Nicola Roxon (Gellibrand, Australian Labor Party, Shadow Attorney-General) Share this | Hansard source

It gives me great pleasure to speak in the debate on this report by the Australian Law Reform Commission titled Fighting words: a review of sedition laws in Australia because it is an unusual process for the government to allow a document tabled by a minister to be referred here for such a debate. This is an extremely important report that the Australian Law Reform Commission has handed down, and I think it is worthy of the House’s attention. I am glad that I am able to go through the report in some detail and also refer to the history of how the Law Reform Commission actually came to have this reference in the first place.

I am a little disappointed that the only speakers on the report that has been tabled in the House are from the Labor side. I would have thought, given the interest that there was at the time of the introduction of a range of antiterrorism measures, that there would have been any number of backbenchers on the government side who would have been desperate to take this opportunity to debate these issues. I suspect the reason is that the Law Reform Commission has found what was inevitable. The Law Reform Commission has found what everybody except the Attorney-General knew it would be finding from the beginning, because, at the time that these sedition provisions which were under scrutiny by the Law Reform Commission were updated as part of the antiterrorism laws introduced last year, Labor opposed the sedition laws being part of that package and the amendments that were being made to them.

A Senate committee comprised of government and opposition members opposed these provisions. A number of Liberal backbenchers opposed these provisions. Arts organisations, media organisations, community organisations and lawyer groups all opposed sedition provisions being used in the way that the Attorney put them forward in last year’s legislation. Despite this, and despite the Attorney’s clear knowledge that these laws were poorly drafted and ill suited to the job that he said they needed to do, the only concession he was prepared to make was to refer the laws to the Law Reform Commission for greater analysis. So the parliament was put in the invidious position of being asked to vote for laws—which the Attorney acknowledged needed to be reviewed by the Law Reform Commission—before that review took place, rather than, as Labor proposed, separating out the sedition provisions, letting the Law Reform Commission do its work and then asking the parliament to pass laws that had been properly considered and were designed to suit today’s needs.

So, not surprisingly to us, having done that work—in an order that from Labor’s perspective was the wrong way around; it would have been better to review our laws and then change them rather than change our laws, review them and potentially change them again—the Law Reform Commission made one key, overarching recommendation. I want to ensure that the House is clear about this. In its report Fighting words: a review of sedition laws in Australia, the Law Reform Commission:

... makes a range of recommendations to improve the existing law. Some of these represent technical refinements to the drafting. Mainly, however, the recommendations are aimed at ensuring there is a bright line between freedom of expression—even when exercised in a challenging or unpopular manner—and the reach of the criminal law, which should focus on exhortations to the unlawful use of force or violence.

That ‘bright line’ is in fact the very point that Labor has been making for years and years. We made it at the time that this debate was occurring; we made it at the time that I introduced a private member’s bill on incitement to violence on racial and religious grounds; it was made by previous Labor governments when examining other urgings to violence, particularly in the area of racial vilification. At every point Labor has been opposed by the government. In fact, more than 10 years ago the then opposition, the conservative parties, voted against criminal laws being put in place in the area of incitement to violence on racial grounds. Now we see that this Attorney is determined to perpetuate some of these problems.

The key point for the House to note is that the Law Reform Commission understands that, in a democracy, there is a significant difference between freedom of speech, robust speech, political dissent and active argument over theology, politics or any issue and a line that is crossed if you urge others to be involved in violence, the use of force or threats of force against other people, the community or our institutions. In highlighting that ‘bright line’, the Law Reform Commission makes its whole range of recommendations in that context. Labor is very pleased to see that those recommendations are consistent with the views that it was pursuing right from the beginning.

It is not an understatement to say that the Law Reform Commission has really slammed the Attorney’s ill-conceived sedition laws. It shows that the Attorney’s approach to this issue has been high-handed and the height of incompetence. We know that the Attorney rushed these clumsy, poorly drafted laws through the parliament in November last year with little time for consultation or consideration. Consideration was given to the legislation by the bipartisan Senate committee and it, of course, unanimously recommended that the provisions be dropped. As I have noted, even the Attorney’s own backbenchers publicly voiced their concerns about these laws. The ‘modernising’, as the government called it, of the sedition provisions created a community and political furore.

Last November, the Attorney-General quite contemptuously described this reaction as ‘a triumph for misinformation, disinformation and scaremongering’, but now it seems he has egg on his face. Given that the Law Reform Commission has supported the views of Labor, the community, arts organisations and many others, the Attorney can hardly continue with that contempt. As this parliament knows, Labor voted against the sedition laws. We voted for them to be removed from the anti-terrorism package. When that was not successful we voted for amendments, which were also not supported by the government.

In a further attempt to focus more clearly on the particular threats that we think are in the community I introduced a private member’s bill, the Crimes Act Amendment (Incitement to Violence) Bill 2005, which contained carefully targeted alternative laws that would provide one effective way to crack down on those who promote violence. Our proposal would make it a crime to intentionally incite violence against others on the basis of religion, race, ethnicity or nationality. This would give police the power to stop bigoted bullies, whether they were extreme Islamists or Neo-Nazi skinheads. At the same time, Labor’s proposal would have made clear that there would be nothing to prevent journalists or artists freely expressing their potentially unorthodox opinions and it would even—shock, horror perhaps to this parliament—allow for criticism of government. That is something Labor, but clearly not the Attorney-General, believes should remain a feature of Australia’s robust democracy.

So, with the Law Reform Commission’s conclusion that this bright line needs to be drawn between freedom of expression—whether it is robust or unpopular; no matter how it is expressed—and urging another to violence, the commission has picked up exactly the approach that Labor has been arguing for in the past year. I hope that the Attorney is going to be able to swallow his pride, take on board the vast range of recommendations that have been made and improve our laws for everybody in the future.

Of course, we are quite happy to acknowledge—as I did when I introduced my private member’s bill—that, with the Law Reform Commission’s resources, it has been able to point out that there are a number of crimes that could be amended and approaches that could be taken to achieve the balance that we believe is important in our laws to protect free speech and to protect the community from extreme urgings of violence in others. The Law Reform Commission has picked up—much more comprehensively than we were able to in our private member’s bill—and addressed this range of issues and highlighted the areas where the government has got it wrong. Of course the key area in which the government has got it wrong is in using the sedition provisions that are antiquated and ill-suited to our modern times.

We acknowledge that we have to have laws that meet the modern challenges of terrorism and community violence but we also believe that such laws must protect freedom of expression in our democracy. Unfortunately, the government’s current provisions that are in place do not do either of those things. It is time that the Attorney swallowed his pride, admitted he was wrong and was big enough to accept the expert advice of the Law Reform Commission to fix up this mess.

I am concerned, however, that the early signs are not great. Mr Ruddock was reported in the Sydney Morning Herald, shortly after the Law Reform Commission’s report was tabled, as saying unambiguously that he will not be recommending a change on the issue of intention and urgings of violence. A Sydney Morning Herald article of 18 September said:

But Mr Ruddock stands by repeated Government claims that this would make sedition too hard to prosecute ...

Unfortunately, we are of the view that it is clear that Mr Ruddock is determined to keep within his sights—by refusing the recommendation that the Law Reform Commission puts up in this area—journalists, academics, artists and others within the potential net of the offences that are on our statute book. I think it indicates that the government, despite some of its rhetoric, still intends to keep those people at least slightly fearful that there is a possibility that a prosecution could be brought against them. Surely in a robust democracy we do not want people —artists, journalists and others involved in legitimate activities—to be wary of criticising government in case the criminal law comes down hard upon them.

I am sure this will be entertaining to many who are here: Mr Ruddock says that he is not so concerned about the misuse of these laws because the best guarantee against inappropriate use of the law is that he himself has a personal role in the process of approving sedition prosecutions. This is going to be very, very cold comfort for almost anybody in the categories of the community who fear that criticism of government might be prosecuted or that it might be used vindictively. Quite frankly, the Attorney does not have a good record or clean hands in not politicising these sorts of decisions. So in fact the role that he plays—or that any Attorney could play—is one of the things that creates a heightened sense of these sedition laws being able to be used for a political purpose. Again, the Law Reform Commission clearly recommends that this sort of intervention should not be allowed and recommends abolishing those provisions.

Interestingly, one of the bases upon which they confidently recommend this is that our other newly passed terrorism laws, which have been passed in the past couple of years, do not take this process. They do not require that the Attorney’s consent be given for prosecutions. So there does not seem to be any logical reason that they should be in place for these far more political offences. It is very worrying to Labor that two of the key, fundamental issues of concern to the community before these laws were passed and two of the key recommendations of the Law Reform Commission’s report have already been dismissed out of hand, if not on the day then the day after this comprehensive report was released.

What we see is the compounding of error upon error. First, the Attorney does not spend enough time to consider whether these laws are appropriate, rushes them through the parliament and concedes reluctantly to an inquiry. Then, when the inquiry tells him exactly what others have been telling him all along, he still digs in his heels and says he is not going to consider these key recommendations. I think it is an embarrassment for the government. It is an embarrassment to be in Australia where now, with these new sedition laws, we are joining a list of countries—a pretty exclusive club of countries—that have active sedition laws: China, Cuba, Hong Kong, Malaysia, North Korea, Singapore, Syria, Zimbabwe and Australia.

Then we ask our expert academics, law reformers and the community to contribute to this process. They agree that the sedition laws should go—and we still have the Attorney digging in his heels. That is a great disappointment to us. We again, as we have time and time again, loudly and regularly, call on the government to remove these sedition provisions, to take on board the Law Reform Commission’s recommendations of how to redraft these laws, not to remove some of the important offences that are part of this package but to make them appropriate for the community that we are in.

One of the things that will really make these provisions appropriate is the recommendations that the Law Reform Commission have made about a defence of good faith. Interestingly, the Law Reform Commission said they do not believe that is the best way to achieve the outcome; they would like there to be a context put into the offences themselves that makes clear that comments that are made in the course of academic work, in the course of journalism or in the course of artistic endeavours could not constitute an offence. We believe that is an appropriate way to tackle this issue—something that would give the community the confidence that it deserves that, in Australia, you can robustly criticise your government without being in fear of criminal action being taken against you, but if you do cross the line and irresponsibly incite violence against others you will be prosecuted. The Law Reform Commission’s recommendations should be adopted by the government. I urge the Attorney to put aside the pride that he has in dealing with this issue and tackle it in the best interest of the country.

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