Sedition in Australia

In the wake of terrorist threats against Melbourne and more bombings in Bali, the Australian government is attempting to pass draconian new anti-terrorism laws. The draft of the legislation had originally been kept secret, but last week it was leaked by ACT Chief Minister John Stanhope, who while approving it, believed that legislation with such an impact on civil liberties should be open to public scrutiny and debate. John Howard seems to regard this as practically treason. But fortunately he'll soon have the tools to combat this sort of betrayal of Australian values, because the legislation would modernise the law relating to sedition.

As with New Zealand, Australia has long had anti-sedition legislation on the books (see sections 24A - 24F of the Australian Crimes Act 1914), but it had fallen into disuse (though somewhat later than it had in New Zealand). The last prosecution was in 1960, when Department of Native Affairs office Brian Cooper was prosecuted for urging "the natives" of Papua New Guinea to demand independence from Australia. He was convicted, and committed suicide after losing his appeal. The draft legislation [PDF] would repeal the old offence of "uttering seditious words", but replace it with five new ones. It would also double the penalties for sedition, from three years imprisonment to seven, and allow convictions on the basis of "recklessness" rather than requiring specific intent. But most importantly, it would signify an intention on behalf of the government to actually use the legislation and prosecute people for saying things deemed disloyal to Australia or to indirectly incite terrorism. And there's no doubt about who the targets would be...

Fortunately, this is producing something of a backlash in the press and public opinion. There's a particularly good piece by Ben Saul in The Australian which lays out why sedition laws are incompatible with democracy:

There is a danger that criminalising the 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.

Although some extreme speech may never be rationally countered by other speech, the cut and thrust of public debate remains the best option for combating odious or ignorant ideas. The criminal law is ill-suited to reforming expressions of poor judgment or bad taste.

Every society has the highest public interest in protecting itself and its institutions from violence, but no society should criminalise speech that it finds distasteful when such speech is remote from the practice of terrorist violence by others.

A robust and mature democracy should be expected to absorb unpalatable ideas without prosecuting them.

Unfortunately, unlike other western democracies, Australia has only weak protections for freedom of speech. Which is precisely why they need a formal bill of rights...

Finally, there is one curious aspect of the proposed law which ought to concern even those of us in New Zealand. The section on sedition includes this clause:

80.4 Extended geographical jurisdiction for offences

Section 15.4 (extended geographical jurisdiction - category D) applies to an offence against this Division

According to the Australian Criminal Code, this means that the offence applies

(a) whether or not the conduct constituting the alleged offence occurs in Australia; and
(b) whether or not a result of the conduct constituting the alleged offence occurs in Australia.

This is quite deliberate; the Australian Criminal Code provides for other forms of extended geographical jurisdiction of lesser reach, providing defences where neither the person nor the victim is an Australian or the crime does not impact on Australian territory. But this is the true "universal jurisdiction" clause, used for war crimes. And it's being used here not just to cover sedition, but also treason. This is utterly unprecedented. To the extent that either sedition or treason are crimes, they are crimes of disloyalty, predicated on some obligation to be loyal to the Australian government. What Howard is saying is that everyone in the world has a duty to be loyal to and not criticise Australia, on pain of imprisonment. As a non-Australian, I'm not too impressed by this.