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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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1.81 Chapter 3 outlines the current state of the law on sedition and unlawful associations in Australia, following the amendments made in November 2005. The chapter also describes related aspects of federal law and highlights some of the gaps and overlaps between sedition and other relevant offences (such as treason, treachery and incitement to crime), as well as considering related state and territory laws. The chapter recommends systematic review of a number of archaic and superseded provisions in Part II of the Crimes Act that are related to sedition and treason laws and the initiation of a process through the Standing Committee of Attorneys-General to remove the term ‘sedition’ from state and territory laws.

1.82 Chapter 4 considers the case for reform in relation to the ‘unlawful associations’ provisions in Part IIA of the Crimes Act, which have not been used for decades and appear to have been superseded by the more recent provisions on ‘terrorist organisations’ contained in Part 5.3 of the Criminal Code.

1.83 Chapter 5 describes the international framework—highlighting Australia’s relevant international human rights obligations under the International Covenant on Civil and Political Rights 1966 and other United Nations conventions, declarations and resolutions; and considering the extent to which these influence Australian domestic law.

46 Fighting Words

1.84 Chapter 6 offers a comparative view, surveying contemporary sedition laws in a number of other countries—especially common law countries with similar systems and traditions, and the European Union.

1.85 Chapter 7 considers the important matter of the protection of freedom of expression in Australian law, ranging from implied constitutional rights to free political speech in a democratic society, to statutes and cases that bear directly on individual and press freedoms.

1.86 Chapter 8 deals with aspects of the ALRC’s recommendations for reframing the three ‘urging force or violence’ offences in s 80.2(1), (3) and (5) of the Criminal Code.

The ALRC recommends that these provisions be amended, among other things, to clarify the fault elements of the offences and to impose an additional requirement that for a person to be guilty, the person must intend that the urged force or violence will occur. These changes accord with the serious nature of these crimes and minimise any unwarranted impact on freedom of expression.

1.87 Chapter 9 sets out the ALRC’s recommended scheme for reframing the offences of urging the overthrow by force or violence of the Constitution or Government; and urging interference in parliamentary elections by force or violence, contained in s 80.2(1) and (3) of the Criminal Code.

1.88 Chapter 10 sets out the ALRC’s recommended scheme for reframing the offence of urging inter-group violence, contained in s 80.2(5) of the Criminal Code. The chapter also considers other federal, state and territory laws dealing with concepts of racial hatred and racial or religious vilification.

1.89 Chapter 11 discusses the two ‘assisting the enemy’ offences in s 80.2(7) and (8) of the Criminal Code. The ALRC recommends that these offences be repealed and that amendments be made to the similar treason offences in s 80.1. The chapter also considers the extraterritorial application of the sedition and treason offences.

1.90 Chapter 12 looks at the ‘good faith’ defence to charges of treason and sedition currently provided by s 80.3 of the Criminal Code. The chapter also examines the penalties for the various offences in Division 80.

1.91 Finally, Chapter 13 deals with the existing requirement to obtain the AttorneyGeneral’s written consent to proceed with a prosecution and recommends that s 80.5 of the Criminal Code be repealed, leaving this matter to the independent CDPP.

2. Origins and History of Sedition Law

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2.1 This chapter provides an overview of the history of the law of sedition. In particular, it examines the evolution of sedition at common law and outlines its application in Australia in the 20th century.

2.2 The law of sedition prohibits words or conduct deemed to incite discontent or rebellion against the authority of the state. Historically, ‘sedition’ described a number of common law or statutory offences—namely, uttering seditious words, publishing or printing seditious words, undertaking a seditious enterprise, or engaging in a seditious conspiracy.1 Traditionally, for a word or activity to be seditious it must be said, written or done with a ‘seditious intention’.2

2.3 The classic definition of seditious intention is found in Sir James Fitzjames

Stephen’s Digest of the Criminal Law, published in 1887:

1 L Maher, ‘The Use and Abuse of Sedition’ (1992) 14 Sydney Law Review 287, fn 3.

2 C Kyer, ‘Sedition Through the Ages: A Note on Legal Terminology’ (1979) 37 University of Toronto Faculty of Law Review 266, 267.

48 Fighting Words A seditious intention is an intention to bring into hatred or contempt, or to excite disaffection against the person of, Her Majesty, her heirs or successors, or the government and constitution of the United Kingdom, as by law established, or either House of Parliament, or the administration of justice, or to excite Her Majesty’s subjects to attempt, otherwise than by lawful means, the alteration of any matter in Church or State by law established, or to incite any person to commit any crime in disturbance of the peace, or to raise discontent or disaffection amongst Her Majesty’s subjects, or to promote feelings of ill-will and hostility between different classes of such subjects.3

2.4 The legal elements of sedition offences have traditionally been ill-defined. The vagueness of the language used to describe the notion of seditious intention makes it difficult to demarcate the precise boundaries of sedition offences. In Boucher v The King, the Supreme Court of Canada stated that ‘probably no crime has been left in such vagueness of definition’.4

2.5 Historically, the law of sedition has been used to punish a wide range of behaviour—from satirical comment or mere criticism of authority, to the incitement of violent uprising. The scope and application of the law have fluctuated significantly

over time.5 In view of this, Professor Eric Barendt observed:

What used to be regarded as a clear case of seditious libel in both England and the United States is now generally considered to be merely the vehement expression of political opinion, and therefore the classic instance of constitutionally protected speech.6

2.6 The historical account set out below reveals that the development and use of sedition laws have been influenced strongly by the changing political climate and the degree of public support for existing state institutions; theories about the relationship between citizen and state; and evolving notions of the relationship between action, idea, association and responsibility. It also reveals that there has been a general trend in the common law courts to narrow the scope of sedition offences in accordance with the contemporary emphasis on the importance of freedom of expression and open political debate. A distinction has thus been drawn between the expression of political opinion with reformist aims and the advocacy of revolutionary or violent political action.

2.7 However, as discussed below, an examination of prosecutions in Australia in the 20th century also reveals cases in which the law of sedition has been used to stifle political dissent in a manner that many would consider incompatible with modern democratic processes.

–  –  –

The origins and evolution of common law sedition Early origins

2.8 The law of sedition derives from the law of treason, which since feudal times has punished acts deemed to constitute a violation of a subject’s allegiance to his or her lord or monarch.7 Sedition and treason are related conceptually because seditious words or conduct can stir up opposition to the established authority. For this reason, it has been said that sedition ‘frequently precedes treason by a short interval’.8

2.9 The prohibition of mere criticism of government that does not incite violence reflects an antiquated view of the relationship between the state and society. According to this view, the ruler is the superior of the subject and as such is entitled to be shielded from criticism or censure likely to diminish his or her status or authority.9 In the 1704

case of R v Tutchin, Holt LCJ explained this view as follows:

If people should not be called to account for possessing the people with an ill opinion of the government, no government can subsist. For it is very necessary for all governments that the people should have a good opinion of it. And nothing can be worse to any government, than to endeavour to procure animosities as to the management of it; this has been always looked upon as a crime and no government can be safe without it being punished.10

2.10 Prior to the early 17th century, offences that would now be classified as sedition offences were prosecuted as treason11 or other felonies12 (including scandalum magnatum),13 or prosecuted under martial law.14 7 See ‘Historical Concept of Treason: English and American’ (1960) 35 Indiana Law Journal 70. The word ‘sedition’ derives from the Latin seditio¸ meaning uprising or insurrection. In classical Rome and in medieval England, seditio referred to offences that, according to modern understanding, would constitute treason (in other words, overt acts of rebellion or insurrection). The contemporary use of the word— denoting behaviour that may incite discontent or rebellion against lawfully constituted authority—did not appear until the 1600s: see C Kyer, ‘Sedition Through the Ages: A Note on Legal Terminology’ (1979) 37 University of Toronto Faculty of Law Review 266, 266–267.

8 R v Sullivan (1868) 11 Cox CC 44, 45 (Fitzgerald J).

9 E Barendt, Freedom of Speech (2nd ed, 2005), 163.

10 R v Tutchin (1704) 14 State Trials (OS) 1096, 1128.

11 The breadth of the law of treason has fluctuated throughout history, at times encompassing the whole of criminal law: ‘Historical Concept of Treason: English and American’ (1960) 35 Indiana Law Journal 70, 70; M Black, ‘Five Approaches to Reforming the Law: 650 Years of Treason and Sedition’ (Paper presented at Australasian Law Reform Agencies Conference, Sydney, 11 April 2006). The law of treason was first codified in England by the 1351 Statute of Treasons (25 Edward III, c 2) during the reign of Edward III. This Act attempted to narrow the scope of the law to three primary offences: imagining or compassing the death of the King; levying war against the King; and aiding the King’s enemies. However subsequent monarchs broadened its scope by creating new treason offences. Commentators have noted that these enactments were more a matter of political expediency than principled reform of the law: see Law Reform Commission of Canada, Crimes Against the State, Working Paper 49 (1986), 6. Given the narrow scope of the 1351 statute, the prosecution of words as treason required a broad judicial interpretation or a statutory extension of the law. For example, in 1534 Henry VIII passed legislation that made it possible to commit treason by words or writing (Act of Treasons Henry VIII c 13). See P Hamburger, ‘The Development of the Law of Seditious Libel and the Control of the Press’ (1985) 37 Stanford Law Review 661; R Manning, ‘The Origins of the Doctrine of Sedition’ (1980) 12 Albion 99.

50 Fighting Words

2.11 Seditious libel emerged as a distinct offence in the early 17th century in the Court of Star Chamber.15 In De Libellis Famosis the defendant was prosecuted for defaming the deceased Archbishop of Canterbury.16 The Court held that the basis of criminal libel was that it risked a breach of the peace—the truth of the statements did not provide a defence, since the peace was just as likely to be broken whether the statements were true or false.17

2.12 At the time of this decision, the absolute monarchy was under threat from the rising parliamentarians. The advent of the printing press had prompted a more sustained effort to control expression of ideas critical of the church and state18— foreshadowing, by several centuries, current concerns about the rapid spread of information through the internet and other forms of modern communications technology. Existing means of prosecuting seditious words and writings were inexpedient, and seditious libel was developed as a more efficient and effective means of securing convictions.19 Common law development

2.13 Following the demise of the absolute monarchy and the abolition of the Star Chamber by the Long Parliament in 1641, the law of sedition was developed in the common law courts. The substantive law did not change significantly until the late 18th century, and until this time ‘any criticism of public men, laws or institutions was liable to be treated as sedition’.20 During this period, neither the intention of the defendant (or rather, the absence of intention to incite disaffection or violence) nor the truth of the matters communicated affected the finding of guilt.21 The courts emphasised that it was the mere tendency of criticism to undermine government that rendered the conduct a criminal offence.22 12 See P Hamburger, ‘The Development of the Law of Seditious Libel and the Control of the Press’ (1985) 37 Stanford Law Review 661, 670–671.

13 Scandalum magnatum, first proscribed in the 1275 Statute of Westminster (3 Edward I, c 34), stated that ‘from henceforth none be so hardy to tell or publish any false news or Tales, whereby discord, or accession of discord or slander may grow between the King and his people, or the Great Men of the Realm’. See Ibid, 668.

14 See R Manning, ‘The Origins of the Doctrine of Sedition’ (1980) 12 Albion 99, 106–110.

15 M Head, ‘Sedition—Is the Star Chamber Dead?’ (1979) 3 Criminal Law Journal 89, 94. The Court of Star Chamber became renowned for abuse and misuse of power: Civil Liberties Australia, Submission SED 37, 10 April 2006.

16 The Case De Libellis Famosis, or of Scandalous Libels (1606) 5 Co Rep 125a.

17 Ibid, 250.

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