I'm writing to summarize my views on the new sedition laws, which came
into force in mid-January:
1. For many decades, Australia has had crimes of sedition in the federal
(and state) criminal law. The offences have not been prosecuted for over
50 years because they were, until recently, widely thought to be
inappropriate in a modern democracy which values freedom of expression
and opinion - even in the absence of a bill of rights in Australia. The
old sedition offences were also discredited because of the way in which
they were applied - initially to target enemies of the monarchy, and
later to target political opponents more generally, including
communists.
2. By dusting off and modernizing Australian sedition laws, the
government has given a green light to prosecutors to go after people who
make seditious statements. Thus, while Australia has had sedition laws
on the books for a very long time, the new sedition laws are more likely
to be used because they have been renewed and revalidated by the
government.
3. In my view, archaic sedition offences, even if modernised, have no
place in the modern criminal law. Much of the conduct covered by the
five new sedition crimes can already be prosecuted in Australia by
applying the existing criminal law of incitement to commit an offence to
other existing offences such as treason, treachery, terrorism, electoral
offences and a range of other security crimes and ordinary criminal
offences. It is well accepted in the criminal law that if a person
incites (that is, encourages or instructs) another person to commit a
crime, they should be liable to prosecution, even if the other person
does not go on to commit the crime incited. This is because such
statements may lead to serious social harm, which the criminal law has
an interest in preventing. (Of course, it is much easier to accept a law
prohibiting incitement to murder, and less easy to accept a law
prohibiting incitement to merely shoplifting, as in the Rabelais case in
the 1990s. Yet, the law presently allows the prosecution of incitement
to any crime whatsoever, and the penalty is typically half of that which
attached to the crime incited).
4. On the other hand, the new sedition law makes it easier to prosecute
people because a person need not intend a public disturbance or public
disorder to occur, lowering the threshold for convictions. Moreover,
whereas the crime of incitement is committed only where a person urges
another to commit a crime, sedition can occur where a person urges
"violence" (which is not always criminal) or even where a person urges
someone merely to assist countries or groups fighting Australia.
Prosecuting statements which lacks a proximate connection to a specific
offence is an unjustifiable and inappropriate interference in freedom of
expression. While it is sometimes necessary to limit free expression to
prevent greater harm to life and liberty, the new sedition offences,
especially in the absence of a statutory human rights framework,
unjustifiably interfere with legitimate free speech and freedom of
religious expression.
5. The two offences of urging others to engage in conduct assisting
those fighting against Australia is not limited to prosecutions against
Australian citizens, but can apply to anyone in the world. Thus, if
Australia illegally invades another country - as I and many other
international lawyers believe it did in 2003 - then those who take up
arms in self-defence against Australian forces - as they have a right to
do under international law - can be prosecuted as criminals under
Australian law. This interferes directly in international humanitarian
law (or the law of war), under which those fighting lawfully in an
international armed conflict have a right to combatant immunity (meaning
that they should not be prosecuted merely for participating in
hostilities, unless they have committed a war crime) and POW status (ie,
not to be treated as criminals). This is not merely of theoretical
interest, but threatens the safety of Australian soldiers themselves. If
soldiers fighting Australians believe they will not be treated as POWs
but will be prosecuted as criminals, they have less incentive to obey
the laws of war themselves; every incentive to evade capture at all
costs; and reason to treat captured Australian forces in the same way.
6. In principle, the third new offence of inter-group or communal
violence is a welcome protection for the rights of groups in the
community, and partly reflects Australia's international human rights
obligations to legislate against racial and religious hatred. However,
the offence is too narrowly drafted and has no place in either
counter-terrorism legislation or sedition offences. The offence is more
appropriately placed within anti-vilification law. The difficult
question is whether only statements which encourage violence against
racial or religious groups should be criminalized - or whether
statements which severely ridicule, insult, humiliate or degrade another
race or religion should also be criminal (think, perhaps, of the Danish
cartoons in recent weeks). If the latter (wider) approach is followed,
there is a danger of resurrecting the old Christian offence of blasphemy
and extending it to protect all religions, thus sacrificing free speech
in a democracy to protect the feelings of members of a religion.
7. The good faith defences in the law are anachronistic and fail to
protect a range of worthy human speech that falls outside limited
constitutional protections for political and religious speech. Some of
them require that criticisms of the government be constructive and thus
may not protect malicious or satirical speech. A new defence for
journalists - for statements published in good faith and in the public
interest - is also too narrow, since it allows judges to second guess
journalists as to whether the publication of violent messages is "in the
public interest" - surely something journalists themselves are better
placed to establish.
SUMMARY OF NEW SEDITION OFFENCES
The first two new sedition offences occur where a person encourages
another to violently overthrow the Constitution or any Australian
government, or to violently interfere with federal elections.
The third new offence is where a person urges a racial, religious,
national or political group to use violence against another group, where
the violence threatens the 'peace, order and good government' of the
Commonwealth.
The fourth and fifth new offences involve urging a person to assist
organisations or countries fighting militarily against Australia
Best wishes
Ben
Dr Ben Saul
Faculty of Law
The University of New South Wales
UNSW Sydney NSW 2052, Australia
