Nicola Roxon (Gellibrand, Australian Labor Party, Shadow Attorney-General) Share this | Link to 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.

Peter Garrett (Kingsford Smith, Australian Labor Party, Shadow Parliamentary Secretary for Reconciliation and the Arts) Share this | Link to this | Hansard source

I want to support the remarks of my colleague the member for Gellibrand and shadow Attorney-General in the thrust of everything that she had to say in relation to the Attorney-General’s approach and insistence on having these laws of sedition on the statute books. The release of the Australian Law Reform Commission report Fighting words: a review of sedition laws in Australia, which was tabled in this parliament on 13 September, represents a most comprehensive rebuttal of the current sedition laws which were pushed through the parliament by the Attorney-General. It is time that he took note of the recommendations of the Law Reform Commission, given the circumstances under which they have been made.

As it is, regretfully, the Attorney-General has already announced that he will not be acting on a number of the recommendations. He has done this consistently through the course of this debate. He has made up his mind well before he has had an opportunity to listen not only to people who know a lot about these issues, such as lawyers, but to the community. It begs the question: where does that leave this party, his own party, people in the parliament and the wider public who have been concerned about inappropriate laws like sedition coming onto the statute books?

The fact is that the Attorney-General has been left to hang out to dry by this Australian Law Reform Commission report, but he has contempt for the legal principles and the prudent exercise of laws and the opinion of lawyers who disagree with him, and that contempt seems only to be exceeded by the contempt he has for the rights of the rest of us—citizens, members of parliament—who he is meant to be serving and whose interests—our interests—he is meant to be protecting.

It is true that sedition re-emerged as an offence after a considerable period in hibernation, and the reason was that it was not working. It has been associated in less recent times with attempts to inhibit political commentary. But it re-emerged in the antiterrorism bill, where the Attorney-General sought to update and reinstate sedition into Australia’s law. But from the start the Attorney-General was a lone voice in favour of expanding sedition and certainly the only person with any legal background who was willing to defend it. It was never the will of the people nor of the legal community, including legal academics, and there were high concerns from day one from the arts and media communities about the expression of sedition that appeared in a piece of proposed legislation. Legal academics, retired judges, state premiers, eminent lawyers, even members of the Attorney-General’s own party, were all opposed to or at least expressed great concerns about introducing an expanded offence of sedition.

It should come as no surprise that the Attorney-General is still the only person pushing the sedition barrow. The arguments he has used to advance the proposition that we need an enlarged defence have been found wanting ever since the proposed bills first appeared. On 14 November 2005, writing in the Sydney Morning Herald, the Attorney-General put up a series of arguments to justify the sedition proposals. They included that the sedition laws were not new—that the proposed laws were simply an update of language detailing sedition. In fact, the proposed laws did represent a considerable expansion. The Attorney-General asserted that people had misunderstood the term ‘seditious intention’ to be an offence when it was only a definition and a number of the clever, legal type arguments that the Attorney-General has put along the way. Again, this was wrong. The definition of ‘seditious intention’ was linked to offences.

The Attorney-General went on to say that the good faith defence would protect vigorous public debate. Wrong. The good faith defence specifically did not protect free speech and freedom of artistic expression. The Attorney-General also claimed the sedition laws were meant to capture activity encouraging the use of violence. But as other speakers have noted, and will note, I am sure, some of the offences contemplated had no link to force or terrorism.

In what I thought was a gross act, an extraordinary act, of misinterpretation in that particular opinion, the Attorney-General claimed that the proposals that he was introducing were based on recommendations by a former High Court judge, Sir Harry Gibbs, when they clearly were not. We have to ask ourselves: what level of responsibility does the first law officer of the Crown exercise when he is willing to misrepresent a previous High Court judge?

In any event, on these assertions—incorrect assertions—the Attorney-General rested his initial push to introduce new sedition laws, and it is little wonder that the legal, the artistic and the broad community were vehemently opposed to them. I note that, critically, the existing sedition offences that the Attorney-General sought to modernise, whilst existing in the Crimes Act 1914, had always been considered to be obsolete. So the Attorney-General was trying to remake a law from something that had already passed into history and into the history books. There had been no prosecution under the Crimes Act for almost half a century or more, and no modern democratic nation, as legal academic Ben Saul and many others have pointed out, had used or updated sedition provisions for 50 years. In fact, many countries had repealed their sedition laws, recognising that at the least they were clumsy legal instruments and at the worst they were capable of inhibiting political dissent and the free exercise of ideas.

Why then did the Attorney-General push ahead? Sedition law was in fact an arcane subject, more at home in legal history courses than in the repertoire of any Attorney-General in a modern democratic nation like Australia. In fact, the only places where we could find and identify sedition laws that were being activated were countries such as Cuba, China, Malaysia and—regrettably, given the circumstances of today—North Korea. These were the countries where prosecutions for sedition had taken place in recent times.

Indeed, those parts of the proposed legislation that included the definition of seditious intention were so broad as to permit activities that clearly fell outside the realm of urging violence or force. This was at the hub of the community and legal concern about what the Attorney-General was proposing. There were so many laws which were capable of being interpreted in such a way that the intention of laws of this kind—to inhibit, identify and prosecute those who clearly and willingly intended to use force—would apply in a much wider way. For example, there are the intentions ‘to bring the Sovereign into hatred and contempt’ or ‘to urge another person to attempt, other than by lawful means, to procure a change to any matter established by law in the Commonwealth’. But in both of these definitions there was patently no link between these activities and terrorism, even though the Attorney-General was contending at the time that there was a link. His assertions were both mischievous and wrong at law—and so it went on. Equally, the good-faith defences that were identified were compromised by not being applied to all the offences contemplated and the good-faith defences, as the member for Gellibrand has just noted, did not protect artistic discussion or broad political debate.

As the shadow parliamentary secretary for the arts, I sought legal opinion from Senior Counsel Peter Gray on the impacts of the proposals. That advice advised:

... Australians involved in the artistic and creative fields are particularly vulnerable to the risk of prosecution under the regime to be introduced by this Bill.

Critically, a number of the offences mooted by the original legislation had no direct connection to violence, force or terrorism. With the definition of seditious intention that I have just mentioned being so broad, that rendered the sweep of the sedition laws that the Attorney-General sought to initiate so potentially wide that there was a further outcry. The comment that was made then in fact was ultimately reflected in the private member’s bill introduced by the shadow Attorney-General, that the reasonable intention on the part of the government to address issues relating to incitement to group violence was better served by having robust antivilification legislation. Amongst the many anomalies and ironies of the proposed sedition offences was the fact that the new sedition offences would not provide federal protection in respect of religious vilification where such conduct does not incite violence.

There is no question that we need laws to deal with the modern challenge of terrorist imposed violence. The only problem is that these were the wrong laws. The legitimate and necessary task of framing legislation to combat terrorism was—and is already—served under the existing broad definitions of terrorism in federal law under section 188 of the Criminal Code. In any event, following widespread outcry resulting from the government’s introduction of the sedition laws, the Senate Legal and Constitutional Committee, in considering the whole raft of proposed antiterror bills, was unanimous in recommending that the sedition component of the legislation be removed.

Previously the member for Wentworth and other government members had used expressions like ‘archaic’ to describe the sedition provisions—and they were right. All members of the Senate committee agreed with these sentiments and the weight of opinion was clearly against them. But, even prior to the Senate Legal and Constitutional Committee releasing its recommendations, the Prime Minister and the Attorney-General were out there defending the laws, with the Attorney-General promising, in the face of considerable opposition from major media outlets, to consider some minor amendments. He was already announcing, prior to the Senate committee report, that his department would review the sedition laws.

I note that along with the Labor Party numerous arts organisations—including the National Association for Visual Arts, the Australian Publishers Association, the Australian Writers Guild, PEN—as well as lawyers and academics strongly opposed the sedition component of the bill. Their position was vindicated by the Senate committee recommending that schedule 7 be removed in its entirety. All of the submissions except those from the AFP, the DPP and the Attorney-General were against reinvigorating sedition. The Senate committee also recommended that the ALRC conduct an inquiry into the best legislative vehicle for addressing the issue of incitement to terrorism; that, if schedule 7 was not removed, amendments requiring a link to force or violence be included; that the phrase ‘by any means whatever’ be removed; that there be a requirement of intentionality in urging; and that the fair comment defence be extended to statements for journalistic, educational, artistic, scientific and public interest. The committee recommended that those protections exist, yet the bill passed.

Subsequently, the recommendations of the ALRC, which looked at the bill, were clear, and again the government’s position was isolation. The commission recommended that the term ‘sedition’ should be removed by the Australian government from federal criminal law. It further recommended the repeal of sections concerning, advocating or inciting to crime and inserting ‘intentionally’ before ‘urges’ in relevant sections 80.2(1) and 80.2(3). It went on to say that the Australian government should continue to pursue other strategies, such as educational programs, to promote intercommunal harmony and understanding—and that was a reflection of submissions from organisations such as NAVA.

The recommendations of the Law Reform Commission were a vindication of Labor’s approach and of the combined voices of arts practitioners, legal academics and others who consistently opposed these proposals. Again, the Law Reform Commission has left the Attorney-General completely isolated. Importantly, by recommending that the offences of urging another person to assist an enemy at war with Australia and urging another person to assist those engaged in armed hostilities against the Australian defence forces be repealed, this commission report highlights what has always been the primary reason for opposing sedition—for here neither offence requires the use of violence—and the term ‘assist’ undefined could amount to very minor forms of assistance. This would clearly represent an unwarranted invasion of free speech and political expression. For example, staging a theatrical production showing up the casualties of war could fall within its ambit—again, an unwarranted invasion of free expression.

The Australian Law Reform Commission report was written by three law professors and two Federal Court judges and took advice from the federal Director of Public Prosecutions, a chief judge of the County Court of Victoria and the President of the Human Rights and Equal Opportunity Commission. It is completely untenable that they are all wrong and that Mr Ruddock is right.

The Australian Major Performing Arts Group called on the government to drop sedition as a consequence of the ALRC report, stressing the importance for this government to commit to recognising and protecting the freedom of expression of artists, writers, directors and producers. The Australian Law Reform Commission recognised that laws must draw:

... a bright line between freedom of expression—even when exercised in a challenging or unpopular manner—and the reach of the criminal law ...

I think that was a very succinct summary of what ought to be the fundamental principle that underlies the drafting of laws of this kind. By stating that free speech and robust political debate are cornerstones of Australian society, the Law Reform Commission has demonstrated that it understands clearly what constitutes the core of our democracy. By refusing to act on the recommendations and pursuing sedition, the Attorney-General has shown just as clearly he does not.

Bob McMullan (Fraser, Australian Labor Party) Share this | Link to 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.

Daryl Melham (Banks, Australian Labor Party) Share this | Link to 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.