Freedom of Expression

If you're reading this site for the first time since the ALRC Inquiry was announced (beginning of March) I suggest you start with the March 10 blog and work your way backwards.

Adam Simpson from Simpsons Solicitors has published a paper entitled Friendly Fire An Overview of Sedition Laws. It's an easy read and uses the recent controversy over the cartoons of the prophet Muhammad and John Pilger's comments on Lateline to analyse the implications that the provisions have for free speech.

He also comments in details about the drafting of the provisions:
how the word "urging" can be intepreted to go beyond direct encouragement and possibly include drama, imagery and other forms of expression (in this he quotes Peter Gray SC's advice to Peter Garrett MP in October last year);
a clear explanation of how notions of "intent" have been removed and replaced with a definition of "recklessness" which widens the scope of the kinds of offences that can be considered seditious; and
in analysing the new defence provisions, points out that "publishing a report or commentary about a matter of public interest" does not cover speeches, satirical writings, fiction, theatre, or visual art of any kind.

The ALRC has released its Issues Paper and has asked for submissions by April 10. The ALRC has cast its net wide and is looking for submissions from "community groups; prosecution and law enforcement agencies; criminal defence lawyers; judges; government officials; media organisations and peak associations; legal professional associations; human rights and civil liberties groups; academics; and others." They have provided a handy guide to making a submission which must be written, preferably electronic, and they will "accept gratefully anything from handwritten notes or a few emailed dot-points, to detailed and comprehensive scholarly analyses".

Despite the warm and welcome invitation, if you still don't feel qualified to make a submission, please contact your union, guild or any other organisation you feel can represent your interests to the ALRC and urge them to make one on your behalf.

The Issues Paper is comprehensive (ie VAST). The questions which directly address freedom of expression and the sections which cover it are as follows:

Question 16.
Are the 'good faith' defences provided by 80.3 of the Criminal Code defined with sufficient clarity and are they adquate to protect freedom of expression and other interests? If not, how should they be framed?

Question 17.
Are jounalists and media organisations adquately protected by the defences in 80.3 of the Criminal Code?

See Sections 3.65 to 3.67 and 3.75 to 3.79

Question 22.
Article 19 of the International Covenant on Civil and Political Rights recognises
the right to freedom of expression and the right to hold opinions without
interference, subject to certain restrictions. Are ss 80.2 and 80.3 of the Criminal
Code necessary for the protection of national security or public order within the
meaning of art 19(3)?

See sections 5.17 and 5.28 to 5.33 and 5.34 to 5.39

Over the next week this website will be publishing ideas and links to articles which may help in drafting a submission. If anyone would like to submit any suggestions, particularly if they closely read and are able to clarify sections of the Paper which deal with freedom of expression, please email.

In the meantime, you may find it helpful to re-read the original Senate Submission (scroll down to No. 153), Chris Connolly's Five Key Facts on Sedition, Robert Connolly's presentation to the Senate Committee and the Senate Legal and Constitutional Committee Report.

The Australian Law Reform Commission has announced its inquiry into Sedition.

The terms of reference outlined by Phillip Ruddock ask the Commission to consider whether the sedition provisions "effectively address the problem of urging the use of force or violence". There is no mention of considering whether the provisions may restrict expression. However, the ALRC's own description of the inquiry refers to "concerns expressed through the media and identified by a Senate inquiry that the laws may intrude unreasonably upon freedom of speech" and its press release goes even further to say that concerns to protect the security of Australians must be "balanced against the fundamental rights to freedom of speech and freedom of association".

So... what next?

Those of you with the ire and inclination to take part (and if you've made it this far you probably have the capacity to go one click further), head to the ALRC site and register your interest to receive updates. A discussion paper will be released as soon as possible "designed to help clarify the issues under consideration in this Inquiry". After the release of the discussion paper, the ALRC plans to consult with experts and "key stakeholders". Not sure how you identify a "key stakeholder" in this particular debate: concerned citizens? Enraged artists? Enthusiastic Attorneys General? After the discussion paper is released there will be submissions from organisations made up of key stakeholders and a final report will be tabled in Parliament at the end of May.

Please keep checking in.