Wednesday, September 13, 2006

Sedition in Australia IV

The Australian Law Reform Commission has tabled its final report in its review of Australia's sedition laws. Fighting Words: A Review of Sedition Laws in Australia [long] makes a number of recommendations, chief of which is removing the "red-rag" term of sedition. While the offences of inciting political or inter-group violence will be retained, the law will be tightened so that urging violence must be intentional, and to require that "the person must intend that the force or violence urged will occur". This is a significant change, and stands in stark contrast to current New Zealand law, which criminalises speech which merely

incite[s], procure[s], or encourage[s] violence, lawlessness, or disorder

a far lower standard which has led to numerous atrocities against freedom of speech in this country.

The ALRC also recommends strengthening the "good faith" defence to carve out greater protection for journalists, artists, and labour unions, all of whom have expressed concern about being targeted by the law as written. It further recommends amending the law criminalising "assisting the enemy" to make it clear that such "assistance" must be material, rather than simply rhetorical. And it makes clear that while the government should claim extraterritorial jurisdiction over such crimes, they should only apply to Australian residents or citizens, ending the nonsense that someone who was not Australian and had never set foot in the country could be found guilty of "treason" against Australia.

Overall, these are welcome changes, which significantly improve the law. I am still concerned that the bar for "inciting political violence" is lower than that for other forms of incitement, but it is still far better than what is currently on the books.


What's the difference between intentionally urging people to commit violent acts (Aus report) and encouraging people to commit violent acts (NZ)?

Unintentional encouraging? I don't think so..."Had the effect of urging" = "Had the effect of encouraging" - the core notion is intentional in either case. Your earlier post appears to be a red-herring in this context since *it's* all about the other side of the disjunction in the NZ law "....or brings into hatred or contempt" which is the zero-connection-to-consequences apparent overkill that sets liberal alarms ringing.

Try again.

Posted by Anonymous : 9/13/2006 06:46:00 PM

Anon: Firstly, its not just "encouraging violence" at issue; in New Zealand it is enough merely to "encourage disorder" - whatever the hell that means (hence the link to Kenneth Keith). Secondly, "encouragement" is rather different from (and much broader than) "incitement" or "intentional urging". Something can be held to encourage violence while not in any way urging it. Examples would be the numerous cases where we have prosecuted people for selling communist literature, on the basis that the advocacy of global proletarian revolution in the abstract "encouraged violence", or the flyer about The Big-Nosed Arawa, which was believed to encourage violence between the tribes simply by casting aspersions on an ally of the crown. Thirdly, the fact that the ALRC is suggesting an amendment suggests they do think there can be such a thing as "unintentional urging" - for example, if a speech or document is "taken the wrong way". There's no defence in New Zealand law to this (or rather, the onus of proof is on the defendant to establish good faith), whereas in Australia the prosecution must establish an actual intention that others engage in acts of violence.

The NZLC is about to start reviewing our law, and I'm hoping they'll go further than the Australians and just do away with it. We have laws against inciting and procuring crimes such as assault and murder, and we have laws against inciting a riot. And these are perfectly sufficient in a democratic society which respects freedom of speech.

Posted by Idiot/Savant : 9/13/2006 07:39:00 PM

1. The Australian law refers to "disorder" too (although it enters at a slightly different and maybe better point) and the report doesn't recommend changing that (see p. 287).
2. Still not seeing much difference between encouraging and urging - there are specific and general/abstract instances of both and it's the specific content involved (killing the gov-gen, burning down parliament, etc) that does most of the work. 2 speeches: "I urge you all to do whatever you can to smash capitalism. Nothing else is acceptable." vs. "I want to encourage everyone to at least seriously consider picking her favorite govt building and, with God's help, bringing it to the ground. Of course, if you've got better things to do that's fine, I'm not *urging* you to do anything..."
3. The "taken the wrong way" point is misguided. Unintentional urging in that sense is just being wrongly understood by someone as having urged.

Posted by Anonymous : 9/14/2006 04:10:00 AM