We shouldn’t criminalise speech that we find distasteful or inflammatory when it’s remote from the actual practice of terrorism, writes Ben Saul
SPEAKING of terror has become a dangerous business. This year, European law criminalised ‘public provocation’ of terrorism, which includes not only directly inciting terrorism but even praising, supporting or justifying it. Soon after, the UN Security Council recommended that all countries prohibit incitement to terrorism and repudiate its justification or glorification. Praising or justifying terrorism is thought to create a climate that encourages terrorism, without necessarily inciting a specific terrorist crime. After the London bombings, Britain also proposed making ‘condoning or glorifying’ terrorism a crime.
The recently leaked Anti-Terrorism Bill suggests that Australia will follow a similar path. The bill repeals existing sedition offences and replaces them with three new offences. The first two occur where a person encourages another to violently overthrow the constitution or any Australian government, or to violently interfere with federal elections.
The third offence is where a person urges a racial, religious, national or political group to use violence against another group, where this threatens ‘peace, order and good government’.
The new offences largely implement the Gibbs Review of federal criminal law in 1991, including increasing the penalty from three to seven years in prison. The bill is positive in that it narrows the existing and vague sedition offences, which allow a person to be prosecuted for bringing the sovereign into ‘contempt’, exciting ‘disaffection’ against the government or promoting ‘ill-will’ between different ‘classes’. Anyone who supports a republic could be prosecuted under existing law.
Old-fashioned security offences are little used because they are widely regarded as discredited in a modern democracy that values free speech. Paradoxically, the danger in modernising these offences is that prosecutors may seek to use them more frequently, since they are considered more legitimate. A better approach is to abandon archaic security offences altogether in favour of using the ordinary criminal law of incitement to crime, particularly since security offences counterproductively legitimise ordinary criminals as ‘political’ offenders. It is already possible to prosecute incitement to the many federal terrorism crimes.
The danger of criminalising political opponents is reduced by the bill’s ‘good faith’ defences. These protect speech that points out the mistakes of political leaders, errors in governments, laws or courts, or issues causing hostility between groups. The defences also protect encouraging lawful attempts to change the law or statements about industrial matters.
While these defences seem wide, they protect only political expression, at the expense of other speech. In contrast, wider defences in anti-vilification law protect statements made in good faith for academic, artistic, scientific, religious, journalistic or public interest purposes. Such statements may not aim to criticise political mistakes or errors, group hostility or industrial issues. The range of human expression worthy of legal protection is much wider than these narrow exceptions.
The third new sedition offence is welcome because it criminalises, for the first time in federal law, incitement to violence against racial, religious, national or political groups. Such protection is required by Australia's human rights treaty obligations.
Presenting this offence as a counter-terrorism law falsely stigmatises group violence as terroristic, reinforcing the stereotyping of certain ethnicities or religions as terrorist. It is also an error to classify this offence as sedition, which is more about rebellion against political authority than group violence.
The attorney-general has claimed that the changes aim to criminalise indirect incitement of terrorism. Examples might include distasteful comments such as ‘Osama is a great man’, ‘9/11 was a hoax’ or ‘America had it coming’, or even Cherie Blair's genuine view that some Palestinians believed they had ‘ho hope’ but to blow themselves up.
Criminalising speech that encourages violence plainly restricts free expression. Free speech is not absolute and may be limited to prevent serious social harms, including statements with a direct, close and imminent connection to a specific crime. By contrast, criminalising indirect or vague expressions of support for terrorism, which do not encourage a particular crime, unjustifiably interferes in legitimate free speech.
In the absence of a human rights act, Australian constitutional law protects only political expression, and not other speech (although religious speech may enjoy protection). Our courts are thus less able to challenge sedition laws for excessively infringing free speech. There is also no sunset clause for sedition.
Criminalising expressions of support for terrorism only drives such beliefs underground. Rather than exposing them to debate, which corrects and ventilates the poison of bad ideas, criminalisation aggravates underlying grievances. While every society has the highest public interest in protecting itself from violence, no society should criminalise speech that it finds distasteful or inflammatory when such speech is remote from the actual practice of terrorism by others.
A robust and mature democracy should be expected to absorb unpalatable ideas without prosecuting them.
Ben Saul is director of the bill of rights project at the Gilbert + Tobin Centre for Public Law, University of New South Wales. This article first appeared in The Age.