13 Sep
2006
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Fighting
Words
The Australian Law Reform Commission (ALRC) has released its
report on sedition.
Fighting Words: A Review of Sedition Laws in Australia
considers
the shape of the federal and state/territory sedition regimes.
It follows the ALRC discussion paper
and issues paper
of earlier this year, and the 2005 report
by the Senate Legal & Constitutional Affairs Committee
on that body's inquiry into the controversial Anti-Terrorism
Bill (No. 2) 2005.
The ALRC notes links between sedition law and suppression
of political dissent, noting that historically sedition has
often been seen as a 'political' crime punishing speech critical
of the established order. It endorses concerns regarding potential
erosion by sedition law of free expression and free association,
commenting
Australians place a very high premium on freedom
of expression and on the importance of robust political debate
and commentary. The free exchange of ideas - however unpopular
or radical - is generally healthier for a society than the
suppression and festering of such ideas.
That freedom is not absolute, being bounded by prohibitions
on obscenity, racial vilification, incitement to commit a crime
and by civil defamation law.
The report acutely comments that
Much of the concern about the new offences in s
80.2 of the Criminal Code is triggered by the fact that they
are still referred to as 'sedition' offences. It is not clear
why, after modifying the offences substantially, the Australian
Government chose to retain the term 'sedition' to describe
the new offences - especially since one of the new offences
deals with urging inter-group violence rather than with the
security of the institutions of the Commonwealth. ... It would
be unfortunate if continued use of the term 'sedition' were
to cast a shadow over the new pattern of offences. The term
'sedition' is too closely associated in the public mind with
its origins and history as a crime rooted in criticising -
or 'exciting disaffection' against - the established authority
The ALRC offers recommendations aimed at ensuring a bright line
between freedom of expression and the reach of the criminal
law, which should focus on exhortations to the unlawful use
of force or violence. It highlights problematical provisions
- "couched in archaic language" - regarding offences of treachery,
sabotage, assisting prisoners of war, unlawful military drills,
interfering with political liberty and damaging Commonwealth
property. A review to determine which of these offences merit
retention or abolition is appropriate, as is work by the Standing
Committee of Attorneys-General to harmonise state/territory
laws.
Chapter 4 questions Cold War era provisions regarding 'unlawful
associations', characterised as "anachronistic and unnecessary"
and thus appropriately repealed. Chapter 6 considers sedition
law in other countries, in particular the wide-ranging UK Terrorism
Act 2006 that makes it a criminal offence in the United
Kingdom to encourage or glorify terrorism. The ALRC endorses
arguments that a UK-style offence of 'encouragement' or 'glorification'
of terrorism should not be introduced into federal law. It recommends
changes to operation of 'incitement' provisions, excluding "any
rhetorical statements, parody, artistic expression, reportage
and other communications that the person does not intend anyone
will act upon". The person must intentionally urge the use of
force or violence.
Chapter 9 recommends retention of offences that relate to urging
overthrow by force or violence of the Constitution or Government,
interference in parliamentary elections by force or violence
and urging inter-group force or violence (eg on the basis of
ethnicity, religion, nationality or political opinion). It offers
nuanced recommendations regarding offences of assisting the
enemy and treason, including questions regarding extraterritoriality
and use of mechanisms such as websites and SMS, complementing
the report by the Security Legislation Review Committee (Sheller
Committee).
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