Friendly Fire?

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Friendly Fire?

• The New Sedition Laws
• Adam Moxon Simpson
• asimpson_at_simpsons.com.au

SIMPSONS SOLICITORS www.Simpsons.com.au
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• Introduction
• The new sedition laws introduced as part of the
  Anti-Terrorist measures
• A response to the changing environment
• Voracious public comment lead to significant
  amendments to the original bill
• The new sedition laws are being reviewed by the
  Australian Law Reform Commission
• There is now a fresh opportunity for comment

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• A Comic Catastrophe
• Publication of depictions of Mohammed in
  Jyllands-Posten that were offensive to Muslims
• Escalation of problem when complaints to the
  editors then the Prime Minister ignored
• Fired Debate About Freedom of Expression
• Legal and Government Involvement
• Example of changing publishing environment

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• The Old Sedition Laws
• seditious intention
• An intention to effect any of the following
  purposes, that is to say
• to bring the Sovereign into hatred or contempt
• to excite disaffection against the Government or
  Constitution of the Commonwealth or against
  either House of the Parliament of the
  Commonwealth
• to excite Her Majestys subjects to attempt to
  procure the alteration, otherwise than by lawful
  means, of any matter in the Commonwealth
  established by law of the Commonwealth or
• to promote feelings of ill-will and hostility
  between different classes of Her Majestys
  subjects so as to endanger the peace, order or
  good government of the Commonwealth
• Crimes Act 1914 s.24A

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• The Old Sedition Laws
• 24C Seditious enterprises
• A person who engages in a seditious enterprise
  with the intention of causing violence, or
  creating public disorder or a public disturbance,
  is guilty of an indictable offence punishable on
  conviction by imprisonment for not longer than 3
  years.
• 24D Seditious words
• Any person who, with the intention of causing
  violence or creating public disorder or a public
  disturbance, writes, prints, utters or publishes
  any seditious words shall be guilty of an
  indictable offence.
• Penalty Imprisonment for 3 years.

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• The Old Sedition Laws
• Good Faith Defences
• Endeavouring to show that the Government or its
  limbs has been mistaken in any of its counsels,
  policies or actions
• Pointing out defects in government, the
  constitution, legislation or administration of
  justice with a view to reforming those defects
• Pointing out, in order to bring around their
  removal, any matters that are producing feelings
  of ill-will or hostility between different
  classes of persons
• Exciting another person to attempt to change, by
  lawful means, a matter established by law whether
  Australian or foreign
• To do anything in connexion with an industrial
  matter.
• Crimes Act 1914 s.24F

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• The Old Sedition Laws
• Acts determined not to be in Good Faith
• Acts done
• With the intention of causing violence or
  creating public disorder or a public disturbance
• For a purpose prejudicial to the safety or
  defence of the Commonwealth
• Assisting an enemy at war with the Commonwealth
• Assisting a country or organisation engaged in
  armed hostilities with the Australian Defence
  Force
• Crimes Act 1914 s.24F (2)

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• The Old Sedition Laws
• Elements of the Offences
• Engaging in conduct that has a seditious intent
• An intention to cause violence, public disorder
  or public disturbances.

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• The Old Sedition Laws
• No element of recklessness
• No crime of encouraging others
• Only usual aid and abet provisions
• Intention was a key component to the offence

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• The New Laws
• What has changed?
• what is considered seditious has been expanded
• sedition is now about urging others to engage
  in seditious activities
• in most instances, a much lower threshold of
  recklessness has been introduced
• the laws now have global application and
• the penalties have been increased from 3 years to
  7 years.

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• Criminal Code Act 1995 Summary of s. 80.2
• Urging the overthrow of the Constitution or
  Government by force or violence (s.80.2(1))
• Urging interference in lawful Parliamentary
  elections by force or violence (s.80.2(3))
• Urging violence within the community between
  groups (whether distinguished by race, religion,
  nationality or politics) where such violence
  threatens the peace, order and good government of
  the Commonwealth (s.80.2(5))
• Each of these offences is extended to those who
  are simply reckless about these types of
  consequences.

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• Criminal Code Act 1995 Summary of s. 80.2
  (cont.)
• Urging a person to engage in conduct with the
  intent of assisting the enemy (whether or not a
  state of war has been declared) (s.80.2(7)) and
• Urging a person to engage in conduct with the
  intent of assisting those engaged in armed
  hostilities with the Australian Defence Force
  (s.80.2(8)).
• Each of these last two offences has a specific
  defence in relation to the provision of aid of a
  humanitarian nature (s.80.2(1))). Recklessness
  does not apply to these two offences.

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• Urging
• Little statutory assistance
• Dictionary Definition is Wide
• not be limited to express recommendations or
  persuasion
• e.g through dramatisation, or imagery, or
  metaphor, or allegory or allusion, or any of the
  myriad devices and techniques available to a
  creative artist

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• Criminal Code Act 1995 Summary of s. 80.2
  (cont.)
• Recklessness
• Urging violence within the community
• (5) A person commits an offence if
• the person urges a group or groups (whether
  distinguished by race, religion, nationality or
  political opinion) to use force or violence
  against another group or other groups (as so
  distinguished) and
• the use of the force or violence would threaten
  the peace, order and good government of the
  Commonwealth.
• (6) Recklessness applies to the element of the
  offence under subsection (5) that it is a group
  or groups that are distinguished by race,
  religion, nationality or political opinion that
  the first-mentioned person urges the other person
  to use force or violence against.

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• Criminal Code Act 1995 s.5.4
• 1. A person is reckless with respect to a
  circumstance if
• (a) he or she is aware of a substantial risk that
  the circumstance exists or will exist and
• (b) having regard to the circumstances known to
  him or her, it is unjustifiable to take the risk.
• 2. A person is reckless with respect to a result
  if
• (a) he or she is aware of a substantial risk that
  the result will occur and
• (b) having regard to the circumstances known to
  him or her, it is unjustifiable to take the risk.
• 3. The question whether taking a risk is
  unjustifiable is one of fact.
• 4. If recklessness is a fault element for a
  physical element of an offence, proof of
  intention, knowledge or recklessness will satisfy
  that fault element.

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• Criminal Code Act 1995 s.80.2 (7) to (9)
• Urging a person to assist the enemy
• A person commits an offence if
• the person urges another person to engage in
  conduct and
• the first-mentioned person intends the conduct to
  assist an organisation or country and
• the organisation or country is
• at war with the Commonwealth, whether or not the
  existence of a state of war has been declared
  and
• specified by Proclamation made for the purpose of
  paragraph 80.1(1)(e) to be an enemy at war with
  the Commonwealth.

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• Criminal Code Act 1995 s.80.2 (7) to (9) (cont.)
• Urging a person to assist those engaged in armed
  hostilities
• A person commits an offence if
• the person urges another person to engage in
  conduct and
• the first-mentioned person intends the conduct to
  assist an organisation or country and
• the organisation or country is engaged in armed
  hostilities against the Australian Defence Force.
• Defence
• Subsections above do not apply to engagement in
  conduct by way of, or for the purposes of, the
  provision of aid of a humanitarian nature.

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• Criminal Code Act 1995 s. 80.4 and s. 15.4
• Extended geographical jurisdiction for offences
  s. 80.4
• Section 15.4 (extended geographical
  jurisdictioncategory D) applies to an offence
  against this Division.
• 15.4 Extended geographical jurisdiction
  category D
• If a law of the Commonwealth provides that this
  section applies to a particular offence, the
  offence applies
• whether or not the conduct constituting the
  alleged offence occurs in Australia and
• whether or not a result of the conduct
  constituting the alleged offence occurs in
  Australia.

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• Criminal Code Act 1995
• 80.3 Defence for acts done in good faith
• Sections 80.1 and 80.2 do not apply to a person
  who (a)
• tries in good faith to show that any of the
  following persons are mistaken in any of his or
  her counsels, policies or actions
• the Sovereign
• the Governor-General
• the Governor of a State
• the Administrator of a Territory
• an adviser of any of the above
• a person responsible for the government of
  another country or

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• Criminal Code Act 1995
• 80.3 Defence for acts done in good faith
• Sections 80.1 and 80.2 do not apply to a person
  who (b)
• points out in good faith errors or defects in the
  following, with a view to reforming those errors
  or defects
• the Government of the Commonwealth, a State or a
  Territory
• the Constitution
• legislation of the Commonwealth, a State, a
  Territory or another country
• the administration of justice of or in the
  Commonwealth, a State, a Territory or another
  country or

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• Criminal Code Act 1995
• 80.3 Defence for acts done in good faith
• Sections 80.1 and 80.2 do not apply to a person
  who
• (c) urges in good faith another person to attempt
  to lawfully procure a change to any matter
  established by law, policy or practice in the
  Commonwealth, a State, a Territory or another
  country or
• (d) points out in good faith any matters that are
  producing, or have a tendency to produce,
  feelings of ill-will or hostility between
  different groups, in order to bring about the
  removal of those matters or
• (e) does anything in good faith in connection
  with an industrial dispute or an industrial
  matter or

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• Criminal Code Act 1995
• 80.3 Defence for acts done in good faith
• Sections 80.1 and 80.2 do not apply to a person
  who (f)
• publishes in good faith a report or commentary
  about a matter of public interest.

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• Criminal Code Act 1995
• publishes in good faith a report or commentary
  about a matter of public interest
• does not appear to cover other forms of
  communication nor those involved in the
  publication (e.g journalists)
• more limited than, for example, the New South
  Wales Anti-Discrimination Act 1977
• done reasonably and in good faith, for academic,
  artistic, scientific or research purposes or for
  other purposes in the public interest, including
  discussion or debate about and expositions of any
  act or matter
• limited to a report or commentary and may not
  include other forms of publications such as
  satire
• no particular guidance as to what constitutes
  matters of public interest

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• Criminal Code Act 1995
• What is good faith?
• Good faith is based on the distinction between a
  person who is honestly blundering and careless,
  and a person who has a suspicion that something
  is wrong but refrains from asking questions. The
  latter conduct amounts to bad faith or
  dishonesty. - Jones v Gordon
• "'Good faith in some contexts identifies an
  actual state of mind, irrespective of the quality
  or character of its inducing causes something
  will be done or omitted in good faith if the
  party was honest, albeit careless. On the other
  hand, 'good faith' may require that exercise of
  caution and diligence to be expected of an honest
  person of ordinary prudence - Mid Density
  Developments Pty Ltd
• 'two divergent meanings The first was the broad
  or subjective view which defines them as
  describing an actual state of mind, irrespective
  of its producing causes. The other construed the
  words objectively by the introduction of such
  concepts as an absence of reasonable caution and
  diligence. - Siano v Helvering

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• Conclusion - Friendly Fire?
• Government has signaled its intention to use the
  new sedition laws
• The publishing environment has changed
• John Pilger
• Danish Cartoons

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