Friendly Fire?
The New Sedition Laws
Adam Moxon Simpson
asimpson@simpsons.com.au
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• Introduction
– The new sedition laws introduced as part
of the “Anti-Terrorist” measures
– A response to the changing environment
– Voracious public comment lead to
significant amendments to the original bill
– The new sedition laws are being reviewed
by the Australian Law Reform Commission
– There is now a fresh opportunity for
comment
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• A Comic Catastrophe
– Publication of depictions of Mohammed in
Jyllands-Posten that were offensive to
Muslims
– Escalation of problem when complaints to
the editors then the Prime Minister ignored
– Fired Debate About Freedom of
Expression
– Legal and Government Involvement
– Example of changing publishing
environment
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• The Old Sedition Laws
– “seditious intention”
• An intention to effect any of the following purposes, that is to say:
–
to bring the Sovereign into hatred or contempt;
–
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;
Crimes Act 1914 s.24A
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• The Old Sedition Laws
• 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 years.
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• The Old Sedition Laws
“Good Faith” Defences
• Endeavouring to show that the Government or its limbs
has been mistaken in any of its counsels, policies or
actions;
• Pointing out defects in government, the constitution,
legislation or administration of justice with a view to
reforming those defects;
• Pointing out, in order to bring around their removal, any
matters that are producing feelings of ill-will or hostility
between different classes of persons
• Exciting another person to attempt to change, by lawful
means, a matter established by law whether Australian or
foreign;
• To do anything in connexion with an industrial matter.
Crimes Act 1914 s.24F
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• The Old Sedition Laws
• Acts determined not to be in “Good Faith
Acts done:
– With the intention of causing violence or creating
public disorder or a public disturbance;
– For a purpose prejudicial to the safety or defence of
the Commonwealth;
– Assisting an enemy at war with the Commonwealth;
– Assisting a country or organisation engaged in
armed hostilities with the Australian Defence Force;
Crimes Act 1914 s.24F (2)
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• The Old Sedition Laws
• Elements of the Offences
– Engaging in conduct that has a seditious intent;
– An intention to cause violence, public disorder or
public disturbances.
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• The Old Sedition Laws
– No element of “recklessness”
– No crime of encouraging others
– Only usual “aid and abet” provisions
– Intention was a key component to the
offence
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• The New Laws
– What has changed?
• what is considered “seditious” has been
expanded;
• sedition is now about “urging” others to engage
in seditious activities;
• in most instances, a much lower threshold of
“recklessness” has been introduced;
• the laws now have global application; and
• the penalties have been increased from 3 years
to 7 years.
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• Criminal Code Act 1995 – Summary of s. 80.2
• Urging the overthrow of the Constitution or Government
by force or violence (s.80.2(1));
• Urging interference in lawful Parliamentary elections by
force or violence (s.80.2(3));
• Urging violence within the community between groups
(whether distinguished by race, religion, nationality or
politics) where such violence threatens the peace, order
and good government of the Commonwealth (s.80.2(5));
• Each of these offences is extended to those who are
simply “reckless” about these types of consequences.
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• Criminal Code Act 1995 – Summary of s. 80.2
(cont.)
• Urging a person to engage in conduct with the intent of
assisting the enemy (whether or not a state of war has
been declared) (s.80.2(7)); and
• Urging a person to engage in conduct with the intent of
assisting those engaged in armed hostilities with the
Australian Defence Force (s.80.2(8)).
• Each of these last two offences has a specific defence in
relation to the provision of aid of a humanitarian nature
(s.80.2(1))). Recklessness does not apply to these two
offences.
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• “Urging”
– Little statutory assistance
– Dictionary Definition is Wide
– not be limited to express recommendations
or persuasion
– e.g through “dramatisation, or imagery, or
metaphor, or allegory or allusion, or any of
the myriad devices and techniques
available to a creative artist”
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• Criminal Code Act 1995 – Summary of s. 80.2 (cont.)
– Recklessness
Urging violence within the community
• (5) A person commits an offence if:
– 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 other groups (as
so distinguished); and
– 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.
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Criminal Code Act 1995 – s.5.4
“1. A person is reckless with respect to a circumstance if:
(a) he or she is aware of a substantial risk that the circumstance exists or
will exist; and
(b) having regard to the circumstances known to him or her, it is
unjustifiable to take the risk.
2. A person is reckless with respect to a result if:
(a) he or she is aware of a substantial risk that the result will occur; and
(b) having regard to the circumstances known to him or her, it is
unjustifiable to take the risk.
3. The question whether taking a risk is unjustifiable is one of fact.
4. If recklessness is a fault element for a physical element of an offence,
proof of intention, knowledge or recklessness will satisfy that fault
element.”
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• Criminal Code Act 1995 s.80.2 (7) to (9)
– Urging a person to assist the enemy
• A person commits an offence if:
– the person urges another person to engage in conduct;
and
– the first-mentioned person intends the conduct to assist an
organisation or country; and
– the organisation or country is:
» at war with the Commonwealth, whether or not the
existence of a state of war has been declared; and
» specified by Proclamation made for the purpose of
paragraph 80.1(1)(e) to be an enemy at war with the
Commonwealth.
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• Criminal Code Act 1995 s.80.2 (7) to (9) (cont.)
• Urging a person to assist those engaged in armed
hostilities
– A person commits an offence if:
» the person urges another person to engage in
conduct; and
» the first-mentioned person intends the conduct to
assist an organisation or country; and
» the organisation or country is engaged in armed
hostilities against the Australian Defence Force.
• Defence
– Subsections [above] do not apply to engagement in
conduct by way of, or for the purposes of, the provision of
aid of a humanitarian nature.
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• Criminal Code Act 1995 s. 80.4 and s. 15.4
– Extended geographical jurisdiction for
offences s. 80.4
• Section 15.4 (extended geographical jurisdiction—
category D) applies to an offence against this Division.
– 15.4 Extended geographical jurisdiction —
category D
• If a law of the Commonwealth provides that this section
applies to a particular offence, the offence applies:
– whether or not the conduct constituting the alleged offence
occurs in Australia; and
– whether or not a result of the conduct constituting the
alleged offence occurs in Australia.
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• Criminal Code Act 1995
• 80.3 Defence for acts done in good faith
– Sections 80.1 and 80.2 do not apply to a person
who: (a)
• tries in good faith to show that any of the following
persons are mistaken in any of his or her counsels,
policies or actions:
–
–
–
–
–
–
the Sovereign;
the Governor-General;
the Governor of a State;
the Administrator of a Territory;
an adviser of any of the above;
a person responsible for the government of another
country; or…
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• Criminal Code Act 1995
• 80.3 Defence for acts done in good faith
– Sections 80.1 and 80.2 do not apply to a person
who: (b)
• points out in good faith errors or defects in the following,
with a view to reforming those errors or defects:
» the Government of the Commonwealth, a State or a
Territory;
» the Constitution;
» legislation of the Commonwealth, a State, a Territory
or another country;
» the administration of justice of or in the
Commonwealth, a State, a Territory or another
country; or…
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• Criminal Code Act 1995
• 80.3 Defence for acts done in good faith
– Sections 80.1 and 80.2 do not apply to a person
who:
• (c)
urges in good faith another person to attempt to
lawfully procure a change to any matter established by
law, policy or practice in the Commonwealth, a State, a
Territory or another country; or
• (d) 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
• (e) does anything in good faith in connection with an
industrial dispute or an industrial matter; or…
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• Criminal Code Act 1995
• 80.3 Defence for acts done in good
faith
– Sections 80.1 and 80.2 do not apply to a
person who: (f)
• publishes in good faith a report or commentary
about a matter of public interest.
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• Criminal Code Act 1995
– “publishes in good faith a report or commentary
about a matter of public interest”
• does not appear to cover other forms of communication
nor those involved in the publication (e.g journalists)
• more limited than, for example, the New South Wales
Anti-Discrimination Act 1977
– “done reasonably and in good faith, for academic, artistic,
scientific or research purposes or for other purposes in the
public interest, including discussion or debate about and
expositions of any act or matter”
• limited to a “report” or “commentary” and may not include
other forms of publications such as satire
• no particular guidance as to what constitutes matters of
“public interest”
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• Criminal Code Act 1995
– What is “good faith”?
• “Good faith is based on the distinction between a person who is honestly
blundering and careless, and a person who has a suspicion that something
is wrong but refrains from asking questions. The latter conduct amounts to
bad faith or dishonesty.” - Jones v Gordon
• "'Good faith in some contexts identifies an actual state of mind, irrespective
of the quality or character of its inducing causes; something will be done or
omitted in good faith if the party was honest, albeit careless. On the other
hand, 'good faith' may require that exercise of caution and diligence to be
expected of an honest person of ordinary prudence” - Mid Density
Developments Pty Ltd
• 'two divergent meanings’: The first was the broad or subjective view which
defines them as describing an actual state of mind, irrespective of its
producing causes. The other construed the words objectively by the
introduction of such concepts as an absence of reasonable caution and
diligence. - Siano v Helvering
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• Conclusion - Friendly Fire?
– Government has signaled its intention to
use the new sedition laws
– The publishing environment has changed
• John Pilger
• Danish Cartoons
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