MEMORANDUM OF ADVICE

Re: The Anti-Terrorism Bill 2005, & the proposed amendments to the laws of sedition

We have been asked to urgently consider a number of questions which the producers of the program Media Watch wish answered for the purposes of preparation for the Media Watch program proposed to be shown next week. These questions critically involve an analysis of proposed amendments to the Criminal Code Act 1995 (Cth), the content of which was recently and controversially published on the website of the ACT Chief Minister & Attorney General, Mr John Stanhope. The Australian Government had planned to release the draft Bill on 31 October 2005, and had further planned a Senate Committee report to be prepared on the draft Bill by 8 November 2005

thus allowing all of one week for public scrutiny of these new and highly significant

This advice concerns the draft Bill published on the web on 14 October 2005. Schedule 7 of the Bill repeals the existing sedition offences in the Crimes Act 1914 (Cth). It then inserts five new sedition offences into the Criminal Code by adding a new section 80.2 to the existing offence of treason (s.80.1). The Bill is entitled The Anti-Terrorism Bill 2005 (Cth).

The questions which we have been asked to consider concern first, the extent to which the proposed amendments expand the offence of sedition as it is presently known. Secondly, we are asked to comment upon whether various opinions which have been expressed, inter alia, by John Pilger, a journalist and author, Sheikh Omran, a representative of the Islamic community in Australia, and Abu Bakir Bashir, would fall foul of the laws of sedition as they stood prior to this amendment, and whether they would be caught by the proposed laws. Thirdly, we are asked to consider whether a “good faith” defence provided under the proposed amendments would be available to those individuals. Fourthly, we are asked to consider whether media outlets that publish these comments may themselves be prosecuted for an offence under the Act, and whether a “good faith” defence under the Bill provides a defence to any charge brought. Finally, and less urgently, we are asked to consider to what degree there are restrictions on the reporting of cases of preventative detention and control orders made under the Bill, and the extent of exposure of journalists who possess information about control orders of persons subject to preventative detention. We will deal with this fifth question in a separate advice.

By way of background to the present legislation, it is worth mentioning briefly the history to the proposed enactment. Shortly after the events of September 11, the Government announced that new measures against terrorism would be introduced. The package which resulted was of 7 major legislative initiatives introduced in March 2002. Central to those legislative changes was the Security Legislation Amendment (Terrorism) Act 2002. That Act defined the concept of a terrorist act, created categories of terrorism offences, and introduced the means for the Executive to determine what would be a terrorist organisation. It also established for the first time the existence of crimes relating to association by way of membership or other connections with terrorist organisations. That Act was finally passed, although in a greatly amended form.

The second pillar of the package was the enactment of the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003. This contained draconian provisions which permitted detention under warrant for a period up to 7 days, and allowed interrogation for up to 24 hours within that period of, inter alia, persons who may have information relating to a terrorism offence. Since then, there have been a raft of other security related enactments passed. These enactments have been described throughout the legal literature as typically marked by patterns which included: the expansion of Executive power and discretion outside the judicial process; the priority given to national security imperatives; limitation on the provision of independent legal advice; and departures from the presumptions of innocence, trial by jury, and freedom of association. They are typically characterised by the use of ambiguous and broadly defined key terms which are central to what were regarded as serious criminal offences (primarily terrorism) and the introduction of the notion of guilt by association in the context of acts of alleged recruitment, training or membership, or even informal membership of “terrorist organisations”.

The 2002 Act, which effectively treated the Commonwealth Criminal Code as a mere vehicle for the inclusion of new terrorism offences, was passed and came into force on 6 July 2002 after the Senate Legal & Constitutional Legislation Committee received over 431 submissions in the 6 weeks given to scrutinise the Bills.

The present law of sedition

As the law presently stands, prior to the amendments proposed by the Bill, Chapter 5 of the Criminal Code Act 1995 was concerned with what was described as “the security of the Commonwealth”. It dealt with a range of offences of treason (Part 5.1), offences related to espionage and similar activities (Part 5.2) and terrorism (Part 5.3).

Since 1920 Australia has had, at the Commonwealth level, what amounts to a codified law of sedition, such provisions appearing in ss.24A-24E of the Crimes Act 1914. These provisions existed with what were generally thought to be obsolete state sedition laws. As we mention later in this advice, in 1991 the Commonwealth Criminal Law Revision Committee recommended the repeal of the existing sedition provisions in the Crimes Act and their replacement by a range of indictable offences. See Australia, Review of Commonwealth Criminal Law, 5th Interim Report 1991” (the “Fifth Interim Report”).

The proposed Bill is one which repeals the existing codified law of sedition in Australia, namely the provisions in ss.24A-24F of the Crimes Act 1914. Those provisions presently provide as follows:-

24A

Definition of seditious intention An intention to affect any of the following purposes, that is to say:

to bring the Sovereign into hatred or contempt;

(d) to excite disaffection against the Government or Constitution of the Commonwealth or against either House of the Parliament of the Commonwealth;

to excite Her Majesty’s subjects to attempt to procure the alteration, otherwise than by lawful means, of any matter in the Commonwealth established by law of the Commonwealth; or
to promote feelings of ill-will and hostility between different classes of Her Majesty’s subjects so as to endanger the peace, order or good government of the Commonwealth;

is a seditious intention.

24B

Definition of seditious enterprise

A seditious enterprise is an enterprise undertaken in order to carry out a seditious intention.
Seditious words are words expressive of a seditious

24C

Seditious enterprises A person who engages in a seditious enterprise with the intention of causing violence, or creating public disorder or a public disturbance, is guilty of an indictable offence punishable on conviction by imprisonment for not longer than 3 years.

24D

Seditious words

Any person who, with the intention of causing violence or creating public disorder or a public disturbance, writes, prints, utters or publishes any seditious words shall be guilty of an indictable offence. Penalty: Imprisonment for 3
A person cannot be convicted of any of the offences defined in section 24C or this section upon the uncorroborated testimony of one

24E

Punishment of offences

An offence under section 24C or 24D shall be punishable either on indictment or summarily, but shall not be prosecuted summarily without the consent of the Attorney-General.

If any person who is prosecuted summarily in respect of an offence against

section 24C or 24D, elects, immediately after pleading, to be tried upon indictment, the court or magistrate shall not proceed to summarily convict that person but may commit him for trial.

The penalty for an offence against section 24C or 24D shall, where the offence is prosecuted summarily, be imprisonment for a period not exceeding 12

24F

Certain acts done in good faith not unlawful

Nothing in the preceding provisions of this Part makes it unlawful for a person:
- to endeavour in good faith to show that the Sovereign, the Governor-General, the Governor of a State, the Administrator of a Territory, or the advisers of any of them, or the persons responsible for the government of another country, has or have been, or is or are, mistaken in any of his or their counsels, policies or actions;
- to point out in good faith errors or defects in the government, the constitution, the legislation or the administration of justice of or in the Commonwealth, a State, a Territory or another country, with a view to the reformation of those errors or defects;
- to excite in good faith another person to attempt to procure by lawful means the alteration of any matter established by law in the Commonwealth, a State, a Territory or another country;
- to point out in good faith, in order to bring about their removal, any matters that are producing, or have a tendency to produce, feelings of ill-will or hostility between different classes of persons; or
- to do anything in good faith in connection with an industrial dispute or an industrial
For the purpose of subsection (1), an act or thing done:
- for a purpose intended to be prejudicial to the safety or defence of the Commonwealth;
- with intent to assist an enemy:
  - at war with the Commonwealth; and
  - specified by proclamation made for the purpose of paragraph 80.1(1)(e) of the Criminal Code to be an enemy at war with the Commonwealth;

(ba) with intent to assist:

another country; or
an organisation (within the meaning of section 100.1 of the Criminal Code); that is engaged in armed hostilities against the Australian Defence Force;
- with intent to assist a proclaimed enemy, as defined by subsection 24AA(4) of this Act, of a proclaimed country as so defined;
- with intent to assist persons specified in paragraphs 24AA(2)(a) and (b) of this Act; or
- with the intention of causing violence or creating public disorder or a public disturbance;

is not an act or thing done in good faith.”

Under the general (ie, non statutory) law there was no separate offence of sedition. Generically the term was conventionally used as shorthand for several distinct categories of common law

misdemeanours or statutory offences, namely uttering seditious words, publishing or printing a seditious libel, or undertaking a seditious enterprise and seditious conspiracy. It has been seldom employed in peace time, although it was said to be primarily a peace time weapon, since in war times, other national security laws typically prevail.

Sedition has been described as a grotesque anachronism in a society which prides itself on bring free and open and pluralist.

The last State sedition prosecutions were in South Australia in 1960, and, before that, in Queensland in 1912 and 1930.

Both the Chifley and Menzies Governments resorted to the law of sedition as one element of their campaigns against the Communist Party in the late 1940s. The Chifley Government’s action led to decisions which eventually reached the High Court in Burns v Ransley (1949) 79 CLR 101 and R v Sharkey (1949) 79 CLR 121. In those cases, 3 members of that party were given prison sentences for expressing unpopular political opinion. One occurred in an orderly public debate, the other in a number of conversations held with a journalist. Seemingly, the last sedition trial in Australia was an unsuccessful prosecution by the Menzies Government of another member of the Communist Party in Sweeny v Chandler, an action prosected in the Sydney Court of Petty Sessions, which resulted in dismissal of the charges on the 18th September 1953. The last attempt in the UK appears to have been an attempt to initiate a private prosecution against the author Salman Rushdie and the publisher of The Satanic Verses for seditious libel. See R v Chief Metropolitan Stipendiary Magistrate; ex parte Choudhury [1991] 1 QB 429. The High Court of Australia last considered this area of the law in 1960 in a case from the then Australian territory of PNG in R v Cooper (1961) 105 CLR 177.

It can be readily seen from the provisions of the Crimes Act set out above that seditious words are those which are expressive of a seditious intention and a seditious enterprise is an enterprise undertaken in order to carry out that seditious intention. That seditious intention must, by s.24A, be one of 4 specific and relatively limited kinds. One can see that the intent typically is directed to bringing the Sovereign or the Government, the Constitution, Parliament itself into disrepute.

Otherwise, in s.24(A)(f), it is unlawful to attempt to procure the alteration other than by lawful means of any matter in the Commonwealth established by its laws. By s.24(A)(g), it is unlawful to promote feelings of ill will and hostility between different classes of the populous so as to endanger the peace, order or good government of the country.

After the 1986 amendments to the Crimes Act, the concept of “mens rea” was redefined so as to reproduce the notion as it had existed at common law a century before. The result was that to succeed as the law presently stands, the prosecution must prove that the seditious conduct of the accused was carried out “with the intention of causing violence or creating public disorder or a public disturbance”. See R v Chief Metropolitan Stipendiary Magistrate; ex parte Choudhury [1991] 1 QB 429.

As the law stands under the Crimes Act, it is unclear whether it is sufficient that there be an intention to cause violence at some unspecified future time, or whether there must be proof of intention to cause immediate violence. That is not to say that the Crimes Act provision has clear or defined circumstances of aggravation. The concepts of “public disorder” and “public disturbance” are undefined and unclear. As one author has said: “because of unprecedented changes in community attitudes about specific political issues, the statutory language will inevitably fluctuate in meaning across time. This is a totally unsatisfactory situation. Fifty years later, Chafee’s criticism in that regard remains true. The definition of sedition “is so loose that guilt or innocence must obviously depend on public sentiment at the time of the trial”. This will not be a source of concern when public opinion is supportive of vigorous free speech. But recent history demonstrates that public opinion can be manipulated to generate irrational fear of minority groups and attitudes.” See Lawrence W Maher, “The Use and Abuse of Sedition”, 14 Syd LR 261, p 313.

The Fifth Interim Report of 1991 recommended the repeal of the Crimes Act provisions and the creation of the offence of inciting treason, interference with elections and racial violence. That recommendation was not acted upon at the time. The Attorney General has suggested recently that the proposed amendments to the sedition laws are occurring in the way recommended by the Fifth Interim Report. However, this seems 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.

The Proposed New Sedition Laws

The proposed s.80.2 of the Criminal Code creates a range of offences for which the maximum term of imprisonment is 7 years. We set it out below.