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A Christmas truce in the war on terror

14 Jan 2009
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AMID THE CARNAGE and brutality of the western front, ordinary Allied and German troops convened a brief truce in the Christmas of 1914. They sang Christmas carols and some even exchanged gifts. It was a source of hope, soon to be dashed, that sanity might prevail, and the war would end without catastrophic loss of life.

In the media hush of 23 December 2008, another sort of Christmas truce seems to have broken out - this time in the war on terror. The attorney-general, Robert McClelland, quietly announced that the federal government would implement recommendations made by the Australian Law Reform Commission (ALRC) to amend Australia’s controversial sedition laws.

This is a sensible move. Ever since the Howard government introduced new sedition laws in 2005, as part of a package of post-9/11 anti-terrorism laws, there have been loud calls for reform in this area. Those calls have come from MPs on both sides of politics, from civil society groups, from the media, from artists. Even the police expressed no strong desire to use these new laws.

The 2005 sedition laws are ill-conceived and problematic for a number of reasons. However, the main objective of these laws was an understandable one: to curb terrorism. Ignoring for the moment some of the significant defects of the sedition laws, a number of the offence provisions made a lot of sense. For example, it became an offence “to urge force or violence” with a view to overthrowing the government. In this way, parliament was seeking to strike a balance between allowing dissent against the government while prohibiting dissent that provokes violence.

Most other countries have laws that also prohibit the urging or incitement of violence. Such laws are designed to recognise that, in a liberal democracy, it is not permissible to use the cloak of freedom of expression to encourage crimes of violence.

However, the laws were (indeed, they are - they remain active until parliament passes an amending Act) fatally undermined by a number of very significant problems.

The first major problem is the peculiar defence provision. It is a defence to a charge of sedition if the defendant carried out the seditious conduct “in good faith.” But what could this possibly mean? How can anyone urge force or violence in good faith? And significantly, how could artists, commentators or journalists reporting on terrorism be confident that they would not be caught in the too-wide net of these laws?

Another problem is that the laws impinge too far on civil liberties. It became an offence to “assist the enemy.” But the law does not specify precisely who “the enemy” is, or what is meant by “assist.” To take a hypothetical example: on one view, urging people not to enlist in the Australian Defence Force “assists” Australia’s enemies. It is conceivable, therefore, that such conduct would fall foul of the sedition law - leaving the accused liable to a seven-year sentence. A similar argument could be made about the organisers of large anti-war street demonstrations.

Of course, in the current political climate, we can be confident that the authorities would be unlikely to bring a prosecution for such conduct. But that is not the point: we know that the mere presence of overly-restrictive laws on the statute books inhibits people in their actions - this is the so-called “chilling effect.” The threat of prosecution for someone engaging in legitimate political protest, or someone providing merely rhetorical encouragement for those who disagree with Australian government policy, is hugely corrosive of our democracy.

The ALRC’s report addressed these concerns and others. It sought to find a more appropriate balance - one that allows the government to protect Australia against terrorist threats while preserving the fundamental liberties that we hold dear. These include the freedom to say what we want about the government, without fearing heavy-handed reprisal.

The federal government has done the right thing by announcing its plan to reform these laws. But it could do more to get the balance right in framing anti-terrorism and other laws that jeopardise our fundamental rights and freedoms. If Australia had a Human Rights Act, the Parliament would be required to consider the human rights impact of a Bill before passing it into law. This would help make these issues part of the public debate, and it would give ordinary Australians a better opportunity to have their say about this balancing process.

Moreover, once a Bill becomes law, the police, other authorities and the courts would be required as far as possible to interpret that law consistently with the principles set out in the Human Rights Act. This means that poorly drafted laws, which are never intended to trample on human rights, are much less likely to do so.

One last footnote: while the Commonwealth has agreed to reform federal sedition law, the equivalent state laws touch on the bizarre. For example, in New South Wales it is still considered sedition to “compass or imagine” the death of the King, Queen or eldest son and heir; or to “violate the King’s companion, or eldest unmarried daughter, or the wife of the eldest son and heir.”

With Christmas over and this summer’s cricket inducing mild depression, I don’t mind admitting to the odd daydream involving Prince Charles and some of the Queen’s rapacious, blood-sucking corgis. But should that really make me a criminal? •

Edward Santow is a Senior Lecturer in Law at the University of New South Wales, and Director of the Charter of Human Rights Project at the Gilbert + Tobin Centre of Public Law. He previously worked on the ALRC’s sedition inquiry. The views expressed are his own.

 

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2009
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