the Attorney-General decided that this independent public inquiry should be conducted by the ALRC.

Terms of Reference

1.31 On 1 March 2006, the Attorney-General signed Terms of Reference asking the ALRC to conduct a review of the operation of Schedule 7 of the Anti-Terrorism Act (No 2) 2005 (Cth) and Part IIA of the Crimes Act, with respect to the recently amended provisions dealing with the offence of sedition and related matters, and to report by 30 May 2006.

1.32 The Terms of Reference, which are reproduced at the front of this Report, direct

the ALRC to consider:

• the circumstances in which individuals or organisations intentionally urge others to use force or violence against any group within the community, against Australians overseas, against Australia’s forces overseas or in support of an enemy at war with Australia; and

• the practical difficulties involved in proving a specific intention to urge violence or acts of terrorism.

1.33 In performing its functions in relation to this reference, the ALRC is asked to

have particular regard to:

(b) whether ‘sedition’ is the appropriate term to identify this conduct;

(c) whether Part IIA of the Crimes Act, as amended, is effective to address the problem of organisations that advocate or encourage the use of force or violence to achieve political objectives; and

1.34 In October 2005, the Security Legislation Review Committee, chaired by the Hon Simon Sheller QC (the Sheller Committee), commenced a broad review of security legislation. This parallel review had some points of connection with the subject matter of the ALRC’s Inquiry, notably because the Sheller Committee’s brief included review of the terrorist organisations provisions of Division 102 of the

Criminal Code and the treason offences now contained in s 80.1 of the Code. The Sheller Committee released its report in June 2006,28 and its recommendations are referred to in this Report.

Federal criminal law and practice The reach of federal criminal jurisdiction

1.35 Given the constitutional constraints in Australia, criminal law and procedure are largely, but not entirely, a matter for the states and territories. The great bulk of ‘standard criminal law’—that is, the matters that most members of the community think of as crime: homicide, assault, sexual assault, robbery, break and enter, and so on—is dealt with by state and territory courts applying state and territory law.

1.36 Federal legislative activity in this field generally must be underpinned by one of the specific heads of power provided to the Commonwealth under the Australian Constitution—for example, the incidental power (s 51(xxxix)) or the external affairs power (s 51(xxix)). Put simply, federal criminal law tends: (a) to be concerned with harm to Australian government property or officials, or to the revenue (eg, taxation or social security frauds); (b) to have a clear interstate or international dimension (eg, postal and telegraphic offences; or importing/exporting prohibited goods or substances); or (c) to fulfil an obligation pursuant to an international treaty to which Australia is a party (eg, prohibitions on slavery, war crimes and genocide).

1.37 Some areas of activity will give rise to overlapping federal and state or territory jurisdiction. For example, all states and territories have laws prohibiting aspects of the manufacture, possession or distribution of illegal drugs, while there are federal laws prohibiting the import and export of illegal drugs. It is not unusual for there to be joint federal and state police investigations leading to a single trial, with indictments for breach of both federal and state law.

1.38 There are substantial intersections between federal law and state and territory criminal laws in the area covered by the new sedition offences in s 80.2. In particular cases there may be a direct overlap of federal, state or territory sedition laws, or there may be an indirect overlap—for example, where the same facts would satisfy the elements of a federal sedition offence and also would constitute a breach of a state or territory criminal law, such as assault, riot or affray.

1.39 Every jurisdiction except South Australia and the ACT has a law prohibiting sedition, and all jurisdictions have laws against treason. Section 80.6 of the Criminal Code expressly provides that it is not the intention of Division 80, covering treason and sedition, to exclude state or territory law.

28 Security Legislation Review Committee, Report of the Security Legislation Review Committee (2006).

38 Fighting Words The development of the Criminal Code (Cth) The Gibbs Committee and MCCOC

1.40 The Crimes Act served for a long time as the principal piece of legislation dealing with federal criminal law. Many other federal statutes also proscribe certain conduct and specify a criminal penalty—for example, s 327 of the Commonwealth Electoral Act 1918 (Cth) prohibits a person from hindering or interfering with the free exercise of any political right or duty relevant to a parliamentary election. As a general rule, the Crimes Act contained the more serious and general offences, while the other federal offences created in specific legislation tended to be incidental to the regulation of a particular field (such as customs, environmental protection, corporate compliance and revenue collection). Most, but not all, of the latter offences may be heard summarily, and carry smaller maximum penalties (generally, less than 12 months imprisonment).

1.41 Commencing in 1987, the Gibbs Committee produced five interim reports on a range of matters, including: computer crime (1988); detention before charge (1989);

general principles of criminal responsibility (1990); offences against the administration of justice and property crime (1990); and arrest, sentencing, forgery and offences relating to the security and defence of the Commonwealth (1991). A final report was delivered in late 1991. The Gibbs Committee was successful in initiating a number of amendments to the Crimes Act, including those dealing with computer crime and police powers of investigation.

1.42 As noted above, the Fifth Interim Report of the Gibbs Committee considered and made recommendations for reform of the Crimes Act provisions dealing with treason, sedition and unlawful associations.29

1.43 In July 1990, the Standing Committee of Attorneys-General (SCAG) established the Model Criminal Code Officers Committee (MCCOC), with a brief to modernise and harmonise criminal law across Australia through the development of a Model Criminal Code. The MCCOC process produced a series of discussion papers, final reports and recommended Model Criminal Code chapters over the next decade.

1.44 Although the MCCOC process has not produced a uniform, national Criminal Code (such as applies in the Canadian federation), all Australian states and territories have enacted parts of the Model Code.30

The Criminal Code

1.45 The Criminal Code was introduced into federal law as a schedule to the Criminal Code Act 1995 (Cth), and entered into force on 1 January 1997.

1.46 The basic policy of the Australian Government is that the Criminal Code is now the principal piece of federal legislation containing serious criminal offences.

Substantive criminal provisions contained in other, older pieces of law—including, or perhaps especially, the Crimes Act—progressively should be reviewed, and either ‘modernised’ and ‘migrated’ to the Criminal Code, or repealed. Ultimately, the Crimes Act will be left covering matters of police powers (such as arrest, detention, search and seizure, forensic procedures) and criminal procedure.31

1.47 Underlying this process is the desire to keep the federal criminal statute book ‘fresh’—utilising modern drafting techniques, providing greater uniformity of language and concepts, and ensuring that the law keeps abreast of contemporary circumstances, attitudes and concerns.

1.48 This background is important for the current Inquiry because treason was modernised and migrated to the Criminal Code in 2002, and sedition in 2005. A comprehensive set of provisions governing ‘terrorist organisations’ was inserted into the Criminal Code in 2002, leaving behind the rarely used Part IIA of the Crimes Act on ‘unlawful associations’. In essence, the technical side of this Inquiry is to examine the effectiveness of these efforts at modernising these old areas of the criminal law.

Criminal responsibility under the Code

1.49 Another feature of the Criminal Code of particular importance for this Inquiry is that Chapter 2 of the Code provides a set of general principles of criminal responsibility that permeate the rest of the Code—and, indeed, must be read together with the criminal provisions in any other piece of federal legislation.

1.50 For example, Chapter 2, Division 5 standardises and defines the fault elements (mens rea in common law crime) to be applied to any offence—intention, knowledge, recklessness or negligence. The definition of ‘recklessness’ in s 5.4, for the purposes of determining criminal liability, gives the term a meaning closer to ‘intention’ than to ‘negligence’, requiring that the actor must be aware there is a substantial risk his or her conduct will bring about the prohibited result, and that it is unjustifiable to take that risk in the circumstances.

31 The ALRC recommended that all matters relating to sentencing also be removed from the Crimes Act, and collected in a dedicated federal sentencing Act: see Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, ALRC 103 (2006), Rec 2–1.

40 Fighting Words

1.51 A large number of the submissions to the 2005 Senate Committee inquiry—and to a significant but lesser extent to this Inquiry—strongly, but incorrectly as a technical matter, objected to the use of a ‘recklessness’ element in the new sedition offences in the Criminal Code.32 The concern commonly expressed was that a person should not be liable to be convicted of such a serious offence by blundering into such activities.

However, the Code definition makes plain that this could not be the case.

1.52 Chapter 2, Divisions 7–10 of the Criminal Code cover the circumstances in which criminal responsibility should not be attributed,33 and Division 11 covers extensions to criminal responsibility, such as attempt (s 11.1), complicity and common purpose (s 11.2), incitement (s 11.4) and conspiracy (s 11.5). Division 13 reinforces the common law position that the prosecution bears the onus of proving every element of an offence beyond reasonable doubt.

Other features of the federal criminal justice system

1.53 A number of other features of the federal criminal justice system are worth highlighting. As noted above, state and territory courts deal with the overwhelming majority of federal criminal matters (whether summarily or upon indictment), and in so doing they normally apply their own practices and procedures. As there are no federal prisons, federal offenders sentenced to a term of imprisonment serve their time in a state or territory-administered custodial institution.34

1.54 Section 80 of the Australian Constitution provides that:

The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes. [Emphasis added]