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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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18 Law Reform Commission (Ireland), Consultation Paper on the Crime of Libel (1991), 7; Law Reform Commission of Canada, Crimes Against the State, Working Paper 49 (1986), 6.

19 See P Hamburger, ‘The Development of the Law of Seditious Libel and the Control of the Press’ (1985) 37 Stanford Law Review 661, 759; R Manning, ‘The Origins of the Doctrine of Sedition’ (1980) 12 Albion 99, 100.

20 M Head, ‘Sedition—Is the Star Chamber Dead?’ (1979) 3 Criminal Law Journal 89, 95.

21 B Shientag, Moulders of Legal Thought (1943), 167.

22 See, eg, R v Tutchin (1704) 14 State Trials (OS) 1096.

2. Origins and History of Sedition Law 51

2.14 The breadth of the law of sedition during this period is partly attributable to the functions of the judge and jury in seditious libel trials. Juries in seditious libel trials were entitled to determine only whether a defendant uttered, published or printed the words in question. They were precluded from considering whether the words were in fact ‘seditious’ or whether the defendant intended them to be so.23 This gave rise to conflicts between judges and juries, particularly when juries were urged by defence counsel to go beyond their formal role and use their verdicts to protest against unjust prosecutions.24

2.15 A notable change to the law occurred with the passage of Fox’s Libel Act in 1792,25 which empowered the jury to deliver a general verdict on the entire case and to determine the facts and the application of the law to those facts.26 The practical effect of this reform was the introduction of an intention requirement into the law of sedition.27 In addition, by allowing more of the political context to be taken into account by the jury, it forced the law of sedition to conform to some extent to popular opinion about the right to free speech and political debate.28

2.16 The 19th century saw a significant shift in the definition and use of the sedition offences. In response to the permeation of liberal democratic notions of the relationship between state and society—and, in particular, the growing recognition of a right to freedom of expression in respect of political matters—the law of sedition adapted to allow more criticism of government.29 However, the legal elements of the offences remained far from clear, and authorities differed on the nature of the intention required and whether such intention was to be determined subjectively or objectively.30 It appears that the general trend in the case law was to confine the offence to cases in which the words urged others to commit illegal acts or to create public disturbances.31 In addition, the focus of sedition prosecutions began to shift to the seditious effect of the words as distinct from their intrinsically libellous nature.32

2.17 The increasing difficulty in prosecuting seditious libel and the upsurge of radical activity following the Napoleonic wars led to the development of the offence of ‘seditious conspiracy’. This included ‘every sort of attempt, by violent language either 23 For a discussion of the respective functions of the judge and jury during this period, see B Shientag, Moulders of Legal Thought (1943).

24 B Wright, Submission SED 58, 19 April 2006.

25 32 Geo III c 60.

26 B Shientag, Moulders of Legal Thought (1943), 177–178; B Wright, Submission SED 58, 19 April 2006.

27 M Head, ‘Sedition—Is the Star Chamber Dead?’ (1979) 3 Criminal Law Journal 89, 95.

28 M Lobban, ‘From Seditious Libel to Unlawful Assembly: Peterloo and the Changing Face of Political Crime c1770–1820’ (1990) 10 Oxford Journal of Legal Studies 307, 308.

29 See L Maher, ‘The Use and Abuse of Sedition’ (1992) 14 Sydney Law Review 287, 291. This shift provided the basis for the good faith defence that was later incorporated into the common law, reflected in the repealed s 24F of the Crimes Act 1914 (Cth).

30 Law Reform Commission (Ireland), Consultation Paper on the Crime of Libel (1991), 60–61.

31 M Head, ‘Sedition—Is the Star Chamber Dead?’ (1979) 3 Criminal Law Journal 89, 96–97.

32 M Lobban, ‘From Seditious Libel to Unlawful Assembly: Peterloo and the Changing Face of Political Crime c1770–1820’ (1990) 10 Oxford Journal of Legal Studies 307, 349.

52 Fighting Words spoken or written, or by a show of force calculated to produce fear, to effect any public object of an evil character’.33 Seditious conspiracy bore similarities to the law of unlawful assembly, and was manifested by making speeches, holding meetings or taking steps in concert with others.34

2.18 Prosecutions for seditious conspiracy were brought sporadically throughout the 19th century, notably following the Peterloo massacre of 1819 and in connection with the Chartist disturbances in 1839 and during the latter half of the 19th century.35 Despite the breadth of this offence, it appears that it was prosecuted less often than other public order offences, such as unlawful assembly and riot.36 The changing nature of political activity in the 19th century meant that ‘seditious’ speech often occurred in the context of protest activities, with authorities using the unlawful assembly laws instead of sedition laws to control protest movements.37 Sedition in the 20th century

2.19 Sedition prosecutions in the United Kingdom tapered off in the first half of the 20th century and fell into disuse in the latter half of the 20th century. The last prosecution initiated in the United Kingdom was in 1947.38





2.20 The legal elements of the common law sedition offences remain uncertain— particularly whether a specific subjective intention is required, or whether a basic intention objectively discerned will suffice.39 However, in Boucher v The King, the Supreme Court of Canada held that in order to be guilty of a sedition offence a defendant must intend to incite violence or to create public disturbance or disorder for the purpose of disturbing constituted authority.40 In 1991, the Divisional Court in England approved this statement in Boucher.41 33 M Head, ‘Sedition—Is the Star Chamber Dead?’ (1979) 3 Criminal Law Journal 89, 98.

34 L Donohue, ‘Terrorist Speech and the Future of Free Expression’ (2005) 27 Cardozo Law Review 233, 263.

35 See M Lobban, ‘From Seditious Libel to Unlawful Assembly: Peterloo and the Changing Face of Political Crime c1770–1820’ (1990) 10 Oxford Journal of Legal Studies 307.

36 L Donohue, ‘Terrorist Speech and the Future of Free Expression’ (2005) 27 Cardozo Law Review 233, 263.

37 See L Maher, ‘The Use and Abuse of Sedition’ (1992) 14 Sydney Law Review 287, 291–292.

38 The defendant was acquitted: R v Caunt (Unreported, Birkett J, 1947).

39 D Feldman, Civil Liberties and Human Rights in England and Wales (2nd ed, 2002), 898. For example, in R v Burns, Cave J instructed the jury that in order to establish the requisite mens rea there must be a distinct intention, going beyond mere recklessness, to produce disturbances: R v Burns (1886) 16 Cox CC 355, 364. However, in R v Aldred (1909) 22 Cox CC 1, the court applied an objective test, stating that ‘every person must be deemed to intend the consequences which would naturally flow from his conduct’:

cited in Law Commission of England and Wales, Working Paper No 72 Second Programme, Item XVIII Codification of the Criminal Law—Treason, Sedition and Allied Offences (1977), 45.

40 Boucher v The King [1951] 2 DLR 369.

41 R v Chief Metropolitan Stipendiary Magistrate; Ex parte Choudhury [1991] 1 QB 429, 453. This case is considered in greater detail in Ch 6.

2. Origins and History of Sedition Law 53 Sedition in Australia Colonial era inheritance

2.21 The Australian states inherited the British common law of sedition.42 State prosecutions for sedition were brought at various periods throughout the 19th and early 20th centuries. Notably, sedition laws were used to prosecute:

• John Macarthur, founder of the Australian merino wool industry, for seditious behaviour against Governor Bligh in 1807–08;43

• Governor Darling’s political opponents, including critics in the press, in the early 1800s;44

• Henry Seekamp, the editor and owner of the Ballarat Times at the time of the Eureka Stockade in 1854;45

• anti-conscriptionists who opposed Australia’s involvement in the First World War;46 and

• F W Paterson, the Member for Bowen from 1944–50, for expressing support for the workers’ struggle against capitalism at a public meeting in 1930.47

2.22 In some common law jurisdictions—including New South Wales—the related offence of treason still applies (in law, if not in policy or prosecutorial practice) to those who would ‘compass or imagine’ the death of the King, Queen or eldest son and heir; or ‘violate the King’s companion, or eldest unmarried daughter, or the wife of the eldest son and heir’.48 Crimes Act 1914 (Cth)

2.23 Until 1914, criminal law in Australia was almost entirely the province of the states and territories.49 Following the commencement of the First World War, judicial 42 Sedition offences were subsequently codified in the code states: Criminal Code 1924 (Tas) ss 66, 67;

Criminal Code 1913 (WA) ss 44–46; Criminal Code 1899 (Qld) ss 44–46. The common law continued to operate in the other states: see M Head, ‘Sedition—Is the Star Chamber Dead?’ (1979) 3 Criminal Law Journal 89, 91.

43 R Jordan, In Good Faith: Sedition Law in Australia (2006) E-Brief: Parliamentary Library—Parliament of Australia www.aph.gov.au/library/INTGUIDE/LAW/sedition.htm at 16 May 2006.

44 D Ash, ‘Sedition’ (2005) (Summer 2005–2006) Forbes Flyer 2, 1; New South Wales Bar Association, Submission SED 20, 7 April 2006.

45 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); New South Wales Bar Association, Submission SED 20, 7 April 2006.

46 S Macintyre, The Reds (1998), 17.

47 New South Wales Bar Association, Submission SED 20, 7 April 2006.

48 Crimes Act 1900 (NSW) s 16—which expressly continues the operation of the 1351 Statute of Treasons (25 Edward III c 2).

49 The first piece of federal crimes legislation was the Punishment of Offences Act 1901 (Cth), which provided punishments for infringements of the Commonwealth statutory prohibitions. Subsequently, 54 Fighting Words doctrine approved a marked expansion in Commonwealth legislative power, resulting in a spate of federal laws to maintain public order.50

2.24 The first comprehensive piece of federal crimes legislation was the Crimes Act 1914 (Cth), which contained a number of offences against the government, including treason and incitement to mutiny.51 The sedition offences were not included in the Crimes Act. However, the War Precautions Act 1914 (Cth) gave the Governor-General the authority to make regulations designed to suppress discussion of war aims, alliances, and conscription policy and practice.52

2.25 The sedition provisions were inserted into the Crimes Act in 1920.53 These provisions repeated in substance the common law definition of the offence,54 but were somewhat broader in that they did not require proof of subjective intention and did not require incitement to violence or public disturbance.55 Under ss 24C and 24D of the Crimes Act, it was an offence to engage in a seditious enterprise with a seditious intention or to write, print, utter or publish seditious words with a seditious intention.

2.26 ‘Seditious intention’ was defined as:

An intention to effect any of the following purposes, that is to say:

(a) to bring the Sovereign into hatred or contempt;

(b) to excite disaffection against the Sovereign or the Government or the 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;

several federal offences were created as incidental to particular statutes: G Sawer, Australian Federal Politics 1901–1929 (1956), 135.

50 Ibid, 155.

51 The constitutional validity of the Crimes Act 1914 (Cth) was upheld on the basis of the Commonwealth’s incidental power to protect its operations by creating criminal offences: R v Kidman (1915) 20 CLR 425.

52 For example, War Precautions Act 1914 (Cth) s 4(d) gave the Governor-General power to make regulations in order to ‘prevent the spread of false reports or reports likely to cause disaffection to His Majesty or public alarm, or to interfere with the success of His Majesty’s forces by land or sea, or to prejudice His Majesty’s relations with foreign powers’. See G Sawer, Australian Federal Politics 1901– 1929 (1956), 141. The Commonwealth could also prohibit the importation of literature with a ‘seditious

intent’ pursuant to the Customs Act 1901 (Cth): see R Douglas, ‘Saving Australia from Sedition:

Customs, the Attorney-General’s Department and the Administration of Peacetime Political Censorship’ (2002) 30 Federal Law Review 135.

53 War Precautions Repeal Act 1920 (Cth) s 12. The provisions replicated those found in the Criminal Code 1899 (Qld), which were based on the British common law as outlined in Stephen’s Digest of the Criminal Law extracted earlier in this chapter: Commonwealth, Parliamentary Debates, House of Representatives, 23 November 1920, 6851 (L Groom).

54 G Sawer, Australian Federal Politics 1901–1929 (1956), 195.

55 See, eg, R v Aldred (1909) 22 Cox CC 1; R v Burns (1886) 16 Cox CC 355. See also L Maher, ‘The Use and Abuse of Sedition’ (1992) 14 Sydney Law Review 287, 290.

2. Origins and History of Sedition Law 55 (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 and good government of the Commonwealth.56



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