Free speech or ‘sedition’? Prohibitions on encouraging 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.