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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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2.27 The Crimes Act was further amended in 1926 to prohibit ‘unlawful associations’ that advocated or encouraged the doing of any act purporting to have as an object the carrying out of a seditious intention.57 Communist Party prosecutions

2.28 The advent of federal sedition offences coincided with the foundation of the Communist Party of Australia (CPA), although this was not alluded to extensively in the parliamentary debates.58 It is widely thought that the enactment of the federal sedition provisions was prompted by concerns about the Bolshevik Revolution and its impact on radical socialist activity in Australia.59 It also has been suggested that the federal government was motivated to enact such provisions because it did not trust the Labor-controlled states to suppress ‘subversive’ activities in accordance with its policies.60

2.29 It appears that the first federal sedition prosecution occurred in 1948.61 As noted above, state sedition laws had been used on a number of occasions prior to this time.

While state sedition laws were primarily used to prosecute members of the CPA, little 56 Crimes Act 1914 (Cth) s 24A. Paragraphs (b), (c) and (e) were repealed in 1986: see discussion below.

57 Crimes Act 1926 (Cth) s 17. These provisions were further strengthened by the Crimes Act 1932 (Cth).

See the further discussion in Ch 4.

58 See S Ricketson, ‘Liberal Law in a Repressive Age: Communism and the Law 1920–1950’ (1976) 3 Monash University Law Review 101, 104.

59 L Maher, ‘Dissent, Disloyalty and Disaffection: Australia’s Last Cold War Sedition Case’ (1994) 16 Adelaide Law Review 1, 12; M Armstrong, D Lindsay and R Watterson, Media Law in Australia (3rd ed, 1995), 150; S Ricketson, ‘Liberal Law in a Repressive Age: Communism and the Law 1920–1950’ (1976) 3 Monash University Law Review 101, 104.

60 Many Labor members had opposed the use of the War Precautions Acts to suppress discussion of war aims and alliances: G Sawer, Australian Federal Politics 1901–1929 (1956), 166. See R Douglas, ‘Keeping the Revolution at Bay: The Unlawful Associations Provisions of the Commonwealth Crimes Act’ (2001) 22 Adelaide Law Review 259, 260.

61 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, 138. This case went to the High Court: Burns v Ransley (1949) 79 CLR 101.

56 Fighting Words information is available on the manner or frequency of these prosecutions.62 It has been reported that three sedition prosecutions were brought against communists in Queensland in the 1930s, and two in Tasmania and Queensland in the 1940s. One defendant was charged for making pro-Nazi statements and the other, a Jehovah’s Witness, was charged for stating that people should not put their faith in the King over faith in God.63 One historian notes that the latter prosecutions received little attention outside the states in which they were brought, and on this basis he concludes that there may have been other similar prosecutions during this period.64

2.30 There is evidence that the Australian government sought advice on a number of occasions about whether those who opposed Australia’s involvement in the Second World War might be prosecuted for sedition.65 It has been suggested that the provisions were not used for this purpose because their scope was unclear and there were doubts about whether juries would convict defendants for anti-war propaganda.66

2.31 The first sedition prosecution brought under federal law was against a member of the CPA, Gilbert Burns.67 Burns had been asked a hypothetical question at a public debate about the likely attitude of the CPA in the event of a war between the Soviet Union and the western powers. He was convicted and sentenced to six months

imprisonment for answering in this way:

If Australia was involved in such a war, it would be between Soviet Russia and American and British Imperialism. It would be a counter-revolutionary war. It would be a reactionary war. We would oppose the war, we would fight on the side of Soviet Russia.68

2.32 On appeal, Burns argued that the federal provisions were constitutionally invalid and that his words did not express a seditious intention because they referred to a hypothetical situation. The High Court held that the provisions were constitutionally valid, coming within the ‘incidental’ head of power in s 51(xxxix) of the Australian Constitution. The Court was evenly divided on the question whether the particular words expressed a seditious intention, and the decision of the Chief Justice prevailed.

Latham CJ held that, unlike the common law, the statutory provisions did not require incitement to violence or public disorder.69 He further considered that the hypothetical

nature of the statement did not exclude a finding that the words were seditious:

A statement that the view of the Communist Party is that Russia should be supported as against Australia and the British Sovereign in any war in which Australia, the 62 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, 138.

63 R Douglas, ‘Law, War and Liberty: The World War II Subversion Prosecutions’ (2003) 27 Melbourne University Law Review 65, 75–76.

64 Ibid, 76.

65 Ibid, 76–77.

66 Ibid, 76.

67 Burns v Ransley (1949) 79 CLR 101.

68 Ibid, 114.

69 Ibid, 108.

2. Origins and History of Sedition Law 57 Sovereign, and Russia may be involved is a statement which is presented as a policy to be approved and to be put into effect. Such a statement shows a present intention to excite disaffection against the Sovereign and the Government. … ‘Exciting disaffection’ refers to the implanting or arousing or stimulating in the minds of people a feeling or view or opinion that the Sovereign and the Government should not be supported as Sovereign and as Government, but that they should be opposed, and when the statement in question is made in relation to a war it means that they should, if possible, be destroyed. Such advocacy is encouragement of and incitement to active disloyalty.70

2.33 A second sedition case came before the High Court in 1949.71 The General Secretary of the CPA, Lance Sharkey, had prepared the following statement for

publication in response to a request by a newspaper journalist:

If Soviet forces in pursuit of aggressors entered Australia, Australian workers would welcome them. Australian workers would welcome Soviet Forces pursuing aggressors as the workers welcomed them throughout Europe when the Red troops liberated the people from the power of the Nazis. … Invasion of Australia by forces of the Soviet Union seems very remote and hypothetical to me. I believe the Soviet Union will go to war only if she is attacked and if she is attacked I cannot see Australia being invaded by Soviet troops. The job of the Communists is to struggle to prevent war and to educate the mass of people against the idea of war. The Communist Party also wants to bring the working class to power but if fascists in Australia use force to prevent the workers gaining that power Communists will advise the workers to meet force with force.72

2.34 Sharkey was convicted of uttering seditious words and sentenced to 13 months’ imprisonment. The High Court upheld the conviction on the same basis as Burns v Ransley, again holding that the hypothetical nature of the statement did not preclude it from being seditious.

2.35 In both cases the High Court held that the test of seditious intention was objective: that is, the prosecution did not need to prove that the accused subjectively intended to ‘incite disaffection’—rather, it needed to prove only that the words objectively could be said to express a seditious intention. Further, the prosecutions were sustained on the basis of an intention inferred from a hypothetical statement made in response to a question about what the defendants might do in a factual scenario that both considered improbable. In neither case was it suggested that the statement actually was intended to incite violence or public disorder.

2.36 The High Court’s interpretation of the federal sedition provisions—which, in effect, enabled them to be used to punish expressions of disloyalty—stands in contrast with the common law, which had in the previous century narrowed sedition to words or behaviour that incited violence or public disorder. The Court’s interpretation also stands in stark contrast to the approach adopted by the United States Supreme Court, 70 Ibid, 108–109.

71 R v Sharkey (1949) 79 CLR 121.

72 Ibid, 138.

58 Fighting Words which held that behaviour creating a ‘clear and present danger of public disorder’ could be prosecuted, but ‘doctrinal justification or prediction of the use of force under hypothetical conditions at some indefinite future’ could not.73

2.37 The extension of the sedition offences has been explained, at least in part, by reference to the evolving Cold War context and the desire of the Chifley Government to prove to the Australian public and to the United States and British Governments that it was taking measures to combat the internal threat of communism.74 This is underscored by the selective manner in which sedition was prosecuted.

The intensity of Australian political debate in the early Cold War period was such that, had the Commonwealth and State authorities enforced the law of sedition consistently, the courts would not have been equipped to cope with the avalanche of sedition prosecutions that would have ensued. … A cursory reading of the daily newspapers in the years 1947–1949 or the literature produced by all the political parties reveals countless examples of inflammatory speech and expressive conduct which clearly fell within the harsh sedition provisions of the Crimes Act 1914. Yet, in an environment in which inflammatory political speech was commonplace, no sedition prosecutions were brought against any of the CPA’s equally determined and ruthless opponents on the far right of the political spectrum.75

2.38 Although sedition appears not to have been widely prosecuted, there is evidence that the federal investigative authorities frequently sought advice from the AttorneyGeneral’s Department in the early 1950s to determine whether it could use sedition laws to prosecute CPA members and activists.76 It has been suggested that more sedition prosecutions were not instituted due to uncertainty caused by a pending appeal brought by one CPA member who had been convicted of publishing an article criticising Australia’s involvement in the Korean War.77

2.39 The most recent Commonwealth sedition prosecution was in 1953, when a member of the CPA was tried unsuccessfully for publishing an article that derided the monarchy.78 The most recent sedition prosecution at the state or territory level appears to have been in South Australia in 1960, where a newspaper editor was charged with 73 See, eg, Schneiderman v United States 320 US 156 (1942), 157–159. The Supreme Court retreated from this test during the McCarthy era, adopting a stricter approach in order to prosecute Communist Party members: see, eg, Dennis v United States 341 US 494 (1951). However, it later reformulated the test in a more liberal manner, holding that the First Amendment to the United States Constitution does not permit the State to proscribe advocacy of the use of force or law violation ‘except where such advocacy is

directed to inciting or producing imminent lawless action and is likely to incite or produce such action’:

Brandenburg v Ohio 395 US 444 (1969), 447.

74 L Maher, ‘Dissent, Disloyalty and Disaffection: Australia’s Last Cold War Sedition Case’ (1994) 16 Adelaide Law Review 1, 39.

75 L Maher, ‘The Use and Abuse of Sedition’ (1992) 14 Sydney Law Review 287, 303–304.

76 L Maher, ‘Dissent, Disloyalty and Disaffection: Australia’s Last Cold War Sedition Case’ (1994) 16 Adelaide Law Review 1, 14.

77 R Douglas, ‘The Ambiguity of Sedition: The Trials of William Fardon Burns’ (2004) 9 Australian Journal of Legal History 227, 246; L Maher, ‘The Use and Abuse of Sedition’ (1992) 14 Sydney Law Review 287, 306.

78 Sweeny v Chandler (Unreported, Sydney Court of Petty Sessions, 18 September 1953).

2. Origins and History of Sedition Law 59 seditious libel for criticising the Royal Commission inquiring into the Stuart murder case.79 Recent consideration

2.40 There are suggestions that prosecutions for sedition have been considered on a number of occasions in more recent times. Most notably, in 1976 the AttorneyGeneral’s Department was asked for advice about whether the remarks made by former Prime Minister Gough Whitlam in the wake of the dismissal of the Labor Government—to the effect that the Governor-General was ‘deceitful’ and ‘dishonourable’—could amount to sedition.80 No prosecution eventuated.

2.41 In the early 1990s there was some discussion in the media about the possibility of sedition offences being used to prosecute opponents to Australia’s involvement in the first Gulf War,81 but there is no evidence of formal consideration being given to this by government officials.

Reform trends: modernise or abolish?

2.42 Law reform commissions in Canada, Ireland and England and Wales have

recommended the abolition of existing sedition offences82 on the basis that they are:

• unnecessary in light of more modern criminal offences, such as incitement and other public order offences;83

• undesirable in light of their political nature and history;84 and

• inappropriate in modern liberal democracies, where it is accepted that it is a fundamental right of citizens to criticise and challenge government structures and processes.85 79 See L Maher, ‘The Use and Abuse of Sedition’ (1992) 14 Sydney Law Review 287, 287; K Inglis, The Stuart Case (1961), 279–292. Further, in 1961 Brian Cooper was successfully prosecuted in Papua New Guinea pursuant to the sedition provisions of the Criminal Code 1899 (Qld) for statements he made to

indigenous people about potential means—including violent means—for achieving self-determination:

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