Free speech or ‘sedition’? Prohibitions on encouraging violence

At the same time, all liberal democratic societies place some limits on the exercise of free speech, such as through civil defamation laws, classification of books and films, and criminal prohibitions on obscenity, serious racial vilification and incitement to crime.

This is authorised under all international human rights conventions and bills of rights. In the famous dictum of US Supreme Court Justice Oliver Wendell Holmes Jr, “the most stringent protection of free speech would not protect a man in falsely shouting ‘fire’ in a theatre and causing a panic”.

There is little doubt that, on any dispassionate analysis, the offences introduced in 2005 are better than the old sedition laws they replaced - technically and from a human rights perspective - since they squarely shift the emphasis from critical speech to exhortations to use force or violence.

Nevertheless, it is clear from the ALRC’s community consultation effort - as it was during the Senate Committee’s process - that there is palpable public concern about the effects of the new laws on freedom of speech and freedom of association, both directly (i.e., fear of conviction and punishment) and even more so by way of a “chilling effect” - self-censorship to avoid being charged in the first place.

It is an interesting phenomenon that the codification or “modernisation” of old laws often creates new and greater concerns, even where these efforts bring some objective improvement and increased certainty to the law. Thus, the far more draconian state and territory laws on sedition and treason apparently have not occasioned a similar chill - because few people know about them.

Some of the concern expressed by stakeholders and commentators clearly stems from the context in which the new laws emerged. Although the changes made in 2005 largely track the 1991 recommendations of a committee chaired by former Chief Justice Sir Harry Gibbs, sedition laws were not modernised as part of a general tidy up of federal criminal law. Rather, Schedule 7 formed part of an anti-terrorism package that also introduced into the Criminal Code a range of extraordinary new powers, mechanisms and offences, such as control orders and preventative detention orders.

Media coverage of the debates did little to reassure visual artists, writers, theatre groups, social critics or satirists of their position. Although the new sedition offences no longer target “mere dissent”, much of the commentary continued to argue - incorrectly - that a person could fall foul of the new laws by saying that “the government was wrong to send troops to Iraq” or “Australia needs to cut its ties with the British Crown”, or that a university lecturer would be in trouble for asking students of politics or rhetoric to study the speeches of Hitler.

Governments have a perfect right, and in many cases a positive duty, to legislate to protect the institutions of democracy (responsible government, independent courts, free elections) from attack by force or violence, and similarly to protect the personal integrity of citizens (especially vulnerable or unpopular groups).

This remains the case even where other state and territory laws (such as riot, affray, assault, malicious damage to property or hindering public officials) may be transgressed along the way to committing one of these new “sedition” offences. It would be a curious result, indeed, if the Australian Government could not legislate to protect itself and the fundamental institutions of democracy from violent attack, but had to rely on the legislatures of the states and territories to do this for it.

It appears that much of the worry about the new offences emanates from the fact they are still referred to as “sedition” offences. It is not clear why, after modifying the offences substantially, the Federal Government chose to group them under the heading of “sedition” - particularly as no reference is made to “sedition” within any of the offences themselves.

In its recent discussion paper, Review of Sedition Laws (DP 71, May 2006), the ALRC noted that the continued use of the term “sedition” casts an unfortunate shadow over the new laws, since it conjures in the public mind a crime rooted in criticising the established authority. The ALRC proposes that the term “sedition” no longer be used in federal criminal law, and that the states and territories should follow suit.

Key proposals for reform

The thrust of the ALRC’s 25 proposals for reform is to ensure there is a bright line between protected freedom of expression - even when exercised in a challenging or unpopular manner - and the reach of the criminal law, which should be confined to focus on exhortations to the unlawful use of force or violence.