FRIENDLY FIRE?
An Overview of the New Sedition Laws – Speech Given March 2006
1.
Introduction [slide 1]
1.1
In Australia we enjoy a substantially free press but have no right of freedom of
expression. Press freedoms are defined only in the negative by the discrete
restrictions imposed by law.
1.2
In truth, our freedoms of expression are protected only by our rights in democracy.
Unpopular encroachments can be removed or amended by a Government’s fear of
the vote. At its extreme, the limitations of democracy have been demonstrated by
Nazi Germany. Neither the freedoms nor the restrictions should be treated with
apathy. They are both cornerstones of our society. Voracious debate and
engagement with Government about such issues is vital. [slide 2]
1.3
This paper will look at the new sedition provisions that were introduced in the suite of
anti-terrorism laws and, in particular, focus on the recent changes that appeared in
the amended Anti-Terrorism Bill (No. 2).
1.4
These changes were significant and were brought about through just such voracious
debate. Given the contentious nature of the provisions, late last year the Attorney
General indicated that the Australian Law Reform Commission (ALRC) would
conduct a “public inquiry into the provisions 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”.
1.5
Contrary to the wide placating scope of that indication, on Thursday 2nd March, the
ALRC received fairly narrow terms of reference and a tight timeframe for delivery 1.
Nevertheless, there is a fresh opportunity to engage with Government about the new
provisions.
1.6
The opportunity for public feedback and discussion is particularly important in times,
like these, when the Government has acted quickly and severely in response to a
changing global environment and perceived threat. Whether the new provisions are
commensurate with that threat remains to be seen but I have strong doubts.
1.7
In any event, over the last 5 years, we have arguably seen changes: a growth in
popular fear, cultural misunderstandings and religious extremism.
1.8
From a publisher’s perspective, these changes are exemplified by the Danish cartoon
controversy. That controversy is useful in demonstrating:
1
(a)
how the environment in which we publish has changed;
(b)
how the change has affected decisions in publishing; and
Media Release, Australian Law Reform Commission, 2 March 2006
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2.
(c)
how the Government is bringing its attention to the role played by the
publishers; and
(d)
how such change can affect the application of the new sedition laws.
A Comic Catastrophe [slide 3]
2.1
In September 2005, a Danish newspaper, Jyllands-Posten, published various
cartoons depicting the prophet Muhammad.
Some of the cartoons depicted
Muhammad either as or associated with terrorists.
2.2
Depictions of Muhammad in themselves are offensive to many Muslims as the
Qu’ran teaches that they may lead to idolatry and are thus disdained. Such
aniconism can also be found in Judeo-Christian theology. Understandably, the
association of the Muhammad with terrorism was seen as particularly offensive.
2.3
The images are available from the newspaper’s website along with thousands of
other web sites. For example, on the interactive community encyclopaedia
Wikipedia2. The usual freedom to make amendments to those pages has however
been withdrawn due to “vandalism”. They have not been printed in the national print
press in Australia3 nor will I publish them here. I will not publish them here because I
have decided that, in considering all the circumstances and advice from some
generous Imams, it is not right to do so.
2.4
You’ll recall that the cartoons formed part of an article about the difficulties
experienced by a Danish writer in finding illustrators to draw Muhammad for a
children’s book. Apparently, the illustrators had refused the work for fear of violent
attacks by extremists. The editor called upon 40 cartoonists to contribute portrayals
of the prophet. He received 12 images. The images were published to reinforce a
statement. The statement was about freedom of speech and self-censorship. The
publication and republication of the images were the catalyst and tool for death,
destruction and violent protest around the world4.
2.5
As at 2 March 2006, 140 people had been killed in protests. The pen is mightier than
the sword they say.
2.6
Denmark’s prime minister described the fall-out from their publication as “a global
crisis that has the potential to escalate beyond the control of governments”.
2.7
It remains to be seen whether this particular crisis escalates beyond control or
whether it will be another brick in the wall of current tensions. It appears though, at
2
See http://en.wikipedia.org/wiki/Image:Jyllands-Posten_Muhammad_drawings.jpg
3
On February 4, the Brisbane Courier-Mail, the only daily in the Queensland state capital, became the first in Australia to
publish one of the cartoons and on February 8, the Rockhampton Morning Bulletin, a regional Queensland newspaper owned
by the New Zealand-based APN News & Media group, also printed one of the cartoons
4
See http://en.wikipedia.org/wiki/Timeline_of_the_Jyllands-Posten_Muhammad_cartoons_controversy
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this time, that the crisis is abating after some progressive dialogue between
Governments, publishers, religious leaders and the public.
2.8
What this crisis has clearly done however is fired the debate about freedom of
expression and speech in particular.
2.9
While Voltaire classically said “I detest what you write, but I would give my life to
make it possible for you to continue to write”5, most would argue that some restriction
on expression is warranted.
2.10
Few would argue, for example, that the laws of defamation have no place in liberal
society.
2.11
If one accepts that there is to be a balance, one is then faced with an almost
impossible task of finding the right balance in a changing society. As our societies
become more complex, socially, politically and culturally, so too becomes the task.
But the law is not the perfect mechanism to answer such a task. A good law is often
too slow to create and, in most part, only punishes after the act. It often falls upon
the shoulders of individuals as to the correct balances.
2.12
The Age decided not to publish the cartoons. Its editor Andrew Jaspan, said: “I am of
the view that alongside strong press freedoms and rights come equally important
responsibilities….we place a high value on building understanding and tolerance
between the various communities. The cartoons do not contribute to that end.”.
2.13
Other publishers around the world made different decisions and republished the
cartoons. They were first republished and strongly denounced in the Egyptian Arabic
newspaper Al Fagr on 17 October 20056.
2.14
That publication itself seemed to have caused no wide-spread public outcry or
condemnation at that stage7.
2.15
It appears there were two critical events early in the escalation of the crisis:
2.16
(a)
the Prime Minister of Denmark refused to meet the Danish ambassadors of
ten Muslim countries; and
(b)
a delegation of Imams from the Islamic Society of Denmark took the issue to
influential political and religious leaders in the Middle East 8.
It is unlikely that the events in Denmark would have escalated were it not for other
global factors:
(a)
The U.S led “War on Terror” including the invasion of Iraq;
(b)
The rise and publicity of violent and radical religious groups.
5
In a letter to M. le Riche, February 6, 1770
6
http://egyptiansandmonkey.blogspot.com/2006/02/boycott-egypt.html and
7
Following the escalation of events however the images have been removed from Al Fagr’s website on 9 February 2006.
8
http://www.timesonline.co.uk/article/0,,3-2021760,00.html
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2.17
As the images were republished in various countries around the world, the protests
became more violent and widespread. With each republication, the images ran the
risk of taking on a greater significance beyond reporting the news.
2.18
The images have become symbolic to the causes of both sides of a complex debate
– they are symbols of freedom of expression and they are symbols of racial and
religious intolerance. They have also become the tools of war. Whatever one’s view,
republication of the images runs a clear risk of aggravating a situation and
endangering lives.
2.19
Such was the concern about the images that the High Court in South Africa banned
their publication9. The United Nations Secretary-General Kofi Annan has criticised
the press for continuing to publish. Australian Federation of Islamic Councils
president, Ameer Ali, said he would call on the Government to ask media not to
publish the cartoons. "(Australian) imams are already giving sermons in mosques
saying that these sorts of actions can only create more bin Ladens than reduce
them," Dr Ali said10.
2.20
Communications Minister Helen Coonan urged restraint and Foreign Affairs Minister
Alexander Downer said Australia would suffer consequences if the images were
published.
2.21
The Australian Government has taken no steps yet to prevent publication in Australia
and, as this matter cools and becomes less newsworthy, it is highly likely the impetus
for doing so will drop. That said, it has not been since the Spy Catcher scandal have
I seen such public warning shots from Government. These in themselves must have
a dampening effect on any tendencies to publish. Such is the new publishing
environment. Such is the environment that gave rise to the new laws.
The Development of the New Sedition Laws
3.
3.1
Is it one that justifies “tougher” laws? Must we give up past freedoms in exchange for
protection?
3.2
Prime Ministers Blair and Howard and President Bush, respond with an affirmative
waive of the legislative hand. Mr. Blair has said, “Let no one be in any doubt that the
rules of the game are changing“. Indeed they are. Mr. Howard, like his Atlantic
counter-parts, has introduced sweeping law reform under an anti-terrorism banner11.
3.3
Sedition powers have lain dormant in Australia for 45 years. They were last used in
1960 to jail a public servant, Brian Cooper, who urged people in Papua New Guinea,
then an Australian colony, to demand independence12.
9
http://www.news24.com/News24/South_Africa/News/0,,2-7-1442_1875691,00.html
10
http://www.heraldsun.news.com.au/common/story_page/0,5478,18060750%255E662,00.html
11
Anti-Terrorism Acts…
12
R v Cooper (1961) 105 CLR 177
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The Old Laws
4.
4.1
Given the half a century lapse in use of the old laws, few practising lawyers will have
had first hand experience. As the Government has signalled its will to use the new
laws, it is instructive to briefly consider the changes as indicative of the Government’s
priorities.
4.2
The old Commonwealth laws were found in sections 24A to 24F of the Crimes Act
1914 (see Annexure 3). The laws centered around a fairly discrete definition of a
“seditious intention”13: [slide 4]
“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 Government or Constitution of the
Commonwealth or against either House of the Parliament of the Commonwealth;
(c) to excite Her 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
(d) to promote feelings of ill-will and hostility between different classes of Her
Majesty’s subjects so as to endanger the peace, order or good government of the
Commonwealth; …”
4.3
The crimes of sedition then were founded upon two types of positive acts 14: [slide 5]
(a)
engaging in an enterprise undertaken in order to carry out a seditious
intention; or
(b)
writing, printing, uttering or publishing any words expressive of a seditious
intention;
with the intention of causing violence, or creating public disorder or a public
disturbance.
4.4
There were then defences for various acts done in “good faith”15: [slide 6]
4.5
These included:
(a)
Endeavouring to show that the Government or its limbs has been mistaken in
any of its counsels, policies or actions;
(b)
Pointing out defects in government, the constitution, legislation
administration of justice with a view to reforming those defects;
(c)
Pointing out, in order to bring around their removal, any matters that are
producing feelings of ill-will or hostility between different classes of persons
13
s. 24A, Crimes Act 1914
14
s.24B to 24D, Crimes Act 1914
15
s.24F, Crimes Act 1914
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or
(d)
Exciting another person to attempt to change, by lawful means, a matter
established by law whether Australian or foreign;
(e)
To do anything in connexion with an industrial matter.
4.6
This defence was then restricted by deeming certain acts as not been done in “good
faith”. [slide 7]
4.7
Including, any act done:
(a)
With the intention of causing violence or creating public disorder or a public
disturbance;
(b)
For a purpose prejudicial to the safety or defence of the Commonwealth;
(c)
Assisting an enemy at war with the Commonwealth;
(d)
Assisting a country or organisation engaged in armed hostilities with the
Australian Defence Force16.
4.8
When one combines the definition of “seditious intention” and the expression of the
two offences in the old Act, the offences had two elements of “intention”.
4.9
Those elements were: [slide 8]
(a)
Engaging in conduct that has a seditious intent;
(b)
An intention to cause violence, public disorder or public disturbance.
4.10
Interestingly, notwithstanding its dormant status, in 1986 that the Crimes Act was
amended to restrict crime of sedition to statements/actions carried out with intention
of causing violence or creating public disorder or a public disturbance. [slide 9]
4.11
The Crimes Act does not provide definitions of public disorder or disturbances and
they could be construed widely. My neighbours seem to cause public disturbances
every weekend.
4.12
There is no element of recklessness.
4.13
There is no crime of encouraging others to engage in these criminal acts. The
application of the general common law and statutory principles of aiding or abetting
crimes (that is, being an accessory before the fact) could be used to tie in
accomplices but these principles are strict in their application17.
The New Laws
5.
5.1
The expansive Anti-Terrorism Acts have changed the landscape considerably. They
have expanded the crime of sedition and increased the penalties. They now reside
happily along side the treason provisions in the Commonwealth Criminal Code Act
1995. Let’s have a look at them and see what’s changed.
16
Crimes Act 1914 s.24F(2)
17
See Guiseppe Giorgianni v. The Queen [1985] Hca 29; (1985) 156 Clr 473 (18 April 1985)
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5.2
5.3
There are five key changes: [slide 10]
(a)
sedition is now about “urging” others to engage in seditious activities;
(b)
what is considered “seditious” has been expanded;
(c)
in most instances, a much lower threshold of “recklessness” has been
introduced;
(d)
the laws now have global application;
(e)
the penalties have been increased from 3 years to 7 years.
Lets have a look in more detail.
What is considered “seditious”?
5.4
We have seen an expansion of what is considered seditious. The language in the
new provisions has changed dramatically. To some degree, these have been as the
Government suggests, a “modernising” of the statutory language. But they go
further. [slide 11]
5.5
The crimes of sedition now cover someone urging:
(a)
the overthrow of the Constitution or Government by force or violence;
(b)
interference in lawful Parliamentary elections by force or violence;
(c)
violence within the community between groups (whether distinguished by
race, religion, nationality or politics) where such violence threatens the peace,
order and good government of the Commonwealth.
5.6
Each of these offences is extended to those who are “reckless” towards components
of the offence.
5.7
The crimes of sedition now also extend to some new categories [slide 12], namely,
the urging of:
(a)
a person to assist the enemy (whether or not a state of war has been
declared);
(b)
a person to assist those engaged in armed hostilities with the Australian
Defence Force.
5.8
Each of these last two offences has a specific defence in relation to the provision of
aid of a humanitarian nature. Recklessness does not apply to these two offences
and both carry an element of “intent” making them more difficult to prove.
5.9
We have seen the disappearance of the crime to “bring the Sovereign into hatred or
contempt”, “excite disaffection against the Government” and “excite Her Majesty’s
subjects” to unlawfully change any matter established by law. That said these
provisions, with “excite” replaced by “urge” have re-appeared in s.30 of the Crimes
Act (see Annexure 1) together with intentions to promote ill-will amongst community
groups in relation to unlawful associations.
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What is “urging”? [slide 13]
5.10
The critical change in these new laws is the concept of “urging”. Neither the Act nor
the various Explanatory Memoranda provides specific guidance as to what
constitutes “urging”. That said, in other contexts of the Act “urge” is considered in the
definition of “encourage”:
“encourage means:
(a)
encourage, incite to, or urge, by any means whatever, for example, by
written, electronic or other form of communication; or
(b)
aid, facilitate, or contribute to, in any way whatever.”18
5.11
While the High Court has given passing consideration to “urge” in other contexts 19
and tended to interplay “urge” with “incite” and “persuade”, it is likely “urge” in these
sedition provisions will be considered in its ordinary meaning. The Concise Oxford
Dictionary cites the definition “to encourage or entreat earnestly or persistently” or “to
advocate pressingly or emphatically”.
It is a word that incorporates a wide array of
possibilities.
5.12
As Peter Gray S.C notes in the published advice to Peter Garrett MP20, the concept
of “urging” would not be limited to express recommendations or persuasion but to the
more amorphous indirect actions through the use of “dramatisation, or imagery, or
metaphor, or allegory or allusion, or any of the myriad devices and techniques
available to a creative artist”. What every gets the job done one might say. There is
significant scope for unintended deeds to become embroiled in another’s
Machiavellian notions of what constitutes “urging”.
5.13
Note too it is the act of “urging” that forms the crime. Whether or not the urging
results in any action or harm is irrelevant. The harmless ravings of a madman whose
urgings are ignored by all would fall square between the cross-hairs of these
provisions.
Recklessness & Intent
5.14
Whereas the old provisions incorporated elements of intention into the offence, the
new provisions have largely been stripped of these elements.
5.15
The element of intention now remains an express part of only two species of sedition
(a) urging a person to assist an enemy, and (b) urging a person to assist those
engaged in armed hostilities. The remaining provisions, such as urging violence in
the community, bear no reference to intention.
18
Section 50 DB
19
Walsh -v- Sainsbury [1925] HCA 28; (1925) 36 CLR 464 (17 August 1925)
20
Available at http://www.vicpeace.org/sedition/info/0002.html
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5.16
Further, for those remaining provisions (relating to overthrowing the Government,
interfering with elections and violence within the community 21), it will in fact be
enough for the prosecution to establish “recklessness” on behalf of the accused.
5.17
The wording in the Act is very clear about what “recklessness” applies to22.
5.18
For example, in relation to the urging of violence in the community, the Act provides:
[slide 14]
“Recklessness applies to the element of the offence under subsection (5) that it is a
group or groups that are distinguished by race, religion, nationality or political opinion
that the first-mentioned person urges the other person to use force or violence
against.”
5.19
By way of example, one might publish a national paper and be reckless as to the
racial or religious groups that would read the paper.
5.20
“recklessness” has a particular definition in s. 5.4 of the Criminal Code Act as [slide
15]:
“1. A person is reckless with respect to a circumstance if:
(a) he or she is aware of a substantial risk that the circumstance exists or will
exist; and
(b) having regard to the circumstances known to him or her, it is unjustifiable to
take the
risk.
2. A person is reckless with respect to a result if:
(a) he or she is aware of a substantial risk that the result will occur; and
(b) having regard to the circumstances known to him or her, it is unjustifiable to
take the risk.
3. The question whether taking a risk is unjustifiable is one of fact.
4. If recklessness is a fault element for a physical element of an offence, proof of
intention, knowledge or recklessness will satisfy that fault element.
5.21
The upshot of the removal of the “intent” elements and the application of
“recklessness” to these crimes is a considerable expansion of offences to cover acts
that were never previously intended to be seditious.
Assisting the Enemy
5.22
21
These provisions are distinguished in that have an element of intention and don’t
have recklessness. There are two parts: [slide 16]
Sections 80.2 (1) to (6) (excluding subsections (7) and (8)))
22
The Explantory Memorandum states: “To make very clear precisely what the fault element of recklessness applies to, this
amendment sets out the matters in those paragraphs in full. Intention applies to the conduct element of urging force or violence
by virtue of section 5.6 of the Criminal Code Act 1995.”
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(a)
Urging a person to assist an enemy that is at war with the Commonwealth
and has been identified by Proclamation as such; [slide 17]
(b)
Urging a person to assist those engaged in armed hostilities with the
Australian Defence Force.
5.23
The offences do not involve the “urging” of force or violence but the “urging” of
conduct which is intended “to assist an organisation or country” which is either “at
war with the Commonwealth” or “engaged in armed hostilities against the Australian
Defence Force”. Of some difficulty to those accused is knowing whether or not a
country or organisation is, in the second limb, “engaged in armed hostilities with the
Australian Defence Force” given it needn’t be one for which a state of war has been
proclaimed. Not all hostilities are public knowledge for example “black” military
operations.
5.24
Originally, the Bill included the words “assist an enemy, by any means whatsoever.
After debate and complaint these were removed in second draft of Bill as introduced.
This amendment deletes those words, so the offences will now require proof that the
person intended their conduct to assist a country or organisation.
5.25
The words “by any means whatsoever” were however left in the treason provisions
which carry life imprisonment and read (I have included these in Annexure 2):
“80.1 (1) A person commits an offence, called treason, if the person: …
(f) engages in conduct that assists by any means whatever, with intent to
assist:
(i) another country; or
(ii) an organisation;
that is engaged in armed hostilities against the Australian Defence
Force;”
Extra Territoriality
5.26
5.27
23
The new amendments have also been given extra-territorial effect, the offences now
apply [slide 18]:
(a)
whether or not the conduct constituting the alleged offence occurs in
Australia; and
(b)
whether or not a result of the conduct constituting the alleged offence occurs
in Australia23.
This is a “category D” level of extraterritoriality. The most extreme. While other
categories are subject to restrictions such as the crime being committed by
Australian citizens or residents or being subject to the application of a foreign law
defence – there are no such restrictions. Category D applies the law to anyone and
Section 80.4 and 15.4 Criminal Code 1995
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anywhere regardless of who they are, what society they are from and what local law
provides.
Defences
5.28
The new sedition laws adopt the old defences and, following heated debate and an
amended second draft bill24, added some new defences.
5.29
The defences are set out in s. 80.3 and the sedition provision do not apply if the
defences are met.
5.30
The defences relate to various activities carried out in “good faith”, broadly speaking:
[slide 19]
(a)
Trying to show that Government is mistaken in its counsels, policies or
actions; [slide 20]
(b)
Pointing out with a view to reforming errors or defects in Government; [slide
21]
(c)
Urging others to lawfully attempt to change laws, policies or practices of
Government or other countries;
(d)
Pointing out, in order to bring about their removal, matters that are or tend to
produce feelings of ill-will or hostility between different groups;
(e)
Doing anything in connexion with an industrial dispute or matter.
5.31
A defendant will bear the evidential burden in establishing the defence. It is not for
the prosecution to prove in the negative.
5.32
A couple of comments about the drafting of these provisions:
(a)
Pointing out errors or defects of Government requires such actions to be done
“with a view to reforming such errors or defects” whereas
(b)
Pointing out matters that are producing or tend to produce feelings of ill-will or
hostility requires such actions to be done “in order to bring about the removal
of those matters”.
5.33
The conditions are different and no guidance is provided in the Act or in the
Explanatory Memorandum. While no practical difference may have been intended, it
would seem that something done “with a view” is wider in scope than “in order to
bring about” such that one would need to be more cautious in approaching that
subject.
5.34
Whereas the old provisions provided that certain acts were not done in good-faith,
the new provisions provide that when a court considers a defence under these
provisions the court may have regard to any relevant matter including the types of
acts previously described. This is provides a wider scope for a defence and does not
24
Anti-Terrorism Act Bill (No. 2) 2005
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automatically precluding certain acts. That said, it is difficult to see how such acts
would be ones done “in good faith” in any event. The new provision ensures greater
judicial discretion in considering whether the defences apply.
5.35
The last of the defences is the most significant for publishers [slide 22]:
“Publishing a report of commentary about a matter of public interest.”
5.36
It was introduced in the revised second Bill in response to wide ranging criticism
about the application of the laws to journalists and publishers. The wording is
interesting [slide 23]:
“publishes in good faith a report or commentary about a matter of public interest”.
(a)
The defence is limited to “publication” and does not appear to cover other
forms of communication such as speeches or other forms of communications
of messages such as theatrical performances. There is no indication that the
word “publication” adopts the wide definition as in defamation proceedings. It
does not appear to extend to journalists or reporters either;
(b)
The wording is much more limited than, for example, the New South Wales
Anti-Discrimination Act 1977 that excludes from racial vilification offences
actions:
“done reasonably and in good faith, for academic, artistic, scientific or
research purposes or for other purposes in the public interest, including
discussion or debate about and expositions of any act or matter”
(c)
The defence is limited to a “report” or “commentary” and may not include
other forms of publications such as satire. Further the words “report” or
“commentary” are reactionary, that is, in response to other’s actions – it would
appear that the defence would not cover for example, fiction.
(d)
There is no particular guidance as to what constitutes matters of “public
interest”;
5.37
Unlike the old sedition provisions, there is no guidance in the act about what
constitutes “good faith” in these contexts. It appears thrown open to general
principles. Those general principles are not necessarily helpful as the decisions vary.
For example: [Slide 24]
5.38
In Jones v Gordon25 the Court said:
“Good faith is based on the distinction between a person who is honestly blundering
and careless, and a person who has a suspicion that something is wrong but refrains
from asking questions. The latter conduct amounts to bad faith or dishonesty.”
Mid Density Developments Pty Ltd v Rockdale Municipal Council, the court stated:
25
Jones v Gordon (1877) 2 App Cas 616
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"'Good faith in some contexts identifies an actual state of mind, irrespective of the
quality or character of its inducing causes; something will be done or omitted in good
faith if the party was honest, albeit careless. On the other hand, 'good faith' may
require that exercise of caution and diligence to be expected of an honest person of
ordinary prudence”26
5.39
In Siano v Helvering27 13 F Supp 776 at 780 (1936), Clark J said that the words 'good
faith' or their Latin equivalent appear frequently in the law and are capable of, and
have received, what he described as 'two divergent meanings'. The first was the
broad or subjective view which defines them as describing an actual state of mind,
irrespective of its producing causes. The other construed the words objectively by the
introduction of such concepts as an absence of reasonable caution and diligence.
5.40
It is not immediately clear as to how a definition of “good faith” that incorporates an
element of recklessness would be applied given the sedition provisions:
(a)
Specifically provide for recklessness to constitute an offence; but
(b)
The defences of good faith exclude the application of the offences.
5.41
The use of a definition that embraced blundering and carelessness, would
conceivably nullify the recklessness components. If this was the drafters’ intention it
is an unusual way of expressing it.
5.42
On this note, the Prime Minister has reportedly said that these changes were not
aimed at fundamentally altering the nature of sedition laws already in existence, and
that once the anti-terrorist legislation was passed, that filmmakers, artists, journalists
and or any other Australian expressing their ideas would be protected by the usual
good faith defences that had traditionally been used in this area28.
5.43
If filmmakers, artists, journalists were not aimed at, it may be that they have become
victims of friendly fire.
Friendly Fire? [Slide 25]
6.
6.1
On the US program Democracy Now in December 2003, John Pilger said:
“I think the resistance in Iraq is incredibly important for all of us. I think that we
depend on the resistance to win so that other countries might not be attacked, so
that our world in a sense becomes more secure.”29
6.2
Pilger was subsequently interviewed on Lateline on the ABC on 12 September 2005.
Tony Jones of Lateline indicated that Mr. Pilger had previously told Lateline that it
was "incredibly important" that US forces in Iraq are defeated by what he called the
26
Mid Density Developments Pty Ltd v Rockdale Municipal Council (1993) 116 ALR 460
27
Siano v Helvering 13 F Supp 776 at 780 (1936)
28
Australian Screen Directors Association, Newsletter, November 2005 reporting a speech by the Prime Minister on 31 October
2005.
29
See the full transcript at http://www.democracynow.org/article.pl?sid=03/12/31/1539246&mode=thread&tid=25
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'resistance'. He also said that American, British and Australian troops in the
occupation force in Iraq were "legitimate targets". In that September 2005 interview,
with the new sedition laws pending, Pilger was asked whether “he would be prepared
to go to jail for the right to say that Australian troops in Iraq are legitimate targets?”.
6.3
Pilger pointedly avoided the question but did not refute his earlier statements.
Senior Counsel, Brett Walker S.C was of the view that the Pilger interview could
found an arguable case sufficient to place the evidence before a jury based on the
first draft of s. 80.2 (8) (urging a person to assist those engaged in armed hostilities
with the Australian Defence Force)30.
6.4
He states: “In our view it would be open to construe Pilger’s words as urging or
inviting any person to engage in the conduct of the forceful elimination of Australian
troops and their defeat in Iraq”.
6.5
While the draft legislation considered by Brett Walker has been amended by the
removal of the words “by any means whatsoever” from the offence and the addition
of the “good faith” publication defence, the argument is still open in an action against
Pilger. While Pilger may have been cautious before the introduction of these laws in
answering the question would he be prepared to go to jail for the right to say that
Australian troops in Iraq are legitimate targets, he would be well advised to be even
more cautious now.
6.6
Finally, I’d like to come back to the Danish cartoons as an example of the changing
publication environment.
If they were republished in Australia the new sedition
laws, and in particular, the provisions relating to the urging of violence in the
community, could be used by Government. A successful prosecution would depend
on a confluence of circumstances.
6.7
Lets presume the cartoons were republished in the Sydney Morning Herald without
commentary.
6.8
Given that:
(a)
it is now well known that the cartoons are deeply offensive to Muslims; and
(b)
past publications have been associated with public violence between
community groups,
(c)
one would be reckless to think that Muslims, in Australia and overseas, would
not see the cartoons,
it is highly likely that an offence would be made out. As we have seen the definition
of “urging” is wide.
6.9
30
The question would then become, is the defence of publishing in good faith made
out? Without commentary, it is unlikely the republication would be considered a
Published opinion to the Australian Broadcasting Commission, 24 October 2005 by Brett Walker S.C and Peter Rooney
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14
“report” or “commentary” under the Act. Is it even one that was in “good faith”?
Probably not.
6.10
The point I wish to make is that the social environment in which we publish has
changed. It has influenced our publishing decisions.
It should influence our
publishing decisions. That environment has also led us to the new sedition laws and
a re-adjustment of the balance in the freedoms of the press. Whether the two are
commensurate is debatable. The Government has thrown open the laws for criticism
through the ALRC. We should take advantage of that.
6.11
While we can.
10 March 2006
Adam Moxon Simpson
© Simpsons Solicitors 2006
© Simpsons Solicitors 2006
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