Free speech or ‘sedition’? Prohibitions on encouraging violence

In its November 2005 package of anti-terrorism laws, the Federal Government introduced a set of five “modernised sedition offences”, including: (a) three offences that prohibit “urging others to use force or violence” (to overthrow the constitution or governmental authority; to interfere with lawful elections; or to set one group in the community against another); and (b) two offences that prohibit “assisting” an enemy at war with Australia, or an entity engaged in armed hostilities against the Australian Defence Force (ADF).

Although the five offences are grouped under the heading “Sedition” in the Criminal Code, they shift the focus away from “mere speech” towards “urging” other persons to use “force or violence” in specified contexts - which arguably is closer conceptually to criminal incitement or riot than to common law sedition. The prohibition on urging inter-group violence also represents a move away from the protection of governmental authority to the protection of vulnerable groups in the community.

The Anti-Terrorism Bill (No 2) 2005 was referred to the Senate Legal and Constitutional Legislation Committee (the Senate Committee), which held three days of public hearings and received nearly 300 written submissions (almost all of them opposed to the legislation). Most of the concerns about the new sedition offences involved the potential for the law to overreach, and to inhibit free speech and free association.

Ultimately, the Senate Committee recommended that Schedule 7, which contained the sedition offences, “be removed from the Bill in its entirety” and referred to the Australian Law Reform Commission (ALRC) for public inquiry. Failing that, the Senate Committee also recommended a number of amendments (most of which were taken up by the government).

The government chose to pass the legislation in December 2005 - with only Green and Australian Democrat senators voting against - but Attorney-General Philip Ruddock promised an independent review of the controversial sedition laws, and on March 1, 2006 issued formal terms of reference for an ALRC inquiry into whether the new laws “effectively address the problem of urging the use of force or violence”.

The central questions for the ALRC inquiry are whether the new offences: (a) are well articulated, as a matter of criminal law; and (b) strike an acceptable balance in a tolerant, democratic society.

Background

Sedition law has its roots in the suppression of political dissent, prohibiting criticism (“seditious libel”) that would “bring into hatred or contempt, or to excite disaffection against the person of His Majesty, his heirs or successors, or the government or constitution … or the administration of justice”, or “to raise discontent or disaffection among His Majesty’s subjects, or to promote feelings of ill-will and hostility between different classes”.

In some common law jurisdictions - including New South Wales - the related offence of treason still applies (technically, even if never prosecuted) to those who would even “compass or imagine” the death of the king, queen or eldest son and heir; or “violate the King’s companion, or eldest unmarried daughter, or the wife of the eldest son and heir”.

Australian states and territories inherited their sedition laws from the United Kingdom, whether through the common law or by enactment of parallel statutory provisions. South Australia and the ACT have no legislation prohibiting sedition, both having abolished the offence in the 1990s in an effort to remove “outdated common law rules”.

Sedition entered federal law in 1914, with the intention of suppressing criticism of the conduct of World War I, and especially conscription policy and practice. It has rarely been prosecuted, and not since the 1950s - when used against officials of the Communist Party of Australia.

So to a greater extent than any other offence, then, sedition is the classical “political” crime - one that punishes speech that is critical of the established order.

Do we still need “sedition” laws?

Australians place a very high premium on free speech and on the importance of robust political debate and commentary. The free exchange of ideas - however unpopular or radical - is considered to be healthier for a society than the suppression and festering of such ideas.