Peter Garrett (Kingsford Smith, Australian Labor Party, Shadow Parliamentary Secretary for Reconciliation and the Arts) Share 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.

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