During the latter part of 2005 there was much controversy in the media surrounding the Anti-Terrorism Bill (the 'Bill') and in particular the proposed sedition provisions set out in Schedule 7 of the Bill. These proposed provisions were met by virulent criticism. Critics argued that the provisions revived oppressive and authoritarian law in Australia and that the re-awakening of such law had the potential to inhibit free speech and restrict open democracy.
Numerous detailed submissions were put forward criticising the proposed provisions and recommending that the sedition laws be abandoned or in the alternative that the provisions be substantially amended.
While calls for the sedition laws to be abandoned altogether have not been heeded, the final version of the sedition provisions, as set out in the Anti-Terrorism Act (No 2) 2005 (the 'Act'), did take on board some of the criticisms that were levelled against the proposed provisions. While these amendments are welcomed, there still remains significant potential for the provisions to limit free speech and expression.
This article sets out to explain the new sedition provisions and the subsequent implications for the arts community.
The new sedition provisions
Schedule 7 of the Act repeals the existing sedition offences (ss.24A-E of the Crimes Act 1914) and replaces them with five new offences set out in a new section of the Criminal Code – 80.2 Sedition.
The first two new sedition offences occur when a person urges another to:
- overthrow by force or violence the Constitution or any Australian Government; or
- interfere, by force or violence, with an election.
The third new offence is where a person urges a racial, religious, national or political group to use force or violence against another such group, where the violence would threaten the "peace, order and good government of the Commonwealth".
Each of these three new offences extends the law to cover reckless urgings. There is no requirement that there be a connection between the incitement and a particular offence nor even that a person 'intend' the offence to be committed.
The final two new offences involve urging a person to assist organisations or countries fighting militarily against Australia. Countries or organisations need not be formally proclaimed as enemies, to offend these laws.
For each of the five new offences, the Act increases the maximum penalty from three to seven years imprisonment.
The Act also sets out a number of defences. A defence is available to the two offences relating to assisting the enemy if it relates to conduct by way of, or for the purpose of, the provision of humanitarian aid.
Moreover, the Act also sets out a number of 'good faith' defences. These defences protect speech that points out mistakes of political leaders or errors in governments, the constitution, laws and courts (with a view to reforming these errors) or issues causing hostility between groups. The defences also protect lawful attempts to change the law, any speech in connection with an industrial matter and the publication of a report or commentary on a matter of public interest.
A plethora of criticisms were levelled at the proposed sedition laws when the Bill was first released to the public in October 2005. Many of these are similarly relevant with respect to the amended provisions set out in the finalised Act.
The laws were criticised as being outdated and inappropriate in a modern democracy that values free expression. Opponents of the sedition laws pointed out that other democratic countries such as New Zealand and Canada had abandoned such laws, and that to modernise them in Australia was to legitimise their use.
The sedition provisions were attacked as being unnecessary to protect Australia from terrorism given the existing offences of incitement, treachery and treason.
Opponents to the Bill and Act highlighted the troubled history of sedition laws around the world, their politicisation and history of abuse. It was, and still is, argued that in the absence of any comprehensive constitutional or statutory human rights framework in Australia that would protect basic rights such as freedom of speech, the new sedition offences are open to abuse of power by government or police.
The new provisions were further criticised for their potential to stifle free speech. It is arguable that not only are the provisions too broadly worded but that the 'good faith' defences are in turn, too narrowly drafted. The sedition provisions have the potential to inhibit artists' ability to discuss and critique ideas and more specifically to challenge current orthodoxies.
It is this issue – the inhibition of free speech – that is of most concern for the arts community.
Implications for the arts community
The new sedition offences are worded broadly so as to avoid the requirement in the existing law of incitement that a person 'intend' the offence to be committed, and that there be a connection between the incitement and a particular terrorist crime. The result of this is that the new sedition laws might criminalise indirect incitement or general expressions of support for terrorism.
The fourth and fifth sedition offences (see above) make no mention of the element of force or violence but simply that the person commits an offence if they intend the conduct of another to assist a country or organisation which is at war with the Commonwealth, whether declared or not.
Such broad drafting of the offences certainly raises the possibility of abuse. For example, if the provisions are interpreted broadly then simply opposing Australian military intervention may constitute tacit support for Australia's enemies. That is, it is not impossible to imagine an individual being prosecuted for simply objecting to Australian aggression particularly when such aggression is in breach of international treaties.
The potential for the new provisions to be used to stifle free speech is evident with respect to creative works, including artistic works, films and literary works that are satirical or metaphoric. Often an artist is providing some social commentary or criticism in their work and their work may be open to multiple subjective responses. For example, if numerous meanings can be drawn from an artistic work an artist might be accused of being responsible for urging another person to commit offences, as a result of a person interpreting their artwork in a particular way, even if this interpretation was unintended.
Another important and likely implication of the new sedition offences is the potential for self-censorship as a result of fear and uncertainty surrounding the way the new offences will be treated and enforced. At present, there is no way of knowing how these new laws will be used or interpreted and it may be some time until cases are brought and the laws are clarified. In the meantime, it is our experience that many artists are likely to err on the side of caution when faced with the risk of seven years imprisonment.
It is possible that artists, galleries and other art organisations that may previously have dealt with controversial themes or opinions, or engaged in political or governmental commentary in their work, or even if there is just a risk of possible misinterpretation of their work, may choose self-censorship rather than risk breaching the new laws. The consequence of this could be the inhibition of free expression and ultimately the demise of artistic work that challenges contemporary orthodoxies.
Effect of the defence provisions
The 'good faith' defences in Schedule 7 of the Act are intended to ameliorate the stifling effect on freedom of expression however, because of the narrow drafting of the defences the Act only really protects a very specific form of political expression. Some of the defences even require any criticism to also be constructive (meaning they must be made "with a view to reforming those errors or defects").
There is no general and broader 'good faith' defence for artistic expression. The defence provisions are so tightly worded that they would not protect artistic expression for purposes such as the promotion of discussion or the presentation of a different point of view.
These limited defences can be contrasted with the wider defences in other laws which have the ability to impact on freedom of expression, such as the anti-vilification laws, which expressly protect statements made in good faith for academic, artistic, scientific, religious, and journalistic or public interest purposes from being actionable.
The new sedition provisions raise many pertinent concerns for the arts community. The potential for the new laws to be used to inhibit free speech and suppress open democracy is clear. Moreover, even if the laws are not used to prosecute members of the arts community, the modernisation of these archaic laws and their consequent legitimisation will undoubtedly create a sense of fear and uncertainty among artists, which may in turn, tacitly suppress free inquiry and expression.