Scott Ludlam (WA, Australian Greens) Share this | Hansard source

I will not tie us up any longer with these amendments except to point out, perhaps for Senator Brandis’s benefit unless I have misinterpreted his comment, that the vessel in question was the HMASSydney. She was attempting to leave Sydney Harbour in April of 2003, sailing for the Persian Gulf during the invasion of Iraq. We were, in fact, at war. So, unless you want to clarify your comments, I offer that by way of clarification. This was not an idle protest action to make an abstract point; the vessel was sailing to support an invasion that the majority of Australians opposed. I will take the minister’s comments in the spirit in which they are intended and hope that, should this point ever come to be the point of conflict in court, the court will see fit to come back to the debates and establish that this kind of conduct is absolutely not what the government intended to be caught. I will not be calling a division unless it appears that the numbers will be more finely balanced than five against everyone. I submit these amendments to the Senate now.

Question negatived.

The second batch of amendments to the National Security Legislation Amendment Bill 2010, also on sheet 6181, relate to amendments (7) to (15). They all relate to the sedition provisions which will henceforth be known as ‘urging violence offences’. So this is sedition and antivilification in particular. There is a range of different proposals, but they all share the common theme of relating to sedition offences. We question the necessity of maintaining urging violence offences which require an element of a threat to the Commonwealth. These offences were previously known as sedition and, as the last Commonwealth sedition trial was in 1953, we have to go back a long time to find these laws actually being used in anger. There was an unsuccessful prosecution attempt against three members of the Communist Party and I hold that it is debatable whether these offences are necessary in a healthy democratic system such as Australia’s.

Nonetheless, in principle we support the criminalisation of targeting identifiable and vulnerable groups in Australian society as these offences do not rely on a link to the Commonwealth. The need to protect certain groups should be balanced carefully with the right to freedom of expression to ensure that there are not undue restrictions on legitimate political communication. We do, however, have concerns with section 80 as the government appears to be confusing the very distinct concepts of sedition and vilification. This was raised numerous times with the committee and it was canvassed in the committee’s report. The operation of sections 80.2A(1) and 80.2B(1) would be improved by adding the words ‘is intended to’ prior to ‘threaten’—this is amendment (7)—rather than the current reading which is ‘would threaten the peace, order and good government of the Commonwealth’. Currently, there is a requirement that there be an intention to urge a group or a person to use force against a targeted group or person and that it must be intended that force or violence will occur.

The threat to the Commonwealth, however, does not have to be intended but merely needs to occur. Therefore, the threat to the Commonwealth is conjunctive rather than determinative and, for this reason, there is a risk that the current provision may capture conduct that only incidentally threatens the Commonwealth. So, if these two sections are intended to be sedition offences and to protect the interests of the Commonwealth, they should be drafted towards this end. The Commonwealth is the possessor of constitutional authority and, as stated by Dr Katharine Gelber, it is essential that people are able to criticise, even vehemently criticise, the possessor of constitutional authority. The offences are subject to a maximum penalty of seven years imprisonment and therefore, given the serious penalty, the offence should be more closely linked with a threat to the Commonwealth. I think senators can see where this is going.

Our second concern is the placement of sections 80.2A(2) and 80.2B(2) within the legislation. The offences are placed in chapter 5 of the code which is entitled ‘The security of the Commonwealth’. There seems to be confusion—and it should not really have come to the committee stage of the debate to sort this out—by the government between the very different concepts of sedition and vilification in relation to these two offences. These are offences that you could argue properly belongs within the category of terrorism related offences—if they pose a violent threat to the Commonwealth then certainly they should be—and others which more properly belong in antivilification legislation or sections of the Criminal Code.

Sedition is an expression against the constitutional authority which should be able to handle a high degree of criticism as part of a healthy democratic system. In contrast, vilification is the expression against a vulnerable or marginalised group and, therefore, the level of criticism should not be the same before constituting a criminal offence as vilification offences are designed to protect the vulnerable and marginalised. The urging violence offences in sections 80.2A(2) and 80.2B(2) should therefore be relocated to chapter 9 of the code which is entitled ‘Dangers to the community’. We are drawing a fairly clear distinction that vilification offences are extremely serious, but they are not terrorism and I think there should be a different burden of proof and perhaps different offences should accrue. They certainly should not be all bagged together in this ever-broadening definition of what is considered to be a terrorist act.

Our reasoning for this shift is based on three grounds. Firstly, community support for antivilification offences may be hindered as the community may perceive the offences to be a restriction of freedom of expression put in place for the protection of the Commonwealth rather than for the protection of identifiable and vulnerable individuals and groups. Secondly, the placement of these offences may confuse police and they may shy away from charging a person who may act in a manner in breach of antivilification provisions due to the fact that the conduct does not, in fact, threaten the Commonwealth. So we can see the danger in conflating these two very different kinds of offences. Finally, enacting legislation that includes antivilification offences under the guise of counterterrorism legislation may be counterproductive and further vilify vulnerable groups in the community, such as Australian Arabs and Muslims who already experience vilification on the basis that they supposedly share some responsibility for terrorism.

Our third amendment in this bracket concerning urging violence offences is the removal of political opinion and religion as identifiable grounds under the two sections that we are discussing, 80.2A(2) and 80.2B(2). Again, these will be very familiar to anybody who participated in the committee debates and the very long process of consultation. Firstly, the inclusion of political opinion extends beyond Australia’s obligation under article 20 of the International Covenant on Civil and Political Rights to criminalise vilification. The ICCPR requires that only vilification on the basis of nationality, race or religion be criminalised. Freedom of speech on the basis of political opinion should be protected to a very high degree as the Australian constitutional protection of freedom of political communication is only applied in quite limited circumstances. The inclusion of political opinion is also inconsistent with all state and territory antivilification laws. Secondly, whilst I think the inclusion of religion is consistent with Australia’s obligations under the ICCPR, it is not in line with the International Convention on the Elimination of All Forms of Racial Discrimination, the ICERD, upon which our Racial Discrimination Act 1975 is based.

The inclusion of religion is also inconsistent with the majority of state and territory antivilification laws. So the removal of these two grounds would ensure that the balance is tipped back in favour of robust political debate, particularly where issues of political opinion and religion are often entwined. We also believe that the antivilification offences could be strengthened by requiring that force or violence only be reasonably likely to occur rather than intended to occur. We would change the burden in that direction with regard to antivilification offences given that they are targeted against vulnerable groups. The reason is that it is difficult to foresee a situation in which someone urges a group or a person to use force or violence against another person or group but somehow does not intend for that force or violence to occur.

Finally, we propose that two new clauses be included to take into account the context in which the acts were carried out. That was recommended by the Australian Law Reform Commission as long ago as in the final words of the Review of Sedition Laws in Australia document, which goes back some years now. It was stated by Associate Professor Ben Saul that the current defence of statements made in good faith may not be as wide as first appears. Associate Professor Saul argues that the range of human expression worthy of legal expression is much wider than that these narrowly drawn exceptions which appear more concerned about not falling foul of the implied constitutional freedom of political communication than about protecting speech as being inherently valuable. The new provisions would require the court to consider whether the acts were done in the development, performance, exhibition or distribution of an artistic work; in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or in the dissemination of news and current affairs. One or more of these factors will assist the court in determining when to criminalise certain expression and ensure that freedom of expression is not curtailed except where absolutely necessary. I am hoping that senators can see that there are a range of different proposals there. I am hoping that senators can see, particularly with those last ones, that there are very broad categories of speech that should be protected beyond the merely political, including the list that I have just enunciated.

I will be very interested to hear any contributions from either side of the house. But I think these are a pretty moderate attempt to go some way towards moderating the existence of the sedition laws on our books, because, as it is, the government is proposing to change the name but not a great deal in substance will actually change if this bill passes unamended.