Outline of the Report
Fighting Words: A Review of Sedition Laws in Australia is the final report of the ALRC’s Inquiry into sedition offences, contained in the federal Coalition Government’s Anti-Terrorism Act (No 2) 2005 Cth.
The terms of reference directed the ALRC to consider:
- whether the amendments, including the sedition offence and defences in sections 80.2 and 80.3 of the Criminal Code, effectively address the problem of urging the use of force or violence;
- whether ‘sedition’ is the appropriate term to identify this conduct; and
- whether Part IIA of the Crimes Act, as amended, is effective to address the problem of organisations that advocate or encourage the use of force or violence to achieve political objectives; and
- any related matter.
In carrying out its review, the ALRC had particular regard to:
- the circumstances in which individuals or organisations intentionally urge others to use force or violence against any group within the community, against Australians overseas, against Australia’s forces overseas or in support of an enemy at war with Australia; and
- the practical difficulties involved in proving a specific intention to urge violence or acts of terrorism.
Historically, sedition law has been used to suppress political dissent, punishing speech that is critical of the established order. Stakeholders, including politicians across party lines, expressed concerns that sedition laws contained in the Anti-Terrorism Act (No 2) 2005 (Cth), which targets activating promoting terrorist activity, have the potential to inhibit freedom of expression and free association.
Australians place a very high premium on freedom of expression and on the importance of robust political debate and commentary. The free exchange of ideas—however unpopular or radical—is generally healthier for a society than the suppression and festering of such ideas.
At the same time, all liberal democratic societies place some limits on the exercise of freedom of expression, for example, through civil defamation laws and prohibitions on obscenity, serious racial vilification or incitement to commit a crime.
During the course of its Inquiry, the ALRC found that much of the concern about the new offences in s 80.2 of the Criminal Code was triggered by the fact that they were still referred to as ‘sedition’ offences. It is not clear why, after modifying the offences substantially, the Australian Government chose to retain the term ‘sedition’ to describe the new offences—especially since one of the new offences deals with urging inter-group violence rather than with the security of the institutions of the Commonwealth.
In the Fighting Words Report, the ALRC makes a range of recommendations to improve the existing law. Some of these represent technical refinements to the drafting. Mainly, however, the recommendations are aimed at ensuring there is a bright line between freedom of expression—even when exercised in a challenging or unpopular manner—and the reach of the criminal law, which should focus on exhortations to the unlawful use of force or violence.
It would be unfortunate, however, if continued use of the term ‘sedition’ were to cast a shadow over the new pattern of offences. The term ‘sedition’ is too closely associated in the public mind with its origins and history as a crime rooted in criticising—or ‘exciting disaffection’ against—the established authority. Consequently, the ALRC recommends that the term ‘sedition’ no longer be used in federal criminal law.
The Executive Summary in ALRC 104 contains a comprehensive summary of the key findings and recommendations in the report