A lesson in national security, II

...And now the lesson continues in Parte the Seconde:

Fundamental to the arguments against the sedition law is the risk to the individuals’ right to express themselves freely. The principle of freedom of expression in common law permits all manner of expression unless it is specifically prohibited by law, for example defamation, or obscenity. This right, however, has no real support by way of legislation. The only guarantee of free speech arises from an implication in the Constitution ₍₁₅₎. The SLCLC noted in its report on the sedition laws that many witnesses pointed out that “…unlike other Western countries, the Bills operation will not be tempered by a [Federal] Bill of Rights” ₍₃₎. This means that in the absence of statutory or constitutional human rights standards, judges do not have a minimum standard against which to interpret laws that potentially infringe on civil rights and fundamental freedoms.

The Australian Writers Guild, the National Association for the Visual Arts (NAVA) and the Australian Screen Directors Association publicly stated they believe the sedition laws represent “…one of the most dangerous threats to freedom of expression in this nations history” ₍₆₎. In a submission to the ALRC’s investigation into the sedition laws, NAVA outlined an example of an artist who was visiting from overseas. They were questioned several times by security agents while taking documentary video footage in and around Canberra and were told that their name would be added to a list of terrorism suspects ₍₅₎. The artist was labelled a terrorist for videotaping areas of Canberra with official authorisation.

That is not to say that freedom of expression is completely unprotected, per se. Article 19 of the International Covenant on Civil and Political Rights (ICCPR), of which Australia is a signatory, states:

1. Everyone shall have the right to hold opinions without interference
2. Everyone shall have the right to freedom of expression; this right shall include the freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art or through any other media of his choice
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights of the reputations of others;

(b) For the protection of national security or of public order or of public health or morals. ₍₅₎

Under Article 19, a restriction on a person’s right to express themselves freely is only allowable if that restriction is provided by law. Because of the wording of the offences in s80.2 and it’s lack of clarity on the terms ‘intentions’, ‘urge’, ‘recklessness’ and ‘assist’, it may result in the offences being interpreted so broadly that it would include non-violent criticism of the government. An interpretation such as this would be very near to running against Article 19 in the ICCPR ₍₅₎.

This leads to three issues which Laurence Maher elucidates in his paper ‘Modernising the Crime of Sedition?’, issues which point to the unconvincing nature of the governments case for the sedition law. The first issue is that the government has a duty to identify any specific harm when any restrictions on liberties of the individual are implemented, which it has failed to do so ₍₁₀₎ aside from vague references to “potential terrorist threat(s)” ₍₂₎. Secondly, supporters of the law should be able to identify areas in which existing criminal law is lacking. If there is an obvious vacancy in the current criminal law, Commonwealth and State governments were negligent in identifying or rectifying the deficiency. Finally, the third issue alludes to the language of the law, that it may or may not carry with it an unspecified risk of ‘urging’ violence or disorder. The terminology employed in the legislation “…renders it impossible to know in advance of engaging any speech [or art] related conduct whether it exposes the individual to criminal liability.” ₍₁₀₎

An understated side effect of the sedition law is not the increased maximum penalty from three to seven years imprisonment but rather self-censorship. It has already been shown that the traditional definition of sedition is essentially the right of the government to prosecute those whose words are considered, by said government, to be criminal. In the process, others are deterred from speaking or publishing freely. The risk is that those who participate publicly, legitimately and occasionally vehemently in debate with the government will be tempted to reduce the force of their rhetoric or performance for fear of prosecution ₍₁₄₎. Words that are in strong criticism of the government, however well intended, may never be uttered for fear of a sinister, or seditious, intent. Ian Barker QC offered up this hypothetical:

“If I said today ‘Well may we save God say the Queen, because nothing can save the Governor-General’, [s]ome may well see it, as some saw it then, as an incitement to kill the Governor-General or by violence drive him from office. They would be dangerous words to use under the [sedition] laws.” ₍₁₉₎

Regardless whether there are no prosecutions, the expressions of unorthodox and confronting ideas and opinions about political issues will be reduced. This, in turn, reduces the strength of the democracy since the foundation of any democracy is the right to question its government.

For the media and the arts, self-censorship and broad definitions in the legislation itself are cause for concern. As mentioned previously, fear of inadvertently committing a seditious offence is likely to have an affect on the willingness of many to publicly express their opinions and opposition to government actions. Also, as the Media, Entertainment and Arts Alliance submitted to the ALRC review:

“Part of the uncertainty stems from the wording, including the offences of ‘urging’ others to use ‘force or violence’ and the question of intent. It is hard to control or predetermine how individuals will interpret the various layers of meaning that comprise an actor’s performance or a playwright/screenwriters script.” ₍₅₎

The same concerns can be applied to stories by journalists whether they are via the print media or a broadcast or even if the content is viewed to have sensitive information regarding national security. An example of this is Ian Munro, a journalist from ‘The Age’ newspaper and the ABC’s ‘Four Corners’ program. They were served with a search warrant demanding tapes of interviews and notes with an alleged terrorist. In order to defuse a potential tense situation, Ian Munro complied. ₍₁₇₎

Under the legislation, regardless of the ‘good faith’ defence, classic Australian films such as ‘Gallipoli’ would land its creators in proverbial hot water. The film shows Australian troops having to follow the orders of incompetent and occasionally disorganised allied superiors who place individuals in danger with questionable intentions. It portrays the enemy as brave and loyal to their compatriots and their cause. In contrast, the Australian troops are irreverential to authority and lack respect for the culture of the Middle East. The continuing theme of the movie questioned the reasoning behind the troops being there and their ability for success in the conflict. This is essentially an anti-war movie that urges disaffection with the government while sympathising with the enemy of the state. If this movie were made today and the Gulf used as a location instead of Turkey, it would breach parts 7 and 8 of section 80.2 of the sedition laws, in which it is an offence to urge an organisation or country at war with the Commonwealth and to urge an organisation or country that is engaged in armed hostilities against the Australian Defence Force.

An interesting, and potentially the most important, point to note is that the censure with which essentially anti-establishment speech (or art) is treated under the sedition laws is actually self defeating. As soon as a charge or warrant is laid in court anyone, including the media, is free to publish the allegedly dangerous words as part of an accurate report in a sub judice period ₍₁₀₎. These will then negate the attempt of the legislation to silence any seditious comments.

Recently, unlike its Australian counterpart, the New Zealand government agreed that its law on sedition should be repealed after a law commissions report made the recommendation. New Zealand Prime Minister Helen Clark said that it was “…an out-of-date piece of law and offences which need to be prosecuted can be prosecuted under another legislation.” ₍₁₆₎. Supporters of the repeal of the law called it a victory for free speech and the right to dissent. Also, the Australian Labor Party, during its national conference in April, made the adoption of the ALRC’s recommendations official policy ₍₂₃₎.

The sedition law in the Anti-Terrorism Act (No. 2) 2005 has been called a boost to national security and merely an update of existing laws. Its lack of respect for freedom of expression and speech and appropriate definition, not to mention its historical use against political dissenters renders it an archaic legislation that should be repealed.

Thus ends the lesson for now, kiddies, and thanks for your patience. What did we learn from all of this? The essay would have been more of a challenge (and potentially more enjoyable) to argue for the sedition laws, but time was against me so the easy option won out.

What did you think? Clear as mud and as interesting as watching grass grow? Thought so!