Chapter 5 - Sedition and Advocacy
This chapter will outline the key provisions and issues
raised in relation to the following two aspects of the Bill:
the proposed sedition offences (Schedule 7 of
the Bill); and
the extension of the power to proscribe terrorist
organisations under the Criminal Code to include organisations that advocate
the doing of a terrorist act (Schedule 1 of the Bill).
The committee notes at the outset that the
Attorney-General has committed, in his
second reading speech, to review the sedition provisions in the future:
The sedition amendments are modernising the language of the
provisions and are not a wholesale revision of the sedition offence.
However, given the considerable interest in the provisions, I
would like to assure this House that I will undertake to conduct with my
department a review of the sedition offences.
It is not entirely clear from this speech whether the
advocacy provisions in Schedule 1 would be included in this review. However, a
representative of the Attorney-General's Department (Department) indicated that
it was his understanding that the advocacy provisions would be 'looked at as
Sedition - outline of key provisions
Offence of sedition
Schedule 7 of the Bill proposes
to repeal existing sedition offences in sections 24A to 24E of the Crimes Act 1914 (Crimes Act). Instead, the
Bill will insert updated sedition offences into
Part 5.1 of the Criminal Code (which currently provides for treason offences). According
to the Explanatory Memorandum:
The inclusion of sedition in the Criminal Code is consistent
with the general policy of moving serious offences to the new Criminal Code
when they are updated. These offences have been update[d] in line with a number
of recommendations of Sir Harry
Gibbs in the Review of Commonwealth Criminal
Law, Fifth Interim Report, June 1991 (the Gibbs Report).
Proposed section 80.2 of the Criminal Code sets out
five new offences of sedition as follows:
urging another person to overthrow by force or
violence the Constitution or Government (subsection 80.2(1));
urging another person to interfere by force or
violence in parliamentary elections (subsection 80.2(3));
urging a group or groups (whether distinguished
by race, religious, nationality or political opinion) to use force or violence against
another group or groups, where that would threaten the peace, order and good
government of the Commonwealth (subsection 80.2(5));
urging another person to assist, by any means
whatever, an organisation or country that is at war with the Commonwealth
(whether declared or undeclared) (subsection 80.2(7)); and
urging another person to assist, by any means
whatever, those engaged in armed hostilities with the Australian Defence Force (subsection
Under proposed section 80.2, the standard of
'recklessness' would apply to the certain elements of the various offences. For
example, in relation to the offence of interference with parliamentary
elections, the standard of recklessness applies to the element that the
interference is with lawful processes for election to a House of the
Each offence has a proposed maximum penalty of
imprisonment for 7 years. This compares with the current penalty of 3 years for
the existing sedition offences in the Crimes Act.
Proposed section 80.3 provides a defence to the
offences in sections 80.1 (relating to treason) and 80.2 (relating to sedition)
for certain acts done in 'good faith'.
According to the Explanatory Memorandum:
This section effectively mirrors the defence of good faith
contained in section 24F of the Crimes Act, which applied to the sedition
offences in that Act, and the treason offence in section 80.1 of the Criminal
Code...The only substantive difference between section 24F of the Crimes Act and
new section 80.3 of the Criminal Code is that the new provision gives more
discretion to a court in considering whether an act was done in good faith.
The defendant would bear the evidential burden in
relation to the defence for acts done in good faith (see the note to new
Proposed subsection 80.2(9) also provides a defence for
the offences under subsections 80.2(7) and 80.2(8) for conduct for the purposes
of the provision of aid of a humanitarian nature. Again, the defendant would bear
the evidential burden in relation to this defence (see the note to new
Other aspects of the amendments in Schedule 7 include:
extended geographical jurisdiction (section
80.4) – the application of Division 80 extends to conduct which occurs
outside Australia, and in relation to any person, whether or not they are an
Australian resident or citizen;
proceedings for an offence against Division 80 must
not be commenced without the Attorney-General's written consent (section 80.5);
provision for concurrent operation of state and territory
laws (section 80.6).
Seditious intention and unlawful associations
Finally, Item 4 of Schedule 7 of the Bill
proposes to include a 'modernised' version of the definition of 'seditious
intention' in subsection 30A(3) of Part IIA of the Crimes Act. According to the
Explanatory Memorandum, this is a consequential amendment that 'maintains the
substance of the existing definition of seditious intention', which is removed because
of the repeal of section 24A of the Crimes Act. Existing paragraph 30A(1)(b) of the
Crimes Act provides that an 'unlawful association' includes any body which
advocates or encourages the doing of any act having, or purporting to have, as
an object the carrying out of a 'seditious intention'. New subsection 30A(3)
will update the definition of 'seditious intention' to mean:
bring the Sovereign into hatred or contempt;
urge disaffection against the Constitution, the Commonwealth
Government or either House of the Parliament;
urge another person to attempt to procure a
change, otherwise than by lawful means, to any matter established by law of the
promote feelings of ill-will or hostility
between different groups so as to threaten the peace, order and good government
of the Commonwealth.
Sedition – key issues
This section will first outline the general reaction to
the sedition provisions in submissions and evidence received by the committee.
This is followed by a discussion of key issues raised in relation to the
proposed sedition offences including:
the Attorney-General's proposed review of the
background and history of sedition (including
the Gibbs Report);
the need for sedition laws;
freedom of speech issues;
specific issues, including fault elements and
links to violence;
proposed defences, safeguards and penalties; and
the 'unlawful associations' provisions.
Submissions and evidence received by the committee were
overwhelmingly opposed to the sedition provisions in Schedule 7 of the Bill.
The critics of these provisions came from a broad range of organisations and
individuals, including a large number who expressed concern about the impact of
the provisions on their professions, particularly media organisations and members of the arts and
entertainment industry. As with
the advocacy and other provisions of the Bill,
submissions suggested that these amendments would have a particular impact on the
In addition, as Mr
representative of the Arts and Creative Industries of Australia, told the
The sedition provisions have now been opposed publicly by over
30 senior and eminent lawyers, legal academics and retired judges. You may have
noted that the editorials in both the Australian
and the Age have now called for their
removal. Additional support has come from three state premiers, territory
leaders and backbenchers on all sides of politics.
John Fairfax Holdings Limited, News Limited, Western
Australian Newspapers Limited, the Australian Press Council (APC) and AAP (Fairfax
and others) described the sedition provisions as 'the gravest threat to
publication imposed by the Government in the history of the Commonwealth'.
The Gilbert and Tobin
Centre of Public Law, despite raising numerous concerns in relation to the
sedition provisions, noted that the provisions had some positive features. For
example, it acknowledged that the Bill
'simplifies the convoluted existing law of sedition, and narrows it in some
respects' and that:
The new sedition offences avoid the vague and oppressive
concepts in the existing law of exciting 'disaffection', promoting feelings of 'ill-will',
or 'contempt' of the Sovereign. Anyone who supports a republic could be
prosecuted under existing law.
However, Dr Ben
Saul of the Gilbert
and Tobin Centre of Public Law qualified these comments during the committee's
A modernised law of sedition is better than an older one, which
may not be as appropriate to modern circumstances, but our view is that
sedition offences are unnecessary and should be taken out of the bill.
Further, other submissions were concerned that, in
'modernising' the law of sedition, the provisions extend its scope in many ways. For example, Mr
President of the Law Council of Australia (the Law Council), told the committee
that the sedition offences had been broadened:
...to such an extent that we think they will accidentally catch
members of the media and...legitimate protesters and even peace activists. And
the moment Australia
moves down that path then we really are in trouble.
The Castan Centre for Human Rights Law took a slightly
different approach, welcoming the repeal of the sedition offences in the Crimes
Act, stating that this was:
...a significant step forward in protecting freedom of political
speech in Australian law, and bringing Australia further into line with its
obligations under international human rights instruments, notably article 19 of
the ICCPR and article 19 of the Universal Declaration of Human Rights.
However, its support was nevertheless qualified by its
concerns about the impact of Schedule 7 on freedom of expression (which is
discussed further below).
Finally, Mr Chris
Connolly argued that Schedule 7 of the Bill:
...is a dangerous proposal that re-awakens an ancient and
oppressive law in Australia.
Sedition law is the sleeping giant of authoritarianism, and it has the
potential to inhibit free speech and restrict open democracy.
Many of these submissions suggested that Schedule 7
should be removed from the Bill altogether. For example, Mr
of the APC told the committee that:
....there are sections of the sedition law that are wider than the
antiterrorism bill itself, inasmuch as they do address supposed offences which
are, by their nature, not urging violence or not by violent means, which we
would say is what a terrorism bill should be catching. So in that sense we do
not think schedule 7 fits very well into this bill, and can be removed from it
without damage to the main aim of the bill.
Proposed review of the offences
As outlined above, the Attorney-General committed in
his second reading speech to review the sedition offences in the future. Submissions generally welcomed this review. At the same time, many queried why Schedule
7 of the legislation should be passed before
the review takes place, and suggested that Schedule 7 should be
removed from the Bill altogether, pending this review. For example, the ACT Chief Minister,
Mr Jon Stanhope,
...to suggest that we will legislate now and review later does
seem to me to be a less than rigorous approach to law reform on such a
fundamentally important issue.
PIAC expressed the view that:
It is completely unacceptable that a government should propose
to pass into law provisions that it knows before their passage into law warrant
of the APC suggested that to enact the sedition provisions, then review them
later, would be putting the 'cart before the horse'.
The Law Council believed that:
...it is bad policy to introduce flawed legislation creating
serious criminal offences for which offenders face terms of imprisonment when
some doubt obviously exists about its appropriateness. The Law Council
recommends that the existing sedition laws be reviewed to determine the need to
have them in view of the number of new terrorist offences introduced. The new
provisions ought to be deferred pending that review.
In the same vein, Dr
Ben Saul of
the Gilbert and Tobin Centre of Public Law
From a law reform perspective it makes much more sense to
subject this to a more rational process of law reform, not in the heat of a
very long and detailed antiterrorism bill.
Indeed, the Gilbert and
Tobin Centre of Public Law suggested that, if the sedition and advocacy
offences are to be reviewed, the review should:
be independent of the government, either by
referring the matter to the Australian Law Reform Commission (ALRC), an independent expert committee, or
to a parliamentary committee;
consider all security offences in both the
Crimes Act and the Criminal Code, 'since many offences overlap and some are
consider the proper scope of defences to
sedition, and the possibility of extending good faith defences to any other
security offences that might be retained;
consider the need for, and scope of, all
security offences in light of the express constitutional protection of freedom
of religion (section 116 of the Constitution), the implied freedom of political
communication, and human rights standards on freedom of expression and
Others noted the importance of public consultation as
part of the review.
In response to the committee's questions as to why
Schedule 7 should be passed now if there is a need to review them, a
representative of the Department suggested that Schedule 7 is:
...an important component of this bill. Some of the urging of
violence which is contained in the sedition offence is linked to preventing
terrorist attacks. Consequently, government has given priority to it.
In this context, the Department further submitted that:
The Attorney-General recognises that the time to discuss the
sedition offence and related issues such as Part IIA of the Crimes Act has been
limited. Allowing for further consideration of the issues later does not mean
the offence is not needed or suitable to enact now.
Background and history of sedition – an archaic, 'dead letter' law?
Many submitters described laws of sedition as 'archaic'
or 'outdated', and argued that Schedule 7 of the Bill
would reinvigorate and legitimise archaic sedition laws that are not
appropriate in a modern democracy. Many of these also pointed to the troubled
history of sedition laws around the world, arguing that they are 'heavily
politicised' and have 'a history of abuse'.
Maher submitted that he had in the past
advocated the repeal of the existing sedition provisions under the Crimes Act
because they are:
...archaic and unnecessary and, more importantly, contrary to
contemporary modern democratic principle as an unjustifiable burden on freedom
of expression and freedom of association.
Sedition around the world
Connolly submitted that 'sedition has a long
and undignified history', and that important figures in history who have been
charged and sometimes imprisoned for sedition, include both Ghandi and Nelson
He argued that:
...sedition charges are either the last desperate gasp of an
authoritarian regime (eg Ghandi) or the extreme and sometimes ludicrous result
of a regrettable moment in national history (eg McCarthyism).
The clear lesson from the history of sedition laws is that they
are used routinely by oppressive regimes, or are used by more liberal regimes
at times of great national stress. Their use is nearly always the subject of
considerable regret at a later date.
In the same vein, Mr
observed that a survey of the history of sedition demonstrates that (among
other matters) 'its only purpose and use has been to throttle political
The committee was told that many other countries have
been moving away from crimes of sedition. For example, the Gilbert
and Tobin Centre of Public Law submitted that:
The Gibbs review observed that the UK Law
Commission found that a crime of sedition was unnecessary, since seditious
conduct is already captured by the ordinary offence of incitement to crime.
Reviews of criminal law in Canada
and New Zealand
omitted sedition offences altogether.
Connolly, representative of the Arts and
Creative Industries of Australia, highlighted the application of sedition laws
telling the committee that:
The countries that have repealed sedition laws, or made them
inactive, are: Canada,
New Zealand, South
the United Kingdom
and the United States.
The countries that have active sedition laws that have been used or revised in
recent years are: China,
North Korea, Singapore,
Syria and Zimbabwe.
I imagine that it is perfectly clear to the majority of Australians which list
we feel Australia
should belong to.
Similarly, Mr David
Bernie of the NSW Council for Civil
Liberties suggested that:
Sedition is something that has generally been used by
totalitarian and authoritarian regimes. It no longer has a place in democracy.
Most democracies have done away with sedition laws.
However, the Department submitted that:
While some have commented on a trend in some other countries
away from 'sedition' offences, this appears to be an observation in relation to
the naming of such offences, rather than an observation that the substance of
such offences are being removed from the Statute books.
The Department further pointed to relevant offences in
the UK, Canada
and the US, and
concluded that 'claims made to the Committee that sedition is no longer an
offence in other western democracies appear to be incorrect.'
Sedition in Australia
Submissions pointed out that the law of sedition has an
equally troubled history in Australia,
having been used against Eureka
stockade rebels in the 1850s, anti-conscriptionists during World War I, and
members of the Australian Communist Party in the 1940s. Mr
argued that recent Australian history demonstrates that 'sedition provisions
have only ever been deployed to suppress dissident speech and highly unpopular
groups'. He also maintained that
'in most, if not all cases, the decision to prosecute was based on party
Connolly concluded that the Bill
'reawakens this Cold War relic and breathes new life into it.' Similarly, the Australian Screen
Directors Association (ASDA) felt that the Bill
'dusts off' a 'dead-letter law', and that as a result, the ASDA could:
...no longer reassure its members, as it has been able to with a
fair degree of certainty over the past 25 years, that sedition laws will not be
invoked against directors making films that urge disaffection with the state or
However, a representative of the Department argued that,
with the advent of the Internet, sedition is 'more relevant now than in the
postwar years of the 20th century'. The Department later added that 'the
web and computer technology has made it much easier to disseminate material
that urges violence'.
In contrast, the Gilbert
and Tobin Centre of Public Law argued that:
Old fashioned security offences are little used because they are
widely regarded as discredited in a modern democracy which values free speech.
Paradoxically, the danger in modernising these offences is that prosecutors may
seek to use them more frequently, since they are considered more legitimate. A
better approach is to abandon archaic security offences altogether in favour of
using the ordinary law of incitement to crime, particularly since security
offences counterproductively legitimise ordinary criminals as 'political'
Connolly also queried the utility of
It is also difficult to find a single example of a sedition
trial that resulted in a useful long-term outcome for the ruling authorities.
Indeed, Mr Laurence
Maher suggested that the law of sedition is
actually self-defeating, because 'once the charge is laid in court, the media
(and anyone else) is free to publish the dangerous words as part of an accurate
The Gibbs Report
In 1991, Sir Harry
Gibbs and others considered the sedition
offences in the Crimes Act as part of a review of Commonwealth criminal law. As noted earlier, the Explanatory
Memorandum states that the Bill would update
sedition offences 'in line with a number of recommendations' of the 1991 Gibbs
However, a number of submissions described this
statement as 'disingenuous' or 'misleading'.
In particular, the Gilbert and Tobin Centre of
Public Law pointed out that the amendments to the sedition offences in the Bill
only selectively implement the Gibbs Report:
The new offences partly implement the Gibbs Review of federal
criminal law in 1991, including increasing the penalty from three to seven
years in prison. Invoking the Gibbs Review is nonetheless selective and
misleading, since Gibbs also recommended modernising (and
narrowing) many of the other archaic 'offences against the government' in Part
II of the Crimes Act 1914, including
treason, treachery, sedition, inciting mutiny, unlawful (military) drilling,
and interfering with political liberty. Gibbs further urged repeal of the
offence of assisting prisoners of war to escape and the offences in Part IIA of
the Crimes Act 1914 (relating to 'unlawful
associations' and industrial disturbances).
Saul of the Gilbert
and Tobin Centre of Public Law reiterated this at one of the committee's
...invocation of or reliance on the Gibbs review of federal
criminal law in 1991 is very misleading because, of course, Gibbs recommended
abolishing many of the archaic security offences in part II of the Crimes Act,
abolishing some of them and narrowing some of them. The government seems to
have picked up on only one aspect of that, the sedition offences, leaving
everything else in there and, as a result, creating a very confusing array of
duplicate liabilities for very similar kinds of conduct.
The Gilbert and Tobin
Centre of Public Law concluded that this selective implementation of the Gibbs
Report would result in 'ad hoc law reform which preserves some very broad and
archaic security offences.'
Similarly, Mr Chris
Connolly argued that the 'main thrust of the
Gibbs recommendations was to limit and tighten the sedition
offences'. He interpreted the
Gibbs Report as recommending that the Crimes Act should:
...be amended to repeal sedition and to rely on the crimes of
incitement and treason where there was a clear intention of violent
interference with the democratic process. However, no amendment had been
prepared until the current proposals – and the current proposals are a more
substantial revision of the sedition laws than recommended by Gibbs
– and largely contrary to the Gibbs recommendations.
In advice to the Australian Broadcasting Corporation (ABC),
Mr Bret Walker SC stated that the suggestion that the amendments are occurring
in the way recommended by the Gibbs Report is 'disingenuous' because:
...the recommendations were quite different in context, and
certainly did not include any recommendation to enact laws to the effect stated
in subsections (7) and (8) of s.80.2 of the current Bill.
True it is though that some of the changes sought to be affected by the Bill
adopt parts of what the Committee Report suggested.
A representative of the Department disagreed with the
suggestion that the Bill's sedition offences
differed substantially from the recommendations of the Gibbs Report. He noted that the Gibbs Report
'concluded that there was still a need for a sedition offence in the context of
Need for sedition laws
However, many submissions queried whether the sedition
offences are even necessary. In particular, it was suggested that the proposed
offences duplicate existing law, such as the law of incitement to violence, which
already adequately cover the relevant conduct.
Further, in response to the committee's questioning,
both Dr Saul
of the Gilbert and Tobin Centre
of Public Law and Professor McKinnon
of the APC confirmed that they were confident that removal of Schedule 7 of the
Bill would not weaken the Commonwealth's
argued that 'section 11.4 of the Criminal Code is sufficient to prosecute
incitement to violence which has a specific connection to certain crime.' The Gilbert
and Tobin Centre of Public Law pointed out that, in relation to the first two
new sedition offences (urging the overthrow of the Constitution or government,
or interference with federal elections):
Neither offence is necessary, since such conduct can already be
prosecuted by combining the existing law of incitement to commit an offence (s
11.4, Criminal Code (Cth)) with the existing offence treachery (s 24AA, Crimes
Act 1914 (Cth)) or the offence of disrupting elections (s 327, Commonwealth
Electoral Act 1918).
The committee questioned the Department as to the
differences between the crime of incitement to commit an offence and the
proposed sedition provisions (particularly subsections 80.2(1), (3) or (5)). The Department responded that the
crime of incitement was harder to prove because the crime of incitement
requires the prosecution to prove not only that the person urged the commission
of a criminal offence, but also that the person intended that the crime urged
However, for many submitters, this was precisely the
problem with the sedition offences – that the provisions do not require an
intention of causing violence. This is discussed further in the section on
'fault elements' later in this chapter.
As a representative of the Department stated: 'there is
absolutely no doubt that this offence [of sedition] will be easier to establish
than the incitement to commit an offence'.
However, the Department argued that this was justified because 'in this case
the urging of the use of force and violence is in its own right dangerous and
should be prohibited as a separate offence.'
The Gilbert and Tobin
Centre of Public Law suggested that the last two offences (urging a person to
assist organisations or countries fighting militarily against Australia)
are similarly redundant:
...because such conduct is already covered by applying the existing
law of incitement to the existing federal offences of treason (s80.1, Criminal Code), treachery (s 24AA, Crimes Act 1914) and offences in ss 6–9
of the Crimes (Foreign Incursions and
Recruitment) Act 1978 (Cth).
Indeed, the committee asked departmental
representatives to compare the offences in subsections 80.2(7) and (8) to the
treason provisions in paragraphs 80.1(1)(e) and (f) of the Criminal Code. The
representative responded that the treason provisions are broader, and attract
life imprisonment as a maximum penalty.
The committee then queried the utility of these additional sedition offences
when the treason provisions already encompass the relevant conduct. The
The proposal in this bill is to make this law relevant...this
offence is becoming more relevant with the advent of the internet and the
capacity to have a situation where violence is being urged on a very large
The Gilbert and Tobin
Centre of Public Law did welcome the offence in subsection 80.2(5) for urging
violence within the community, but suggested that the offence was too narrow
and would be more appropriately placed in anti-vilification laws.
The AFP told the committee that the modernised sedition
offences are designed to address situations where members of the community:
...urge others to undertake terrorist activity as there are
impressionable people who could be influenced by this behaviour. The committee
would recall media coverage this year of publications inciting violence for
sale in Australia,
which highlighted that there is currently no clear offence to deal with this situation.
In response to the committee's questioning on this
issue, the AFP stated that it had raised the issue of inciting terrorist
violence during the July-August 2005 review of the Commonwealth
counter-terrorism legal framework undertaken by the Commonwealth
Counter-Terrorism Legal Working Group. The AFP explained that it was advised by
the Department during this review that 'the situation where people from one
group in the community may be indirectly encouraging terrorist activity by
urging violence against other groups in the community' was not covered in the
current legislative framework by an offence 'with sufficient penalties'. In
particular, it was advised that:
...there is no clear offence in the Criminal Code for possessing,
publishing, importing or selling publications, recruitment pamphlets and videos
that advocate terrorism. Similarly, the provisions in the Crimes Act 1914 prohibiting sedition, especially defining seditious
intention and seditious words, may not adequately address such publications as
their fault elements and defences are not suited to countering terrorism.
The AFP gave a hypothetical example of a leader of a
small extremist group who was:
...urging their followers to take violent action in Australia
in opposition to Australia's
involvement in foreign conflicts. The leader is not directing the group as to
the specific action they should take but is urging them to take violent action
in the name of their extreme ideology...the AFP was advised by the
Attorney-General's Department that this situation is not covered by the
existing offence in the Criminal Code...
The committee also asked the Department as to whether
the existing laws of treason, sedition and inciting violence are sufficient to
fight terrorism. In particular, the committee asked the Department for an
example of conduct which the new sedition laws would catch which would not be
caught by either the existing sedition laws; the existing treason laws; the
existing law of incitement of violence; or the new proposed law in Schedule 1
relating to praising terrorism.
The Department submitted an example of an overseas web page giving instructions
on how to shoot foreigners in the streets.
The Department believed that proposed subsection 80.2(5) (of urging a group to
use force or violence against another group) would capture the type of conduct
outlined on the web page, whereas existing offences would not be adequate. In
particular, the Department suggested that:
Although the page depicts shooting foreigners it does not appear
to focus much on the political motivations which would be necessary for proof
of a 'terrorist act' offence (so charging for incitement to commit a terrorist
act offence or a terrorist act offence itself would appear excluded, as would
an individual advocating a terrorist act offence) and it is probably
insufficiently specific in terms of the target to be prosecuted as incitement
to commit murder. The threat to kill offences in the Criminal Code, do not
apply because of lack of specificity about who is being threatened (see section
474.15 – using a carriage service to make a threat).
The Department described subsection 474.17 of the
Criminal Code (using a carriage service to menace or cause offence) as 'feasible',
but noted that the maximum penalty is 'only' 3 years imprisonment. Finally, the
Department submitted that the existing sedition offences are probably not
applicable because of the definition of 'seditious intention' at paragraph
24A(g) of the Crimes Act, which refers to promoting feelings of ill-will and
hostility between different 'classes' of Her Majesty's subjects and could be
read down by the court because the historic context suggests it is only a
reference to social classes. The Department concluded, once again, that 'this
[proposed new sedition] offence is easier to prove than the alternatives – it
would not have been put forward if it was not'.
Freedom of speech issues
Another key objection to the sedition provisions in the
evidence received by the committee was their potential to limit freedom of
speech. Submissions were concerned
about this from international law,
constitutional and general policy
perspectives. Some submissions acknowledged that the defences proposed in
Schedule 7 of the Bill might help to
ameliorate the impact on freedom of speech.
However, criticisms of these defences are discussed further below.
North of the Law Council told the committee
of the Law Council's concerns that the sedition amendments would:
...not only cause journalists a great deal of problems but also
will stop peace activists and other political protesters from being able to
carry on in the normal course of events and thereby will affect freedom of
Indeed, many media organisations expressed concern
about the sedition provisions. For example, Fairfax
submitted its concern that:
...there is a real risk, that a comment made, letter or
advertisement published, wire service story or interview reproduced, factual
report carried, video-tape footage published, editorial opinion expressed, or
feature film or documentary screened might by reason of its subject matter,
prominence, content, tone, wording, manner of promotion and ultimate authorship
be held by a jury to amount to 'urging' within the meaning of the proposed
section, particularly if it were perceived to form part of an ongoing campaign.
In response to these concerns about the provisions, a
departmental representative stated that there was no basis for concern, because
the sedition offences focus on the intention to urge the use of force and
I do not think anyone is suggesting that Australia's
media, and I just cannot think of any situations where our media, has urged
However, Mr Bret Walker SC, in his advice to the ABC,
gave a number of examples of the types of speech which might be impacted on by
the Bill, including:
...offensive or emotional opinion about the significance of the
events at 9-11, whether the terrorists involved had any justification for their
acts, opinion about the validity of what terrorist leaders might be seeking to
achieve, the desirability at an international level of victory against the
American forces in Iraq (as expressed by John Pilger and dealt with later in
this advice), or the inevitability of further terrorist acts, for example, in
Bali, and as to whether Australian citizens should expect more of the same
should they continue to be involved in the Iraqi war.
Some submissions suggested that the sedition provisions
could raise constitutional issues, and in particular, potentially breach the
implied freedom of political communication in the Constitution. The Gilbert
and Tobin Centre of Public Law was more circumspect, noting that:
...the Australian Constitution impliedly protects only political communication...and not speech
more generally. This means that Australian courts are less able to supervise
sedition laws for excessively restricting free expression.
However, the Gilbert and
Tobin Centre of Public Law also noted that there may be other constitutional
The express constitutional protection for freedom of religion in
(s116, Constitution) may raise a different challenge to the third new sedition
offence of incitement to religious violence. The Commonwealth cannot make any
law 'for prohibiting the free exercise of religion'. There is little case law
on the scope of this speech aspect of s116 and it remains to be seen whether
the 'free exercise' of religion would protect religious speech.
In response to concerns that the sedition offences may
breach the implied constitutional freedom of political communication, the
Department noted that it had obtained advice from the Australian Government
Solicitor and was 'satisfied that the amended provisions do not breach the
implied constitutional freedom of political communication.' The Department also submitted that,
in terms of freedom of expression under international law:
The right to freedom of expression under Article 19(2) of the
ICCPR may be subject to restrictions provided by law, and that are necessary
for the protection of national security and public order. The Government is
satisfied that restrictions on communication imposed by the measures are
necessary for the protection of national security. The Government is also
satisfied that the defence of 'good faith' will adequately ensure that people
who make comments without seeking to incite violence or hatred will not be
deprived of the freedom of speech. Indeed, subsection 80.2(5) is in part
implementation of Article 20 of the ICCPR which requires State parties to
prohibit advocacy that incites violence, discrimination or hostility.
A representative of the Department also noted that the
offences would need to be proven beyond reasonable doubt, and that the Director
of Public Prosecutions would need to be convinced that any such cases would be
of the Gilbert and Tobin Centre of Public Law acknowledged
the need to be realistic about the potential operation of the legislation:
Of course these laws are subject to prosecutorial discretion, in
the ordinary way that crimes are. I think that many of the statements which
people have suggested might fall within the laws may well fall within the laws,
but of course they will never be prosecuted. Prosecutors are realistic about
this. The Attorney-General having to sign off on prosecutions is a good
At the same time, he questioned:
Why are you putting a law on the books which allows fairly
innocuous statements to be, potentially, subject to prosecution? The good faith
defences are too narrow, as people have pointed out. Why do you even need a
good faith qualification? How do you protect things like satire and comedy,
artistic expression and so forth, which may not intend to be constructive and
pointing out errors or mistakes in government, but may simply want to express a
point of view?
Indeed, many submissions suggested that
'self-censorship' could become an issue if the provisions were to be enacted. That is, people might 'err on the side of
caution and limited themselves in what they say'. For example, the National
Association for Visual Arts (NAVA) submitted that, if Schedule 7 were enacted:
...self-censorship is the likely course of action for many artists,
galleries and other art organisations. For fear of possible misinterpretation
of their work or abuse of power by government or police, artists and galleries
will be under pressure. The result could be the stifling of free inquiry and
expression with a consequent quelling of expression of opinion, censorship of
any perceived form of dissent and the resulting blandness of contemporary
Similarly, Mr Beckett
of ALHR commented that:
There may not be a specific prosecution, or it might be a while
before a specific prosecution occurs and the law is clarified, and a number of
people may seek advice and the advice may be— as it has been in the last couple
of weeks—that what they are doing is arguably sedition within the definitions
that are currently there. So there is a fear, a legitimate fear, that somebody
may have committed an offence or be proposing to do a painting or organise a
skit or produce and broadcast a particular show on TV that is an offence
punishable by seven years imprisonment.
The ABC submitted that its key concern was that:
...legitimate discussion and debate in the media about terrorism
and related issues is likely to be stifled as no media organisation or
personnel could, at the risk of imprisonment for 7 years, confidently predict
what would pass the test and would, therefore, err on the side of extreme
As the Law Council stated, 'such caution is not in the
interests of informed political debate.'
of the Castan Centre for Human Rights Law observed along the same lines: 'our
concern is not only with what convictions it might bring about but also whether
this legislation will effect a demonstrative change in people's behaviour.'
In response to concerns about self-censorship, the
Department submitted that:
The policy is to 'chill' comments where they consist of urging
the use of force or violence against our democratic and generally tolerant
society in Australia.
As with other aspects of the Bill,
some submitters were concerned that the sedition offences could actually be
counterproductive, because they may simply drive terrorism underground and/or
fuel terrorism further. For
example, the Islamic Council of Victoria submitted that:
...punishing individuals for having or even expressing views that,
while they may be radical, extreme, inflammatory, misguided, or otherwise
unpopular politically, but do not cross the threshold into direct incitement to
physical violence, is likely to be extremely counterproductive...such views
should be tackled by positive and proactive measures such as engagement and
dialogue...the use of anachronistic sedition offences will only harden the
stances of those who already feel alienated and disenfranchised by government
Similarly, the Gilbert
and Tobin Centre of Public Law warned that:
There is a danger that criminalising the general expression of
support for terrorism will drive such beliefs underground. Rather than exposing
them to public debate, which allows erroneous or misconceived ideas to be
corrected and ventilates their poison, criminalisation risks aggravating the
grievances underlying terrorism and thus increasing it...While some extreme
speech may never be rationally countered by other speech, the place for
combating odious or ignorant ideas must remain in the cut and thrust of public
debate...Unless we are able to hear and understand the views of our political
adversaries, we cannot hope to turn their minds and convince them that they are
wrong, or even to change our own behaviour to accommodate opposing views that
turn out to be right.
The Gilbert and Tobin
Centre of Public Law concluded that 'a robust and mature democracy should be
expected to absorb unpalatable ideas without prosecuting them.'
A representative of the Department, in arguing that the
Bill is non-discriminatory, pointed out that:
Even in the elements of sedition it is about protecting groups
in our society regardless of their race, religion, nationality or political
However, the Islamic Council of Victoria contrasted the
Bill with Victoria's
Racial and Religious Tolerance Act 2001 (RRTA), stating that:
[T]he RRTA protects citizens from discrimination and
vilification on the basis of race or religion by providing a mechanism for hate
speech to be curtailed in public judicial proceedings, while the Bill's
sedition provisions expose a wide-ranging section of the community to criminal
prosecution under secretive, draconian security measures on the basis of their
political or religious views.
As noted earlier, the Gilbert
and Tobin Centre of Public Law welcomed the offence in subsection 80.2(5) for urging
violence within the community, because it would criminalise the incitement of violence
against racial, religious, national or political groups, as required by Australia's
human rights treaty obligations.
However, at the same time, it suggested that the offence was too narrow and
would be more appropriately placed in anti-vilification laws.
Similarly, HREOC noted that 'it has been suggested that
the proposed [sub]section 80.2(5) strays into the area of discrimination and
vilification law'. HREOC advised the committee that it:
...has previously called for the introduction of comprehensive
religious discrimination and vilification laws at the federal level, consistent
international human rights obligations under article 20(2) of the ICCPR and
article 4 of the International Convention
on the Elimination of All Forms of Racial Discrimination. The Commission
considers the enactment of such legislation to address discrimination and
vilification against Arab and Muslim Australians is crucial to combating
terrorism. However, rather than attempt to do this under the umbrella of
sedition laws, Parliament should address the topic in separate legislation so as
to allow for a proper consideration of the interests and issues involved.
Other specific issues
Specific issues raised in relation to the sedition
provisions discussed in this section include:
the definition of 'urging';
fault elements; and
the requirements for links to violence.
Definition of 'urging'
Several submitters noted that there is no definition of
'urging' in the Bill or in the Criminal Code,
and were concerned that it could be defined very broadly. However, the Department submitted
...the incitement offence in section 11.4 of the Criminal Code
uses the word 'urge'. This language was recommended as a plain English way of
capturing the essence of the offence, by the Commonwealth, State and Territory
offices on the Model Criminal Code Officers Committee...Some courts have
interpreted 'incites' as only requiring that a person causes rather than
advocates the offences. The use of the word 'urge' is designed to avoid this
There was considerable debate and indeed, confusion, during
the committee's inquiry over the fault elements required under the proposed sedition
provisions. The committee received a large amount of evidence expressing
concern about the use of the standard of 'recklessness' in the provisions,
rather than 'intention'. Many
submissions were also concerned that, unlike the existing sedition offences in
the Crimes Act, the new offences would not require an intention to cause
In the context of the fault elements required by the
sedition provisions, many submissions referred to advice provided by Mr Bret
Walker SC to the ABC. In this
advice, Mr Walker
argued that under the proposed offences:
...it is no longer a requirement to prove an intention to promote
feelings of ill-will and hostility to establish seditious intention. It will be
enough, in some cases, that one did an act which might promote those feelings
if one acted recklessly and that result followed. Secondly, the requirement
that there be not only proof of an incitement to violence, but actual violence
or resistance or defiance for the purpose of disturbing the constituted
authority, is no element of the offence. It is enough that there is the urging
of 'another person' to do any of the categories of acts prohibited.
further advised that:
There is no reference within the proposed s.80.2 to any
requirement that the person doing the urging have any particular intention,
such as the previous requirement for the intention to cause violence or create
public disorder or disturbance. Notwithstanding the reference to application of
principles of recklessness, to 3 of the proposed new offences, apart from an
intention that the offender be required to intentionally engage in the act
which amounts to the urging, it is not required that he be shown to intend the
result. On one view of it at least, one could make a statement intentionally,
and which might be seen as amounting to urging another to use force or violence
against another group, without intending that result at all.
In response a departmental representative noted that he
respectfully disagreed 'absolutely and entirely' with advice provided by Mr Bret
Walker SC to the ABC (that urging may be unintentional or inadvertent). He
argued that such urging would have to be intentional.
subsequently noted the representative's comments, but suggested that it was
important to be:
...very cautious about applying the rather remarkable abstract and
highly conceptualised provisions of sections 5.1 to 5.6 of the Criminal Code to
the sedition proposals...the only element of intention that those provisions
require, in my opinion—at least arguably so—is that you mean to urge, which is
quite different from meaning that there be an outcome from the intermediaryship
of two, three, four or however many other people in relation to violent effects
not only in this country but elsewhere.
The Gilbert and Tobin
Centre of Public Law contrasted the fault elements for the existing sedition
offences in the Crimes Act and the law of incitement (in section 11.3 of the
Criminal Code) with the sedition offences proposed by Schedule 7 of the Bill.
It suggested to the committee that the existing sedition offences in the Crimes
Act require, first, an intention to utter seditious words or engage in
seditious conduct (with a seditious intention), with the further intention of
causing violence or creating a public disorder or disturbance. In noting that the existing law of
incitement could cover much of the conduct falling within the new sedition
offences, the Gilbert and Tobin Centre of Public
Law noted that the law of incitement also required both intentional urging and
a further ulterior intention that the offence incited be committed. The Gilbert
and Tobin Centre of Public Law suggested that:
Requiring that an inciter intend that the offence be committed
reflects the vital normative idea that responsibility for criminal harm should
primarily lie with the perpetrators, who are free agents not bound to act on
the words of others.
However, according to its analysis:
...unlike existing offences of both sedition and incitement, the Bill
imposes no further requirement of an ulterior intention that the specified
conduct actually be committed by the persons urged. The offences are thus wider
than the scope of the existing offences of sedition and incitement.
The Gilbert and Tobin
Centre of Public Law therefore concluded that proposed offences:
...criminalise indirect incitement or generalised expressions of
support for terrorism, without any specific intention to encourage violence or
any connection to a particular offence.
However, the Gilbert and
Tobin Centre of Public Law argued that 'only incitements which have a direct
and close connection to the commission of a specific crime are justifiable
restrictions on speech'.
Similarly, HREOC also came to the conclusion that the
proposed sedition provisions do not require a specific intention that the third
person use force or violence. HREOC
also agreed that the existing law of incitement clearly requires 'that the
inciter intend that the incitee use force or violence'. However, on HREOC's interpretation
of the Department's evidence, this was the difficulty which the new sedition
offences were designed to overcome, because under these provisions:
The prosecution may, of course, face difficulties in proving
that in uttering particular words a person intended that the person or people
to whom they were uttered would commit a particular crime. That would be a
significant obstacle in the case of words that are more general in nature.
However, HREOC expressed the view that:
....that is an entirely appropriate limitation, which will ensure
that the Criminal Code is not used to prosecute those whose words (while
distasteful) are in the sphere of legitimate free speech which attracts the
protection of article 19 of the ICCPR. As noted above, that was also the view
expressed by the Criminal Law Officers Committee in its final report into the
Model Criminal Code.
However, a representative of the Department claimed
that some of the opinions provided on the sedition provisions:
...exhibited a misunderstanding of the fact that the urging
behaviour is conduct and has to be intentional. Some of the people with those
opinions are not familiar with [the] Criminal Code and so do not understand how
the Criminal Code and fault elements apply.
The representative responded to the concerns raised in
relation to 'intention' and 'recklessness' by explaining to the committee that
the 'urging' under proposed section 80.2 must be intentional because it is a
conduct element of the offence. The representative pointed to section 5.6 of
the Criminal Code, which provides for offences that do not specify fault
elements as follows:
(1) If the law creating the offence does not specify a fault
element for a physical element that consists only of conduct, intention is the
fault element for that physical element.
(2) If the law creating the offence does not specify a fault
element for a physical element that consists of a circumstance or a result,
recklessness is the fault element for that physical element.
The representative also suggested that:
In fact, recklessness is only applying to the elements of the
offence that are about understanding that it is about overthrowing our
Constitution and understanding that in fact you are calling for the overthrow
of our government and all lawful authority of the government. The intention
still remains the fault element for the urging part of it—that is, urging
another to overthrow by force or violence. Urging, of course, is conduct under
the Criminal Code. Intention is the fault element for that.
In other words, the representative argued that the conduct
– that is the urging of violence – has to be intentional, whereas the
consequence of that conduct is reckless.
In response to the committee's questioning as to whether words could be
inserted into section 80.2 to clarify that the urging was required to be
intentional, a representative of the Department conceded that this could be
In response to the committee's questions as to whether
these fault requirements were broader than the existing Crimes Act provisions,
the representative replied that they were 'probably slightly' broader. The Department also provided further
information to the committee to explain that:
Like the incitement offences [in section 11.4 of the Criminal
Code] the prosecution must prove that the person intended to urge the conduct.
As mentioned above, 'urging' is intentional because it is a conduct element of
the offence. However, unlike the incitement offences sedition does not require
the prosecution to prove that the person intended the crime urged be committed.
The Department continued:
The prosecution must prove that the person was reckless as to
whether the thing against which the person urged the use of force or violence
as, for example a group distinguished by race, religious, nationality or
However, Mr Walker
argued that there were contradictions in the evidence from the departmental
...he agreed—and here I strongly agree with him, respectfully—that
aspects of the proposed new sedition offences made the prosecution's task less
difficult than the pre-existing and continuing to exist offences in relation to
incitement to violence et cetera...He would not be right in saying that, according
to his own lights, if it is true that for all urging offences you have to
intend the outcome of somebody else's actions. That is true of incitement to
violence. You have to intend that the violent offence be committed. But I do
not believe it is anywhere near as clear as he thought in his evidence that
that is true of urging in the new provisions.
Several submissions suggested that the fault elements
of the provisions were ambiguous. For example, HREOC submitted that:
At the very least, the matters outlined above indicate that the
reach of the proposed offences, as currently drafted, is ambiguous. This is
highly undesirable given that the proposed offences encroach upon the right to
freedom of expression.
Similarly, Mr Robert
Connolly, representative of the Arts and Creative
Industries of Australia, suggested to the committee:
Freedom of speech and expression is a fundamental part of the
Australian way of life. In the absence of a bill of rights, any proposed law
that in any way impacts on this freedom enjoyed by all Australians needs
significant scrutiny and must, in our view, have absolute clarity of intention
and application...It is our view that there should be no room at all for
misinterpretation on matters that deal with freedom of speech in a democracy.
The law needs to be much clearer than it is. Regardless of individual opinions
on the application of the proposed laws, it is our view that the scale of
debate on how they will be applied is evidence enough of the danger that their
lack of clarity poses.
And again, in this context, it was suggested that any
lack of clarity could lead to over-caution, and, in turn, self-censorship (as
discussed earlier in the section on freedom of speech).
Links to violence
Many submissions pointed out that, unlike the current
sedition offences, two of the proposed offences in subsections 80.2(7) and (8)
(relating to assisting the enemy) do not require any link to force or violence,
but simply support of 'any kind' for the enemy. It was suggested to the committee that
these provisions in particular, were not a mere update of existing laws, but
represented two completely new offences which 'considerably expand existing
sedition laws'. Some submissions
also argued that the offences in subsections 80.2(7) and (8) conflict with the
Gibbs Report recommendation that new sedition offences should be linked to the
incitement of violence.
Others were also concerned at the breadth of the
terminology used in these proposed subsections, such as the terms 'assist, by
any means whatever'. For example, Mr Simeon
Beckett of ALHR argued
that the term:
...'by any means whatever' is so remarkably broad that you start
to question what is the policy intent of that. Obviously, the idea is any means
of assistance to a terrorist organisation, but it includes that 'any means
whatever'. It includes rhetorical support for a particular organisation.
Similarly, the Law Council commented that these
offences 'go well beyond the traditional common law understanding of sedition
[and] could be construed to include peace activists and protestors'.
Indeed, many submissions felt that these provisions were
too broad, and would cover certain statements relating to, for example, the war
in Iraq. For
example, Fairfax and others submitted that:
We are concerned that published opinion which might be seen to
support or lend sympathy to claims made by terrorist leaders (or leaders of
groups which might encounter the ADF in the course of peace-keeping operations
overseas) about what they are seeking to achieve, the just nature of their
cause, that victory against the 'Coalition of the willing' in Iraq would be a
good thing, or even that Australians should expect a terrorist attack if the
Commonwealth continues to support the Iraq war, all risk falling foul of the section.
Similarly, Mr Bret Walker SC, in his advice to the ABC,
expressed the opinion that proposed subsection 80.2(8) would 'conceivably
extend to providing verbal support or encouragement for insurgent groups who
might encounter the Australian Defence Force which is present in their country.'
However, the Department responded to concerns about the
offences in proposed subsections 80.2(7) and (8), by stating that these
...were clearly contemplated by the existing sedition offence in
section 24A of the Crimes Act [which] was intended to capture assisting enemies
or those engaged in combat against the Defence Force. That is because
subsection 24F(1) created an exception to the sedition offences while subsection
24F(2) created an exception to that exception that refers to assisting enemies
or those engaged in combat against the Defence Force.
Defences, safeguards and penalties
Other issues raised in relation to the sedition
the burden of proof for the defences;
other safeguards in the provisions; and
the penalty increase.
Submissions were also critical of the defences to, and
penalties for, the proposed sedition offences. In particular, many submissions
argued that the defence in proposed section 80.3 for acts done in 'good faith'
is too limited and narrow. Indeed,
some questioned the concept and meaning of 'good faith'.
Mr Bret Walker SC, in his advice to the ABC, expressed
the opinion that the operation of the defence in section 80.3 is:
...limited to demonstrating attempts to point out errors or
mistakes in policy by Australian Governmental institutions, Governments or
persons responsible for them from other countries, achieving lawful changes to
the legal status quo or matters which are intending to create ill will or
hostility between groups in order to bring about the removal of that hostility.
It was suggested that this defence would only protect certain
political expression, but not academic, educational, artistic, scientific,
religious, journalistic or other public interest purposes.
The Gilbert and Tobin
Centre of Public Law expressed the view that this was required because:
The range of human expression worthy of legal protection is much
wider than that protected by the Bill's narrow
defences, which are more concerned with not falling foul of the implied
constitutional freedom of political communication than with protecting speech
as inherently valuable.
Similarly, Mr Jack
Herman of the APC observed that 'the good
faith provision probably provides no greater protection than already exists
under the Lange defence [the implied freedom of political
The Gilbert and Tobin
Centre of Public Law also noted that the defence does not include an immunity
for journalists who merely report, in good faith, views expressed by others.
of the APC was concerned that:
Even third-hand reporting of a dissident group somewhere in Australia
or abroad or what might appear to be support for dissident groups in Iraq
is really problematic and cannot be defended.
In response to the committee's questioning as to
whether the 'good faith defence' would cover, for example, people who had
advocated during the Vietnam war that they wanted the North Vietnamese to win,
Mr Bret Walker SC responded:
My guess, as a professional advocate, is yes, you would win that
argument. Could you be sure in advance? No. Would you be nervous as you waited
for the outcome of the no case submission? You bet. Would you be nervous if it
got to the jury? Very...[I]n considering the good faith defence, the jury or
the court could take into account the fact that the urging, say, of the
Australian troops to leave South Vietnam
could be regarded as having been done with the intention of assisting an organisation
engaged in armed hostilities. I would have thought that it clearly was, because
I do not actually accept that there is a distinction between the North
Vietnamese winning and the allies leaving.
Several submissions suggested that, at the very least,
there should be a media-specific exception to the sedition provisions. Fairfax and others
pointed to precedents for such media exemptions in the Trade Practices Act 1974 and in the Privacy Act 1988.
Herman of the APC pointed out that the
sedition provisions appear to criminalise even 'expressions of an artistic,
satirical or humorous nature.' For
this reason, he suggested a further exemption for artistic expression.
HREOC (and many others) went broader, suggesting that,
if the sedition provisions remain in the Bill at
all, a broad defence along the lines of the defence contained in section 18D of
the Racial Discrimination Act 1975
should be considered. Section 18D
provides a defence to certain provisions of the Racial Discrimination Act 1975 for anything said or done reasonably
and in good faith:
- in the
performance, exhibition or distribution of an artistic work; or
- in the
course of any statement, publication, discussion or debate made or held for any
genuine academic, artistic or scientific purpose or any other genuine purpose
in the public interest; or
making or publishing a fair and accurate report of any event or matter of
public interest; or a fair comment on any event or matter of public interest if
the comment is an expression of a genuine belief held by the person making the
However, the Department was not convinced of the merits
of such a defence:
...the offence is always to do with intentionally urging violence
(either directly or indirectly by assisting an enemy). It is difficult to
understand why [HREOC] would consider such conduct to be appropriate in the
context of the defences they suggest as opposed to others, particularly given
that urging violence against other groups in the community would appear to be consistent
with the objects of Article 20 of the International Covenant on Civil and
Political Rights. It far more preferable for the whole community to rely on the
same defences as proposed in s.80.3 – to do otherwise is discriminatory. The
danger with using special defences is that the terrorists will attempt to use
education, the arts and journalism as a shield for their activities in much the
same way some involved with child porn have attempted to justify their conduct.
Indeed, a representative of the Department argued that
the defences under the Bill were broader than
the existing defences under the Crimes Act:
In considering the defence, the court talks about taking into
account whether it was intended to assist the enemy, to cause violence, to
create public disorder and so on. What we have done with that part of the
defence, if anything, is give it more teeth than it had before.
In response to the committee's suggestions that the
'good faith' concept could be removed from the defence, the Department suggested
that removing this would:
...open the door to people suggesting it was legitimate to urge
the use of force or violence to procure changes in policy. The 'good faith'
defence points to the real motivation of the person and should be retained.
Defences – burden of proof
Many submissions were also concerned that the burden of
proof for the defences under the sedition provisions would be on the defendant. For example, the APC argued that 'it
is in practice extremely difficult for defendants to prove that they acted in
good faith'. Similarly, the
Australian Screen Directors Association argued that the provisions place an
'undue burden' on people accused of sedition to prove their innocence.
Connolly submitted that:
An allegation of sedition requires the accused to prove beyond
reasonable doubt that they are acting in good faith. This is a rare and
dangerous reversal of Australia's
normal assumption that a person is innocent until proven guilty, and that the
burden for proving guilt falls on the prosecution.
elaborated on this concern at one of the committee's hearings:
It is quite unusual for someone such as an artist or a
journalist to have to rely on a defence where the onus [of] proof is on them...It
is not an impossible burden to bear—no-one is suggesting that. In fact, there
are lots of crimes where if you raise a defence you do have to carry the onus
of proof, but most of those crimes are incredibly difficult [to] prove in the
first place, such as murder.
Similarly, Mr Simeon
Beckett of ALHR observed
...it is quite easy to be engaged in some form of seditious
conduct as a result of this bill. So you are then hauled before the courts and
you are effectively required to prove your defence, be it the good faith
defence in this example or perhaps a redrafted defence. If that is the case
then that still has a fundamental unfairness which goes to the heart of the
sedition laws. That is, effectively, the person has to prove their innocence
rather than the Commonwealth or the DPP [Director of Public Prosecutions] proving
that the person has committed a particular seditious act taking into account
those freedoms that we all enjoy at the moment.
North of the Law Council pointed out the
problems in a media context:
You can publish and be damned because you are going to be
charged and then you can rely on good faith. How ridiculous is that for a media
organisation? Will we print this? Will we publish it? We might be charged—but
we have a defence...That will automatically make our media more circumspect and
we do not want to see that in Australia...[T]he
whole object is not to have to publish and then wonder whether you are going to
be charged. The object is to have a free and robust press in this country that
can question government decisions and not fear that they might be charged and
then have to rely on a broadened defence.
Similarly, Fairfax and others were
The requirement that the defendant demonstrate 'good faith' is
also extraordinarily difficult if not impossible to satisfy in practice,
particularly in relation to republication of third-party statements, as it may
readily be negatived by, for example, a perceived lack of proportion or
congruence between the opinion expressed and the facts within the publisher's knowledge
at the time of publication.
The committee notes that the ACT Director of Public
Prosecutions, in advice to the ACT Chief Minister on an earlier draft of the Bill
commented in relation to the burden of proof for these defences as follows:
Because of the burden placed on the defendant, it is always
possible that the fact will pertain but the burden will not be discharged. That
is to say, the person will be found guilty although innocent. I am of the view,
however, that the burden should not be very difficult to discharge in these
cases, as the burden is an evidential one, then if discharged, the prosecution
retains the burden of proving that the defence is not made out and must do so
beyond reasonable doubt. Accordingly the offences proposed by the Bill
do not appear to compromise the right to a fair trial or the rule of law.
However, in response to concerns about the burden of
proof for the defence, the Department submitted that:
...the defences do not shift the legal burden of proof to the
defence. The defence has to satisfy the evidential burden. This means the
burden of adducing or pointing to evidence that suggests a reasonable
possibility that the defence exists (s.13.3(6) of the Criminal Code). Once the
defence establishes that this reasonable possibility exists, the prosecution
has to prove the defence does not exist beyond reasonable doubt. The
prosecution takes this into account when making the initial decision to
prosecute. No prosecutor goes to court without being in a position to counter defences
of this nature.
As noted earlier, under proposed section 80.5, proceedings
for an offence against Division 80 must not be commenced without the Attorney-General's
written consent. However, this safeguard did not reassure some submitters. Indeed, Mr
referred to this requirement as 'an illusory safeguard against prosecutorial
For example, the Justice and International Mission Unit
of the Uniting Church
was concerned that:
...this opens the legislation to being used by a Government
against certain groups, while other groups that are politically aligned to the
Government of the day may be able to commit sedition offences with impunity.
The Unit believes that it would be better if the decision to prosecute rested
with a body independent of the
Likewise, Mr David
Bernie of the NSW Council for Civil
Liberties argued that:
We do not think the so-called safeguard about the
Attorney-General's consent is a safeguard in relation to this or anything else.
Unfortunately the Attorney-General...now acts as a minister in the government. In
fact, having that provision in relation to sedition, rather than being a
safeguard, is a matter of concern because it means that prosecutions would be
politically sanctioned. In other words, for people who say things against the
government which might fall under these provisions that the government of the
day—be it a left-wing or a right-wing government—broadly agrees with, the
prosecutions will not proceed, but for people who the government do not
particularly like, they will give their imprimatur to proceed.
In contrast, Dr Ben
Saul of the Gilbert
and Tobin Centre of Public Law commented that the requirement under proposed
section 80.5 is 'good additional protection.'
of the NSW Council for Civil Liberties suggested that a statutory director of
public prosecutions would be a more appropriate and independent person to
determine whether a prosecution should proceed. Mr
John von Doussa
QC, President of HREOC, agreed with this proposal, suggesting that another
compelling reason for adopting such a proposal would be that:
...it is the nature of sedition that you are dealing with speech
that is potentially in the political sphere. In that context maybe it is highly
desirable to remove it from somebody who is perceived to be involved in that
However, a representative of the Department pointed out
that the Director of Public Prosecutions (DPP) is independent, and has been
since 1983. He suggested that 'the Attorney is a political safeguard on the DPP
and the DPP is a safeguard on the Attorney. So where you have the Attorney's
consent it is a dual process'.
The Castan Centre for Human Rights Law raised concerns
about the lack of guidelines for the Attorney-General under these provisions:
We recognise that there is, in a sense, a stopgap measure on the
Attorney-General having to authorise any prosecution under this legislation.
Our concern is that the legislation, as outlined here, does not actually
contain precise guidelines for the Attorney-General to follow. It may well be
that you end up going down to issues of popularity. John
Pilger might not get prosecuted, but some
obscure extremist religious figure might. In terms of governance by rule of
law, issues come up when you do not actually have precise and predictable legal
regimes for the administration of criminal law.
A representative of the Department acknowledged that such
guidelines could be considered in the future review of the provisions. However, the representative
argued that the safeguards and defences in the legislation would be sufficient
to protect situations where the focus is on criticism of government policy and
decisions. Indeed, the
representative argued that the safeguards in the Bill
are 'clearer and better than they were under the old offences'.
As to other safeguards, the Law Council pointed out
that the Bill does not contain a requirement, currently set out under
subsection 24D(2) of the current sedition provisions in the Crimes Act, that a
person cannot be convicted of sedition upon the uncorroborated testimony of one
Finally, many submissions suggested that the penalty
increase for sedition offences from three years to seven years imprisonment is
pointed out that the ACT Director of Public Prosecutions has questioned the
need for 'such severe penalties':
It does not seem to me, however, that the penalty for sedition
should be increased as the essence of the offence consists only of urging
another to act, and does not involve any actual act of violence in itself.
The committee notes that the penalty increase is in
line with the recommendations of the Gibbs Report, as discussed
above. Further, in response to
concerns about the penalty increase, the Department also submitted that:
The Australian Government regards the conduct that is captured
by the amended sedition offences as sufficiently serious as to warrant an
increase in the penalty from 3 years to 7 years imprisonment.
A representative of the Department pointed out that the
terrorist legislation also contains a penalty of seven years imprisonment for
the offence of 'encouragement of terrorism'.
However, the committee notes that that offence is phrased quite differently to
the proposed sedition offences in Schedule 7 of this Bill.
As outlined above, Item 4 of Schedule 7 of the Bill
amends section 30A of the Crimes Act to provide a definition of 'seditious
intention' in the provisions relating to 'unlawful associations'. The committee
notes that this definition is based on the definition of 'seditious intention'
currently contained in section 24A of the Crimes Act.
Nevertheless, several submissions were concerned at
this proposed amendment. The Gilbert
and Tobin Centre of Public Law submitted that:
It is very odd that the Bill
effectively preserves the old definition of sedition in the Crimes Act for the
purpose of declaring as unlawful associations which advocate a seditious
intention...This results in two inconsistent meanings of sedition in federal law
(one in the Crimes Act, and another in the Criminal Code).
Connolly raised several objections to the
ability to ban 'unlawful associations' under Part IIA of the Crimes Act,
including that it:
does not require any link whatsoever to force,
violence or assisting the enemy;
is not subject to any 'good faith defence' or
appears to have no link at all to terrorism; and
is linked to an archaic definition of 'seditious
intention' that covers practically all forms of moderate civil disobedience and
objection (including boycotts and peaceful marches).
Connolly concluded the unlawful associations
provisions in section 30A of the Crimes Act:
...provide the Government with the ability to ban any organisation
that opposes a Government decision and encourages protest or dissent that falls
outside the law, no matter how slight or technical the breach.
Similarly, the Uniting
Church in Australia
concluded that the definition of 'seditious intention' to be inserted by the Bill
...nonviolent civil disobedience as exemplified by religious and
political leaders such as Mohandas
Gandhi, Rev Dr Martin
Luther King Jr,
Archbishop Desmond Tutu,
and a great many other prophets of history.
As the Gilbert and Tobin
Centre of Public Law observed, 'the law on unlawful associations is a remnant
of an anti-democratic colonial era'.
Indeed, the committee notes that the Gibbs Report recommended the repeal of
Part IIA of the Crimes Act in its entirety, including the provisions on
'unlawful associations' in section 30A.
In response to the committee's questioning about the
amendments to section 30A, a representative of the Department argued that Part
IIA was not being 'refreshed' by the Bill,
pointing out that Part IIA has 'been on the statute books for the whole time.
It could have been prosecuted at any time'.
He further noted that 'there is no declared unlawful association that I am
aware of and I do not think it has been used for a long time; I am not even
aware of when it has been used.' The
representative also noted that an organisation declared to be an unlawful
association has to be approved by the Federal Court.
The Department further submitted that:
...whether or not schedule 7 is enacted the unlawful association provisions
will remain on the statute book. Schedule 7 simply preserves a definition so
that the status quo is maintained. Suggestions that preserving the definition
in some way re-invigorates the provisions are mistaken.
In any case, the representative stated that he expected
that this issue would be examined as part of the review promised by the
representative further explained that a decision had been made that this Bill 'would
not deal with the unlawful associations provisions in section 30A of the Crimes
Act', but the repeal of the sedition provisions in the Crimes Act meant that a
consequential amendment to section 30A of the Crimes Act was required. The Department also later added that
'the Government has not fully considered the need for the retention of section
30A of the Crimes Act'.
Sedition - the committee's view
The committee received an overwhelming amount of
evidence in relation to the sedition provisions in Schedule 7 of the Bill.
With the exception of the evidence from the Department and the AFP, this
evidence indicated strong opposition to the sedition offences from all sectors
of the community.
The committee agrees with many of the concerns raised
in relation to the sedition provisions. The committee recognises that Schedule
7 is an attempt to update and modernise the existing offences of sedition already
contained in the Crimes Act. However, the committee agrees with the evidence
received that the removal of Schedule 7 from this Bill,
pending the review foreshadowed by the Attorney-General, would not weaken Australia's
anti-terrorist capacity given the nature of the existing law in this area. In
particular, the committee is not convinced of an urgent need for the provisions
in light of existing laws such as the offence of treason (in section 80.1 of
the Criminal Code) and the crime of incitement (in section 11.4 of the Criminal
The committee acknowledges concerns about the potential
impact of the sedition provisions on freedom of speech in Australia.
Despite the Department's various reassurances on this issue during the
committee's inquiry, the committee is troubled by evidence of the potential for
'self-censorship' by a community cautious of the potential breadth of the provisions.
The committee also notes the extensive expert legal evidence to this inquiry
raising serious concerns about the provisions, including the clarity of various
aspects, such as the fault elements and defences.
The committee acknowledges that the Attorney-General
has committed to reviewing the sedition (and advocacy) provisions of the Bill
next year. In that light, the committee agrees with the evidence received that
it is inappropriate to enact legislation which is considered to be in need of
The committee therefore recommends that Schedule 7 be
removed from the Bill in its entirety, pending a
full and independent review. The committee suggests this review be carried out by
the ALRC. This review should examine, among other matters, the appropriate
legislative vehicle for addressing the issue of incitement to terrorism. The ALRC
review should also consider the need for sedition laws such as those contained
in Schedule 7, as well as the existing sedition offences in Part II of the
The committee also notes the concerns raised about the
'unlawful associations' provisions in Part IIA of the Crimes Act, but accepts
the evidence from the Department that the amendments in the Bill are simply
consequential amendments to existing provisions of the Crimes Act. Nevertheless
the committee recommends that the proposed ALRC review should also examine Part
IIA of the Crimes Act.
The committee recommends that Schedule 7 be removed
from the Bill in its entirety.
The committee recommends that the Australian Law Reform
Commission conduct a public inquiry into the appropriate legislative vehicle
for addressing the issue of incitement to terrorism. This review should examine,
among other matters, the need for sedition provisions such as those contained
in Schedule 7, as well as the existing offences against the government and
Constitution in Part II and Part IIA of the Crimes
While the committee recommends the removal of Schedule
7 of the Bill, the committee makes an
alternative set of recommendations if this recommendation is not accepted.
These recommendations are designed to address some of the key concerns raised
in evidence in relation to the sedition provisions. In particular, the
committee recommends that:
proposed subsections 80.2(7) and 80.2(8) should
be amended to require a link to force or violence and to remove the phrase 'by
any means whatever';
all offences in proposed section 80.2 should be
amended to expressly require intentional urging; and
proposed section 80.3 (the defence for acts done
'in good faith') should be amended to remove the words 'in good faith' and
extend the defence to include statements for journalistic, educational,
artistic, scientific, religious or public interest purposes (along the lines of
the defence in section 18D of the Racial
Discrimination Act 1975).
If the above recommendation to remove Schedule 7 from
the Bill is not accepted, the committee
proposed subsections 80.2(7) and 80.2(8) in
Schedule 7 be amended to require a link to force or violence and to remove the
phrase 'by any means whatever';
all offences in proposed section 80.2 in
Schedule 7 be amended to expressly require intentional urging; and
proposed section 80.3 (the defence for acts done
'in good faith') in Schedule 7 be amended to remove the words 'in good faith'
and extend the defence to include statements for journalistic, educational,
artistic, scientific, religious or public interest purposes (along the lines of
the defence in section 18D of the Racial
Discrimination Act 1975).
Advocacy - outline of key provisions
Schedule 1 of the Bill
expands the power to proscribe terrorist organisations under the Criminal Code
by including organisations that 'advocate' the doing of a terrorist act.
Under the amendments proposed by this schedule, the
Minister will have a discretion to proscribe an organisation under section
102.1 of the Criminal Code if he or she is satisfied on reasonable grounds that
the organisation advocates the doing of a terrorist act — whether or not the
terrorist act has occurred or will occur.
New subsection 102.1(1A) will define the term
'advocates' to include situations where an 'organisation':
- directly or indirectly counsels or urges the doing of a
terrorist act; or
- directly or indirectly provides instruction on the
doing of a terrorist act; or
- directly praises the doing of a terrorist act.
The Explanatory Memorandum states that:
The definition [of 'advocates'] recognises that such
communications and conduct are inherently dangerous because it could inspire a
person to cause harm to the community. This could be the case where it may not
be possible to show that the organisation intended that a particular terrorism
offence be committed or even intended to communicate the material to that
particular person. Accordingly, the definition is not limited to circumstances
where a terrorist act has in fact occurred, but is available whether or not a
terrorist act occurs.
Advocating terrorism in itself will not attract
criminal liability under these provisions. Rather, it may only be a ground for
listing an organisation. However,
as a representative of the Department acknowledged during the committee's
hearings, the effect of the advocacy amendments in Schedule 1 of the Bill is
that 'membership and providing assistance to a listed organisation will become
a serious offence in its own right.'
That is, if an organisation is listed as a terrorist organisation under these
provisions, a range of offences relating to terrorist organisations become
relevant, such as offences of:
membership of a terrorist organisation;
providing training to, or receiving training
from, a terrorist organisation; or
supporting, or associating with, a terrorist
These offences contain penalties of up to 25 years
Advocacy - key issues
Key concerns raised during the committee's inquiry about
the proposed amendments relating to advocacy include:
the impact of, and need for, the provisions;
the breadth of the definition of 'advocate' and
the nexus to terrorist activities;
accountability of members for actions of others
in their organisation; and
concerns with the listing regime for 'terrorist
Impact of, and need for, advocacy provisions
As with other aspects of the Bill,
several submissions queried the need and justification for these provisions. For example, ALHR suggested that,
where a specific terrorist act is contemplated, then an organisation that
directly incites another to do the act would fall within the current law
prohibiting incitement, under section 11.4 of the Criminal Code. The offence of incitement is
discussed earlier in this chapter in the section on sedition.
AMCRAN also argued that there are already extensive
offences relating to terrorist organisations, and that there is a lack of
justification for the measures:
...no evidence has been put forward to show that it would provide
any measure of safety to the Australian people. Specifically, no clear
justification has been given as to why the addition of 'advocating terrorism'
as a listing criterion is necessary to prevent ideologically or religiously
motivated violence or to strengthen security.
The Federation of Community Legal Centres (Vic) noted
the Explanatory Memorandum's justification, as outlined earlier in this
chapter, that the communications and conduct covered by the definition of
'advocates' are 'inherently dangerous' because they could inspire a person to
cause harm to the community. However, in the Federation's view:
...to say that such conduct 'could' inspire a person to commit
terrorist acts actually indicates a tenuous link to actual terrorist acts. It
does not, therefore, warrant the characterisation of 'inherently dangerous'. In
turn, it is not justifiable to ban any organisation that has such tenuous links
to actual terrorist activity.
The Department further elaborated on the justification
contained in the Explanatory Memorandum by providing examples of the type of
conduct that the legislation is aimed at, including:
...where the organisation has arranged for the distribution of a
book that tells young people that it is their duty to travel overseas and kill
Australian soldiers stationed in another country. Another [example] might be
where the organisation puts a message on a web site following a terrorist act
stating that it was a brave act that should be repeated.
However, many submissions were also concerned that the
consequences of an organisation being listed under the proposed provisions
could result in potentially severe penalties for members under the offences
relating to terrorist organisations.
As outlined above, some of these offences provide for penalties of up to 25
years imprisonment. As the Federation of Community Legal Centres (Vic)
These offences attract very serious sentences and most of them
do not require actual knowledge, mere recklessness is enough. The possibility
that people may be charged with such serious offences for simply being reckless
in their connections with an organisation that merely praises the doing of a
terrorist act is an unjustifiable extension of Australia's
Similarly, Mr Joo-Cheong
Tham and others questioned the
proportionality of the measures, arguing that if an organisation is listed
under the provisions:
This seems to impose a 'blanket' punishment that could affect
hundreds of people, not on the basis of involvement in any terrorist act, but
merely on the basis of a connection to an organisation that has, for example, a
stated policy that people of occupied lands have the right to resist
A representative of the Department told the committee
Once an organisation is listed in the regulations as a terrorist
organisation and that is gazetted, if you are a member of that organisation you
need to cease that membership...otherwise you do find yourself committing an
Several submissions also criticised these amendments on
the policy basis that they would limit freedom of speech. For example, the Federation of
Community Legal Centres (Vic) expressed its view
In a liberal democracy it is not desirable that the executive be
empowered to ban organisations for simply expressing praise for certain acts
(however abhorrent those acts may seem to the broader public). It is the
fundamental basis of any open, democratic society that its members be able to
freely express their opinions, regardless of the content of those opinions.
This amendment seriously jeopardises this fundamental precept.
Similarly, Ms Agnes
Chong of AMCRAN told the committee that:
Our view is that criminal measures are a crude tool to use against
such points of view and it is likely to be seen by the community as the
government suppressing legitimate points of view that it could not oppose on
the basis of reason or logic.
PIAC submitted that:
...the approach of proscription on expanding bases is not an
effective approach. It over-criminalises ordinary acts, including critical or
dissenting speech, and criminalises, by association, others who may not be
aware of or share the views expressed.
PIAC suggested that Schedule 1 be amended to require
the Minister to consider the effect of any such proscription upon certain human
rights, such as freedom of expression and freedom of association. They further
suggested that any regulation that proscribes an organisation as a terrorist
organisation should be accompanied by a Human Rights Impact Statement.
The Division of Law at Macquarie
University also queried the constitutional
validity of the provisions due to their impact on freedom of speech. First, citing the Communist Party
Case, the Division argued that:
A law that criminalises organisations challenges fundamental
constitutional protections of freedom of speech contained in the rule of law
and the separation of powers, both of which limit the extent of Commonwealth
It also argued that it could breach the implied
constitutional freedom of political communication, on the basis that
'expressing opinions about the merits of terrorist activity in the name of a
political or ideological cause is, by its nature, political.'
The Gilbert and Tobin
Centre of Public Law made no comment on the implied constitutional freedom of
political communication, but did suggest that the provisions may infringe the
express constitutional protection of the free exercise of religion in section 116
of the Constitution. It also felt that they could violate Australia's
obligation to protect freedom of association under Article 22 of the ICCPR,
since 'it is disproportionate to restrict the association of the harmless many
to suppress the association of a harmful few.'
As with other aspects of the Bill,
it was also suggested that these amendments may have a particular impact on
Muslim community groups. For
example, AMCRAN put forward the argument that Muslim community groups:
...may wish to express solidarity with Muslims who are under the
thumb of either oppressive regimes or various kinds of occupying forces. This
is particularly the case, as the definition of a terrorist act makes no
distinction between legitimate liberation and independence movements and
terrorism. Examples of such situation would include commentary on Palestinian
oppression at the hands of Israeli occupiers; and groups calling, on the basis
of things like the torture in Abu
Ghraib, that America
and its allies be forced out of Iraq
by any means necessary. It is our view that the above point of view, while
unpalatable to some, should not be limited.
However, Dr Waleed
Kadous of AMCRAN acknowledged, in response
to the committee's questioning, that 'there is not a clear line or a
distinction between resistance movements and terrorism'. Nevertheless, Dr
Kadous told the committee that the current
definition of 'advocates' is 'too broad' and:
The perception in the Muslim community will be that the reason
the laws are being introduced is to prevent open discussion because they cannot
be handled through the normal course of debate and logic that occurs...When I met
with approximately 10 religious leaders on Saturday to discuss the sedition
offences, it was their perception that these laws were tailored to them. I had
to convince them that they were not tailored to them. I was in the unusual
position of having to defend this particular legislation and say that I really
do not think this is targeted at the Muslim community. It has an undue impact
on the Muslim community but that is not the same thing as saying it is targeted
at the Muslim community.
Definition of 'advocates' and nexus to terrorist activities
Submissions variously described the proposed definition
of 'advocates' in Schedule 1 as 'too broad', 'vague', 'uncertain' and
'unclear'. Proposed paragraph (c),
which refers to an organisation that directly praises the doing of a terrorist
act, was particularly criticised for being 'too broad' and for not requiring
clear connection to terrorist-related activities.
For example, the Federation of Community Legal Centres
(Vic) was concerned that the amendments would sever
'the link between proscription and concrete acts of political violence,
particularly insofar as indirect counselling of a terrorist act or mere praise
of a terrorist act may trigger proscription.'
The NSW Council for Civil Liberties expressed concern
that the provisions would cover:
...organisations not involved in any terrorist activity but [which]
are expressing opinions about terrorist activity. This is clearly unacceptable.
Any Tamil or Palestinian support organisations could be banned under these provisions...
The present proposals have a flavour of political suppression about them which
is unacceptable in any democracy. Banning of organisations on the basis of
alleged advocacy rather than activities is fraught with danger.
In the same vein, AMCRAN argued that:
A particular concern with any broadening of the existing grounds
for the listing of organisations as 'terrorist' would be the severing of any
required nexus between proscription, and the organisation's link to acts of
political violence. For example, an organisation may become liable to
proscription simply on the grounds that it has voiced support for a political
struggle somewhere in the world.
Emerton and Mr
were similarly concerned that:
Given the very large number of community, religious and
political organisations in Australia and around the world which from time to
time express praise for acts of political violence – whether that be commending
the United States on its invasion of Iraq, or expressing support for organisations
resisting oppressive regimes – this is a very real power to target
organisations and their members on the basis of nothing more than their
political or religious orientation.
In contrast, the committee notes that the Explanatory
Memorandum states that 'the advocacy would need to be about [a terrorist] act,
not generalised support of a cause'.
Indeed, a representative of the Department told the committee that broad,
general statements supporting resistance movements would not come under the proposed
provisions – the statements would advocating terrorism would need to praise a
specific, violent terrorist act.
Indeed, the Department submitted that the definition of
'advocates' 'achieves the right balance, and is not too broad'.
However, the committee notes that recent similar
proposals in the UK
would enable the proscription of organisations that promote or encourage
terrorism, including activities which 'glorify' acts of terrorism (which
includes any form of praise or celebration). However, it was pointed out to the
committee that the UK
proposal is limited to circumstances where a reasonable person would infer the
act should be emulated.
In relation to concerns that the definition of
'advocates' is too broad, the Department submitted that:
It should be borne in mind that the definition of 'advocates'
(and the offences that rely on that definition) only relates to the process for
listing a terrorist organisation in regulations, a process that contains
significant safeguards and limitations, including requiring consultation with
the States and with the leader of the Opposition. In contrast with the other
types of terrorist organisations under the Criminal Code, it is not possible to
prove an offence of, for example, association with a terrorist organisation
that advocates terrorism, unless that organisation has been listed in
regulations. This is regarded as a significant additional safeguard relating to
the advocacy definition.
The committee asked the Department whether the
provisions, particularly paragraph (c) of the definition of 'advocates', could
be amended to include some qualifying words. One suggestion for qualifying
words was to require that the praise is made with the intention, or in
circumstances where it is likely to have the effect, of creating a substantial
risk of a terrorist act occurring. A representative of the Department responded
that such an amendment would probably be within the scope of the policy of the
Accountability of members for actions of others in their organisation
Several submissions suggested that the advocacy provisions
in Schedule 1 raise issues of accountability of members for the statements of
others in their group – statements which other members may not even agree with. For example, AMCRAN submitted that:
...there is vagueness as to what is meant for an organisation to 'advocate'
terrorism. Does it mean that the leader of the organisation has made comments
on one occasion publicly 'advocating terrorism'? Is there a requirement that
the comments be made on multiple occasions? Is it sufficient for someone on the
forums of a web site to have made statements advocating terrorism? Or is
advocacy limited to it being stated as one of the doctrines of the
organisation? This is very different from the doing of a terrorist act, which
clearly requires logistical support and coordinated acts, rather than the
speech of a single individual.
In the same vein, Mr
Bernie of the NSW Council for Civil
Liberties pointed out that the advocacy provisions do 'not indicate at what
level an organisation would be said to be advocating terrorism. Is it because
one member says it? Is it because a leader says it? Or is it if it is in the
aims of the organisation?'
Likewise, PIAC was concerned that:
An organisation risks being proscribed on the basis that a
member, who is not necessarily representative of the organisation, advocates
the doing of a terrorist act or praises the commission of such an act. This
then has a flow on effect to other members of the organisation through the fact
that membership of a proscribed organisation is, in itself, a criminal offence.
The Gilbert and Tobin
Centre of Public Law described the amendments in Schedule 1 of the Bill
...an extraordinary extension of the power of proscription and of
criminal liability, since it collectively punishes members of groups for the
actions of their associates beyond their control. It is also misapplication of
criminal law to trivial harm, when criminological policy presupposes that
criminal law should be reserved for the most serious social harms.
The Gilbert and Tobin
Centre of Public Law submitted that:
While it may be legitimate to ban groups which actively engage
in, or prepare for, terrorism, it is not justifiable to ban whole groups merely
because someone in it praises terrorism. It is well accepted that speech which
directly incites a specific crime may be prosecuted as incitement. It is quite
another matter to prosecute a third person for the statements of another; even
more so when such statements need not be directly and specifically connected to
any actual offence.
The Centre raised the following example as a problematic
...places of religious worship...may be closed down merely because
someone in it praised a terrorist act, such as where a preacher asks God to
grant victory to the mujahedeen in Iraq.
This would collectively punish all worshippers for the view of a wayward
As the Parliamentary Library's Bills Digest pointed
It is not clear from the amendments whether or under what circumstances
direct praise by a member of an organisation would be treated as direct praise
by the organisation.
AMCRAN suggested in its submission that, at the very
least, the criteria for 'advocating' on behalf of an organisation should be
clarified. AMCRAN suggested that possible criteria could include that:
- the statements are made by the acknowledged leader of the
- the statements are made on official material distributed or
speeches given by the leader; and
- the statements are made in public conversation; and
- the statements are made on more than 5 occasions.
In response to the committee's questioning on this
issue, a representative of the Department responded that all the circumstances
would need to be carefully considered, and that a range of evidence would be
required to establish 'whether there was a similarity of mind about a
particular organisation'. The
representative suggested that the comments of an individual alone would not
result in an organisation becoming listed, even if that person were the leader
of the organisation. Rather, the whole conduct of the organisation would need
to be examined to determine whether the advocacy was an 'organisational
A representative of the Department further explained
that the sedition offences (in Schedule 7) are offences aimed at individuals,
whereas the amendments to section 102.1 target organisations who advocate
The committee queried whether an individual offence of
advocating terrorism (with appropriate defences) could be included in Schedule
1 of the Bill, instead of the proposed new
sedition offences in Schedule 7 of the Bill. A representative of the Department raised
some concerns with this proposal, noting that, unlike the sedition provisions, it
would require a reference of power from the states because it would then come
within the terrorism provisions. However, he acknowledged that this issue could
be considered in the Attorney-General's review of the proposed provisions.
The committee also notes that, in the Bill's
second reading speech, the Attorney-General appears to indicate that the
Security Legislation Review Committee could have this matter referred to it for
consideration and review:
I will be asking that committee to examine some issues relevant
to individual advocacy which have been raised with me.
Concerns with the existing proscription regime
The Division of Law at Macquarie
University expressed concern that
amendments in Schedule 1 give the Minister a broader power to proscribe a wide
range of organisations, without sufficient safeguards and guidance in the
legislation to ensure that the Minister will exercise his or her discretion
However, a representative of the Department pointed out
that, under the process for proscribing terrorist organisations:
The listing does not occur without consultation with the states
and the making of regulations, which can be disallowed.
The Bills Digest also notes that the Parliamentary
Joint Committee on ASIO, ASIS and DSD may review a regulation specifying an
organisation as a terrorist organisation.
Nevertheless, several submissions were critical of the
existing proscription regime under the Criminal Code, and for them, these provisions
simply compounded their existing concerns.
For example, Mr Joo-Cheong
Tham and others suggested that:
The proposal to extend the listing criteria to cover
organisations that advocate terrorism would only exacerbate the problems that
have been persistently identified in relation to the existing proscription
Tham and others concluded:
The proposal to extend the criteria would substantially increase
this confusion and lack of transparency. In particular, the adoption of vague
concepts such as 'advocating' terrorism would only serve to exacerbate the
arbitrary nature of the proscription regime.
Similarly, the Federation of Community Legal Centres (Vic)
stated that it:
...is in principle opposed to the proscription of organisations by
the Executive, particularly with such broad discretion, expansive criteria and
limited judicial oversight as result from the legislative regime around
proscription. Broadening the proscription power only heightens these concerns.
The Federation of Community Legal Centres (Vic)
also raised concerns about the breadth of the existing definition of 'terrorist
act' in section 100.1 of the Criminal Code when combined with the proposed
amendments. It argued that:
The expansiveness of this definition [of 'terrorist act']
coupled with the Minister's wide discretion to proscribe means that [any
further] extension of this power is of serious concern.
Advocacy - the committee's view
The committee acknowledges that the Attorney-General has
committed to reviewing the advocacy provisions in Schedule 1 of the Bill
(along with the sedition offences proposed by Schedule 7 of the Bill).
Once again, the committee queries the wisdom of enacting provisions which are
already considered to be in need of review. However, in the case of the
advocacy provisions in Schedule 1, the committee accepts that advocating
terrorism will not in itself attract criminal liability under these provisions,
but is merely a ground for listing an organisation as a 'terrorist
organisation'. The committee further recognises that this listing is subject to
parliamentary scrutiny under the existing provisions for listing terrorist
organisations under the Criminal Code.
The committee notes concerns about the process for listing
'terrorist organisations' under the Criminal Code, but considers that the
concerns with these existing provisions are outside the scope of this inquiry.
Further, the committee recognises that this is a matter which can be considered
by the Security Legislation Review Committee in its review of existing
However, the committee acknowledges the concerns raised
in evidence and submissions about Schedule 1 of the Bill,
including in relation to the potential breadth of the definition of
'advocates'. Therefore, the committee recommends that the amendments in
Schedule 1 of the Bill be included in the
proposed review by the ALRC, as recommended in relation to Schedule 7 above.
The committee also supports suggestions that individual
advocacy could be included in this Schedule, but notes that the
Attorney-General has stated in his second reading speech that this matter will
be considered by the Security Legislation Review Committee in its review of
existing counter-terrorism laws.
The committee recommends that the amendments in Schedule
1 of the Bill, relating to advocacy of terrorism, be included in the proposed
review by the Australian Law Reform Commission as recommended above in relation
to Schedule 7.
However, as an interim measure pending this ALRC review,
the committee recommends two amendments be made to the provisions. First, the
committee acknowledges concerns raised about the breadth of the definition of
'advocates' and the fact that only a distant nexus to actual terrorist
activities appears to be required under the provisions. In this context, the
committee is particularly concerned that paragraph (c) of the definition of
advocates merely refers to situations where an organisation 'directly praises
the doing of a terrorist act'.
The committee therefore recommends that paragraph (c)
of the definition of 'advocates' in the Bill be qualified to require that the praise
is made with the intention, or is made in circumstances where it is likely to
have the effect, of creating a substantial risk of a terrorist act occurring. The
committee notes that the Department acknowledged in its evidence that this
proposal would be consistent with the policy objectives of the provisions.
The committee recommends that proposed paragraph (c) of
the definition of 'advocates' in Item 9 of Schedule 1 be amended to require that
the praise be made with the intention, or in circumstances where it is likely
to have the effect, of creating a substantial risk of a terrorist act
The committee also recognises concerns about the lack
of clear criteria for determining the circumstances under which advocacy of
terrorism can be attributed to an organisation. The committee particularly notes
concerns that members of an organisation might be accountable for actions of
others in their group which are beyond their control. The committee therefore recommends
that the definition of 'advocates' in Schedule 1 be amended to include criteria
to clarify the circumstances to be taken into account in deciding whether the
advocacy of terrorism is an 'organisational position'. In this context, the
committee notes the suggestion by AMCRAN that possible criteria could include,
for example, that the statements advocating terrorism are made by the
acknowledged leader of the organisation; are made on official material
distributed or speeches given by the leader or organisation; and the statements
are made on multiple occasions.
The committee considers that this is consistent with
the evidence from the Department that these sorts of matters would be
considered in any case before an organisation could be listed under these
provisions. For example, the Department told the committee that single
statements by individual members would be unlikely to be attributed to the
organisation as a whole. However, the committee believes that this should be
clarified by expressly including relevant criteria in the legislation.
The committee recommends that the proposed definition
of 'advocates' in Item 9 of Schedule 1 be amended to include criteria to
clarify the circumstances to be taken into account in determining whether an
'organisation' may be considered to 'advocate terrorism'. This criteria could
include, for example, that the statements advocating terrorism are made by the
acknowledged leader of the organisation; are made on official material
distributed or speeches given by the leader or organisation; and the statements
are made on multiple occasions.
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