Australian Press Council submission to the Australian Law Reform Commission's review of Schedule 7 of the Anti-Terrorism Act (No. 2) 2005 and the provisions of Part IIA of the Crimes Act 1914

13 April 2006

Executive Summary

The Australian Press Council, which has as one of its Objects "keeping under review, and where appropriate, challenging political, legislative, commercial or other developments which may adversely affect the dissemination of information of public interest, and may consequently threaten the public's right to know", argues that any legislation that grants powers to authorities that may impinge on the traditional freedoms of Australians, including freedom of communication, must be drafted to ensure that the granted powers are sufficient to meet the envisaged threat, without going too far in inhibiting rights. The Council's primary concern with Schedule 7 the Anti-Terrorism Act (No. 2) 2005 is that it appears to go further than is required to meet the stated objectives of the legislation. As the conduct to be addressed by the schedule is already adequately addressed by other legislation, the Council recommends that Schedule 7 be removed from the Act.

If the Commission does not feel such excision is justified, the Council makes a series of recommendations for amendment of the law to lessen, as far as is practicable, any adverse impact it may have on the traditional freedoms enjoyed by Australians.

Restricted time-frame

The Australian Press Council is grateful for the opportunity to participate in an independent public inquiry into the sedition laws. However, it regrets that the Attorney-General has given the Law Reform Commission only three months in which to complete its inquiry and consequently stakeholders have been given an extremely brief period in which to consider the issues and prepare submissions. The Council is of the view that such a limited time-frame in which to respond will minimise the acuity of analysis and hamper the ability of participants to make practically useful contributions to the legislation's review.

Sedition laws are unnecessary

In the Council's view, any legislative measures must be framed so as to limit any adverse impact they may have on the freedoms traditionally enjoyed by the Australian people. As a liberal democracy, with over 100 years of free and democratic government, Australia had prided itself on its open and accessible institutions. One of those institutions is the free press, which provides the electorate with information necessary for it to exercise its franchise. The Council, in its Charter of Press Freedom, argues that

laws, regulations and practices which in any way restrict or inhibit the right of the press freely to gather and distribute news, views and information are unacceptable unless it can be shown that the public interest is better served by such laws, regulations or practices than the public interest in the people's right to know.

In the light of such considerations, the Council is of the view that Australia does not need sedition laws. While it recognises that the climate since the terrorist attacks of 2001 warrants measures to prevent terrorist acts, the Council does not believe that the offences set down in Schedule 7 of the Anti-Terrorism Act (No. 2) 2005 further these objectives. The conduct to be addressed by the legislation is already adequately addressed by those sections of the criminal code that deal with offences of inciting the commission of an offence.

As the sedition offences are a threat to freedom and they serve an objective already adequately addressed in legislation, the Australian Press Council recommends that those sections of the legislation that deal with sedition offences be removed from the Criminal Code.

If sedition offences are retained

If, however, the government refuses to consider the removal of sedition provisions, significant amendments are needed to alleviate the impact of the legislation on freedom of speech and of expression. The Council, as an alternative to removal of the sedition sections, offers some constructive arguments as to how they can be amended to limts their threat to freedom of communication.

The "chilling effect"

Some commentators who have expressed views on the sedition legislation have emphasised that journalists, artists and others who seek legitimately to exercise their right to freedom of expression are unlikely to be prosecuted under the legislation and even less likely to be convicted. On the premise of this assumption some have contended that objections to the legislation on the grounds of freedom of speech are exaggerated. However, this point of view fails to recognize a significant aspect of the legislation. The mere existence of these offences has the effect of making people cautious about publishing material that may potentially be regarded as seditious, even where there is no attempt to prosecute or no successful prosecution. This "chilling effect" acts not only to encourage self-censorship on the part of writers, artists and others, but also inspires editors, publishers, curators, sponsors and funding bodies to withdraw the support necessary for artists and writers to gain exposure for their endeavours.

A media exemption

The Press Council is aware that certain stakeholders are seeking a media exemption to the sedition provisions in order to protect journalists, publishers and broadcasters from prosecution under any extant sedition law. The Press Council supports the idea of a media exemption. However, a media exemption would not be sufficient on its own, in the absence of additional amendments to the sedition laws, to protect artists, freelance writers, webloggers and other citizens who engage in expressive conduct but who fall outside the strict definition of "media organisations" as defined, for example, in the Privacy Act 1988 (Cth).

Recklessness

Although the standard of recklessness that applies under the criminal code is higher than that set down by the common law, it is still a lesser standard than one of intent. For the crimes in the nature of sedition prosecutors should be required to prove that the defendant had an intent.

For this purpose, the Council would recommend the adoption of a phrasing similar to that in Article 5 of the Council of Europe Convention on the Prevention of Terrorism, which refers to "the intent to incite the commission of a terrorist offence" as the standard necessary to be proved.

Link to violence

It is apparent that, while the relevant legislation refers to "sedition", the activity that the legislation seeks to prohibit is the incitement of terrorism. In order to clarify the nature of conduct that should be prosecuted under the legislation, it would be preferable to specify this. Many of the provisions do refer to the use of "force or violence", however there are certain sections that make no link to violence. As the ALRC'S Issues Paper acknowledges, the Senate Committee recommended that sections 80.2(7) and 80.2(8) should be amended by the inclusion of a reference to force or violence. The Australian Press Council supports that recommendation.

Urging assistance to an enemy

In addition to omitting any reference to force or violence, sections 80.2(7) and 80.2(8) are characterised by a broad scope the precise limitations of which are vague and difficult to gauge. The sections refer to the urging of assistance to an enemy, but the nature of such assistance has not been defined. Consequently, the legislation could potentially apply to a broad range of reporting and commentary. While the legislation specifically excludes assistance of a humanitarian nature from these provisions, there is a range of conduct that would fall outside of the definition of "humanitarian", yet would not present a threat to the security of Australia. The legislation should include a definition of "assistance" which is narrow and specific and is therefore unlikely to inhibit public discussion and commentary.

Section 80.2(7) expressly states that the urging of assistance to an organisation or country that is at war with the Commonwealth is an offence whether or not war has been declared. The scope of this provision is extremely broad and poses an additional burden in that it may be difficult in many instances to be certain which organisations should be regarded as being at war with Australia. This could potentially hamper free debate and commentary on a range of issues concerning political dissent and foreign relations. The Council recommends that the provision be redrafted in order to narrow the range of organisations that could potentially be regarded as being at war with Australia. Such a reformulation might be by way of removing the phrase "whether or not the existence of a state of a war has been declared", or perhaps by inserting a provision requiring that the government specifically identify organisations they regard as being at war with the Commonwealth and that a list of these organisations be published and readily accessible by member of the public.

Conclusion

The Australian Press Council urges the commission to recommend the removal of the sections related to sedition that unduly threaten freedom of expression in Australia even though other legislation less threatening to free speech already exists. If the commission does not make such a recommendation, the Council commends its specific concerns with the legislation to the commission.

see also
Council's submission on Anti-terrorism Bill
GPR 269 on sedition laws

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