Australian sedition law
Encyclopedia
Australian sedition law is the area of the criminal law
of Australia
relating to the crime of sedition
.
Effectively defunct for nearly half a century, these laws returned to public notice in 2005 when changes were included in an Anti-terrorism Bill announced by Prime Minister
Howard
prior to a "counter-terrorism summit
" of the Council of Australian Governments
on 27 September.
The Bill was introduced on 3 November and passed into law on 6 December 2005 after government amendments adding some protection for the reporting of news and matters of public interest were introduced in response to community pressure. The changed laws are to be reviewed in 2006.
During the First World War Sedition laws were used against those who opposed conscription and war, in particular the Industrial Workers of the World
(IWW) in Australia. In 1916 members of the IWW in Perth were charged with sedition including 83 year old Montague Miller
, known as the grand old man of the labour movement. Miller was released after serving a few weeks of his sentence but was re-arrested in 1917 in Sydney at the age of 84 and sentenced to six months jail with hard labour at Long Bay Gaol on the charge of belonging to an unlawful association. The Sydney Twelve
were all charged and convicted with various offences including sedition.
Lance Sharkey
, then General-Secretary of the Communist Party of Australia
, was charged that, in March 1949 he:
The last prosecution was in 1960, when Department of Native Affairs officer Brian Cooper was prosecuted for urging "the natives" of Papua New Guinea
to demand independence from Australia
. He was convicted, and committed suicide four years later, after losing his appeal.
books found in Lakemba
and Auburn
in Sydney
promoting suicide bombings, anti-Australian conspiracies and racism, but the Australian Federal Police
found in 2006 they did not breach Commonwealth Criminal Code or NSW Crimes Acts 1900.
legislation
, for example the Queensland
Criminal Code (1899), first established sedition in Australian law
.
The Federal period
offence of sedition was created in the Federal Crimes Act (1914).
In considering a good faith defence, it was specifically noted that the Court might consider whether the case involved the safety or defence of the Commonwealth; assistance to countries or organisations at war with the country or its allies, or to enemies of its allies (whether or not they are enemies of Australia); traitors or saboteurs; or the intention of causing violence or creating public disorder or a public disturbance.
The Act went on to criminalise members (deemed, in the absence of evidence to the contrary, to include attendees at a meeting, those speaking in public in advocacy of an association or its objects or distributing its literature), officers, representatives and teachers in any institution or school conducted by or under the authority or apparent authority, of an unlawful association, as well as persons printing or selling material produced by, or intentionally permitting a meeting in their premises of, such an association.
on 6 December 2005, repeal
ed Sections 24A to 24E of the Crimes Act (1914) and reintroduced them, along with several new classes of offence, in a Division 80—Treason and sedition. Crimes in this division now attract a maximum penalty of seven years' imprisonment.
An intention to effect any of the following purposes:
Similarly, it introduces the offence of [urging] another person to interfere by force or violence with lawful processes for an election of a member or members of a House of the Parliament, and Urging violence within the community:
Additionally, it is now specifically illegal to [urge] a person to assist the enemy:
or to [urge] a person to assist those engaged in armed hostilities:
except where such urgings are by way of, or for the purposes of, the provision of aid of a humanitarian nature.
These new crimes are all punishable by Imprisonment for 7 years.
Originally introduced into Australian law as a consequence of Australia's acceptance of the International Criminal Court
, Section 15.4 of the Criminal Code Act (1995) provides that offences under category D apply:
Category D — initially applicable only to such crimes as genocide
and crimes against humanity — specifically omits provisions restricting its scope to Australian citizens, and therefore applies to any person in any country, giving Australia universal jurisdiction
over the crime of sedition.
However, the amended laws no longer include specific penalties for uttering
seditious words, nor provisions relating to seditious enterprises, although the definition of seditious intent continues to apply in the determination of unlawful organisations. Additionally, all prosecutions for sedition (no longer just summary prosecution) now require the approval of the Attorney-General, although this does not apply to arrests.
Perhaps most importantly, the "modernisation" of the laws seems to indicate that the government, apparently in the expectation of an increase in seditious activity, now intend to actively enforce laws which had been allowed to fall into disuse.
backbench committee, in response to significant public outcry about the potential for the new legislation to stifle free speech and despite the government's claims about a new and imminent threat necessitating the passage through both houses of the limited and specific Anti-Terrorism Bill 2005, successfully lobbied the government to introduce an earlier review of the sedition provisions and accept certain minor amendments.
The majority Senate
committee report into the Bill, delivered on 28 November 2005, recommended amongst 52 proposed changes that the sedition provisions be removed from the Bill until after a review, claiming they were poorly drafted and undermined free speech, and that the existing law negated any urgency for their introduction. The report's recommendations were dismissed by the government.
(ALRC) with formal Terms of Reference for this purpose on 2 March 2006. In particular, the ALRC has been asked to examine:
In carrying out its review, the ALRC will have particular regard to:
On 20 March 2006 the ALRC, "committed to consulting as widely as possible, within the short timeframe provided", released an Issues Paper and opened submissions until 10 April 2006 to feed the drafting of a discussion paper
including legislative options and a final report with recommendations for tabling by the Attorney-General.
In May 2006 the Discussion Paper was released. Responsive public submissions to the inquiry close on 3 July 2006.
(including two of the Premiers
involved in the original COAG meeting) had joined several prominent Coalition backbenchers in calling for the removal of the Bill's sedition provisions, and committed itself to their repeal in the event it gained government.
it is unlawful to incite
a crime. Additionally, the Criminal Code Act (1995) specifically details the crimes of incitement and conspiracy, making it an offence to:
Incitement of or conspiracy to commit an act of sedition would therefore be punishable as a crime, although incitement to incite sedition is specifically not a criminal act under the Code.
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
of Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
relating to the crime of sedition
Sedition
In law, sedition is overt conduct, such as speech and organization, that is deemed by the legal authority to tend toward insurrection against the established order. Sedition often includes subversion of a constitution and incitement of discontent to lawful authority. Sedition may include any...
.
Effectively defunct for nearly half a century, these laws returned to public notice in 2005 when changes were included in an Anti-terrorism Bill announced by Prime Minister
Prime Minister of Australia
The Prime Minister of the Commonwealth of Australia is the highest minister of the Crown, leader of the Cabinet and Head of Her Majesty's Australian Government, holding office on commission from the Governor-General of Australia. The office of Prime Minister is, in practice, the most powerful...
Howard
John Howard
John Winston Howard AC, SSI, was the 25th Prime Minister of Australia, from 11 March 1996 to 3 December 2007. He was the second-longest serving Australian Prime Minister after Sir Robert Menzies....
prior to a "counter-terrorism summit
Summit (meeting)
A summit meeting is a meeting of heads of state or government, usually with considerable media exposure, tight security and a prearranged agenda.Notable summit meetings include those of Franklin D...
" of the Council of Australian Governments
Council of Australian Governments
The Council of Australian Governments is an organisation consisting of the federal government, the governments of the six states and two mainland territories and the Australian Local Government Association. It was established in May 1992 after agreement by the then Prime Minister, Premiers and...
on 27 September.
The Bill was introduced on 3 November and passed into law on 6 December 2005 after government amendments adding some protection for the reporting of news and matters of public interest were introduced in response to community pressure. The changed laws are to be reviewed in 2006.
History
Early prosecutions for sedition in Australia include:- the conviction of Henry SeekampHenry SeekampHenry Erle Seekamp was the journalist, editor and owner of the Ballarat Times at the time of the Eureka Stockade in 1854...
for seditious libelSeditious libelSeditious libel was a criminal offence under English common law. Sedition is the offence of speaking seditious words with seditious intent: if the statement is in writing or some other permanent form it is seditious libel...
over the Eureka RebellionEureka StockadeThe Eureka Rebellion of 1854 was an organised rebellion by gold miners which occurred at Eureka Lead in Ballarat, Victoria, Australia. The Battle of Eureka Stockade was fought on 3 December 1854 and named for the stockade structure erected by miners during the conflict...
in 1854; - the conviction of 13 trade union leaders of the 1891 Australian shearers' strike1891 Australian shearers' strike350px|thumb|Shearers' strike camp, Hughenden, central Queensland, 1891.The 1891 shearers' strike is one of Australia's earliest and most important industrial disputes. Working conditions for sheep shearers in 19th century Australia weren't good. In 1891 wool was one of Australia's largest industries...
for sedition and conspiracy; and - the action against radical Harry HollandHarry HollandHenry Edmund Holland was a New Zealand politician and unionist. He was the first leader of the New Zealand Labour Party.-Early life:...
, jailed for two years in 1909 over his advocacy of violent revolution during the Broken Hill miners' strike.
During the First World War Sedition laws were used against those who opposed conscription and war, in particular the Industrial Workers of the World
Industrial Workers of the World
The Industrial Workers of the World is an international union. At its peak in 1923, the organization claimed some 100,000 members in good standing, and could marshal the support of perhaps 300,000 workers. Its membership declined dramatically after a 1924 split brought on by internal conflict...
(IWW) in Australia. In 1916 members of the IWW in Perth were charged with sedition including 83 year old Montague Miller
Montague Miller
Montague David "Monty" Miller, born 7 July 1839 at in Van Diemen's Land , was an Australian unionist, secularist and revolutionary socialist chiefly active in the states of Victoria and, in his most productive period, in Western Australia...
, known as the grand old man of the labour movement. Miller was released after serving a few weeks of his sentence but was re-arrested in 1917 in Sydney at the age of 84 and sentenced to six months jail with hard labour at Long Bay Gaol on the charge of belonging to an unlawful association. The Sydney Twelve
Sydney Twelve
The Sydney Twelve were members of the Industrial Workers of the World arrested on 23 September 1916 in Sydney, Australia, and charged with treason under the Treason Felony Act , arson, sedition and forgery....
were all charged and convicted with various offences including sedition.
Lance Sharkey
Lance Sharkey
Lawrence Louis "Lance" Sharkey was a trade union activist, a radical journalist, and a Communist politician. From 1948 to 1965 Sharkey served as the Secretary-General of Communist Party of Australia...
, then General-Secretary of the Communist Party of Australia
Communist Party of Australia
The Communist Party of Australia was founded in 1920 and dissolved in 1991; it was succeeded by the Socialist Party of Australia, which then renamed itself, becoming the current Communist Party of Australia. The CPA achieved its greatest political strength in the 1940s and faced an attempted...
, was charged that, in March 1949 he:
uttered the following seditious words: "If SovietSoviet UnionThe Soviet Union , officially the Union of Soviet Socialist Republics , was a constitutionally socialist state that existed in Eurasia between 1922 and 1991....
Forces in pursuit of aggressors entered Australia, Australian workers would welcome them. Australian workers would welcome Soviet Forces".
The last prosecution was in 1960, when Department of Native Affairs officer Brian Cooper was prosecuted for urging "the natives" of Papua New Guinea
Papua New Guinea
Papua New Guinea , officially the Independent State of Papua New Guinea, is a country in Oceania, occupying the eastern half of the island of New Guinea and numerous offshore islands...
to demand independence from Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
. He was convicted, and committed suicide four years later, after losing his appeal.
Recent cases
The Australian government in 2006 investigated IslamistIslamism
Islamism also , lit., "Political Islam" is set of ideologies holding that Islam is not only a religion but also a political system. Islamism is a controversial term, and definitions of it sometimes vary...
books found in Lakemba
Lakemba, New South Wales
Lakemba is a suburb in south-western Sydney, in the state of New South Wales, Australia. Lakemba is located 15 kilometres south-west of the Sydney central business district, in the local government area of the City of Canterbury....
and Auburn
Auburn, New South Wales
Auburn is a suburb in western Sydney, in the state of New South Wales Australia. Auburn is located 19 kilometres west of the Sydney central business district and is the administrative centre of the local government area of Auburn Council.-History:...
in Sydney
Sydney
Sydney is the most populous city in Australia and the state capital of New South Wales. Sydney is located on Australia's south-east coast of the Tasman Sea. As of June 2010, the greater metropolitan area had an approximate population of 4.6 million people...
promoting suicide bombings, anti-Australian conspiracies and racism, but the Australian Federal Police
Australian Federal Police
The Australian Federal Police is the federal police agency of the Commonwealth of Australia. Although the AFP was created by the amalgamation in 1979 of three Commonwealth law enforcement agencies, it traces its history from Commonwealth law enforcement agencies dating back to the federation of...
found in 2006 they did not breach Commonwealth Criminal Code or NSW Crimes Acts 1900.
Previous Law
ColonialColonialism
Colonialism is the establishment, maintenance, acquisition and expansion of colonies in one territory by people from another territory. It is a process whereby the metropole claims sovereignty over the colony and the social structure, government, and economics of the colony are changed by...
legislation
Legislation
Legislation is law which has been promulgated by a legislature or other governing body, or the process of making it...
, for example the Queensland
Queensland
Queensland is a state of Australia, occupying the north-eastern section of the mainland continent. It is bordered by the Northern Territory, South Australia and New South Wales to the west, south-west and south respectively. To the east, Queensland is bordered by the Coral Sea and Pacific Ocean...
Criminal Code (1899), first established sedition in Australian law
Law of Australia
The law of Australia consists of the Australian common law , federal laws enacted by the Parliament of Australia, and laws enacted by the Parliaments of the Australian states and territories...
.
The Federal period
Federation of Australia
The Federation of Australia was the process by which the six separate British self-governing colonies of New South Wales, Queensland, South Australia, Tasmania, Victoria and Western Australia formed one nation...
offence of sedition was created in the Federal Crimes Act (1914).
Seditious Intention
Section 24 defined a seditious intention as [a]n intention to effect any of the following purposes:- (a) to bring the Sovereign into hatred or contempt;
- (d) to excite disaffection against the Government or Constitution of the Commonwealth or against either House of the Parliament of the Commonwealth;
- (f) to excite Her Majesty's subjects to attempt to procure the alteration, otherwise than by lawful means, of any matter in the Commonwealth established by law of the Commonwealth; or
- (g) to promote feelings of ill-will and hostility between different classes of Her Majesty's subjects so as to endanger the peace, order or good government of the Commonwealth;
Seditious Enterprises
Section 24B defined a seditious enterprise as an enterprise undertaken in order to carry out a seditious intention, and Section 24C specified that [a] person who engages in a seditious enterprise with the intention of causing violence, or creating public disorder or a public disturbance, is guilty of an indictable offence punishable on conviction by imprisonment for not longer than 3 years, although Section 24D(2) provided that [a] person cannot be convicted of any of the offences defined in section 24C or this section upon the uncorroborated testimony of one witness.Seditious Words
Section 24B defined seditious words as words expressive of a seditious intention, and Section 24D(1) specified that [a]ny person who, with the intention of causing violence or creating public disorder or a public disturbance, writes, prints, utters or publishes any seditious words shall be guilty of an indictable offence punishable by [i]mprisonment for 3 years.Summary Prosecution
Section 24E allowed that, while an accused person might elect to be committed for trial, sedition could, with the consent of the Attorney-General, be prosecuted summarily, in which case the applicable penalty would be imprisonment for a period not exceeding 12 months.Good Faith
Section 24F specified that nothing in the preceding provisions made it unlawful:- (a) to endeavour in good faithGood faithIn philosophy, the concept of Good faith—Latin bona fides “good faith”, bona fide “in good faith”—denotes sincere, honest intention or belief, regardless of the outcome of an action; the opposed concepts are bad faith, mala fides and perfidy...
to show that the Sovereign, the Governor-General, the Governor of a State, the Administrator of a Territory, or the advisers of any of them, or the persons responsible for the government of another country, has or have been, or is or are, mistaken in any of his or their counsels, policies or actions; - (b) to point out in good faith errors or defects in the government, the constitution, the legislation or the administration of justice of or in the Commonwealth, a State, a Territory or another country, with a view to the reformation of those errors or defects;
- (c) to excite in good faith another person to attempt to procure by lawful means the alteration of any matter established by law in the Commonwealth, a State, a Territory or another country;
- (d) to point out in good faith, in order to bring about their removal, any matters that are producing, or have a tendency to produce, feelings of ill-will or hostility between different classes of persons; or
- (e) to do anything in good faith in connexion with an industrial dispute or an industrial matter.
In considering a good faith defence, it was specifically noted that the Court might consider whether the case involved the safety or defence of the Commonwealth; assistance to countries or organisations at war with the country or its allies, or to enemies of its allies (whether or not they are enemies of Australia); traitors or saboteurs; or the intention of causing violence or creating public disorder or a public disturbance.
Unlawful Organisations
Section 30A declared that any body of persons, incorporated or unincorporated (or [a]ny branch or committee of an unlawful association, and any institution or school conducted by or under the authority or apparent authority of an unlawful association) which by its constitution or propaganda or otherwise advocates or encourages (or which is, or purports to be, affiliated with any organization which advocates or encourages) sabotage; damage to property used in cross-border trade or commerce; revolution or war against either any civilised country or organised government; or the doing of any act having or purporting to have as an object the carrying out of a seditious intention was an unlawful association for the purposes of the Act.The Act went on to criminalise members (deemed, in the absence of evidence to the contrary, to include attendees at a meeting, those speaking in public in advocacy of an association or its objects or distributing its literature), officers, representatives and teachers in any institution or school conducted by or under the authority or apparent authority, of an unlawful association, as well as persons printing or selling material produced by, or intentionally permitting a meeting in their premises of, such an association.
Current Law
Schedule 7 of the Anti-Terrorism Bill (No. 2) 2005, passed by the Upper HouseAustralian Senate
The Senate is the upper house of the bicameral Parliament of Australia, the lower house being the House of Representatives. Senators are popularly elected under a system of proportional representation. Senators are elected for a term that is usually six years; after a double dissolution, however,...
on 6 December 2005, repeal
Repeal
A repeal is the amendment, removal or reversal of a law. This is generally done when a law is no longer effective, or it is shown that a law is having far more negative consequences than were originally envisioned....
ed Sections 24A to 24E of the Crimes Act (1914) and reintroduced them, along with several new classes of offence, in a Division 80—Treason and sedition. Crimes in this division now attract a maximum penalty of seven years' imprisonment.
Seditious Intention
The definition of "seditious intention" originally in Section 24A has become (as amended):An intention to effect any of the following purposes:
- (a) to bring the Sovereign into hatred or contempt;
- (b) to urge disaffection against the following:
-
- (i) the ConstitutionConstitution of AustraliaThe Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...
;
- (i) the Constitution
-
- (ii) the Government of the CommonwealthGovernment of AustraliaThe Commonwealth of Australia is a federal constitutional monarchy under a parliamentary democracy. The Commonwealth of Australia was formed in 1901 as a result of an agreement among six self-governing British colonies, which became the six states...
;
- (ii) the Government of the Commonwealth
-
- (iii) either House of the ParliamentParliament of AustraliaThe Parliament of Australia, also known as the Commonwealth Parliament or Federal Parliament, is the legislative branch of the government of Australia. It is bicameral, largely modelled in the Westminster tradition, but with some influences from the United States Congress...
;
- (iii) either House of the Parliament
- (c) to urge another person to attempt, otherwise than by lawful means, to procure a change to any matter established by law in the Commonwealth;
- (d) to promote feelings of ill-will or hostility between different groups so as to threaten the peace, order and good government of the Commonwealth.
Sedition
Subdivision 80.2 of the proposed legislation (as amended) specifically criminalises Urging the overthrow of the Constitution or Government:- (1) A person commits an offence if the person urges another person to overthrow by force or violence:
- (a) the Constitution; or
- (b) the Government of the Commonwealth, a State or a Territory; or
- (c) the lawful authority of the Government of the Commonwealth.
Similarly, it introduces the offence of [urging] another person to interfere by force or violence with lawful processes for an election of a member or members of a House of the Parliament, and Urging violence within the community:
- (a) the person urges a group or groups (whether distinguished by race, religion, nationality or political opinion) to use force or violence against another group or other groups (as so distinguished); and
- (b) the use of the force or violence would threaten the peace, order and good government of the Commonwealth.
Additionally, it is now specifically illegal to [urge] a person to assist the enemy:
- (a) the person urges another person to engage in conduct; and
- (b) the first-mentioned person intends the conduct to assist
, by any means whatever,an organisation or country; and - (c) the organisation or country is:
- (i) at war with the Commonwealth, whether or not the existence of a state of war has been declared; and
- (ii) specified by Proclamation made for the purpose of paragraph 80.1(1)(e) to be an enemy at war with the Commonwealth.
or to [urge] a person to assist those engaged in armed hostilities:
- (a) the person urges another person to engage in conduct; and
- (b) the first-mentioned person intends the conduct to assist
, by any means whatever,an organisation or country; and - (c) the organisation or country is engaged in armed hostilities against the Australian Defence Force.
except where such urgings are by way of, or for the purposes of, the provision of aid of a humanitarian nature.
These new crimes are all punishable by Imprisonment for 7 years.
Good Faith
The new legislation, in subsection 80.3 Defence for Acts done in Good Faith, updates the circumstances for good faith exemption in a fashion similar to the definition of seditious intention, above.Extraterritoriality
The new law specifies, under section 80.4 Extended geographical jurisdiction for offences, that:- Section 15.4 (extended geographical jurisdiction - category D) applies to an offence against this Division
Originally introduced into Australian law as a consequence of Australia's acceptance of the International Criminal Court
International Criminal Court
The International Criminal Court is a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression .It came into being on 1 July 2002—the date its founding treaty, the Rome Statute of the...
, Section 15.4 of the Criminal Code Act (1995) provides that offences under category D apply:
- (a) whether or not the conduct constituting the alleged offence occurs in Australia; and
- (b) whether or not a result of the conduct constituting the alleged offence occurs in Australia.
Category D — initially applicable only to such crimes as genocide
Genocide
Genocide is defined as "the deliberate and systematic destruction, in whole or in part, of an ethnic, racial, religious, or national group", though what constitutes enough of a "part" to qualify as genocide has been subject to much debate by legal scholars...
and crimes against humanity — specifically omits provisions restricting its scope to Australian citizens, and therefore applies to any person in any country, giving Australia universal jurisdiction
Universal jurisdiction
Universal jurisdiction or universality principle is a principle in public international law whereby states claim criminal jurisdiction over persons whose alleged crimes were committed outside the boundaries of the prosecuting state, regardless of nationality, country of residence, or any other...
over the crime of sedition.
Amendments
The following amendments were introduced to the Bill prior to its passage.- (68) Schedule 7, item 4, page 109 (line 14), after an intention, insert to use force or violence.
- (69) Schedule 7, item 12, page 111 (line 11), omit subsection 80.2(2), substitute:
- (2) Recklessness applies to the element of the offence under subsection (1) that it is:
- (a) the Constitution; or
- (b) the Government of the Commonwealth, a State or a Territory; or
- (c) the lawful authority of the Government of the Commonwealth;
- that the first-mentioned person urges the other person to overthrow.
- (70) Schedule 7, item 12, page 112 (lines 6 and 7), omit , by any means whatever,.
- (71) Schedule 7, item 12, page 112 (lines 18 and 19), omit , by any means whatever,.
- (72) Schedule 7, item 12, page 113 (line 29), at the end of subsection 80.3(1) (before the note), add:
-
- or (f) publishes in good faith a report or commentary about a matter of public interest.
Penalties and Scope
The new laws more than double the maximum penalty for sedition from three years imprisonment to seven, and allow certain convictions relating to the use of force or violence on the basis of recklessness rather than proven intent.However, the amended laws no longer include specific penalties for uttering
Utterance
In spoken language analysis an utterance is a complete unit of speech. It is generally but not always bounded by silence.It can be represented and delineated in written language in many ways. Note that in such areas of research utterances do not exist in written language, only their representations...
seditious words, nor provisions relating to seditious enterprises, although the definition of seditious intent continues to apply in the determination of unlawful organisations. Additionally, all prosecutions for sedition (no longer just summary prosecution) now require the approval of the Attorney-General, although this does not apply to arrests.
Implications
The principal changes to sedition law in the proposed bill seem to involve:- the inclusion of sedition along with the separate crime of treason under their new joint heading;
- an increase in the maximum penalties from three to seven years;
- the introduction of the concept of recklessness;
- the inapplicability of seditious intention to individuals not associated with an unlawful organisation;
- its extension to foreign citizens.
Perhaps most importantly, the "modernisation" of the laws seems to indicate that the government, apparently in the expectation of an increase in seditious activity, now intend to actively enforce laws which had been allowed to fall into disuse.
Review
The Anti-Terrorism Bill (No 2.) 2005 included provisions for a five-year review, and has a ten-year sunset clause. In addition, the CoalitionCoalition (Australia)
The Coalition in Australian politics refers to a group of centre-right parties that has existed in the form of a coalition agreement since 1922...
backbench committee, in response to significant public outcry about the potential for the new legislation to stifle free speech and despite the government's claims about a new and imminent threat necessitating the passage through both houses of the limited and specific Anti-Terrorism Bill 2005, successfully lobbied the government to introduce an earlier review of the sedition provisions and accept certain minor amendments.
The majority Senate
Australian Senate
The Senate is the upper house of the bicameral Parliament of Australia, the lower house being the House of Representatives. Senators are popularly elected under a system of proportional representation. Senators are elected for a term that is usually six years; after a double dissolution, however,...
committee report into the Bill, delivered on 28 November 2005, recommended amongst 52 proposed changes that the sedition provisions be removed from the Bill until after a review, claiming they were poorly drafted and undermined free speech, and that the existing law negated any urgency for their introduction. The report's recommendations were dismissed by the government.
ALRC Review
In December 2005, The Attorney-General Phillip Ruddock foreshadowed an independent review of the amended sedition laws, and provided the Australian Law Reform CommissionAustralian Law Reform Commission
The Australian Law Reform Commission is an Australian independent statutory body established to conduct reviews into the law of Australia and advocate options for law reform...
(ALRC) with formal Terms of Reference for this purpose on 2 March 2006. In particular, the ALRC has been asked to examine:
- whether the amendments, including the sedition offence and defences in sections 80.2 and 80.3 of the Criminal Code, effectively address the problem of urging the use of force or violence;
- whether "sedition" is the appropriate term to identify this conduct;
- whether Part IIA of the Crimes Act, as amended, is effective to address the problem of organisations that advocate or encourage the use of force or violence to achieve political objectives; and
- any related matter.
In carrying out its review, the ALRC will have particular regard to:
- the circumstances in which individuals or organisations intentionally urge others to use force or violence against any group within the community, against Australians overseas, against Australia’s forces overseas or in support of an enemy at war with Australia; and
- the practical difficulties involved in proving a specific intention to urge violence or acts of terrorism.
On 20 March 2006 the ALRC, "committed to consulting as widely as possible, within the short timeframe provided", released an Issues Paper and opened submissions until 10 April 2006 to feed the drafting of a discussion paper
Green paper
In the Commonwealth, the Republic of Ireland and the United States a green paper is a tentative government report of a proposal without any commitment to action; the first step in changing the law...
including legislative options and a final report with recommendations for tabling by the Attorney-General.
In May 2006 the Discussion Paper was released. Responsive public submissions to the inquiry close on 3 July 2006.
Opposition to the Provisions
Despite almost unconditional support for the remainder of the Anti-Terrorism Bill, by mid-November the main opposition Australian Labor PartyAustralian Labor Party
The Australian Labor Party is an Australian political party. It has been the governing party of the Commonwealth of Australia since the 2007 federal election. Julia Gillard is the party's federal parliamentary leader and Prime Minister of Australia...
(including two of the Premiers
Premiers of the Australian states
The Premiers of the Australian states are the de facto heads of the executive governments in the six states of the Commonwealth of Australia. They perform the same function at the state level as the Prime Minister of Australia performs at the national level. The territory equivalents to the...
involved in the original COAG meeting) had joined several prominent Coalition backbenchers in calling for the removal of the Bill's sedition provisions, and committed itself to their repeal in the event it gained government.
Incitement
At common lawCommon law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
it is unlawful to incite
Incitement
In English criminal law, incitement was an anticipatory common law offence and was the act of persuading, encouraging, instigating, pressuring, or threatening so as to cause another to commit a crime....
a crime. Additionally, the Criminal Code Act (1995) specifically details the crimes of incitement and conspiracy, making it an offence to:
- incite, urge, aid or encourage; or
- print or publish any writing which incites to, urges, aids or encourages;
- the commission of offences against any Federal or Territory law or carrying on of any operation for or by the commission of such offences.
Incitement of or conspiracy to commit an act of sedition would therefore be punishable as a crime, although incitement to incite sedition is specifically not a criminal act under the Code.
External links
- Note on Sedition and Terror Online, a Caslon Analytics article
- Australian sedition law discussed in relation to Article 20 of the International Covenant on Civil and Political RightsInternational Covenant on Civil and Political RightsThe International Covenant on Civil and Political Rights is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from March 23, 1976...
- ABCAustralian Broadcasting CorporationThe Australian Broadcasting Corporation, commonly referred to as "the ABC" , is Australia's national public broadcaster...
's Media Watch-obtained legal opinion concerning the new sedition provisions - Amnesty InternationalAmnesty InternationalAmnesty International is an international non-governmental organisation whose stated mission is "to conduct research and generate action to prevent and end grave abuses of human rights, and to demand justice for those whose rights have been violated."Following a publication of Peter Benenson's...
's discussion of Universal Jurisdiction - "In Good Faith : Sedition Law in Australia" E-Brief: Online Only, Roy Jordan, Law and Bills Digest Section, Parliament of Australia Parliamentary Library
Debate
- World Socialist Web SiteWorld Socialist Web SiteThe World Socialist Web Site is the online news and information center of the International Committee of the Fourth International . The site publishes articles and analysis covering a wide range of topics and events all around the world. The daily 'Perspective' article presents the position of the...
: "Australian government unveils legal framework for police state" - "Rights Australia": "Premiers should strengthen rights protection before endorsing new 'terrorism' laws"
- "No Right Turn" coverage of the issue
- The AgeThe AgeThe Age is a daily broadsheet newspaper, which has been published in Melbourne, Australia since 1854. Owned and published by Fairfax Media, The Age primarily serves Victoria, but is also available for purchase in Tasmania, the Australian Capital Territory and border regions of South Australia and...
: "How's this for sedition?", an article inciting sedition - The AustralianThe AustralianThe Australian is a broadsheet newspaper published in Australia from Monday to Saturday each week since 14 July 1964. The editor in chief is Chris Mitchell, the editor is Clive Mathieson and the 'editor-at-large' is Paul Kelly....
: "More harm than good may flow from updated anti-terror laws" - Media Watch discussion of the implications to journalism
- Green Left WeeklyGreen Left WeeklyGreen Left Weekly is an Australian radical left-wing newspaper, written by progressive activists to "present the views excluded by the big business media". It was published by the Democratic Socialist Perspective from its inception in 1990 until January 2010, when the DSP merged into the Socialist...
: "ASIO laws: Don't be silenced" - "Arts Coalition Objects to Sedition Provisions", a Pen article about Robert Connolly's initiative
- The AustralianThe AustralianThe Australian is a broadsheet newspaper published in Australia from Monday to Saturday each week since 14 July 1964. The editor in chief is Chris Mitchell, the editor is Clive Mathieson and the 'editor-at-large' is Paul Kelly....
: "Curbs on ideas pose a threat", a discussion of the sedition provisions - Reportage in The Australian about passage of the legislation
Brian Cooper Articles
- Brian Cooper, "The Birth-Pangs of a Nation", Overland, 20, 1960.
- Brian Cooper's Article "The Birth-Pangs of a Nation"
- "An Individual vs. the State: The Case of BL Cooper", Overland, 79, 1980.
- World Socialist Website http://www.wsws.org/articles/2006/oct2006/sedi-o27.shtml
- "'A Foolish Young Man, Who Can Perhaps, Be Straightened Out in His Thinking': The Brian Cooper Sedition Case", Australian Historical Studies, 38 (129), April 2007.
See also
- Australian Anti-Terrorism Act 2005Australian Anti-Terrorism Act 2005The Anti-Terrorism Act 2005 is legislation intended to hamper the activities of any potential terrorists in Australia. It was passed by the Commonwealth Parliament on 6 December 2005.- Chronology :...
- Sedition Act of 1918Sedition Act of 1918The Sedition Act of 1918 was an Act of the United States Congress that extended the Espionage Act of 1917 to cover a broader range of offenses, notably speech and the expression of opinion that cast the government or the war effort in a negative light or interfered with the sale of government bonds...
, US Law