Bob McMullan (Fraser, Australian Labor Party) Share this | Hansard source

It is a pleasure for me to join with my colleagues in this debate, particularly the shadow Attorney-General, the member for Gellibrand and the member for Kingsford Smith, because each of them has spoken out strongly and effectively on this issue from the very first. The arguments which they put have now been vindicated, including substantially and importantly by this Australian Law Reform Commission report which we are now debating. But they were out there before they had the support of these major and prestigious organisations, when it was a risky and controversial thing to do, and I support them for so doing.

This is a very important debate. It is important in itself because it is a debate about legislation, the passage of which has had significant impact on the framework of civil liberties in this country, as the Law Reform Commission makes clear. It is also important for what it says about the state of our rights and our democracy after 10 years of a government that has grown increasingly intolerant and arrogant. We are debating the Australian Law Reform Commission report, which is a very balanced and measured report. In some ways you might say it is a very cautious report. Even though it has been described as a scathing indictment of the sedition laws, compared to most of the criticism that has been made of those laws it is actually very moderate, as you would expect. The member for Kingsford Smith just outlined the composition of the commission for the purpose of this report, and they are not people from whom you would expect radical or extreme views.

There have been many other voices expressing concern, some wanting to go much further than the ALRC, but the Attorney-General has already rejected the key recommendation of this report, and I find that extremely disappointing. I think in an attic somewhere there is a Dorian Gray type painting of the Attorney-General, as he seems to abandon, one by one, the things for which he stood earlier in his political career, first as minister for immigration and now as Attorney-General. He stands there still wearing his Amnesty International badge, but somewhere there is a wizened portrait, as Oscar Wilde described in The Portrait of Dorian Gray, of the Attorney-General, reflecting the real impact on him of these changes which he is making—and, more importantly from my point of view, the impact they are having on Australian society, Australian politics and Australian democracy.

Chapters 1 and 2 of the Australian Law Reform Commission report go to this question about the use of the term ‘sedition’ itself. You might say: ‘So what? It’s a word. If the content of the law is acceptable, the word used to describe it doesn’t matter.’ At its core there is some truth in that and were the law in every other way acceptable we would say that sedition is an archaic expression and it should be taken out of the law, but it would be of no practical consequence. But as the ALRC says, the ‘offence of sedition can be seen as a political crime, punishing speech that is critical of the established order’. That is certainly the origin of the offence. I quote from the report:

Stakeholders, including politicians across party lines, have expressed concerns that there is potential for sedition law to inhibit freedom of expression and free association.

The report went on to say—and this is the matter to which the member for Kingsford Smith referred in the latter part of his speech:

... the recommendations—

that is, the recommendations of the Law Reform Commission—

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.

What is really remarkable is that the Law Reform Commission felt that they needed to say that. Surely, for everybody in this parliament, that is a self-evident principle. But that bright line has faded, and, in the laws which the Law Reform Commission are reporting on, I think it has been crossed.

It does not pay when talking about things that undermine our rights and impair the standing of our democracy to exaggerate. Our democracy is strong and enduring, and Australians are properly proud of it. But it is important on each occasion when we see some chipping away at the edges of our democracy and of our rights that we speak up. The reason that our democracy in 2006 is strong is that, every time somebody has sought to undermine it, people have spoken up. The most important institution in which people can and should speak up is here in the parliament. There are a whole range of areas where I think matters large and small are impacting on the standards and quality of our democracy and of our rights—matters relating to the electoral laws and matters relating to principles of accountability, some of which are not laws but are indeed practices in some instances of this parliament itself. We need to speak up on any and all of them, and it is a theme I intend to come back to in other contributions.

But on this occasion we say the Law Reform Commission have profoundly got this right. I would have preferred that they had been stronger in some elements of their criticism of the proposed laws and had recommended some amendments beyond those which they have recommended. But I say without qualification that, if the recommendations of the Law Reform Commission were adopted, the law would be a manifestly better law than that which the parliament erroneously passed. An example of that is the way in which the Law Reform Commission refer to the capacity of the law as passed to be seen as in breach of the International Covenant on Civil and Political Rights. It is in chapter 5 of their report. They say in their recommendation:

… if the pattern of recommendations in this Report were adopted, this would remedy any inconsistencies (potential or actual) between federal sedition law and the International Covenant.

Once again, isn’t it remarkable that the Law Reform Commission need to say that? Isn’t it remarkable that Australia, one of the great bulwarks of international democracy and rights, should require its Law Reform Commission—and it is a fairly conservative, orthodox, mainstream body—to say, ‘Are you not aware that the law which you passed does not conform to the International Covenant on Civil and Political Rights?’ In my view, what is worse is the Attorney-General at least was aware that this law was in breach of that covenant when he proposed it. Certainly he is aware of it now when he has recommended against the fundamental changes proposed by the Law Reform Commission in their document Fighting words.

The International Covenant on Civil and Political Rights is sometimes criticised in Australia—and of course it should be. It should not be exempt from criticism; it is a creation of humans and it may be flawed. But broadly, in the context where we are talking a lot about Australian values, what the International Covenant on Civil and Political Rights talks about is universal values—values that apply not just to Australians but to every citizen—and defending the rights of every citizen to have the benefit of the application of those values by their government. We should apply to ourselves that which we advocate for others.

I now want to turn briefly to some other aspects of this report. In chapter 7 the report looks particularly at freedom of expression. This is at the heart of the concern for many. The legal and arts communities have been particularly outspoken about this—the legal community because of their traditional commitment to legal rights and principles, and the arts community, firstly, because of that commitment and, secondly, because they quite correctly see themselves as the ones who are fundamentally affected by these laws, as do the various media organisations. I do not want to take it out of context, but the report refers to the potential ‘chilling effect on freedom of expression caused by the sedition provisions’. They are analysing that. It is not their conclusion; it is a matter they are analysing. They discuss the interaction between the sedition provisions and other domestic legislation that protects human rights. In subsequent sections they go on to talk about the urging of political or intergroup force or violence, recommending fundamental change to the operation of the offences in section 80 of the act and to:

… remove from the ambit of the offences any rhetorical statements, parody, artistic expression, reportage and other communications that the person does not intend anyone will act upon …

The Law Reform Commission want the offences amended to make it clear the person must ‘intentionally urge the use of force or violence’.

It is not clear from what I have seen so far whether the Attorney-General is going to accept that recommendation. It is clear he has rejected some of the others—most fundamentally that which says that the whole concept of sedition should be taken out of the law and the phrase not used. I hope that the bleak interpretation of the Attorney-General’s remarks, which suggests that he will not accept these recommendations either, is not correct. At this stage that is not clear to me.

The Law Reform Commission has expressed significant concerns about the offences currently contained in sections 80.2, (7) to (8), which do not require the urging of force or violence; rather it is an offence merely to:

... assist an enemy at war with Australia ... or an entity that is engaged in armed hostilities against the Australian Defence Force.

Clearly, none of us wants to see Australian citizens or Australian residents actively engaged in armed struggle against our own armed forces or against our country, but the very broad and sweeping term—as the Law Reform Commission makes sense—might well cover that more general phrase ‘giving aid and comfort to the enemy’. We are engaged in a controversial war in Iraq at the moment and to some people the war in Afghanistan is controversial. I support our commitment to Afghanistan; it is not controversial to me but that does not mean it is not controversial to anybody. We have people speaking out saying that we are doing the wrong thing there. They are not criticising the individual men and women who are there but they are criticising the policy that sent them. It is very emotional and people are involved at the moment.

So let us extract ourselves from that and go back to something we can look at a bit more calmly. If you think about the nature of the campaign against the war in Vietnam, you can see that laws such as these would certainly have been able to have been used against some of those advocating that Australia was supporting the wrong side in the civil war in Vietnam. I am not sure that that was actually the correct analysis; I was bitterly opposed to the war in Vietnam—it was my political initiation—not because I thought we were fighting on the wrong side but because we were fighting a war that we should never have been involved in. Those people held that view legitimately within the mainstream of Australian political life, and the thought that we have passed a law in this country that could have made that legitimate political objection a criminal offence is anathema. That is why I welcome the Law Reform Commission report and the recommendations in it. I deplore the fact that the Attorney-General has indicated he is not going to accept the report recommendations. I hope he might reflect and respond to some others because at least then we would see modest improvement. If not, we will have to wait for a change of government to abolish these iniquitous laws.

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