Speak up in defence of free speech

Late last year the Australian Federal Parliament passed a new law about sedition. At the time it was clear to many that the law was flawed. It punishes people with up to seven years' jail not for what they do but for what they say, such as if they urge another person to overthrow by force or violence the constitution or the government. Our new sedition law is too broad, both in the speech that is banned and in having too few defences.

The law is also highly problematic as it is based on the discredited notion of sedition. Sedition laws have been used many times in the past against the political opponents of a government, such as Mahatma Gandhi and Nelson Mandela, and in Australia, Peter Lalor after the Eureka Stockade, and members of the Australian Communist Party.

Despite the problems with sedition, parliament passed the law anyway. It was a particularly poor example of law-making and indeed one of the worst in the history of the federal parliament. It is hard to think of another example where a law targeting something as fundamental as political speech has been enacted as quickly with as many people from all sides of politics recognising that it needed to be amended, even as it was being enacted.

The compromise reached at the time was that the new sedition law would be referred to the Australian Law Reform Commission for analysis and report. Last week, the commission released its discussion paper, with a final report to come. It is no surprise that it is proposing substantial changes.

A key finding is that the term "sedition" should be removed from the statute book. The commission has recognised the discredited nature of such laws and the mistake made in reincarnating them in a modern guise.

The commission might have stopped there and simply recommend the repeal of the law. Instead, it suggests there is merit in a more narrow law that criminalises speech where it can be proved, beyond reasonable doubt, that a person has intentionally urged others to use force or violence, and intended that this force or violence would occur.

This is where those who oppose the sedition law will disagree. Some will argue that it should be completely removed and that the law should not in any circumstances criminalise someone merely for what they say. Others will recognise that it is sometimes acceptable to ban speech where this is done carefully so as to only proscribe expression that can cause great harm to the community.

My view is that a very limited form of offence is justified. We accept in other areas that freedom of speech can be limited, such as speech that vilifies people on the basis of their race with the intention to incite violence. We also accept that the law should ban advertising like the promotion of tobacco products and even perhaps even the advertising of junk food to children.

Even if we do have a law in this area, one of the problems with the current sedition law is the narrowness of its exceptions. It contains no defence for many forms of communication, such as artistic performances or even academic or scientific discussion. The law makes it an offence to say such things even where it is in the public or national interest to do so.

The existing law also fails to provide an exception for satire or comedy, a very Australian way of dealing with something as difficult and troubling as the war on terror. Fortunately, the commission has suggested a redraft to ensure that all these forms of communication are protected. There should be no doubt that they are outside of the criminal law, lest fear of prosecution, or even just a misunderstanding of the law, lead people to censor themselves.

We are fortunate that the sedition debate has been re-opened. In many other areas new laws have been enacted since September 11 without any possibility of a re-examination. With the benefit of hindsight, some of these other laws can also be seen as deeply troubling. At least in the case of sedition, the commission has had the opportunity to set out the defects and to propose major change.

The reference to the commission was made by the Federal Government under pressure from its own backbench and members of the community. It can only be hoped that this discussion paper will maintain that pressure and that we will see a bad law repealed. It should be replaced with something less damaging to our democracy.