Academic journal article Melbourne University Law Review

The False Analogy between Vilification and Sedition

Academic journal article Melbourne University Law Review

The False Analogy between Vilification and Sedition

Article excerpt

[In 2005, the Commonwealth introduced new sedition laws which created the offence of '[u]rging violence within the community '. The construction of this offence is the product of a false analogy that has been drawn between vilification and sedition. This article critiques both the analogy and its implications, arguing that vilification and sedition are conceptually distinct and, indeed, directly counterposed to one another Analogising the concepts has two unintended and undesirable consequences. First, the institutionalisation of the analogy in a component of the new sedition laws has contributed to significant weaknesses in the construction of that law. Secondly, a failure to differentiate sufficiently between the core rationales for legislating against vilification and legislating against sedition could have consequences for the ways in which the public understands these offences. Specifically, it could both undermine the justification for anti-vilification laws and, conversely, provide friendly cover for an anti-terrorism provision which ought instead to be debated on its own merits.]

CONTENTS

I    Introduction

II   Australia's New Sedition Laws

III  Analogy and Confusion in the 2005 Debates

IV   Sedition and the Roots of the Analogy

V    Vilification

VI   Implications for the Broader Debate

I INTRODUCTION

In 2005, the Commonwealth introduced new anti-terrorism provisions in the Anti-Terrorism Act (No 2) 2005 (Cth). This legislation included the updating of sedition offences, (1) a component of which was the newly expressed offence of '[u]rging violence within the community'. (2) The construction of this provision is, as I shall argue, a product of a false analogy that has been drawn between vilification (3) and sedition. In this article I take issue with both this analogy and its implications. Vilification and sedition, I shall argue, are conceptually two very distinct entities; moreover, their core meanings are directly counterposed to one another. Sedition is speech directed against governmental authority (4)--an authority which ought to tolerate such dissent to a very high degree. By contrast, vilification is speech directed against the vulnerable and marginalised, (5) and there are persuasive arguments that it ought not be tolerated. Thus analogising between these two offences obscures, rather than clarifies, debate around the sedition legislation. It has also contributed to weaknesses in the sedition law under consideration and has the potential to distort understanding of anti-vilification laws, thereby undermining the justifications for anti-vilification legislation. Finally, it provides a friendly cover for an anti-terrorism provision which ought to be debated on its own merits, rather than smuggled into popular currency under the more palatable guise of a provision designed to ameliorate community harm.

In order to make this argument, this article begins, in Part II, by outlining the introduction of the 2005 Australian sedition laws and discussing the ways in which commentators have attempted to distinguish vilification from sedition. Part III considers instances when commentators discussing these laws have fallen into the trap of drawing an analogy between vilification and sedition. Part IV provides a discussion and critique of the idea of sedition in order to highlight some crucial differences between sedition and vilification. This Part also signals the historical point at which the analogy emerged in Australia. Part V discusses the concept of vilification and again highlights some points of disjuncture and contradiction between vilification and sedition. Finally, Part VI outlines the implications of this critique for further debate around sedition laws in Australia.

II AUSTRALIA'S NEW SEDITION LAWS

The 2005 sedition laws were highly controversial. Although the Labor Opposition supported and voted in favour of most of the government's anti-terrorism initiatives, it opposed the sedition laws and moved an amendment in Parliament to remove sch 7 from the Anti-Terrorism Bill (No 2) 2005 (Cth). …

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