Freedom of Expression

The amendments to the Anti-Terrorism Bill have been posted. The amendments that affect the sedition provisions are as follows. We will soon post a legal opinion on these amendments. The review of the Sedition provisions will be conducted in the new year by the Australian Law Reform Commission. Any submissions by the Arts community to that review will be posted here so please keep checking in.

(68) Schedule 7, item 4, page 109 (line 14), after “an intention”, insert “to use force or violence”.

(69) Schedule 7, item 12, page 111 (line 11), omit subsection 80.2(2), substitute:

(2) Recklessness applies to the element of the offence under subsection (1) that it is:


(a) the Constitution; or
(b) the Government of the Commonwealth, a State or a Territory; or
(c) the lawful authority of the Government of the Commonwealth; that the first-mentioned person urges the other person to overthrow.

(70) Schedule 7, item 12, page 112 (lines 6 and 7), omit “, by any means whatever,”.

(71) Schedule 7, item 12, page 112 (lines 18 and 19), omit “, by any means whatever,”.

(72) Schedule 7, item 12, page 113 (after line 29), at the end of subsection 80.3(1) (before the note), add: ; or (f) publishes in good faith a report or commentary about a matter of public interest.

Dear Senator,

The Prime Minister today represented to the Australian public that there was no difference between what the government proposed in its terror legislation with regard to sedition, and what has been in the Crimes Act for the last 50 years.

This stands in the face of the significant number of opinions from senior lawyers, legal academics, retired judges and politicians from all sides of politics that disagree. An overwhelming majority of submissions to the Senate Inquiry into the Anti-Terror Bill also disagree with the Prime Minister's assertion, as did the unanimous recommendation of the Senate Committee.

I'm sure most would agree that it is essential that there is absolute clarity on this matter before these proposed sedition provisions are passed by the Senate, and I have listed below 5 questions we believe the Senate should consider.

1. ARE THE SEDITION PROVISIONS MERELY AN UPDATING OF THE LAW AND UNCHANGED FOR 50 YEARS?

The Sedition Provisions have clearly changed in significant ways with numerous legal opinions backing this up, as documented in the many submissions to the Senate Committee and detailed in their report. In fact, the provisions include several new offences of sedition that have NEVER existed in Australian Law, and introduce an alternative element of "recklessness" into three other offences. The following questions address several further changes.

2. IS FORCE OR VIOLENCE REQUIRED FOR ALL CHARGES INVOLVING SEDITION?

No. There are 6 offences of sedition that have NO link to force or violence, despite representations otherwise by the Attorney General's Department.

3. ARE "GOOD FAITH" PROVISIONS AVAILABLE FOR ALL CHARGED UNDER THESE PROVISIONS?

No. The limited "good faith" provisions are NOT available to all associations, a major concern to Arts and Media organisations. The "good faith" provisions also reverse the onus of proof, with the defendant required to prove their innocence.

4. WHY ARE THE SEDITION PROVISIONS NEEDED IMMEDIATELY AND IN ADVANCE OF THE PROPOSED REVIEW?

It remains of concern that these provisions are made law in advance of the proposed review, this seems extraordinary considering the commonly held view that they are in need of review. As the Prime Minister represented today, the laws have been rarely used in 50 years, and we can see no reason why they are being passed so speedily in advance of this review if as also represented, they are unchanged.

5. HOW SHOULD THE PROPOSED REVIEW BE HANDLED?

We believe the review should be held by a third party (it has been proposed that this should be the Law Reform Commission), that the findings of the review should be public, and that an agreement to accept the findings of this review should be in place in advance before the provisions are made law.

Further information supporting in detail the above 5 points is available both in the joint submission to the Senate Inquiry made by Arts organisations, and also the Senate Committee's report.

Our position remains unchanged, that Schedule 7 of the Anti-Terror Bill 2005 should be removed in its entirety and reviewed as promised.

Any matter dealing with freedom of speech in a democracy should require absolute clarity of intent and application before being made law, and we trust that the Senate will also demand this clarity.

Yours sincerely,

Robert Connolly.

Despite the unanimous recommendation from the bipartisan Senate Committee that the sedition provisions be removed, the Attorney General in his wisdom has determined that the provisions will remain in the Bill.

According to newspaper reports he has agreed to some revisions to the definition expressly linking it to urging force or violence. As the revisions have not been posted on the Senate's website, we don't know exactly what they will (or won't) be. This either means they are having trouble drafting the revisions or wish to put them up at the last minute (leaving the public little time to examine the revisions and articulate a response).

The Australian has published a terrific editorial by Matt Price about the hold the Prime Minister exerts over his recalcitrant but ultimately compliant government.

The Daily Telegraph has publicised Malcolm Turnbull's opposition to the sedition provisions at a gathering of spies and policemen. At the same gathering the Director General of ASIO is quoted as saying there should be laws preventing people from verbally glorifying terrorists acts.

We already have laws to prosecute those who incite violence. Surely criminalising the expression of opinions (however odious) will drive the speakers underground where they can nurse their grievances and eventually leap back into the fray as marginalised victims of an unjust State. Syed Atiq ul Hassan in Media Monitors Network writes of the need to hear and understand our adversaries if we wish to combat them.

And the Attorney General apparently wants to hear from Charles Richardson on the CrikeyWebsite.