|
 |
 |
|
Australian Press Council submission to the Australian Law Reform Commission on its Discussion Paper 72 - Review of Sedition Laws 22 June 2006
Executive Summary Thank you for providing the Australian Press Council with an opportunity to respond to the ALRC's discussion paper on sedition. The Press Council acknowledges that the ALRC has produced a sophisticated and insightful paper within a very short period of time. As the Press Council indicated in our previous submission to the ALRC, the Council is of the view that sedition laws are unnecessary and have a significant potential to act as an impediment to freedom of speech and of expression. The Press Council would prefer that sedition and related offences were removed entirely from the Anti-Terrorism Act, the Crimes Act and the Criminal Code. However, if offences in the nature of sedition and treason are to be retained, it is important that they be drafted narrowly so as to address any genuine threat of political violence without significantly interfering with freedom of expression. The Press Council is of the view that the proposals set out in the ALRC's discussion paper, if implemented, would mitigate those aspects of the sedition laws which have the greatest potential to act as threat to free speech. In so doing, the proposals largely address the concerns which the Council holds regarding the laws. For this reason the Council supports the ALRC's proposed amendments. The Press Council is grateful for being given the opportunity of participating in the process of reviewing the federal government's sedition laws. Australian Press Council responses to proposals set down in ARLC Discussion Paper 71 2-1 The Australian Government should remove the term 'sedition' from federal criminal law. To this end, the headings of Part 5.1 and Division 80 of the Criminal Code (Cth) should be changed to 'Treason and offences against political liberty', and the heading of s 80.2 should be changed to 'Offences against political liberty and public order'. The Press Council has no objection to the removal of the term "sedition" from the legislation and its substitution with the phrase "offences against political liberty". However, the Press Council is concerned that the rewording of the law should not be a merely cosmetic change, but should be a reflection of a meaningful change in the substance of the law itself. 2-2 The Australian Government should initiate a process through the Standing Committee of Attorneys-General to remove the term 'sedition' from state and territory laws and to modernise and harmonise the relevant laws in keeping with the proposed changes to federal law. The Australian Press Council agrees that SCAG should commence a revision of the various state and territory laws dealing with sedition with a view to their harmonization and modernisation. However, the Press Council is anxious that such a review should not be used by governments as a pretext for introducing new restrictions on freedom of expression or making existing provisions harsher than they already are. 4-1 The Australian Government should initiate a review of the remaining offences contained in Part II of the Crimes Act 1914 (Cth) to determine which offences merit retention, modernisation and relocation to the Criminal Code (Cth), and which offences should be abolished. This review should include the offences in ss 24AA, 24AB and 25-29 of the Crimes Act. The Australian Press Council agrees that the government should review part II of the Commonwealth Crimes Act. 6-1 There is no need to introduce into federal law an offence of 'encouragement or glorification of terrorism', along the lines of that in s 1 of the Terrorism Act 2006 (UK). The Australian Press Council supports the conclusion that there is no need for an offence prohibiting the encouragement or glorification of terrorism. Further, the Press Council is of the view that such an offence would have the potential to impede freedom of speech and of expression. 8-1 Section 80.2 of the Criminal Code (Cth) (Criminal Code) 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. The Australian Press Council supports the proposed amendment of s 80.2 of the Criminal Code in order to require that an accused must intend that force or violence would occur before being found guilty. 8-2 The heading of s 80.2(1) of the Criminal Code should be changed to refer to urging the overthrow by 'force or violence' of the Constitution or Government. The Australian Press Council supports the proposed insertion of the phrase "by force or violence" into the heading of s 80.2(1) of the Criminal Code. 8-3 The word 'intentionally' should be inserted in s 80.2(1) of the Criminal Code before the word 'urges' to clarify the fault element applicable to urging the use of force or violence. The Australian Press Council supports the proposed insertion of the word "intentionally" into s 80.2(1). 8-4 Section 30C of the Crimes Act 1914 (Cth), concerning 'advocating or inciting to crime', should be repealed. The Australian Press Council supports the proposal that section 30C of the Crimes Act should be repealed. 8-5 The heading of s 80.2(3) of the Criminal Code should be changed to refer to urging interference in Parliamentary elections by 'force or violence'. The Australian Press Council supports the proposed insertion of the phrase "by force or violence" into the heading of s 80.2(3) of the Criminal Code. 8-6 Section 80.2(3) of the Criminal Code should be amended to:
The Australian Press Council supports the proposed insertion of the word "intentionally" into s 80.2(3) of the Criminal Code. The Australian Press Council has no objection to the extension of the scope of s 80.2(3) to include referenda. 8-7 As a consequence of Proposal 8-6, s 80.2(4) of the Criminal Code should be amended to apply recklessness to the element of the offence under s 80.2(3) that it is lawful processes for a referendum on a proposed law for the alteration of the Constitution that a person urges another to interfere with. The Australian Press Council would prefer that the term "recklessness" be avoided in defining offences which have the potential to act as an impediment to free speech. However, the Press Council otherwise has no objection to the proposed amendment to s 80.2(4). 8-8 Sections 80.2(7), (8) and (9) of the Criminal Code, concerning the offences of urging a person to assist the enemy and urging a person to assist those engaged in armed hostilities against the Australian Defence Force, should be repealed. The Australian Press Council supports the proposed repeal of sections 80.2(7), (8) and (9) of the Criminal Code. 8-9 The treason offences in s 80.1(1)(e)-(f) should be amended to:
The Australian Press Council supports the proposed amendments to s 80.1(1)(e)-(f) of the Criminal Code. 8-10 The Australian Government should review the treason offences in s 80.1 of the Criminal Code. The Australian Press Council agrees that the treason offences set down in s 80.1 of the Criminal Code should be subject to review. 8-11 Section 80.1 of the Criminal Code should be amended to require that, at the time of the alleged offence, the person is an Australian citizen or resident. The Australian Press Council has no objection to this proposal. 8-12 Section 80.5 of the Criminal Code regarding the requirement of the Attorney-General's written consent to a prosecution should be repealed. The Australian Press Council supports the proposal that the Attorney-General's consent should not be required before commencing proceedings under division 80 of part 5.1 of chapter five of the Criminal Code. While it is appropriate to have mechanisms which limit the prosecutions which can be commenced for these offences, it is not appropriate for the Attorney-General to have a direct role in the commencing of proceedings which are inherently political in character. 9-1 The heading of s 80.2(5) of the Criminal Code (Cth) (Criminal Code) should be changed to refer to urging 'inter-group force or violence'. The Australian Press Council supports the proposed substitution of the phrase "urging violence within the community" with "urging inter-group force or violence" in s 80.2(5) of the Criminal Code. 9-2 Section 80.2(5) of the Criminal Code should be amended to:
The Australian Press Council supports the proposed insertion of the word "intentionally" into section 80.2(5) of the Criminal Code. The Australian Press Council has no objection to the inclusion of "national origin" as a distinguishing feature of a group for the purposes of s 80.2(5). 9-3 As a consequence of Proposal 9-2, s 80.2(6) of the Criminal Code should be amended to apply recklessness to the element of the offence under s 80.2(5) that it is a group distinguished by national origin that a person urges another to use force or violence against. The Australian Press Council would prefer that the term "recklessness" be avoided in defining offences which have the potential to impact upon free speech. 9-4 The Australian Government should continue to pursue other strategies, such as educational programs, to promote inter-communal harmony and understanding. The Press Council supports the proposal that strategies other than criminal prosecution should be used to promote harmony and discourage violence. 10-1 Section 80.3 of the Criminal Code (Cth) (Criminal Code), concerning the defence of 'good faith', should be repealed. The Australian Press Council is of the view that the "good faith" defence as set down in section 80.3 of the Criminal Code is inadequate to protect freedom of speech and of expression. The Press Council supports the proposal that the good faith defence be removed and replaced with other proposed amendments which would have the effect of providing defences adequate to protect freedom of speech. 10-2 Section 80.2 of the Criminal Code should be amended to provide that in considering whether a person intends that the urged force or violence will occur, the trier of fact must take into account whether the conduct was done
The Australian Press Council supports the proposed insertion into section 80.2 of a requirement that courts must, when considering whether a person intended that force or violence would occur, take into account the context in which the conduct took place. 10-3 A note should be inserted after each of the offences in s 80.2(1), (3) and (5) of the Criminal Code drawing attention to the proposed new provisions regarding proof of intention that the force or violence urged will occur. The Australian Press Council supports the proposed insertion into s 80.2(1), (3) and (5) of a note drawing attention to provisions concerning proof of intention. 11-1 Sections 30A, 30AA, 30AB, 30B, 30D, 30E, 30F, 30FA, 30FC, 30FD, 30G, 30H and 30R of Part IIA of the Crimes Act 1914 (Cth), concerning unlawful associations, should be repealed. The Australian Press Council supports the repeal of provisions concerning unlawful associations. 11-2 The Australian Government should include ss 30J and 30K of the Crimes Act 1914 (Cth) in the larger review of the Crimes Act called for in Proposal 4-1. The Australian Press Council is of the view that ss 30J and 30K of the Crimes Act should be revised and modernized as part of a more general review of Part II of the Crimes Act. see also Return to Documents with the |
|||
|
About the Council [ its history and benefits of self-regulation | Members] | |
|||
|
Last updated 19 July 2006 All material ©The Australian Press Council. Website Design, Construction & Maintenance by |
|||
icon require the Acrobat Reader, a Free Utility from Adobe. Click