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.

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.

Clarifying the fault elements for the “urging force or violence” offences

The ALRC is comfortable to retain the three basic “urging force or violence” offences in the Criminal Code. However, in order to achieve that the ALRC has proposed three changes to the way these offences would operate, including that:

• it should be made clear that the person must intentionally urge the use of force or violence;
• for a person to be guilty of any of the three offences, the person must intend that the urged force or violence will occur; and
• in considering whether the person intended the urged force or violence to occur, the jury must be instructed that context is critical. That is, the jury must take into account whether the conduct was done: (a) in connection with an artistic work; or (b) in the course of any communication made for any genuine academic, artistic or scientific purpose, or any other genuine purpose in the public interest; or (c) in connection with an industrial dispute or matter; or (d) in publishing a report or commentary about a matter of public interest.

Clarifying the meaning of “assist”

Considerable concern has been expressed about the new “sedition” offences built around the concept of urging another to “assist” an enemy at war with Australia or an entity that is engaged in armed hostilities against the ADF. These offences are virtually identical to the provisions in the Criminal Code that define the crime of treason. The ALRC proposes folding these offences back into treason, with a number of critical changes.

There is significant concern that such a blanket prohibition on conduct that “assists” the enemy unduly impinges on freedom of expression, to the extent that it might capture dissenting opinions about government policy. For example, it may be said colloquially that strong criticism of Australia’s recent military interventions or strategy in Afghanistan or Iraq “gives aid and comfort” to (or “assists”) the enemy.

To remedy these concerns, the ALRC proposes that the law should be reframed to make clear that the offences consist of intentionally and materially assisting an enemy to wage war on Australia or to engage in armed hostilities against the ADF.

The addition of the term “materially” is meant to indicate that rhetoric or dissent do not amount to “assistance” for these purposes; rather, the assistance must be of the sort which enables the enemy to wage war or engage in armed hostilities, for instance through the provision of funds, troops, armaments or strategic advice.

The ALRC also proposes that treason be limited to Australian citizens or residents (at the time of the alleged conduct). This qualification is common in other countries, and consistent with the nature and historical origins of the crime, which centrally involves breaching a duty of allegiance to one’s country.

“Glorification” of terrorism

Earlier this year the UK made it a criminal offence to engage in the encouragement or “glorification” of terrorism. Glorification is defined to include “any form of praise or celebration”. This law has been highly controversial - including in the House of Lords and the UK Parliament’s Joint Committee on Human Rights - drawing criticism that: the terminology used is too vague and too broad; there is no requirement that the person intends to incite terrorism; and the prohibition unduly intrudes into protected free speech (under the European Convention on Human Rights).

The submission of the Australian Attorney-General’s Department (AGD) notes the use of terms like “praise” and “glorify” were considered during the development of the anti-terrorism laws, but were rejected as imprecise and generating difficulties of proof. The AGD submission concludes that existing Australian law already “appropriately encapsulates incitement and glorification of [terrorist] acts” and thus there “appears to be no need for a separate offence”. The ALRC agrees.