For all the political posturing and chatter that will, in ensuing days, overtake us in the debate about the new laws on sedition, there is one simple thing that needs to be remembered. That is, we are dealing here with the criminalisation of speech. What is contemplated here is the outlawing of words.

However many meanings of these detailed provisions will be injected into the public arena, whether by way of clarification or disinformation; however many arguments there will be about the interpretation of such complex legislation; this is the fundamental matter with which we are concerned:

To speak in a way that is disapproved of by the authorities is to become an offence against the criminal law.

And it is more than that. For it is not only over words that this new legal net may be cast.

Thanks to Bill Leak

The net may reach to symbolic speech, of which flag burning is the paradigmatic example. And it may reach to artistic expression. It may extend to the theatre, to the plays of Hannie Rayson for example. It may trap the cabaret performance of Eddie Perfect. It may cover painting. One thinks here of an Australian equivalent of Picasso’s Guernica. It may draw in music, as in the lyrics of Archie Roach or Peter Garrett (as he then was), to say nothing of rappers.

Having said that, I think it is important not to get overexcited. We are not at the new dawn of autocracy. However, when laws are drawn as loosely and broadly as these, it is inevitable that the meaning of the statutory language will come to vary with circumstance. Guilt and innocence may come to be interpreted in accordance with the public sentiment of the time.

This will not be of concern when public opinion is strongly supportive of free speech as it remains now. But recent history has demonstrated clearly with what facility public opinion can be manipulated to generate irrational fear of aliens without and of minorities within. One can just imagine how that sentiment may swing if there is just one terrorist attack on Australian soil.

In their defence, the Prime Minister and the Attorney-General will say that we have had sedition laws on the statute books since 1914, that this is ‘just an endeavour to modernise them’ and make their language simpler and more accessible.

Such a defence is nothing more than disingenuousness and dissembling.

The content of sedition has been broadened in a number of ways by the proposed laws. Perhaps the most important is that it will now include, for example:

Urging someone to help, by any means whatever, an organisation or country at war with Australia, even where war has not been officially declared;


Urging someone to help, by any means whatever, an organisation or country fighting Australia’s defence forces, no matter what the merits or demerits of the military engagement might be.

It is difficult not to think that these two additions have been designed to stem criticism by those who would vehemently take issue with Australia’s intervention in Iraq.

These two provisions and others, however, are something else as well. They are a radical departure from the traditional understanding of the justified limits on free speech. These two offences divorce the utterance of the words from the cardinal consequence to be avoided, that is, the instigation of violence.

There is only one circumstance in which words should be legally proscribed. That is where they are intended to and are calculated to provoke violence. Beyond that, the play of argument, difference and dissent should, in a free and democratic society, proceed untrammelled.

There is another important legislative connection which should also be remarked upon.

If a person who is an office bearer in an organisation says something to which a seditious intention may be attributed, he or she opens that organisation to prohibition.

And what is a seditious intention? It means, among other things, to urge a change in the law by other than lawful means. Taken literally this would mean that the advocacy of civil disobedience would be outlawed at a stroke.

I think here of a speech given by ACTU Secretary Greg Combet just a week or so ago. In that speech he suggested, with considerable gravity, that trade unionists would go to jail rather than comply with some aspects of the Government’s new industrial relations legislation. Greg may need to be more circumspect in the future.

The Government will retort that all this is a fuss about nothing. Political speech will be protected by a ‘defence of good faith’. But this defence is drawn quite narrowly. It applies only to speech involving criticism of the performance of government and which has as its object the reform of government.

Certainly, this will embrace political speech that is measured and constructive but what of speech that may be abusive or destructive: are we to outlaw that?

What of speech that urges disaffection, disobedience, disillusionment or dissent: are we to prohibit that?

What of artistic portrayals of politics that are relentless in their bite, bitterness, satire or negativity: shall we criminalise them?

What of journalists inviting and then reporting views that may be extreme, ugly or discreditable: will we censor them?

It is no wonder that the major media organisations are up in arms about sedition.

It is important to remember that authoritarian regimes generally have two legal means at their disposal to crush dissent. The first is the legal prohibition of oppositional speech. The next is the detention without trial of dissenting speakers.

Again I want to emphasise that we are nowhere near this political junction yet. But we would be foolish not to evaluate these laws according to their potential application in the future, as well as upon their impact in the present.

But, in the present, I don’t think it unreasonable to say with the combination of the anti-terror laws embracing detention without trial as they do, and the sedition laws inducing a chilling effect on political speech as they will, that we may be witnessing, whether intentionally or unintentionally, the stealthy erection of the scaffolding of repression.

This should be of very deep concern to us all.

And it requires countervailing action. These are laws that we must resist. We should demand their withdrawal.

And we must agitate for countervailing legal measures. By far the most important of these is the enactment in Australia of human rights legislation.

This is why New Matilda‘s campaign for a Commonwealth Human Rights Act is so important. It is more urgent now than at any time since, in chillingly reminiscent circumstances, Robert Menzies declared ‘war’ on communism.

The task is imperative. Join in the debate.

This is an edited version of a speech delivered at ‘SEDITION!’ at the Sydney Theatre, on 13 November 2005.

New Matilda is planning a similar event in Melbourne in early February 2006.

Launched in 2004, New Matilda is one of Australia's oldest online independent publications. It's focus is on investigative journalism and analysis, with occasional smart arsery thrown in for reasons of sanity. New Matilda is owned and edited by Walkley Award and Human Rights Award winning journalist Chris Graham.