Submission
Administrative Law & Human Rights Section
Review of Sedition Laws
To: Australian Law Reform Commission
A submission from the Administrative Law & Human Rights Section of the Law Institute of Victoria
Date
28 June 2006
Queries regarding this submission should be directed to:
Contact person
Jo Kummrow
Ph
(03) 9607 9385
Email
[email protected]
© Law Institute of Victoria (LIV).
No part of this submission may be reproduced for any purpose without the prior permission of the LIV.
The LIV makes most of its submissions available on its website at www.liv.asn.au
Contents
1
Introduction ........................................................................................................................................................3
2
Executive summary ...........................................................................................................................................4
3
2.1
Revival of sedition offences is not an appropriate response to the current security environment ..........4
2.2
Sedition offences represent an assault on liberal democratic values .....................................................5
Response to ALRC recommendations...............................................................................................................6
3.1
Overview of proposed reforms................................................................................................................6
3.2
Australian sedition laws and related provisions ......................................................................................6
3.3
Sedition laws in other countries..............................................................................................................6
3.4
Offences against political liberty .............................................................................................................7
3.5
Urging inter-group violence ....................................................................................................................8
3.6
Defences and penalties ..........................................................................................................................8
3.7
Unlawful associations .............................................................................................................................8
2
1
Introduction
On 3 November 2005, the federal government introduced amendments to existing
sedition offences as part of a raft of changes under new counter-terrorism legislation.1
The government’s stated intent was to modernise sedition offences under the Crimes Act
1914 (Cth) (Crimes Act) as a means of targeting possible terrorist-related behaviour, in
particular the urging of use of force or violence, including terrorist-related acts.
The proposed legislation was widely criticised and was passed by the Senate with
agreement by Attorney-General Philip Ruddock that the sedition provisions would be
reviewed as to whether they constituted an unreasonable trespass against freedom of
speech.
The Australian Law Reform Commission (ALRC) was asked to examine the offence of
sedition and report on the appropriateness and effectiveness of the amended sedition
legislation. The ALRC terms of reference were published on 2 March 2006 and include:
(a)
whether the amendments, including the sedition offence and defences in ss80.2
and 80.3 of the Criminal Code Act 1995 (Cth) (Criminal Code), effectively address
the problem of urging the use of force or violence;
(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
(d)
any related matter.
In undertaking its review, the ALRC was required to have particular regard to:
(a)
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
(b)
the practical difficulties involved in proving a specific intention to urge violence or
acts of terrorism.
The ALRC released an Issues Paper2 (20 March 2006). The Law Institute of Victoria
(LIV) responded to the Issues Paper through a meeting which included John Rutherford
(Chair, LIV Human Rights Committee), Andrew Closey (LIV Advocacy & Practice solicitor,
Criminal Law Section) and representatives of the ALRC on 4 April 2006.
The LIV has reviewed the ALRC’s Discussion Paper 3 (29 May 2006) and carefully
considered the sedition provisions contained in ss 80.1–80.6 of Part 5.1 of the Criminal
Code.
Although Mr Ruddock claimed in his second reading speech on the Anti-Terrorism (No.2)
Bill 2005 that the sedition provisions merely “modernise” the language of the previous
sedition offences and do not represent a “wholesale revision”, the LIV submits that the
sedition provisions have a more extended scope.
The sedition provisions of the Criminal Code replaced the sedition offences which for
many years had been part of the Crimes Act. The new sedition provisions make it an
offence to urge:
3
(a)
the overthrow of the Constitution or Government by force or violence (s 80.2(1));
(b)
interference in Parliamentary elections by force or violence (s 80.2(3)); and
(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 (s 80.2(5)).
The new sedition provisions have also been extended to encompass additional categories
of offences. The sedition provisions now make it an offence to urge:
(a)
a person to assist an enemy organisation or country (whether or not a state of war
has been declared) (s 80.2(7)); and
(b)
a person to assist an enemy organisation or country engaged in armed hostilities
against the Australian Defence Force (s 80.2(8)).
Other sedition provisions provide:
(a)
a limited defence for acts done in good faith (s 80.3),
(b)
an extended geographical jurisdiction for sedition offences (s 80.4);
(c)
that the Attorney-General’s consent is required for the commencement of sedition
offence proceedings (s 80.5); and
(d)
that state and territory laws are capable of operating concurrently with the sedition
provisions (s 80.6).
The LIV would be pleased to meet with the ALRC to discuss this submission or to provide
further written comments as required.
2
Executive summary
2.1
Revival of sedition offences is not an appropriate response to the current security
environment
The LIV submits that revival of sedition offences is not an appropriate response to
the current security environment.
The LIV questions whether the current national and international security
environment justifies a revival of offences which have remained largely unused
throughout the latter half of the 20th century.
The LIV notes that sedition offences are broadly viewed as being “archaic” and
“defunct”, and is hesitant to accept that such a drastic shift in the security
environment has occurred in order to render these offences “relevant” or
“necessary”.
The LIV notes the difficulties inherent in attempting to assess whether new laws are
commensurate with the threat that our community faces, given the need to rely on
security assessments which are not subject to independent review or justification.
However, the LIV is hesitant to accept without question the Australian Government’s
position that the new sedition offences are indeed an appropriate and proportionate
legislative response to that threat. It does not accept that there is a “clear case” for
counter-terrorism laws to be strengthened in this fashion.
4
The LIV recalls the proviso agreed by the Council of Australian Governments
(COAG) in September 2005 that any strengthening of counter-terrorism laws
must be necessary, effective against terrorism and contain appropriate
safeguards against abuse, such as parliamentary and judicial review, and
be exercised in a way that is evidence based, intelligence led and
proportionate [emphases added].4
It is submitted that the revival of sedition offences cannot be justified on any of these
bases. The new sedition offences:
(a)
are an unnecessary addition to the gamut of criminal offences already
available to prosecutors in such cases;
(b)
do not represent an effective weapon with which to combat terrorism;
(c)
are counter-productive in their effect in that they will tend to alienate certain
minority groups in our society rather be accepting and welcoming them;
(d)
represent a serious threat to freedom of speech and artistic expression, which
our Government is committed to protecting under our international civil and
political rights obligations;
(e)
are open to abuse, particularly at the hands of a majority against a minority
which does nothing more than express opinions that are unpopular; and
(f)
are not proportionate to the alleged higher security threat faced by our
community.
Moreover, the LIV considers the sedition offences to be entirely inconsistent with the
concept of a tolerant society which COAG placed such emphasis on.
2.2
Sedition offences represent an assault on liberal democratic values
The LIV accepts that every liberal democratic society places certain limits on the
exercise of the right to free speech. However, the LIV submits that the revival of
dormant sedition offences, which are aimed at shielding the Government and its
officers from criticism (whether legitimate or otherwise) is not merely a limitation on
that right but rather its suppression.
Sedition offences are political crimes, aimed at punishing criticism and disloyalty.
Doctrinally, sedition law emerged out of a desire to punish acts deemed to
constitute a violation of a subject’s allegiance to the Sovereign. The position that the
Sovereign is inherently entitled to be shielded from criticism that might diminish its
authority is untenable in our society, where the community is ruled by
democratically elected representatives and thus the relationship between State and
citizen is characterised by reciprocal rights and obligations (as opposed to loyalty
and obedience in favour of the State alone).
The LIV is concerned at evidence that federal sedition provisions have been used to
punish expressions of disloyalty alone. It is concerned at the selective manner in
which sedition offences have been prosecuted, and accepts that historical analysis
of sedition prosecutions in Australia and elsewhere reveal cases in which the
offences were used to stifle political dissent in a manner that is incompatible with
modern democratic processes.
The LIV accepts that there is a strong tendency for such offences to be used to
hinder robust political debate and commentary, and impinge upon the basic
5
constitutional right of citizens in a democracy of lawful advocacy, protest and
dissent. As noted in the ALRC’s Issues Paper, the free exchange of ideas, however
unpopular or radical, is generally healthier for a society than the suppression and
festering of such ideas. The LIV adopts this position, as well as the position of the
Hope Commission that “[m]ere rhetoric or statements of political belief should not be
criminal offences, however obnoxious they may be to constituted authority”.5 Such
activities cannot, and should not, be considered to be prejudicial to Australia’s
security.
The LIV therefore submits that the retention and/or revival of sedition offences in
Australia is undesirable in light of their political nature and historical development,
and entirely inconsistent with Australia’s obligations under international covenants
to protect the fundamental right of citizens to challenge and criticise government
structures and processes. Their revival in the current political climate is
unacceptable as it cannot be demonstrated that the end justifies such serious
means.
The LIV therefore submits that the sedition provisions should be substantially
amended as proposed by the ALRC.
3
Response to ALRC recommendations
3.1
Overview of proposed reforms
The Australian Government should remove the term ‘sedition’ from federal criminal
law. To this end, the headings of Part 5.1 and Division 80 of the Criminal Code (Cth)
should be changed to ‘Treason and offences against political liberty’, and the heading
of s 80.2 should be changed to ‘Offences against political liberty and public order’.
The Australian Government should initiate a process through the Standing
Committee of Attorneys-General to remove the term ‘sedition’ from state and territory
laws and to modernise and harmonise the relevant laws in keeping with the proposed
changes to federal law.
The LIV agrees with these two proposals.
3.2
Australian sedition laws and related provisions
The Australian Government should initiate a review of the remaining offences
contained in Part IIA of the Crimes Act 1914 (Cth) to determine which offences merit
retention, modernisation and relocation to the Criminal Code (Cth), and which
offences should be abolished. This review should include the offences in ss 24AA,
24AB and 25–29 of the Crimes Act.
The LIV agrees with this proposal.
3.3
Sedition laws in other countries
There is no need to introduce into federal law an offence of ‘encouragement or
glorification of terrorism’, along the lines of that in s 1 of the Terrorism Act 2006 (UK).
The LIV agrees with this proposal.
6
3.4
Offences against political liberty
Section 80.2 of the Criminal Code (Cth) (Criminal Code) should be amended to
provide that, for a person to be guilty of any of the offences under s 80.2, the person
must intend that the urged force or violence will occur.
The heading of s 80.2(1) of the Criminal Code should be changed to refer to urging
the overthrow by ‘force or violence’ of the Constitution or Government.
The word ‘intentionally’ should be inserted in s 80.2(1) of the Criminal Code before
the word ‘urges’ to clarify the fault element applicable to urging the use of force or
violence.
Section 30C of the Crimes Act 1914 (Cth), concerning ‘advocating or inciting to
crime’, should be repealed.
The heading of s 80.2(3) of the Criminal Code should be changed to refer to urging
interference in Parliamentary elections by ‘force or violence’.
Section 80.2(3) of the Criminal Code should be amended to:
•
insert the word ‘intentionally’ before the word ‘urges’, to clarify the fault
element applicable to urging the use of force or violence; and
•
apply to interference with the lawful processes for a referendum on a
proposed law for the alteration of the Constitution.
As a consequence of the Proposal above, s 80.2(4) of the Criminal Code should be
amended to apply recklessness to the element of the offence under s 80.2(3) that it is
lawful processes for a referendum on a proposed law for the alteration of the
Constitution that a person urges another to interfere with.
Sections 80.2(7), (8) and (9) of the Criminal Code, concerning the offences of urging a
person to assist the enemy and urging a person to assist those engaged in armed
hostilities against the Australian Defence Force, should be repealed.
The treason offences in s 80.1(1)(e)–(f) should be amended to:
•
remove the words ‘by any means whatever’;
•
provide that conduct must ‘materially’ assist an enemy, making it clear that
mere rhetoric or expressions of dissent are not sufficient; and
•
provide that assistance must enable an enemy ‘to engage in war’ with
Australia or a country or organisation ‘to engage in armed hostilities’ against
the Australian Defence Force.
The Australian Government should review the treason offences in s 80.1 of the
Criminal Code.
Section 80.1 of the Criminal Code should be amended to require that, at the time of
the alleged offence, the person is an Australian citizen or resident.
Section 80.5 of the Criminal Code regarding the requirement of the Attorney-General’s
written consent to a prosecution should be repealed.
The LIV agrees with these proposals.
In particular, the LIV agrees that it is desirable that the provisions be amended to
make it express that all the offences involve intentional urging, with recklessness
required in respect of the existence of the particular circumstances specified. It
notes the potential dangers identified by the Hope Commission that ‘a person,
wishing to make a peaceful protest, in good faith, might be guilty of sedition if his
public statement would be likely to lead opponents to demonstrate violently’,6 and
accepts Justice Hope’s conclusion that the provisions should incorporate the
requirement of an intention to create violence or public disturbance or disorder.
7
The LIV welcomes the ALRC’s proposal with respect to ‘assisting the enemy’. It
notes that the world ‘assist’ is not defined, and can be interpreted broadly to
encompass mere support, including verbal support or encouragement for insurgent
groups who might encounter the ADF which is present in their country.
3.5
Urging inter-group violence
The heading of s 80.2(5) of the Criminal Code (Cth) (Criminal Code) should be
changed to refer to urging ‘inter-group force or violence’.
Section 80.2(5) of the Criminal Code should be amended to:
•
insert the word ‘intentionally’ before the word ‘urges’, to clarify the fault
element applicable to urging the use of force or violence; and
•
add ‘national origin’ to the distinguishing features of a group for the purposes
of the offence.
As a consequence of the Proposal above, s 80.2(6) of the Criminal Code should be
amended to apply recklessness to the element of the offence under s 80.2(5) that it is
a group distinguished by national origin that a person urges another to use force or
violence against.
The Australian Government should continue to pursue other strategies, such as
educational programs, to promote inter-communal harmony and understanding.
The LIV agrees with these proposals.
3.6
Defences and penalties
Section 80.3 of the Criminal Code (Cth) (Criminal Code), concerning the defence of
‘good faith’, should be repealed.
Section 80.2 of the Criminal Code should be amended to provide that in considering
whether a person intends that the urged force or violence will occur, the trier of fact
must take into account whether the conduct was done (i) in the performance,
exhibition or distribution of an artistic work; or (ii) in the course of any statement,
publication, discussion or debate made or held for any genuine academic, artistic or
scientific purpose or any other genuine purpose in the public interest; or (iii) in
connection with an industrial dispute or an industrial matter; or (iv) in publishing a
report or commentary about a matter of public interest; and may have regard to any
relevant matter.
A note should be inserted after each of the offences in s 80.2(1), (3) and (5) of the
Criminal Code drawing attention to the proposed new provisions regarding proof of
intention that the force or violence urged will occur.
The LIV supports the proposal for a more elaborated good faith defence in line with
that enacted in racial discrimination legislation and racial vilification provisions.
3.7
Unlawful associations
Sections 30A, 30AA, 30AB, 30B, 30D, 30E, 30F, 30FA, 30FC, 30FD, 30G, 30H and 30R
of Part IIA of the Crimes Act 1914 (Cth), concerning unlawful associations, should be
repealed.
The Australian Government should include ss 30J and 30K of the Crimes Act 1914
(Cth) in the larger review of the Crimes Act called for under the heading, Australian
sedition laws and related provisions above.
The LIV agrees with these proposals.
8
1
2
3
Anti-Terrorism Act (No 2) 2005 (Cth).
ALRC, Review of Sedition Laws (IP 30) (March 2006)
http://www.austlii.edu.au/au/other/alrc/publications/issues/30/ (accessed 26 June 2006).
ALRC, Review of Sedition Laws (DP 71) (May 2006)
http://www.austlii.edu.au/au/other/alrc/publications/dp/71/ (accessed 26 June 2006).
4
Council of Australian Government’s Communique—Special Meeting on Counter-Terrorism (2005).
5
Royal Commission on Australia’s Security and Intelligence Agencies, Report on the Australian
Security Intelligence Organisation (December 1984) paragraph 4.101.
6
Paragraph 4.95.
9