Musing about sedition

The aptly named Chas Savage contributed an opinion piece in The Age the other day about the sedition provisions of the Howard government’s proposed new anti-terrorism laws. Savage’s article is well written and makes some good points:

I openly urge disaffection with the constitution. Concerned with matters of commerce, and gerrymandered to protect states instead of individuals, the Australian constitution serves a reduced purpose poorly. Under this constitution a High Court can rule that a man, charged with and guilty of no crime, can be locked up indefinitely. Under this constitution, rights are left to the mercy of predators such as Howard and expedient windbags like Beazley. The Australian constitution enables the government to spend without constraint to serve its own political interest. As such, it deserves the disaffection of decent, democratic people. …

Because I do not want to see liberty nibbled at, I urge an association of Australian men and women to act mightily, with seditious intention, against the sovereign and against the Government of the Commonwealth of Australia.

Nevertheless, Savage’s article is rather misleading about the structure and effect of the anti-terror bill.

Savage reproduces the bill’s provisions concerning seditious intention:

seditious intention means an intention to effect any of the following purposes:
(a) to bring the Sovereign into hatred or contempt;
(b) to urge disaffection against the following:
(i) the Constitution;
(ii) the Government of the Commonwealth;
(iii) either House of the Parliament;
(c) to urge another person to attempt, otherwise than by lawful means, to procure a change to any matter established by law in the Commonwealth;
(d) to promote feelings of ill-will or hostility between different groups so as to threaten the peace, order and good government of the Commonwealth.

However, mere seditious intention doesn’t amount to the crime of sedition. The intention has to be converted into action. The offence isn’t committed unless a person urges another “by force or violence” to overthrow the Constitution or the government or to engage in war or terrorist acts against Australia (and so on).

Savage’s article, scathing and deliberately provocative though it is, does no such thing. It would not amount to sedition even if Howard’s bill was already law. The requirement for an urging towards “force or violence” is the critical point.

Clearly the situation Howard and Ruddock have in mind is to ensure that ASIO and AFP have effective powers to deal with fundamentalist imams and others who preach inflammatory sermons at their mosques which encourage devout, misguided young men to strap explosives to their bodies and butcher innocent people in an attempt to compel the creation of a radical Muslim empire, and on the bizarre promise of a guaranteed instant ticket to a heaven where they will get to have sex with 72 virgins in perpetuity. That such conduct poses a very real potential danger is demonstrated by the apparent role of some English Muslim clerics in fostering the mindset and convictions of the young English terrorists who perpetrated the London bombings. We would be foolish to imagine that the same couldn’t happen here, or to advocate that we should refrain from taking effective measures to minimise the risk.

The real question is whether Howard’s bill goes too far, and potentially renders illegal words and conduct that don’t in fact pose any such threat, and the freedom to utter which is a critical aspect of a functioning democracy. A closely related question is whether the law, if it does in fact go too far in that sense, may be unconstitutional.

The High Court set out the fundamental principle in Lange v ABC:

“In the last decade of the twentieth century, the quality of life and the freedom of the ordinary individual in Australia are highly dependent on the exercise of functions and powers vested in public representatives and officials by a vast legal and bureaucratic apparatus funded by public moneys. How, when, why and where those functions and powers are or are not exercised are matters that are of real and legitimate interest to every member of the community. Information concerning the exercise of those functions and powers is of vital concern to the community. So is the performance of the public representatives and officials who are invested with them. It follows in my opinion that the general public has a legitimate interest in receiving information concerning matters relevant to the exercise of public functions and powers vested in public representatives and officials. Moreover, a narrow view should not be taken of the matters about which the general public has an interest in receiving information. With the increasing integration of the social, economic and political life of Australia, it is difficult to contend that the exercise or failure to exercise public functions or powers at any particular level of government or administration, or in any part of the country, is not of relevant interest to the public of Australia generally.” …

Accordingly, this Court should now declare that each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia. The duty to disseminate such information is simply the correlative of the interest in receiving it. The common convenience and welfare of Australian society are advanced by discussion – the giving and receiving of information – about government and political matters.

But the freedom is not (and could not sensibly be) an absolute one. Justice Michael McHugh usefully summarised the principles in these passages from his decision in the 2004 matter of Coleman v Power (which I discussed in more detail here):

In determining whether a law is invalid because it is inconsistent with freedom of political communication, it is not a question of giving special weight in particular circumstances to that freedom. Nor is it a question of balancing a legislative or executive end or purpose against that freedom. Freedom of communication always trumps federal, State and Territorial powers when they conflict with the freedom. The question is not one of weight or balance but whether the federal, State or Territorial power is so framed that it impairs or tends to impair the effective operation of the constitutional system of representative and responsible government by impermissibly burdening communications on political or governmental matters. In all but exceptional cases, a law will not burden such communications unless, by its operation or practical effect, it directly and not remotely restricts or limits the content of those communications or the time, place, manner or conditions of their occurrence. And a law will not impermissibly burden those communications unless its object and the manner of achieving it is incompatible with the maintenance of the system of representative and responsible government established by the Constitution.

In the two-limb test formulated in Lange, the adjectival phrase “compatible with the maintenance of the constitutionally prescribed system of representative and responsible government” does not merely qualify the expression “legitimate end”. It qualifies the compound conception of the fulfilment of such an end, and the emphasis of the qualification is on the term “fulfilment” rather than “end”. That is to say, it is the manner of achieving the end as much as the end itself that must be compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. Of course, the end itself may be incompatible with the system of representative and responsible government. It will be incompatible, for example, if it is designed to undermine that system. …

When, then, is a law not reasonably appropriate and adapted to achieving an end in a manner that is compatible with the system of representative government enshrined in the Constitution? In my opinion, it will not be reasonably appropriate and adapted to achieving an end in such a manner whenever the burden is such that communication on political or governmental matters is no longer “free”. Freedom of communication under the Constitution does not mean free of all restrictions. The freedom is not absolute or equivalent to licence. The zone of freedom conferred by the constitutional immunity is not, as Higgins J said, in discussing s 52 of the Constitution, an “Alsatia for Jack Sheppards”, where law does not run. Communications on political and governmental matters are part of the system of representative and responsible government, and they may be regulated in ways that enhance or protect the communication of those matters. Regulations that have that effect do not detract from the freedom. On the contrary, they enhance it.

Hence, a law that imposes a burden on the communication of political and governmental matter may yet leave the communication free in the relevant sense. Thus, laws which promote or protect the communications or which protect those who participate in the prescribed system, for example, will often impose burdens on communication yet leave the communications free. On the other hand, laws that burden such a communication by seeking to achieve a social objective unrelated to the system of representative and responsible government will be invalid, pro tanto, unless the objective of the law can be restrictively interpreted in a way that is compatible with the constitutional freedom. Thus, a law that sought to ban all political communications in the interest of national security would be invalid unless it could be demonstrated that at the time such a prohibition was the only way that the system of representative government could be protected. In such a case, the issue would not be whether the needs of national security require the prohibition of communication on political and governmental matters. It would be whether, at that time, the system of representative government is so threatened by an external or internal threat that prohibiting all communication on political and governmental matters is a reasonably appropriate and adapted means of maintaining the system. A total prohibition would not be reasonable unless there was no other way in which the system of representative government could be protected. Ordinarily, the complete prohibition on, or serious interference with, political communication would itself point to the inconsistency of the objective of the law with the system of representative government.

It follows then that not all laws burdening communications on political and governmental matters are impermissible laws. They will be permissible as long as they do no more than promote or protect such communications and those who participate in representative and responsible government from practices and activities which are incompatible with that system of government.

In Coleman v Power, the law in question was a Queensland statute that made it an offence to use “insulting words”. McHugh J assessed it like this:

Regulating political statements for the purpose of preventing breaches of the peace by those provoked by the statements is an end that is compatible with the system of representative government established by the Constitution. However in the case of insulting words, great care has to be taken in designing the means of achieving that end if infringement of the constitutional freedom is to be avoided. In so far as insulting words are used in the course of political discussion, an unqualified prohibition on their use cannot be justified as compatible with the constitutional freedom. An unqualified prohibition goes beyond anything that could be regarded as reasonably appropriate and adapted for preventing breaches of the peace in a manner compatible with the prescribed system. Without seeking to state exhaustively the qualifications needed to prevent an infringement of the freedom of communication, the law would have to make proof of a breach of the peace and the intention to commit the breach elements of the offence. It may well be the case that, in the context of political communications, further qualifications would be required before a law making it an offence to utter insulting words would be valid. In the present case, it is enough to say that s 7(1)(d) infringed the constitutional freedom by simply making it an offence to utter insulting words in or near a public place whether or not a person hears those words even when they were used in the discussion of political and governmental matters.

Justices Gummow, Hayne and Kirby said to similar effect: “The use of such words would constitute no offence unless others who hear what is said are reasonably likely to be provoked to physical retaliation.”

If we apply these formulations to Howard’s proposed sedition crime, there is no doubt at all that it purports to criminalise certain types of political speech, and that certainly burdens the constitutional freedom of political speech. But that doesn’t mean the law would necessarily breach the Constitution. The provisions are clearly directed at a legitimate end within power (inhibiting conduct which may incite horrific terrorist acts), and that means they might conceivably be valid. But whether they would be held to be proportionate or “appropriate and adapted” to achieving that legitimate end is much less certain. The offence is certainly conditioned by a requirement that actual force or violence is being advocated for political purposes, a qualification which would assist in bolstering the argument that it is valid. But the reasoning in Coleman v Power seems to suggest that this isn’t enough. The words must also be “reasonably likely” in fact to incite violence or serious disorder.

One could almost certainly establish that inflammatory sermons by a radical Muslim cleric, urging his followers to jihad by suicide bombing, would indeed be likely to provoke the desired horrifically violent response in at least some vulnerable listeners, and so I can see what Howard is trying to achieve. But his proposed law as presently drafted doesn’t require proof of a real probability of violence flowing from the words as a necessary element of the offence. Even if Chas Savage had clearly advocated political violence in his article, one would think it would be fairly unlikely, given its context and overall message, that it would actually incite someone to such violence. And yet he would then have been guilty of the crime of sedition under Howard’s proposed laws. That tends to suggest that the provisions may be too widely drawn to be held constitutional.