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HISTORICAL PERSPECTIVES ON CURRENT ISSUES

'Modernising' the Crime of Sedition?

L.W. Maher

Since 11 January 2006, the commencement date of the amendments effected by Schedule 7 of the Anti-Terrorism Act (No 2) 2005 (Cth), Australia has had a revised national law of sedition. Sections 80.1A-80.6 of the Criminal Code Act 1995 (Cth) ('the Code') have replaced sections 24A-24F of the Crimes Act 1914 (Cth) (originally enacted in the War Precautions Act Repeal Act 1920 (Cth)).1 1
      In introducing the Bill for the 2005 Act on 3 November 2005, the Commonwealth Attorney-General, Phillip R. Ruddock, informed the House of Representatives that the proposed sedition amendments were 'modernising the language' of the existing provisions of the Crimes Act 1914 and were not a wholesale revision of that Act's sedition offences.2 2
      Although the Schedule 7 amendments form only a small supplementary component of the extensive and continuous (co-operative) legislative responses by the Commonwealth and State Parliaments and the Territory Legislative Assemblies to the terrorist atrocities perpetrated in Lower Manhattan on 11 September 2001 and on the Indonesian island of Bali on 12 October 2002 (and subsequent atrocities),3 their introduction provoked a vigorous public debate. 3
      In a rare display of bipartisan dissent, the Senate Legal and Constitutional Affairs Committee unanimously recommended that Schedule 7 be omitted from the Anti-Terrorism Bill (No 2) 2005.4 Attorney-General Ruddock was unswayed by the opposition to Schedule 7. He described the reaction to the 'modernising' sedition provisions as 'a triumph for misinformation, disinformation and scaremongering'.5 The Government rejected the Committee's recommendation, the Australian Labor Party (ALP) could not bring itself to stand fast against Schedule 7 preferring instead to quibble about its drafting, and, with only two members of the House of Representatives, P.J. Andren (Ind, NSW) and H.V. Quick (ALP, Tas), crossing the floor, the Bill was passed in that chamber on 29 November 2005.6 4
   

The New Crimes

 
Section 80.2 of the Code, set out below, creates five distinct crimes:
80.2 Sedition
Urging the overthrow of the Constitution or Government
  1. A person commits an offence if the person urges another person to overthrow by force or violence:
    1. the Constitution; or
    2. the Government of the Commonwealth, a State or a Territory;
    3. the lawful authority of the Government of the Commonwealth.
  2. Recklessness applies to the elements of the offence under subsection (1) that it is:
    1. the Constitution; or
    2. the Government of the Commonwealth, a State or a Territory;
    3. the lawful authority of the Government of the Commonwealth that the first-mentioned person urges the other person to overthrow.
  3. A person commits an offence if the person urges another person to interfere by force or violence with lawful processes for an election of a member or members of a House of the Parliament.
  4. Recklessness applies to the elements of the offence under subsection (3) that it is he lawful authority of the Government of the Commonwealth that the first-mentioned person urges the other person to interfere with.
  5. A person commits an offence if:
    1. the person urges a group or groups (whether distinguished by race, religion, nationality or political opinion) to use force or violence against another group or groups (as so distinguished); and
    2. the use of the force or violence would threaten the peace, order and good government of the Commonwealth.
  6. Recklessness applies to the element of the offence under subsection (5) that it is a group or groups that are distinguished by race, religion, nationality or political opinion that the first-mentioned person urges the other person to use force or violence against.
  7. A person commits an offence if:
    1. the person urges another person to engage in conduct; and
    2. the first-mentioned person intends the conduct to assist an organisation or country; and
    3. the organisation or country is:
      1. at war with the Commonwealth, whether or not the existence of a state of war has been declared; and
      2. specified by Proclamation made for the purpose of paragraph 80.1(1)(e) to be an enemy at war with the Commonwealth.
  8. A person commits an offence if:
    1. the person urges another person to engage in conduct;
    2. the first-mentioned person intends the conduct to assist an organisation or country; and
    3. the organisation or country is engaged in armed hostilities against the Australian Defence Force.
 		5
      Section 80.3(1) of the Code (which resembles the now repealed s 24F of the Act) contains explicit defences by providing that sections 80.1 and 80.2 do not apply to a person who:
  • 'tries in good faith' to show that the Sovereign, the Governor-General, a Governor of a State, a Territory Administrator, any of their advisers, or a person responsible for the government of another country is mistaken in any of their 'counsels, policies or actions', or
  • 'points out in good faith' errors or defects in the Government, the constitution, the legislation or the administration of justice of the Commonwealth, State or a Territory or another country, with a view to reforming those errors or defects, or
  • 'urges in good faith' another person to attempt lawfully to procure a change to any matter established by law, policy or practice in the Commonwealth, a State, a Territory or another country, or
  • 'points out in good faith' any matters that are producing, or have a tendency to produce, feelings of ill-will or hostility between different groups, in order to bring about the removal of those matters, or
  • 'does anything in good faith' in connection with an industrial dispute or an industrial matter, or
  • 'publishes in good faith' a report or commentary about a matter of public interest.7
 		6
      In truth, the reformulation of the crime has produced a somewhat wider range of offences. Moreover, the maximum penalty for the offence has been increased from three to seven years' imprisonment. 7
      While the law of sedition has a long and instructive history, the Attorney's Second Reading speech on the Bill is conspicuously ahistorical. We can be sure that, if there had been at least one good historical example justifying his 'modernising' project, the Attorney would have been sufficiently astute to tell the Parliament and the Australian people about it. 8
      When attention is paid to the history of sedition, from its Court of Star Chamber origins down to modern times, it soon becomes clear that:
  • The inherent purpose and use of the crime of sedition has been to throttle political dissent. It is literally a 'political' crime;8
  • The chief vice of sedition is that it is a tendency-based crime. The prosecution is not required to establish that the offending conduct in fact created a real and immediate risk of violence or disorder;
  • The decline of the law of sedition in the nineteenth century was the natural consequence of the gradual rise of representative parliamentary government;
  • By the time the Commonwealth of Australia was established in 1901, the law of sedition was obsolescent, if not obsolete;
  • The insertion of sedition provisions in the Crimes Act in 1920 was a direct response to the perils thought to be inherent in the swift arrival here of Bolshevik ideas and activity;
  • Despite amendments effected in 1986, the Australian law of sedition remained obsolescent until last year;
  • In times of widespread community anxiety (such as that of the Cold War years) even superior court judges can be swayed by forces prepared to exploit hysteria for political reasons; and
  • The existing law of sedition is entirely self-defeating: once the charge is laid in court, the media (and anyone else) is free to publish the supposedly dangerous words as part of an accurate court report. This has always occurred, and yet our Commonwealth endured.9
 		9
      Mr Ruddock, who has been in Canberra for a very long time, is a shrewd political operator. His determination to re-write the sedition law in the face of bipartisan opposition in the Senate Committee illustrates just how savvy he is. He has effectively resurrected an obsolescent law and, in the prevailing atmosphere of politically-orchestrated hysteria, it will be nigh on impossible for the Schedule 7 amendments to be repealed. 10
      Only an incurable optimist could deny that, even if there are no prosecutions under the new sedition law, it will have a chilling effect on the expression of unorthodox and confronting ideas and opinions about the burning political issues of the day. Further, as the historical record amply demonstrates, the mere existence of the law enables it to be put to other uses, most notably as a vehicle for obtaining and executing search warrants which can be used for oppressive collateral purposes. 11
      In standing his ground, Mr Ruddock shrewdly promised to refer his 'modernised' sedition law to the Australian Law Reform Commission (ALRC) for inquiry and report.10 Shrewd, because even if the ALRC can be persuaded to recommend repeal (or substantial amendment) of the new criminal liability regime, it is virtually certain that the Howard Government will decline to implement such a recommendation. In the present political climate, only the same incurable optimist could entertain even the remotest possibility that an ALP government (under its present leadership) could summon up the fortitude required to take the stand of principle required to consign Schedule 7 to the waste bin of historical legislative curiosities. 12
      On 2 March 2006, Mr Ruddock announced the terms of reference of the ALRC inquiry (to be completed by 30 May 2006). In the wake of last year's widespread denunciation of the proposed revival of sedition, it seems that Mr Ruddock now realises that sedition literally has a very bad name and that there is limited scope for effective political appeal to the historical claims of the law of sedition. How else are we to explain the fact that one of the terms of reference calls for the ALRC to consider whether 'sedition' is the appropriate term to identify the targeted conduct, whatever the 'targeted conduct' may be? 13
   

The War on Terror and the Rule of Law

 
The main features of the late 2005 round of legislative changes are the continuing transformation of the Australian Security Intelligence Organization (ASIO) into a law enforcement agency, the widening of the existing power to proscribe terrorist organisations, the conferral of preventative detention powers and power to subject individuals to control orders, proscription of the financing of terrorism, increased police power to undertake warrantless searches and seizures, strengthening of anti-money laundering controls, and the strengthening of other ancillary law enforcement powers. As this note was being prepared, the legislative pursuit of the war on terror was continuing as the Commonwealth Parliament passed the Telecommunications (Interception) Amendment Act 2006. 14
      Much of the debate about the legislative and administrative reactions to offshore terrorism makes reference to the rule of law. As an abstraction, everybody is for it. But what does the 'it' embody? What are its concrete constituent features? 15
      Writing in the late nineteenth century about the rise of the bureaucratic state, the Tory, A.V. Dicey, sneeringly drew an unfavourable contrast with what he saw as the arbitrary droit administratif of France. In extolling the supposed virtues of English controls on the exercise of state power, Dicey reduced what he regarded as the superior English conception of the rule of law to three broad elements:
  • a legal system governed by fixed (and ascertainable) rules contrasted with arbitrary and discretionary authority;
  • the equal application of legal rules to everyone; and
  • the protection of individual liberties by the judges applying the unwritten common law rather than by a written (constitutional or statutory) charter.11
 		16
       The first two aspects of Dicey's formulation are certainly indispensable in any broad specification of the rule of law. The third element continues to excite debate. If he were to be resurrected, Dicey would probably be horrified by the enactment of the United Kingdom Human Rights Act 1998 which gives a measure of domestic legal effect to the European Convention on Human Rights. 17
      In any event, in order to be clear about the central importance of the rule of law in a free and open society, it is necessary to engage in more concrete specification. 18
      Thus, the rule of law depends upon:
  • the adjudication of disputes by courts (and tribunals) operating independently of the other two branches of State authority;
  • the conduct of the adjudication process in public;
  • some minimum right to legal representation; and
  • legally enforceable minimum standards of procedural fairness, whose observance will secure a fair hearing in a forum uninfected by actual or ostensible bias.
 		19
      We also need to remind ourselves that in a free and open society it is an essential feature of the equality element that the State and its agencies are obliged to be law-abiding. 20
      If the focus shifts to the substance of the fixed and ascertainable rules, the English common law has long contained fundamental prohibitions on forced confessions, warrantless searches, and detention without trial. This schematic approach can be broken down even further by, for example, identification of specific categories of positively expressed individual rights. 21
      The fact that there has been an outpouring of legislation in the name of the war on terror and the protection of national security does not mean that the rule of law in Australian is being reinforced. We need only to examine the history of Apartheid South Africa to find a glaring modern example of the use of elaborate law-making in the cause of the nullification of the rule of law, starting with the deliberate disenfranchisement of the Cape Coloured voters in the face of the protracted (but eventually exhausted) resistance of the Supreme Court of South Africa.12 22
      The vice of much of the recent Australian legislative reactions to the war on terror is that they undermine each of the concrete elements of the rule of law mentioned above. What is happening is, in real sense, a process of creeping lawlessness, at least insofar as enforceable legal accountability for interference with individual rights is concerned. 23
      In various ways, history is repeating itself. The legal excesses of the early Cold War years were a function of officially orchestrated hysteria, the stigmatising of dissenters and minorities on the basis that those who were not for the government in the anti-communist crusade were against it. Because the 'red peril' was said to be so real and immediate, the only effective way to counter it was by draconian measures: desperate times compelled resort to desperate measures. In times of extreme danger, the government had to be trusted and citizens who had nothing to hide had nothing to fear, and so on and so on. 24
      In other respects, the dangers to the rule of law seem to this observer to be more grave than was the case during the Cold War. For example, not content with maximising power to detain suspected terrorists, some proponents of a more vigorous approach to the war on terror are now seriously contending that the exigencies are such that liberal democracies must legitimise some use of torture.13 25
   

Historical Continuities: Sedition, Violence and Disorder

 
The post-2001 reactions to offshore terrorism are part of a continuous law-making process and resort to administrative authority which has its origins in the emergence of the national security state in the late nineteenth century. 26
      Readers of Labour History probably do not need to be reminded of the long history of state-sanctioned attacks on dissent and alleged disloyalty. For present purposes, it is convenient to chart the following evolutionary phases:
  • The enactment of the Imperial Official Secrets Act 1889 and the establishment of MI5 (1909);

  • The Australian legislative and administrative responses to the Bolshevik Revolution, including the War Precautions Act Repeal Act 1920 and the Crimes Act 1926;

  • The early Cold War anti-communist struggle, culminating in the creation of ASIO by secret Prime Ministerial directive, the enactment of the Communist Party Dissolution Act 1950, the 1951 constitutional Referendum and the ensuing enactment of the Australian Security Intelligence Organisation Act 1956, the Telephonic Communications (Interception) Act 1960,14 and the Crimes Act 1960;

  • The Royal Commission on Intelligence and Security (1974–77), conducted by Mr Justice R.M. Hope of the Supreme Court of New South Wales, and the inquiry conducted by Mr Acting Justice Michael White of the Supreme Court of South Australia into the South Australian Police Special Branch (1977) made it abundantly clear that in the Cold War hunt for communist subversives the rule of law had taken a severe battering. The Cold War remained the dominant geo-political condition and although the secret administrative character of the national security state apparatus was given a measure of legislative foundation, that apparatus continued to expand and remained beyond conventional judicial review.15
 		27
In 1948–49, the Chifley Government prosecuted the CPA functionaries, Gilbert Burns, L.L. Sharkey (both convicted) and K.M. Healy (acquitted), for sedition. The Menzies Government also resorted to selective sedition prosecutions of communists, William Fardon Burns (1950) (convicted)16 and the Communist Review functionaries, H.B. Chandler, J.N. Bone and Adam Ogston (1953) (acquitted). In the latter case, a full-blooded but harmless attack on the British Royal Family was the pretext for the prosecution which was preceded in part by the turning over of Chandler's home and workplace as part of the investigation of Soviet espionage leading to the defection of V.M. Petrov the following year. 28
      It is little wonder that neither the present government nor opposition have been inclined to recall the shameless use of sedition prosecutions in the early Cold War days. 29
       In re-casting the crime of sedition, the Howard Government has emphasised that Australian interests are at threat from terrorists, that a terrorist attack in Australia is feasible and could well occur, and that it is necessary to continue the work of identifying people intent on doing harm. The Australian Federal Police told the Senate Legal and Constitutional Affairs Committee that it was necessary for it to be able to protect the community where there was not enough evidence to arrest and charge suspected terrorists but where there was a reasonable suspicion that terrorist activities may be imminent or where an act (unspecified) had occurred. 30
      Mr Ruddock told the House of Representatives that Schedule 7 was directed at 'those in our community who incite terrorist acts' and 'problems with those who incite directly against other groups within our community'.17 31
      On at least three key counts, the Howard Government's case for the resurrection of sedition is entirely unconvincing. 32
      First, in order to justify a restriction on individual liberty, in this case the constitutive18 values of freedom of expression and association, the government is duty bound to identify the specific harm. This the Howard Government has failed to do — beyond the vaguest appeals to the need to guard against incitements to violence and disorder. 33
      Secondly, if the Schedule 7 scheme is truly intended to penalise incitements to violence and disorder, its supporters should be able to identify deficiencies in the existing criminal law. Sedition has co-existed with criminal law prohibitions on violence, actual or threatened (and whether politically motivated or not), incitement to violence, related conspiracies and before and after the fact accessorial liability.19 If there is some demonstrable gap in the existing criminal law, the Commonwealth and State governments have neglected to identify or rectify it. It makes no sense at all to erect the convoluted edifice of criminal liability embodied in Schedule 7 to cure such a deficiency. 34
      Thirdly, the very language of the Schedule 7 amendments makes it clear that whether you apply the generic label 'sedition' (or some other label) to the new crimes, in essence they are aimed at speech-related conduct which may or may not carry with it some unspecified risk of prompting violence or disorder. Section 80.2 employs the undefined weasel-verb 'urges'. The use of the abstraction 'good faith' in s 80.3 makes matters worse. The impenetrable verbiage of ss 80.2 and 80.3 renders it impossible to know in advance of engaging in any speech-related conduct whether it exposes an individual to criminal liability. 35
   

Proximity and Degree

 
As long ago as 1924, when the targets were a mixture of 'dangerous' Bolsheviks and anarcho-syndicalists, Justices Oliver Wendell Holmes Jnr and Louis Brandeis had condemned tendency-based crimes as inimical to the protection of freedom of expression and freedom of the press embodied in the First Amendment to the United States Constitution:
Every idea is an incitement. It offers itself for belief, and, if believed, it is acted on unless some other belief outweighs it, or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker's enthusiasm for the result. Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us, it had no chance of starting a present conflagration. If, in the long run, the beliefs expressed in totalitarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.20
 		36
      In the United States, the First Amendment was given full expression during the term of Chief Justice Earl Warren (1953–69), and especially in the context of the struggles of the Civil Rights and anti-Vietnam War movements. Even appeals for the overthrow of the government were to be protected 'except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action'.21 37
      By the end of the 1960s, it was established that dangerous (seditious) speech was only punishable where 'the words are used in circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree'.22 [Emphasis added] 38
      The existing general criminal law of incitement to violence takes proximity and degree of harm into account, and properly so. History teaches us that a free, open and confident nation like Australia does not need the Schedule 7 law or anything resembling it. 39


L.W. Maher is a Melbourne barrister with an interest in Cold War legal history and free speech issues.
<laurence.maher@jr6.com.au>


Endnotes

1. The transfer from the Crimes Act 1914 to the Criminal Code involved the staged incorporation of the entire corpus of Commonwealth criminal law in the Code leaving the original Act containing mostly machinery provisions. The 2005 reforms also effected consequential amendments to the unlawful associations provisions in Part IIA of the Crimes Act 1914 insofar as those provisions overlapped with the sedition provisions and, more specifically, used the legislative term of 'seditious intention'. Part IIA of that Act had been introduced by Attorney-General J.G. Latham in 1926: see R v Hush; ex parte Devanny (1932) 48 CLR 487; R. Douglas, 'Keeping the Revolution at Bay: The Unlawful Association Provisions of the Commonwealth Crimes Act', Adelaide Law Review, vol. 22, 2001, p. 259. The Part IIA regime has been largely overtaken by more elaborate and wide-ranging controls in the Security Legislation Amendment (Terrorism) Act 2002 (Cth) as amended by the Criminal Code Amendment (Terrorist Organisations) Act 2004 (Cth).

2. Save for Schedule 7, the Bill was the product of the ongoing process of co-operative Commonwealth-State-Territory legislative and executive action for strengthened anti-terrorism protection: see Council of Australian Governments, Communique: Special Meeting on Counter-Terrorism (2005): http://www.coag.gov.au/meetings/270905.

3. See, in particular, the Security Legislation Amendment (Terrorism) Act 2002 (Cth). For the sentencing remarks of the trial judge in what appears to be the first prosecution resulting in a jury verdict of guilty, see DPP v Thomas [2006] VSC 120.

4. Senate Committee Legal and Constitutional Affairs Committee, Report on Provisions of the Anti Terrorism Bill (No 2) 2005, November 2005: http://www.aph.gov.au/Senate/committee/legcon_ctte/terrorism/report/report.pdf

5. Philip Ruddock, 'Sedition: Why the fuss?', The Age, 14 November 2005; The Sydney Morning Herald, 14 November 2005.

6.Hansard (House of Representatives), 29 November 2005, pp. 43–107.

7. Once an accused person evinces some evidence in support of the statutory defence, the prosecution is bound to prove beyond a reasonable doubt the inapplicability of the defence.

8. See Otto Kirchheimer, Political Justice: The Use of Legal Procedure for Political Ends, Princeton University Press, Princeton, NJ, 1961.

9. There is a modern exemplification of this in the widespread publicity given to the hearing of complaints under the Commonwealth and State anti-racial/religious vilification statutes. Whatever one's views about principled justifications for these modern sedition laws, as a matter of practicality, one very good reason to resist the enactment of 'sedition'-like offences is that prosecuting highly unpopular dissidents provides them with a privileged (in the technical legal sense) occasion on which to broadcast hurtful opinions and ideas which are otherwise best ignored or derided. A recent prominent example is to be found in the Victorian Catch the Fire Ministries case, where the offending anti-Islamic views expressed at a meeting attended by a small group of people were subsequently broadcast far and wide in the media in the course of a widely publicised hearing in the Victorian Civil and Administrative Tribunal which occupied many days over a span of several months and which are now available on the internet: Islamic Council of Victoria v Catch the Fire Ministries Inc [2004] VCAT 2510 [decision on liability]; [2005] VCAT 1159 [decision on remedy].

10. See Australian Law Reform Commission, Review of Sedition Laws: Issues Paper No 30, March 2006: Gareth Griffith, 'Sedition, Incitement and Vilification: Issues in the Current Debate' NSW Parliamentary Library Service Briefing paper No 1/06, p. 23.

11.Law of the Constitution (1885).

12. See John Dugard's magisterial Human Rights and the South African Legal Order, Princeton University Press, Princeton, NJ, 1978.

13. For one supportive treatment, see Mirko Bagaric and Julie Clarke, 'Not Enough Official Torture in the World? The Circumstances in Which Torture is Morally Justifiable' University of San Francisco Law Review, vol. 39, no. 3, 2005. For a riposte, see Desmond Maunderson, 'Another Modest Proposal', Deakin Law Review, vol 10, 2005, p. 640.

14. John V. Barry, 'An End to Privacy', Melbourne University Law Review, vol. 2, 1960, p. 443; A.W. LeP. Darvall and D. McL. Emmerson, 'Eavesdropping: Four Legal Aspects', Melbourne University Law Review, vol. 3, 1962, p. 364, 365–370.

15.Church of Scientology Inc v Woodward (1982) 154 CLR 25; A v Hayden (1984) 156 CLR 532.

16. Roger Douglas, 'The Ambiguity of Sedition: The Trials of William Fardon Burns', Australian Journal of Legal History, vol. 9, 2005, p. 227.

17.Hansard (House of Representatives), 3 November 2005, pp. 102–104.

18. Ronald Dworkin's adjective.

19. A very useful summary of the law of incitement as it applies in New South Wales is to be found in Griffith, 'Sedition, Incitement and Vilification'.

20.Gitlow v New York 268 US 652 at 673.

21.Brandenburg v Ohio 395 US 444, 447 (1969). In the same case, the Supreme Court's then two leading First Amendment dissenters, Justices Hugo Black and William O. Douglas, made it clear that even the clear and present danger test was too restrictive and had been abused: Ibid, pp. 454, 457; Thomas Irwin Emerson, The System of Freedom of Expression, Random House, New York, 1970, ch 5.

22.Schenck v US 249 US 47 at 52 (1910).

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