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Fighting Words Fighting Words REPORT A Review of Sedition Laws in Australia REPORT 104 July 2006 © Commonwealth of Australia 2006 This work is copyright. You may download, display, print and reproduce this material in whole or part, subject to acknowledgement of the source, for your personal, non- commercial use or use within your organisation. Apart from any use as permitted under the Copyright Act 1968 (Cth), all other rights are reserved. Requests for further authorisation should be directed by letter to the Commonwealth Copyright Administration, Copyright Law Branch, Attorney-General’s Department, Robert Garran Offices, National Circuit, Barton ACT 2600 or electronically via www.ag.gov.au/cca. ISBN 0-9758213-5-0 Commission Reference: ALRC 104 (Final Report) The Australian Law Reform Commission was established on 1 January 1975 by the Law Reform Commission Act 1973 (Cth) and reconstituted by the Australian Law Reform Commission Act 1996 (Cth). The office of the ALRC is at Level 25, 135 King Street, Sydney, NSW, 2000, Australia. All ALRC publications can be made available in a range of accessible formats for people with disabilities. If you require assistance, please contact the ALRC. Telephone: within Australia (02) 8238 6333 International +61 2 8238 6333 TTY: (02) 8238 6379 Facsimile: within Australia (02) 8238 6363 International +61 2 8238 6363 E-mail: [email protected] ALRC homepage: www.alrc.gov.au Printed by Ligare Pty Ltd The Hon Philip Ruddock MP Attorney-General of Australia Suite MF 21 Parliament House Canberra ACT 2600 31 July 2006 Dear Attorney-General Review of Sedition Laws On 1 March 2006, you issued terms of reference for the Commission to undertake a review of federal sedition laws. On behalf of the Members of the Commission involved in this Inquiry, including Justice Susan Kenny and Justice Susan Kiefel, and in accordance with the Australian Law Reform Commission Act 1996, we are pleased to present you with the final report in this reference, Fighting Words: A Review of Sedition Laws in Australia (ALRC 104, 2006). Yours sincerely [signed] Professor David Weisbrot President [signed] [signed] Brian Opeskin Associate Professor Les McCrimmon Deputy President Commissioner Contents Terms of Reference 5 List of Participants 7 Executive Summary 9 List of Recommendations 21 1. Introduction to the Inquiry 27 Background to the Inquiry 27 Terms of Reference 36 Federal criminal law and practice 37 Law reform processes 41 Organisation of this Report 45 2. Origins and History of Sedition 47 Introduction 47 The origins and evolution of common law sedition 49 Sedition in Australia 53 Reform trends: modernise or abolish? 59 Do we need the term ‘sedition’? 62 3. Australian Sedition Laws and Related Provisions 69 Introduction 69 New sedition offences in the Criminal Code 70 Other features of the provisions 72 Related federal legislation 73 State and territory sedition laws 81 4. Unlawful Associations 85 Introduction 85 Unlawful associations provisions 86 History of the unlawful associations provisions 88 Criticisms of the unlawful associations provisions 89 Terrorist organisations under the Criminal Code 91 Unlawful associations and terrorist organisations compared 94 ALRC’s views 97 Other offences under Part IIA 98 5. International Framework 101 Introduction 101 Status of international law 102 International law and terrorism 103 2 Fighting Words Incitement to violence: article 20 of the ICCPR 105 Derogation from human rights: article 4 of the ICCPR 106 Freedom of expression: article 19 of the ICCPR 107 6. Sedition Laws in Other Countries 119 Introduction 119 United Kingdom 120 United States of America 127 Hong Kong 131 Canada 132 Survey of contemporary use of sedition in other jurisdictions 133 7. Sedition and Freedom of Expression 139 Introduction 139 Freedom of expression and the Constitution 141 Sedition and domestic protection of human rights 146 Risk of unfair or discriminatory application of sedition laws 147 Absence of bills of rights in Australia 152 Sedition and freedom of expression generally 155 Journalism and the arts 159 8. The Sedition Offences 167 Introduction 167 Incitement and the sedition offences 168 Fault elements 176 Other drafting issues 181 9. Urging Political Force or Violence 187 Introduction 187 Urging the overthrow of the Constitution or Government 187 Urging interference in parliamentary elections 191 10. Urging Inter-Group Force or Violence 195 Introduction 195 Legislating against the incitement of hatred and violence 196 Sedition and inter-group violence 202 Criticisms of section 80.2(5) 206 ALRC’s view 217 11. Assisting the Enemy and Related Treason Offences 225 Introduction 225 Urging a person to assist the enemy 226 Reform of the treason offences 231 Extraterritorial application 236 Contents 3 12. Defences and Penalties 243 Introduction 243 The good faith defences 244 Penalties 262 13. Consent to Prosecution 265 Introduction 265 Requirement of Attorney-General’s consent 265 Consent and the prosecution process 266 Submissions and consultations 267 ALRC’s views 269 Appendix 1: Existing Criminal Code Provisions 273 Appendix 2: Recommended Division 80 of the Criminal Code 281 Appendix 3: List of Submissions 289 Appendix 4: List of Consultations 295 Appendix 5: List of Abbreviations 297 Index 299 Terms of Reference REVIEW OF SEDITION LAWS I, Philip Ruddock, Attorney-General of Australia, having 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; refer to the Australian Law Reform Commission (‘the Commission’) for inquiry and report, pursuant to subsection 20(1) of the Australian Law Reform Commission Act 1996, the operation of Schedule 7 of the Anti-Terrorism Act (No 2) 2005 and Part IIA of the Crimes Act 1914. 1. In performing its functions in relation to this reference, the Commission will consider: (a) whether the amendments in Schedule 7 of the Anti-Terrorism Act (No 2) 2005, including the sedition offence and defences in sections 80.2 and 80.3 of the Criminal Code Act 1995, effectively address the problem of urging the use of force or violence; (b) whether ‘sedition’ is the appropriate term to identify this conduct; (c) whether Part IIA of the Crimes Act 1914, 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 (d) any related matter. 2. The Commission will identify and consult with relevant stakeholders. 3. The Commission is to report no later than 30 May 2006. Dated 1st March 2006 Philip Ruddock Attorney-General List of Participants Australian Law Reform Commission Division The Division of the ALRC constituted under the Australian Law Reform Commission Act 1996 (Cth) for the purposes of this Inquiry comprises the following: Professor David Weisbrot (President) Mr Brian Opeskin (Deputy President) Associate Professor Les McCrimmon (Commissioner) Justice Susan Kenny (part-time Commissioner) Justice Susan Kiefel (part-time Commissioner) Senior Legal Officers Bruce Alston Kate Connors Legal Officers Melissa Lewis (until April 2006) Edward Santow Research Manager Jonathan Dobinson (until April 2006) Lani Blackman (from April 2006) Librarian Carolyn Kearney Project Assistants Alayne Harland Tina O’Brien Legal Interns Justin Carter Michelle Tse Laura Thomas Robin Clark 8 Fighting Words Advisory Committee Members David Bernie, New South Wales Council of Civil Liberties Professor David Brown, Law School, University of New South Wales Damian Bugg QC, Commonwealth Director of Public Prosecutions Emeritus Professor Michael Chesterman, Administrative Decisions Tribunal (NSW) Kate Eastman, New South Wales Bar Dr David Neal SC, Victorian Bar Mark Polden, John Fairfax Holdings Ltd Padma Raman, Equal Opportunity Commission of Victoria Chief Judge Michael Rozenes, County Court of Victoria Michael Sexton QC, Solicitor-General for New South Wales Hon John von Doussa, President, Human Rights and Equal Opportunity Commission Bret Walker SC, New South Wales Bar Neil Williams SC, New South Wales Bar Executive Summary Contents Introduction 9 The term ‘sedition’ 9 Review of old Crimes Act provisions 10 State and territory sedition laws 11 Unlawful associations 11 International framework 12 Glorification of terrorism 12 Freedom of expression 13 Urging political or inter-group force or violence 13 Intention and ulterior intention 13 Urging political force or violence 14 Urging inter-group force or violence 14 Assisting the enemy and treason 15 Extraterritorial application 17 Intention and the defences 18 Requirement of Attorney-General’s consent 18 Net effect of the recommendations 19 Introduction The primary purpose of this Executive Summary is to explain the principles and assumptions that underlie the pattern of law reform recommendations made in this Report. In so doing, the Executive Summary discusses the ALRC’s recommendations for reform of the existing sedition offences in s 80.2 of the Criminal Code (Cth) and related matters, including recommendations for reform of the treason offences in s 80.1. The ALRC also recommends the repeal of the unlawful associations provisions contained in Part IIA of the Crimes Act 1914 (Cth). The term ‘sedition’ Chapter 2 discusses the historical link between sedition law and the suppression of political dissent. In this historical context, the offence of sedition can be seen as a ‘political’ crime, punishing speech that is critical of the established order. Stakeholders, including politicians across party lines, have expressed concerns that there is potential for sedition law to inhibit freedom of expression and free association. 10 Fighting Words Australians place a very high premium on freedom of expression and on the importance of robust political debate and commentary. The free exchange of ideas— however unpopular or radical—is generally healthier for a society than the suppression and festering of such ideas.
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