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Panpa Bulletin : April 2006
22 | PaNPa bUlletiN april 2006 MeDia laW MattheW laMB the Australian Govern- ment's recently introduced anti-terror laws - including 'modernised' sedition offences - raised the ire of publishers, journalists and free-speech ad- vocates nationally. So what are these changes? And should publishers and jour- nalists be concerned? The media will be most interested in the sedition offences, Preventative Detention Orders, crimes for reporting certain matters and extended AFP powers to obtain certain documents. This month's column exam- ines the controversial sedition of- fences. The other changes will be the subject of a future column. What are sedition laws? 'Sedition' relates to actions en- couraging or promoting rebellion or disorder in a State but which falls short of actual violence. Used in the past to strangle political dissent, laws against sedition were largely irrelevant in Australia prior to the new leg- islation. The last sedition charge heard in Australia was dismissed at trial in 1953. The new laws The Anti-Terror Bill repealed existing sedition offences con- tained in the Crimes Act 1914 and introduced a range of sedi- tion offences for which the maxi- mum term of imprisonment is seven years. The offences apply to persons 'urging' any of the following: overthrow of the Constitution or Government by force or violence, interference by force or violence with Parliamentary elections, force or violence within the com- munity by one group against an- other, assistance of the enemy or assistance of those engaged in armed hostilities. The absence of intent It used to be an offence to pub- lish seditious words expressing a seditious intent. A successful prosecution would have proven that the seditious conduct was carried out with the intention of causing violence or creating public disorder or a public dis- turbance. The removal of an in- tent requirement is an alarming development for the media. It will now be enough for 'urg- ing' to take place, regardless of intent. Unintentional or inad- vertent urging would fall within the offence. An array of published mate- rial could conceivably 'urge' a person or persons to undertake the forms of seditious conduct outlined above. There is concern that, for example, commentators, journalists, editorial cartoonists and their publishers may com- mit offences by inadvertently or recklessly urging seditious con- duct by their readers or viewers. What are the safeguards? Although a good faith defence has been included, it is extremely narrow and would be difficult to satisfy practically. Proceedings can only be commenced with the Attorney-General's consent but a person can still be arrested, charged and held in custody un- til the consent issue is resolved. The person must be discharged if proceedings are not contin- ued within a 'reasonable period'. While appearing to offer a safe- guard, the risk of detention for an uncertain period is an unde- sirable outcome. Is the media’s fear unwarranted? The true impact of the new of- fences on the media is difficult to gauge until prosecutions actual- ly occur. This is yet to take place. As the Crikey website observed on December 13 last year, the Cronulla riots presented an op- portunity for the sedition laws to be tested, as published letters to the editor directly and indirectly supported attacks on Arabs. No action was taken. It is doubtful that the mere threat of prosecution under the laws has resulted in radical me- dia self-censorship. The Federal Government has attempted to assure the me- dia, arts and entertainment in- dustries that the offences will not result in curbed freedom of speech. This view was not shared by a bipartisan Senate Commit- tee inquiry held at the time of the Bill's introduction. The inquiry recommended removal of the offences from the Bill and the holding of a public inquiry prior to the Bill's enactment. A review of the offences was promised by the Government after the Bill's enactment in re- sponse. The future Attorney-General Philip Rud- dock recently announced that this review will be conducted by the Australian Law Reform Com- mission (ALRC), to be completed by April 28 with a report to be submitted no later than May 30. Most would like to see the sedition offences removed alto- gether. The media industry en- courages a 'media exemption' or, at a minimum, a requirement that proof of an intention to cause violence or create public disorder or disturbance is in- cluded as a prerequisite. The media is at the frontline of the 'war on terror' and there is a real risk that self-censorship in reaction to the sedition offenc- es will hinder rather than help that fight. As a joint submission by Fair- fax, News Limited, the Austral- ian Press Council and AAP to the Senate Committee proclaimed: "It is no victory over terrorism in Australia if Australia's free press is eviscerated". It will be interesting to see what results from the review and whether such views are taken se- riously. Matthew Lamb is the General Counsel for Australian Associated Press. Essentials The Offences Urging another person to overthrow by force or violence the Constitution, Governments of the Commonwealth, States or Territories or the Common- wealth Government's lawful au- thority Urging another person to in- terfere by force or violence with Parliamentary elections Urging a group or groups (whether distinguished by race, religion, nationality or political opinion) to use force or violence against another group or groups and which would threaten the peace, order and good govern- ment of the Commonwealth Urging a person to engage in conduct to assist enemies of the Commonwealth Urging a person to engage in conduct to assist organizations or countries engages in armed hostilities against the Australian Defence Force Attorney-General's con- sent required to commence proceedings The Penalties Imprisonment for seven years Arrest and detention permitted for period the Attor- ney-General considers consent Detained person must be discharged if proceedings are not continued within a 'reasonable time. Sedition Laws in Australia Here to Stay or About to Go? Mathew Lamb looks at how newspapers could be caught-out.