Three hundred years ago, John Holt was Lord Chief Justice of England. A fine lawyer with a reputation for humanity and integrity, Holt had earlier resigned his judicial office rather than sentence an army deserter to death in peacetime.
After a change of monarch, he returned as Chief Justice in 1689. As such, Holt discouraged the conviction of women tried as witches, acquitting several in trials he presided over. He also discontinued the practice of bringing prisoners into court in chains and, in a case involving a runaway slave, said:
as soon as a Negro comes to England he is free: one may be a villein [a bonded servant]in England, but not a slave.
That decision was the earliest English precedent opposed to slavery.
Nevertheless, Holt’s humanity did not extend to allowing criticisms of government which diminished its status or authority. In a sedition case in 1704, he said:
And nothing can be worse to any government, than to endeavour to procure animosities as to the management of it; this has been always looked upon as a crime and no government can be safe without it being one.
In the 18th century, sedition was committed by mere public criticism of the sovereign or the government. There was no need to urge or intend violence. The modern notion that robust criticism of politicians should not only be tolerated but encouraged had no place in a semi-feudal society. The importance given to absolute loyalty to the monarch and the (monarch’s) government is evident from the cases of the period.
Holt’s sedition decision above and an interesting history of the offence are set out in the Australian Law Reform Commission’s recent 264-page discussion paper on the new sedition laws. These much-criticised provisions were passed by Federal Parliament last December on condition that the ALRC would review them immediately.
In the discussion paper, the Commission notes that after the 18th century, sedition began to be confined to words or conduct which incited violence or disturbance. In the 19th century the Australian colonies inherited these sedition laws and they were quickly applied against John Macarthur for seditious conduct towards Governor William Bligh (1806-08), as well as against political opponents of Governor Ralph Darling (1825-31).
After Federation in 1901, the States continued to have such laws but there were no Federal sedition offences until 1920 when they were introduced allegedly in response to fears of Communism after the Russian Revolution several years before. The new laws were broader than the Common Law sedition offences because they did not require an incitement to violence or public disturbance or even a subjective intention of seditious behaviour.
It was enough to engage in a seditious enterprise or to write, print, utter or publish seditious words, with a seditious intention. Seditious intention was defined widely, including for example ‘to bring the sovereign into hatred or contempt’ or to ‘excite disaffection against the sovereign or the government.’
As with English sedition, the elements of the new Federal crimes were vague and ill-defined. Surprisingly, the first prosecution under these provisions was in 1948 and the last occurred only 5 years later in 1953. All of the prosecutions were of communists and in the two cases appealed to the High Court, answers to journalists’ hypothetical questions in which the accused supported Soviet involvement in conflicts with Australia or its allies, were found to be seditious.
The test of intention was objective and not subjective, meaning that no proof of an actual intention to incite even disaffection was necessary. The prosecutions were few in number and selective no Right-wing dissenters were ever prosecuted.
In 1986, the Hawke Labor Government amended the laws to require an intention to create violence or public disorder, but the amended provisions, still expressed in archaic language, were never used and became increasingly regarded as obsolete.
Attorney-General Philip Ruddock argues that the changes he introduced last year actually improve the law of sedition. This is disingenuous when a law has not been used for more than 50 years and to all intents and purposes, the offences existed only in black letters typed on a statutory page. To a significant extent, however, Ruddock’s claim is also false, as the discussion paper reveals.
His changes created five new offences. They are:
· Urging another person to overthrow the Constitution or government by force or violence;
· Urging another person to interfere in Parliamentary elections by force or violence;
· Urging inter-group violence;
· Urging another person to assist an enemy at war with Australia;
· Urging another person to assist those engaged in armed hostilities against the Australian Defence Force.
Thanks to Bill Leak.
The Commission, in its discussion paper, finds serious deficiencies in each one of them.
The first problem is that the offences are referred to in the legislation as’ sedition offences.’ The Commission recommends that the word ‘sedition’ be removed completely because the term is too closely associated with the suppression of freedom of speech.
The Commission further says that it is unclear in the first three offences listed above whether the ‘urging’ has to be intentional. The Commission therefore recommends that the word ‘intentional’ be added before ‘urging’ in each of those sections. A further problem is that even if the urging is intentional, it is not necessary in any of the three offences that the force or violence be intended to occur. The Commission recommends that each offence be restricted to where that is the case, otherwise they would catch mere rhetorical statements made carelessly where the speaker does not intend violence.
Some critics have said that these first three offences are unnecessary because it is already an offence to incite the commission of a crime. The ALRC disagrees, arguing that because incitement must be of a specific offence and not a generalised incitement of force or violence, there is a gap in the law which these offences fill.
The ALRC has bigger problems with the final two offences which it flatly recommends should be repealed in their entirety.
The problem is that the two offences do not require that a person urge the use of force or violence at all. As such, they partly repeal the changes introduced in 1986 by the Hawke Government which require such an element. Further, the breadth of the word ‘assist’ means that either offence could be satisfied by organising, or even just participating in, for example, an anti-war protest calling for the return of Australian soldiers from a war zone.
Both Fairfax and News Limited have submitted to the Commission that these two offences could be satisfied by third-party commentators making statements supportive of an enemy in the course of a media broadcast. The offences also criminalise the urging of conduct by others that is itself legal for example, urging people not to enlist for service in the Australian army.
The ALRC also recommends repeal of the requirement that the Attorney-General must consent to a prosecution under the offences. Philip Ruddock has argued that this is an additional safeguard against wrongf
ul prosecution but as the Commission says, if the Attorney-General refuses his consent to a clearly justifiable prosecution this is not the case. The overall principle here is that politicians should not be involved in decisions to prosecute or not to prosecute that is why, 20 years ago, independent Directors of Public Prosecutions were created after heavy criticism of political interference in prosecutions during the 1960s and 1970s.
Why did these deeply flawed changes have to be rushed through Parliament, without proper scrutiny? No prosecutions have occurred in the seven months since these new crimes were created and it cannot be said that there was any urgency about them. Once again, one suspects it was all about being seen to be doing something about terrorism.
The Commission’s final report is expected to be forwarded to the Attorney-General later this month. Its recommendations are unlikely to vary much from those in this important discussion paper, and it will be interesting to see the Government’s reaction particularly as the Commission’s criticisms are similar to those of the all-Party Senate Committee which, last year, recommended Ruddock’s changes not be proceeded with.
Meanwhile, a prisoner was recently ushered into Central Local Court in Sydney in chains and wearing an orange jumpsuit, aping GuantÃ¡namo Bay. It is 300 years since John Holt ordered chains to be removed from prisoners and the system had forgotten the precedent.
Chains and sedition. In John Howard’s Australia, it is back to the 18th century.
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