Fighting words from The Australian Law Reform Commission yesterday:

Media commentators, satirists, artists and activists should be safe from controversial sedition laws—even if their ideas are unpopular and confronting—as long as they don’t urge the use of violence, under changes to federal law proposed by the Australian Law Reform Commission (ALRC).

The ALRC’s report, Fighting Words: A Review of Sedition Laws in Australia was tabled in Federal Parliament yesterday. It makes 27 recommendations for reform of the legislation.

ALRC President Professor David Weisbrot said the five-month inquiry concluded that the Commonwealth should:

  • drop the “red rag” term “sedition” from federal laws;
  • further refine the existing law to require the Crown to prove that a person urged others to use force or violence against community groups or the institutions of democratic government, and with the intention that this violence would eventuate; and
  • lead a process through the Standing Committee of Attorneys-General to reform state and territory laws in this area “which mostly are a good deal worse than the federal law”.

The Commission was directed to consider whether the sedition laws modernised in the Anti-Terrorism Act 2005 effectively dealt with the problem of “intentionally urging others to use force or violence” – and whether “sedition” is the appropriate term to describe these offences. Weisbrot says:

We found that there is a real problem in the current law’s continued use of the word “sedition”, which is historically associated with stifling and punishing criticism of the established authority. Once you get beyond the term, there is support for the basic thrust of the new offences.

The Report recognises that free speech and robust political debate are cornerstones of Australian society. The feedback we’ve received during our consultations makes it plain that we need a clear distinction in the law between free speech and conduct calculated to incite violence in the community—which properly should be the subject of the criminal law.

Technically, the laws must be drafted in sufficiently precise terms to ensure they cannot be applied inappropriately or used in a way that would infringe upon freedom of expression—whether directly or by prompting artists or commentators to self-censor for fear of prosecution.

Context is critical in these circumstances, so under our recommendations, courts would be required to take into account whether the conduct was a part of artistic expression; or genuine academic or scientific discussion; or a news report or commentary.

Peter Fray

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