Sedition, Security and Human Rights: 'Unbalanced' Law Reform in the 'War on Terror'
Bronitt, Simon, Stellios, James, Melbourne University Law Review
[This article provides a review of the history, structure and form of the law of sedition, focusing on the new provisions inserted into the Criminal Code Act 1995 (Cth) in 2005 as part of a wider counter-terrorism package. A short historical review of sedition in Australia is followed by a critical analysis of the new offences, which explores the constitutional and human rights implications of these new offences. Critical attention is given to the process of law reform that seeks to 'balance' security and human rights, focusing on the recommendations of the Australian Law Reform Commission which emerged from the retrospective review of the 2005 reforms. Our conclusion is that the 'balanced' model endorsed by the Australian Law Reform Commission produces incoherence in relation to the definition of offences and 'good faith ' defences. In particular, incoherence is produced by definitions of offences that are over-inclusive or under-inclusive depending on the rationale (security or human rights) which is accorded priority.]
CONTENTS I Introduction II A Short History of Sedition: Symbolic Prosecution or Political Persecution? III The New Forms of Sedition: Old Wine in New Bottles? A Constitutional Power B Implied Freedom of Political Communication and Interpretive Uncertainties IV Urging Inter-Group Violence: Sedition with an Identity Crisis? A 'Constitutional Pegs' B Criminalising Racial Vilification--A Reversal in Policy? C Definitional Incoherence V Balancing Seditious Intentions and 'Good Faith' Defences VI Sedition as a Crime of Universal Jurisdiction VII Sedition and Retrospective Law Reform? VIII Conclusion
Law reform has become a vexed task in this 'age of terror'. In the 'first wave' of post-September 11, 2001 law reform, attention focused on the core offences dealing with 'terrorist acts' and provisions proscribing terrorist organisations. (1) In the wake of the Madrid train bombings in March 2004 and the London bombings in July 2005, the focus has shifted to monitoring and disrupting the activities of local 'suspect' communities. (2) The legislative reforms enacted in late 2005 reflected these trends. Aimed at the perceived root causes of terrorism, the reforms created new powers to impose control orders and authorise preventative detention. (3) Most significantly, for the purpose of this article, the package of counter-terrorism measures also contained provisions dealing with those organisations and individuals who advocate terrorist acts. The definition of a proscribed terrorist organisation was broadened to include an organisation which 'advocates' the doing of a terrorist act (whether or not a terrorist act has occurred or will occur). (4) At the same time, the offence of sedition was modernised. The sedition provisions attracted considerable public attention and disquiet in the media, (5) leading the Australian Government to take the unusual step of requesting the Australian Law Reform Commission ('ALRC') to undertake a retrospective review of the new sedition laws. (6)
Australia is not the only jurisdiction to criminalise the advocacy of terrorism. For example, art 5 of the Council of Europe Convention on the Prevention of Terrorism requires state parties to establish an offence of 'public provocation to commit a terrorist offence'. (7) The United Kingdom Parliament has recently enacted the Terrorism Act 2006 (UK) c 11, which provides that the 'encouragement' or 'glorification' of terrorism is an offence. Doubts have been expressed as to whether the offences created by the Terrorism Act 2006 (UK) c 11 are compatible with the freedom of expression, which is protected by the European Convention for the Protection of Human Rights and Fundamental Freedoms, (8) and no doubt its compatibility will be the subject of challenge under the Human Rights Act 1998 (UK) c 42. Expressing concerns that such an offence would constitute an unwarranted interference with the constitutionally protected freedom of political communication, the ALRC has not proposed the adoption of a glorification offence in Australia. …