The Commonwealth Attorney-General, Robert McClelland, has announced that the Commonwealth will tighten the federal sedition laws:
The Government will honour its election commitment to implement the recommendations of the Australian Law Reform Commission in July 2006 on federal sedition laws. These include changing the title of the offence from “sedition” to “urging violence”, clarifying and modernising the elements of the offence, and repealing obsolete and never-used provisions enacted in the 1920s for the proscription of “unlawful associations”. It will also ensure there is an offence of urging violence against a group or individual on the basis of race, religion, nationality, national origin or political opinion.
These changes are the result of the ALRC report, Fighting Words, released in 2006. The report recommends, among other things, that “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.”
The ALRC reports that the Commonwealth is complying with 25 of its 27 recommendations 'in full', and the two remaining 'in principle'.
This is good news. The sedition laws as enacted by the Howard government were dangerously oppressive to free speech in Australia. In it's report, the ALRC noted that
7.5 Strong concern has been voiced since November 2005 about the impact of the sedition provisions on freedom of expression. This criticism falls within a number of broad categories:
* The sedition provisions are, in whole or in part, inconsistent with the Australian Constitution.
* There is insufficient statutory protection of human rights at the federal level and, as a result, there are inadequate safeguards to prevent an overly broad interpretation of the offence provisions.
* There is a risk that the sedition offences will be applied unfairly or in a discriminatory manner against certain groups in the Australian community.
* The sedition laws have the potential to restrict the expression of views that ought to be permitted in a liberal democracy such as Australia. This criticism may be linked to the more specific concern that the drafting of some or all of the offences is open to differing constructions. The offences may be interpreted broadly, with the consequence that they may impinge unduly on freedom of expression.
* The sedition provisions give inadequate protection to established media organisations in carrying out their functions of news reporting and the dissemination of bona fide comment on matters of public interest.
* The sedition provisions are likely to ‘chill’ free artistic expression by forcing artists and authors to engage in self-censorship or risk facing prosecution. A related fear is that the scope of the sedition provisions is uncertain and, if interpreted broadly, may cover satire and ridicule, which ought not to be proscribed. Similarly, there is concern that visual artists, whose work is inevitably open to multiple interpretations, could risk prosecution.
These changes ensure that there is a tight link between violence and publication, requiring that the publisher intentionally incite violence before he or she will be guilty of sedition. This will hopefully remove some of the uncertainty of the previously wide ranging law, where any vocal criticism of the government that urges force or violence, regardless of its intent or likely effect, could land the publisher in gaol for up to seven years.
Importantly, the ALRC also recommended that the artistic merits of any statement be taken into account when determining whether the publisher 'intended' that the urged force or violence will occur.