Dispatches From the Moderate Left

Thursday, December 01, 2005

What's Wrong with the Sedition Laws

Despite welcome protests from Liberal Senators about the Sedition part of the new anti-terrorism package, it unfortunately looks like Ruddock is digging his heels in. I suspect that party discipline will ensure that the laws pass, sedition provisions intact, despite these objection. To do something which is not done nearly enough in the newspapers, I'm going to actually report the text of the relevant sectiosn of the Bill:
(3) In this section:
seditious intention means an intention to effect any of the following purposes:
(a) to bring the Sovereign into hatred or contempt;
(b) to urge disaffection against the following:
(i) the Constitution;
(ii) the Government of the Commonwealth;
(iii) either House of the Parliament;
(c) to urge another person to attempt to procure a change, otherwise than by lawful means, to any matter established by law of the Commonwealth;
(d) to promote feelings of ill-will or hostility between different groups so as to threaten the peace, order and good government of the Commonwealth.

80.2 Sedition
Urging the overthrow of the Constitution or Government
(1) A person commits an offence if the person urges another person to overthrow by force or violence:
(a) the Constitution; or
(b) the Government of the Commonwealth, a State or a Territory; or
(c) the lawful authority of the Government of the Commonwealth.
Penalty: Imprisonment for 7 years.
(3) A person commits an offence if the person urges another person to interfere by force or violence with lawful processes for an election of a member or members of a House of the Parliament.
Penalty: Imprisonment for 7 years.
(5) A person commits an offence if:
(a) the person urges a group or groups (whether distinguished by race, religion, nationality or political opinion) to use force or violence against another group or other groups (as so distinguished); and
(b) the use of the force or violence would threaten the peace, order and good government of the Commonwealth.

Urging a person to assist the enemy
(7) A person commits an offence if:
(a) the person urges another person to engage in conduct; and
(b) the first-mentioned person intends the conduct to assist, by any means whatever, an organisation or country; and
(c) the organisation or country is:
(i) at war with the Commonwealth, whether or not the existence of a state of war has been declared; and
(ii) specified by Proclamation made for the purpose of paragraph 80.1(1)(e) to be an enemy at war with the Commonwealth.
Penalty: Imprisonment for 7 years.

Urging a person to assist those engaged in armed hostilities
(8) A person commits an offence if:
(a) the person urges another person to engage in conduct; and
(b) the first-mentioned person intends the conduct to assist, by any means whatever, an organisation or country; and
(c) the organisation or country is engaged in armed hostilities against the Australian Defence Force.

80.5 Attorney-General’s consent required
(1) Proceedings for an offence against this Division must not be commenced without the Attorney-General’s written consent.

If this strikes you as exceptionally broad, you're right. Vast amounts of speech could be construed as falling within these provisions and the defence for acts done in good faith (I was going to paste it here but it's really wordy) is narrow and would be inapplicable for a lot of speech.

The problem with these laws is not that they would actually be used to suppress normal political speech, people expressing dissenting opinions or satirical comedians. I pasted s 80.5 for a reason - any prosecution under the section must be expressly authorised by the AG. It's really unlikely that any notable political figure in Australia would be silly enough to commit political suicide by, say, imprisoning Rob Quantock for the non-existent political gain which would come from stopping him from saying nasty things about Howard. Do you actually think the government cares what far left types say? Do you really think that the government sits around quaking in their boots that they will be "exposed" by the Socialist Alliance? Hardly. All these comments (which every wannabe comedian is making at the moment) to the effect of "I better say this now, before I get arrested for it" are divorced from reality.

The problem with these laws is not their likely effect on political speech but their effect on the rule of law and their likely use against politically marginal groups. Generally it's a good rule of law principle that laws should be applied evenly across the whole community – equality under the law and all that. But these laws are explicitly designed to criminalise far more speech than the authorities wish to prosecute in order that the attorney general have a wide discretion to prosecute people that he wants to. This makes the laws wide open to abuse of power. The real world effect of the law is not determined by what is written in this legislation which for some stupid reason our parliament will pass. Their effect is determined by the discretionary whim of the attorney general. Discretion is perfectly acceptable in administrative law, but we're talking about criminal law with large prison penalties here so it is much more troubling.

And the question barely needs to be asked, but which groups will find themselves targeted for prosecution? Almost certainly members of politically active Islamic groups such as Hizb ut-Tahrir. The forms of speech which are criminalised under the proposed legislation are so exceptionally nebulous ('the person urges another person to engage in conduct and… intends the conduct to assist, by any means whatever, an organisation or country… engaged in armed hostilities against the Australian Defence Force') that the government will undoubtedly be able to find some marginal extremist to prosecute and, in the process, gain good political mileage.

The problem with these laws isn't their fundamental character. Direct incitement to violence is a justified exception to freedom of speech. The problem is not exactly in their scope either – despite the fact that the scope is very broad, it's exceptionally unlikely that all speech which falls within it would be prosecuted. The problem is that the combination of scope and discretion creates a situation where the attorney general, a political figure, has a huge discretionary power to imprison people. You'd hope that he would only use this discretion in extreme cases where the lives of Australian's actually are endangered, but if so then why not simply draft the laws in a more appropriate way?

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