Daryl Melham (Banks, Australian Labor Party) Share this | Hansard source

In rising to speak on the Australian Law Reform Commission report, Fighting words: a review of sedition laws in Australia, I am not surprised by the Attorney-General’s reluctance to embrace this report. I think it is fair to say that his position itself has not changed in the main, from what I can see. One only has to read what he said in the parliament and also the comments he made at the time. He wrote an opinion piece in the Sydney Morning Herald on 14 November 2005, a letter to the Independent Weekly on 27 November 2005, a letter to the Herald Sun on 30 November 2005 and an opinion piece in the Australian on 8 December 2005.

While I do not have a problem with the Attorney defending his position, I do have a problem with the Attorney maintaining that position against what I think are pretty reasonable and overwhelming views by the Law Reform Commission and other people on this matter, which if adopted would in my opinion result in a reasonable position on the statute books. I think what we have on the statute books is unreasonable. The Attorney faced a bit of a revolt in his own party, but the legislation was passed on the promise of a review. Now we have that review. It is interesting that the Age published a pretty full-on editorial on 1 June this year headed ‘The sedition law must go, Minister’. It read:

Of all the ill-considered legislation passed by the Federal Parliament, the law on sedition ranks among the worst. Its dangers and flaws were so obvious, and opposition from all sections of the community so strong, that a Senate committee made a bipartisan recommendation that the sedition provisions be excised from the antiterrorism bill. Attorney-General Philip Ruddock insisted the bill be passed intact, but promised a review of the sedition law.

The review has been undertaken by the Australian Law Reform Commission, which has released a discussion paper containing 25 reform proposals. The paper amounts to a vindication of the concern—shared by the media, academics, artists, performers and lawyers—that a law supposedly aimed at terrorists and others who intended to incite violence threatened free speech in Australia.

The commission wants the offence of ‘sedition’, which is all too readily used by governments to silence political opponents, dropped from the statute books. It suggests all the accepted forms of political, academic and artistic communication that are part and parcel of a healthy democracy should be protected. Only a narrowly defined law that criminalises speech where it can be proven the speaker definitely intended to incite violence might be justified.

Other draconian laws are unfortunately not open to review, but Mr Ruddock should accept that the Senate committee and Australian Law Reform Commission have come to the same conclusion about the sedition law. The concerns are well founded and not just based on ‘misinformation, disinformation and scaremongering’ as he asserted last November.

Having had the legislation passed on the promise of a review, Mr Ruddock must in good faith accept its findings and repeal a bad law that diminishes Australian democracy.

I think the problem is that the Attorney-General is too locked into a particular course of action, and we are seeing that in a number of respects. It is a tragedy that he takes such a hard line and that so little attention is being paid to those who have a different view.

In its review the Law Reform Commission made a number of recommendations. There is a summary of the recommendations, an appendix 1, which lists the existing Criminal Code provisions, and an appendix 2, which recommends amending division 80 of the Criminal Code. I look at some of the amendments that the Law Reform Commission proposed. The report proposes adding, to section 80.1(1)(e) of the Criminal Code, the words ‘engages in conduct that materially assists an enemy to engage in war with the Commonwealth’. They recommend that section 80.2 of the Criminal Code:

... should be changed to refer to urging the overthrow by ‘force or violence’ of the Constitution or Government.

They also propose adding the word ‘intentionally’ to clause 1. What you have is a very thoughtful report from the Law Reform Commission. A series of other amendments are highlighted in the report that add the word ‘intentionally’.

When I was the shadow minister for justice and customs and had to negotiate with the then Attorney-General—John Faulkner was the other person from the Labor Party who was involved in the negotiations—we sat down in good faith with the then Attorney-General. We said we had some problems with the law but that it was important that the law had bipartisan support. Some in the parliament from the minor parties would never support the legislation, but we felt it was important that the government and the alternative government were seen to support a raft of legislation that is so serious that it transcends politics.

We were concerned at the time, having regard to the way that the legislation was sloppily drafted, that it was legislation that could pick up people who were not terrorists—that it could pick up a sweep of people. That is the problem with this sedition law. That is why I think the press and the arts community are concerned about it. The way this legislation is drafted means that it could pick up people who do not have an intention to commit a terrorist act but who want to engage in an element of free speech. We have seen the banning of books, and universities recently being told that they have to take books off the bookshelves because they could be guilty of an offence. So academics in universities now have to negotiate with the Attorney-General to allow access by scholars to material that might actually assist in understanding the nature of terrorism and the minds of terrorists. That is how stupid this legislation is in part and shows how it has been applied with a broad reach.

I have a real problem with that, as I do with the sedition laws as they are currently drafted. The Attorney says they are just codifying existing laws. Because they are existing laws does not necessarily mean that those values and standards are values and standards that we want to maintain in our modern society. This was an opportunity in many respects to, in effect, rewrite those laws and take out the harsher elements. What is sad, as David Marr reported in the Sydney Morning Herald on 18 September 2006, is that the Attorney, Mr Ruddock, is quoted as saying that the government would not be budging and that ‘I won’t be recommending we change our view’. He has undertaken to consider a number of other recommendations contained in the commission’s review of sedition laws that was released last week. But the most fundamental change is finished.

That having been said, I say it was a dishonest approach by the Attorney-General in the first place to refer the sedition laws to the Law Reform Commission. He basically should have stuck to his digs and said, ‘I’m not changing and I’m not sending it off for review.’ The review was an independent review and it showed that in effect there were some problems. This is what is said in the list of recommendations on page 22, under the heading ‘Sedition and Freedom of Expression’:

Peak arts and media organisations should provide educational programs and material to their members to promote a better understanding of:

(a)

the scope of federal, state and territory laws that prohibit the urging of political or inter-group force or violence; and

(b)

any potential impact of these laws on these activities of their members.

Under the heading ‘The Sedition Offences’ it states:

Section 80.2 of the Criminal Code (Clth) should be amended to provide that, for a person to be guilty of any of the offences under s 80.2, the person must intend that the urged force or violence will occur.

So it is imputing an intention. Again, under ‘Urging Political Force or Violence’, it states:

The word ‘intentionally’ should be inserted into s 80.2 (1) ...

What worries me is that the Attorney-General is becoming so obstinate in relation to some of these things that he is actually becoming quite a danger as Attorney-General to both the government and society at large. With the government controlling both the lower house and the upper house, it does not need minor parties’ support, but it becomes a real problem if you have an Attorney who is just intransigent. I know that the backbench committee of the government is a good backbench committee in this area and that it challenges on a lot of areas. But that of itself is not sufficient to rein in the Attorney. I am not saying that the Attorney does not genuinely believe that what he is doing is in the best interests; what I am saying is that his view alone should not prevail over all others.

I liked the approach of the former Attorney-General, the Hon. Daryl Williams, who I found was someone who was amenable to the opposition approaching him and having an argument on the merits and who, where possible, was accommodating of those arguments. So at the end of the day most of the terrorism laws and the ASIO legislation passed with bipartisan support. I note that the Attorney is now talking about bringing in a longer period of detention of 28 days, so revisiting the scene of the crime.

I think that, in terms of this matter, the Attorney-General would be better served to accept the independent Law Reform Commission’s view on sedition. I do not believe that the sky will fall in. I believe it is an improvement on the law as currently enacted and I am not alone in that view. It is not necessarily the weight of numbers, but as it was initially drafted and as it has been codified it is an anachronistic law. I think that the Attorney in this instance should be a little more willing, having commissioned a report, to accept the independent umpire. I think it is fair to say that many people thought that the Law Reform Commission would go further—and it did not—in relation to a number of recommendations. Those recommendations have, in the main, been accepted by the broader community.

I say this to the Attorney-General: being tough is not the only qualification required of an Attorney-General. There is an element of fairness, there is an element of balance that has to be brought into the equation so that you do not have an imbalance in our legislation that would see people wrongly picked up who are not the sort of people that we are after.

Debate (on motion by Mr Neville) adjourned.

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