Protecting freedom of speech

The ACT’s decision to release an early draft of the anti-terrorism legislation has been hailed by many as a triumph for democracy, but at least in the area of sedition laws, it has been a triumph for misinformation, disinformation and scare-mongering. Artists, writers, journalists and even lawyers who should know better, have stated with absolute certainty the “new laws” would stifle creativity, end free speech and leave thousands of people locked up for daring to voice an opinion on government policy or suggest a change to the law.

The so-called “new” sedition laws have been enshrined in the Crimes Act for at least 40 years and some elements date back 80 years. The Government is seeking to codify the main provisions and modernise the existing offence of sedition by removing outdated terminology such as references to “hostility between the classes of Her Majesty’s subjects”, a relic of the Cold War era.

The revised provisions are drafted in a way that is less complicated and more suited to be used to counter the incitement of terrorism. They reflect community concern about those people whose actions or urgings would encourage others to carry out acts of violence in our community.

Unfortunately, this intent appears to have been overlooked or ignored in the commentary to date. One source of misunderstanding is that people have taken the term “seditious intention” to be an offence. Seditious intention, for the purpose of this Bill, is a definition - not an offence. Although it contains reference to things such as disaffection against the government, you cannot be charged with “seditious intention”. The section of the Act that mentions seditious intention is part of a wider provision setting out the requirements for declaring an association “unlawful” and in that context, it does not apply to individuals.

Reference to disaffection against the Government is already in the Act and has been for four decades. In that time, many people have expressed disaffection against a government and have not been arrested. If they urge or assist the use of violence and taking lives, it would be a different matter and the Government would call on the full force of the law. This could also apply to a person who assists an organisation or country engaged in armed hostilities against the Australian Defence Force.

The current and proposed laws expressly allow for free speech by making sure people can call upon a good faith defence. This means people will still be able to participate fully and vigorously in public debate and discussion no matter how scathing of the Government or its policies ... just as they have always been able to.

The sedition laws are designed to capture activity which goes beyond criticising, but encourages the use of force or violence or other unlawful means to achieve a particular outcome.

It is designed to protect the community from those who would abuse our democratic values and threaten our harmonious and tolerant society. The measures deal with those who seek to urge the naïve and impressionable to carry out violence against their fellow citizens.

The modernisation of the sedition offences is overdue. Indeed it was recommended by former Chief Justice of the High Court, Sir Harry Gibbs, as long ago as 1991.

The Government is satisfied with the changes made in line with the Gibbs recommendations. But I have always referred to our counter terrorism legislation as an “unfinished canvas” and am open to discussion and receiving argument as to how these offences could be further improved. With this in mind I have undertaken to review the sedition laws prior to the Council of Australian Governments (COAG) meeting next year.

Journalists, commentators, activists, artists, performers and all those who cherish our tradition of freedom of speech and support peaceful, lawful change have nothing to fear from the existing law, nor from this legislation.