Them's Fighting Words

‘Fighting Words’ is the title of the just-released 310-page report of the Australian Law Reform Commission (ALRC) on the Howard Government’s 2005 Sedition laws.

I realised the political challenges and opportunities arising from the report on page 77, when the ALRC recommends a review of the Federal crimes of Treachery and Sabotage.

Treachery and Sabotage were created in 1960 among a raft of repressive amendments to the Crimes Act, including a widening of the crime of Treason. They were initiated by then Attorney-General, Garfield Barwick, allegedly to deal with the dangers of communism. In a debate eerily similar to last December’s over the new Sedition laws, Federal Parliament in 1960 was consumed with arguments about security and civil liberties.

The Labor Opposition in 1960, fearful of being wedged on security issues, decided to support the Bill but oppose the parts which curbed fundamental rights and liberties. The resulting parliamentary debate, in which Shadow Attorney-General Gough Whitlam fought Barwick for days over arcane legal principles, destroyed Barwick’s ambitions to become Prime Minister and cemented Whitlam’s similar ambitions.

The same challenges and opportunities exist now for Whitlam’s successors.

Traditionally, Sedition was a political crime which punished speech critical of government or the established order. It restricted free speech and, to the extent that the pre-2005 Sedition offences punished statements which did not intend force or violence, they were seen as unjust.

The ALRC’s report heavily criticises the five new Sedition offences, dividing them into two groups. The first group consists of: urging another person to assist an enemy at war with Australia; and urging another person to assist those engaged in armed hostilities against the Australian Defence Force (ADF).

The ALRC flatly recommends these two offences be repealed, as unjustified invasions of free speech. It points out that ‘assist’ is undefined and could amount to very minor assistance, perhaps even urging someone not to enlist in the ADF. The ALRC also points out that neither offence requires the urging of force or violence. As such, both offences are contrary to traditional notions of freedom of speech and the International Covenant on Civil and Political Rights, [link: http://www.ohchr.org/english/law/ccpr.htm] which Australia has ratified and is supposed to implement.

Examples of conduct which might be seditious under these sections include:

Thanks to Paul Batey

condemning an illegal invasion by our government; organising an anti-war protest calling for the return of Army personnel from a war zone; staging a theatrical production drawing attention to the casualties of war; showing a documentary from the perspective of insurgents in Iraq; and publication of third-party commentators’ statements supporting an enemy.

The second group of offences are: urging another person to overthrow the Australian Constitution or Government by force or violence; urging another person to interfere with Parliamentary elections by force or violence; and urging inter-group violence.

The ALRC recommends ‘a fundamental change to the operation’ of those three offences. It says that to be guilty, a person should intend that the urged force or violence is to occur. Otherwise, mere rhetorical statements, parody, artistic expression or media reporting which the person does not intend anyone to act upon will be covered by these offences.

Other recommendations in ‘Fighting Words’ include deleting the word ‘Sedition’ from all of the offences, because of its historical association with suppression of free speech; removing the requirement of the Attorney-General’s consent to a prosecution because no politician should have such a role; and substantial changes to the Treason offences, even though they were outside its terms of reference.

As for the politics of the matter, Attorney-General Philip Ruddock received this report in early August and sat on it for as long as he could. By releasing it just before a three-week parliamentary adjournment, he was obviously hoping that the issue would die. To assist that result, the Government has engineered the referral of the debate on the report to the Main Committee, the secondary forum of the House of Representatives which deals with less important legislation and attracts little attention.

True to form, Ruddock released a statement last week in which he alleged that the ALRC report recognised that ‘the Government has sensibly shifted the focus away from critical statements to conduct urging others to use force or violence ‘. Really? Was I reading the same document? I thought the ALRC dumped on Ruddock, albeit in polite, measured terms.

It should be noted that the ALRC members who wrote this report comprised two serving Federal Court judges and three law professors. The Advisory Committee formed for the inquiry included the Chief Judge of the Victorian County Court, the President of the Human Rights and Equal Opportunity Commission, the Federal Director of Public Prosecutions, several more law professors and a phalanx of Queen’s (or Senior) Counsel. This lot are definitely not amateurs.

Ruddock has even pre-empted the Main Committee debate, by announcing that he will not accept the recommendation to amend the second group of offences to ensure they cover only force or violence actually intended to occur. He has also rejected the call to remove his role in prosecution decisions.

The Sedition laws were introduced as part of the Anti-Terrorism Bill (No 2) 2005, which also included Control Orders and Preventative Detention proposals. The Bill was subjected to a lightning-fast inquiry by a Senate Committee, which reported the day before the legislation was rammed through the House of Representatives. That Committee, which had a Government majority, recommended that all the Sedition changes be set aside until after an inquiry into their detail had taken place. .

Ruddock ignored that recommendation, but was forced by Government MPs to agree to the ALRC inquiry to take place after the laws had been passed!

Clearly, there is a challenge and an opportunity here for Opposition Leader Kim Beazley and Shadow Attorney-General Nicola Roxon. Will Roxon take on Ruddock in Parliament like Gough Whitlam took on Barwick, in 1960. David Marr, in his superb biography of Barwick described Whitlam’s performance as:

angry and vivid. That night in the House [8 November 1960] he laid claim to be the heir to Evatt’s tradition of liberal demagogery. It was a speech filled with the history of the law but anger took it beyond a mere lawyer’s exercise [Barwick] and Whitlam thrashed it out for two days, two advocates arguing precedent and interpretation and obscure legal history.

Whitlam was relentless and Barwick felt the strain. On 17 November, pandemonium broke out in the House after Whitlam allegedly called Barwick a liar. Whitlam was asked to withdraw but refused, saying ‘This truculent runt thinks he can get away with anything.’ (Some say ‘runt’ was not the word used. )

Barwick’s political career stalled after that debate and Whitlam’s flourished. Whitlam had taken a tough stand on principle and learnt that he could fight on all fronts. There were risks involved, chief of which was being seen as soft on security matters. Swinging voters in marginal seats would not have been the slightest bit interested. However, if you want to win a Federal election, it is always useful, though not sufficient, to have the support of the opinion leaders and there were thousands of those, including media proprietors, journalists, artists and lawyers, closely following the debate.

The next year, 1961, Labor won a majority of the vote at a Federal election. All right, it was during a recession, but for the first time in 10 years, Prime Minister Robert Menzies failed to fight an election on the ‘red menace.’ The reason? The issue had embarrassed the Government in the debate over the Crimes Act amendments and (would you believe it?) a debate over the granting to ASIO of phone tapping powers.

Challenges and opportunities. As in 1960, an election looms next year. Will there be a fight on all fronts?