Friendly Fire?

1. Friendly Fire? The New Sedition Laws Adam Moxon Simpson asimpson@simpsons.com.au SIMPSONS SOLICITORS www.Simpsons.com.au

2. Introduction • The new sedition laws introduced as part of the “Anti-Terrorist” measures • A response to the changing environment • Voracious public comment lead to significant amendments to the original bill • The new sedition laws are being reviewed by the Australian Law Reform Commission • There is now a fresh opportunity for comment 2

3. A Comic Catastrophe • Publication of depictions of Mohammed in Jyllands-Posten that were offensive to Muslims • Escalation of problem when complaints to the editors then the Prime Minister ignored • Fired Debate About Freedom of Expression • Legal and Government Involvement • Example of changing publishing environment 3

4. The Old Sedition Laws • “seditious intention” • An intention to effect any of the following purposes, that is to say: • to bring the Sovereign into hatred or contempt; • to excite disaffection against the Government or Constitution of the Commonwealth or against either House of the Parliament of the Commonwealth; • to excite Her Majesty’s subjects to attempt to procure the alteration, otherwise than by lawful means, of any matter in the Commonwealth established by law of the Commonwealth; or • to promote feelings of ill-will and hostility between different classes of Her Majesty’s subjects so as to endanger the peace, order or good government of the Commonwealth; Crimes Act 1914 s.24A 4

5. The Old Sedition Laws • 24C Seditious enterprises • “A person who engages in a seditious enterprise with the intention of causing violence, or creating public disorder or a public disturbance, is guilty of an indictable offence punishable on conviction by imprisonment for not longer than 3 years.” • 24D Seditious words • “Any person who, with the intention of causing violence or creating public disorder or a public disturbance, writes, prints, utters or publishes any seditious words shall be guilty of an indictable offence.” • Penalty: Imprisonment for 3 years. 5

6. The Old Sedition Laws “Good Faith” Defences • Endeavouring to show that the Government or its limbs has been mistaken in any of its counsels, policies or actions; • Pointing out defects in government, the constitution, legislation or administration of justice with a view to reforming those defects; • Pointing out, in order to bring around their removal, any matters that are producing feelings of ill-will or hostility between different classes of persons • Exciting another person to attempt to change, by lawful means, a matter established by law whether Australian or foreign; • To do anything in connexion with an industrial matter. Crimes Act 1914 s.24F 6

7. The Old Sedition Laws • Acts determined not to be in “Good Faith Acts done: • With the intention of causing violence or creating public disorder or a public disturbance; • For a purpose prejudicial to the safety or defence of the Commonwealth; • Assisting an enemy at war with the Commonwealth; • Assisting a country or organisation engaged in armed hostilities with the Australian Defence Force; Crimes Act 1914 s.24F (2) 7

8. The Old Sedition Laws • Elements of the Offences • Engaging in conduct that has a seditious intent; • An intention to cause violence, public disorder or public disturbances. 8

9. The Old Sedition Laws • No element of “recklessness” • No crime of encouraging others • Only usual “aid and abet” provisions • Intention was a key component to the offence 9

10. The New Laws • What has changed? • what is considered “seditious” has been expanded; • sedition is now about “urging” others to engage in seditious activities; • in most instances, a much lower threshold of “recklessness” has been introduced; • the laws now have global application; and • the penalties have been increased from 3 years to 7 years. 10

11. Criminal Code Act 1995 – Summary of s. 80.2 • Urging the overthrow of the Constitution or Government by force or violence (s.80.2(1)); • Urging interference in lawful Parliamentary elections by force or violence (s.80.2(3)); • Urging violence within the community between groups (whether distinguished by race, religion, nationality or politics) where such violence threatens the peace, order and good government of the Commonwealth (s.80.2(5)); • Each of these offences is extended to those who are simply “reckless” about these types of consequences. 11

12. Criminal Code Act 1995 – Summary of s. 80.2 (cont.) • Urging a person to engage in conduct with the intent of assisting the enemy (whether or not a state of war has been declared) (s.80.2(7)); and • Urging a person to engage in conduct with the intent of assisting those engaged in armed hostilities with the Australian Defence Force (s.80.2(8)). • Each of these last two offences has a specific defence in relation to the provision of aid of a humanitarian nature (s.80.2(1))). Recklessness does not apply to these two offences. 12

13. “Urging” • Little statutory assistance • Dictionary Definition is Wide • not be limited to express recommendations or persuasion • e.g through “dramatisation, or imagery, or metaphor, or allegory or allusion, or any of the myriad devices and techniques available to a creative artist” 13

14. Criminal Code Act 1995 – Summary of s. 80.2 (cont.) • Recklessness Urging violence within the community • (5) A person commits an offence if: • 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 • the use of the force or violence would threaten the peace, order and good government of the Commonwealth. • (6) Recklessness applies to the element of the offence under subsection (5) that it is a group or groups that are distinguished by race, religion, nationality or political opinion that the first‑mentioned person urges the other person to use force or violence against. 14

15. Criminal Code Act 1995 – s.5.4 “1. A person is reckless with respect to a circumstance if: (a) he or she is aware of a substantial risk that the circumstance exists or will exist; and (b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk. 2. A person is reckless with respect to a result if: (a) he or she is aware of a substantial risk that the result will occur; and (b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk. 3. The question whether taking a risk is unjustifiable is one of fact. 4. If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.” 15

16. Criminal Code Act 1995 s.80.2 (7) to (9) • Urging a person to assist the enemy • A person commits an offence if: • the person urges another person to engage in conduct; and • the first‑mentioned person intends the conduct to assist an organisation or country; and • the organisation or country is: • at war with the Commonwealth, whether or not the existence of a state of war has been declared; and • specified by Proclamation made for the purpose of paragraph 80.1(1)(e) to be an enemy at war with the Commonwealth. 16

17. Criminal Code Act 1995 s.80.2 (7) to (9) (cont.) • Urging a person to assist those engaged in armed hostilities • A person commits an offence if: • the person urges another person to engage in conduct; and • the first‑mentioned person intends the conduct to assist an organisation or country; and • the organisation or country is engaged in armed hostilities against the Australian Defence Force. • Defence • Subsections [above] do not apply to engagement in conduct by way of, or for the purposes of, the provision of aid of a humanitarian nature. 17

18. Criminal Code Act 1995 s. 80.4 and s. 15.4 • Extended geographical jurisdiction for offences s. 80.4 • Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against this Division. • 15.4 Extended geographical jurisdiction — category D • If a law of the Commonwealth provides that this section applies to a particular offence, the offence applies: • whether or not the conduct constituting the alleged offence occurs in Australia; and • whether or not a result of the conduct constituting the alleged offence occurs in Australia. 18

19. Criminal Code Act 1995 • 80.3 Defence for acts done in good faith • Sections 80.1 and 80.2 do not apply to a person who: (a) • tries in good faith to show that any of the following persons are mistaken in any of his or her counsels, policies or actions: • the Sovereign; • the Governor‑General; • the Governor of a State; • the Administrator of a Territory; • an adviser of any of the above; • a person responsible for the government of another country; or… 19

20. Criminal Code Act 1995 • 80.3 Defence for acts done in good faith • Sections 80.1 and 80.2 do not apply to a person who: (b) • points out in good faith errors or defects in the following, with a view to reforming those errors or defects: • the Government of the Commonwealth, a State or a Territory; • the Constitution; • legislation of the Commonwealth, a State, a Territory or another country; • the administration of justice of or in the Commonwealth, a State, a Territory or another country; or… 20

21. Criminal Code Act 1995 • 80.3 Defence for acts done in good faith • Sections 80.1 and 80.2 do not apply to a person who: • (c) urges in good faith another person to attempt to lawfully procure a change to any matter established by law, policy or practice in the Commonwealth, a State, a Territory or another country; or • (d) points out in good faith any matters that are producing, or have a tendency to produce, feelings of ill‑will or hostility between different groups, in order to bring about the removal of those matters; or • (e) does anything in good faith in connection with an industrial dispute or an industrial matter; or… 21

22. Criminal Code Act 1995 • 80.3 Defence for acts done in good faith • Sections 80.1 and 80.2 do not apply to a person who: (f) • publishes in good faith a report or commentary about a matter of public interest. 22

23. Criminal Code Act 1995 • “publishes in good faith a report or commentary about a matter of public interest” • does not appear to cover other forms of communication nor those involved in the publication (e.g journalists) • more limited than, for example, the New South Wales Anti-Discrimination Act 1977 • “done reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter” • limited to a “report” or “commentary” and may not include other forms of publications such as satire • no particular guidance as to what constitutes matters of “public interest” 23

24. Criminal Code Act 1995 • What is “good faith”? • “Good faith is based on the distinction between a person who is honestly blundering and careless, and a person who has a suspicion that something is wrong but refrains from asking questions. The latter conduct amounts to bad faith or dishonesty.” - Jones v Gordon • "'Good faith in some contexts identifies an actual state of mind, irrespective of the quality or character of its inducing causes; something will be done or omitted in good faith if the party was honest, albeit careless. On the other hand, 'good faith' may require that exercise of caution and diligence to be expected of an honest person of ordinary prudence” - Mid Density Developments Pty Ltd • 'two divergent meanings’: The first was the broad or subjective view which defines them as describing an actual state of mind, irrespective of its producing causes. The other construed the words objectively by the introduction of such concepts as an absence of reasonable caution and diligence. - Siano v Helvering 24

25. Conclusion - Friendly Fire? • Government has signaled its intention to use the new sedition laws • The publishing environment has changed • John Pilger • Danish Cartoons 25