For 6 years, NAVA has been very active in seeking a change to the Sedition sections of Australia’s Anti-Terrorism Act 2005 and at last this has been achieved.
The Anti-Terrorism bill was devised by the Liberal-National Coalition government in the wake of a series of terrorist attacks overseas. However, NAVA’s concern was that it could be used to constrain artists’ freedom of expression, particularly in relation to being able to be critical of governments, the Monarch or the Constitution.
Many in the arts and media agreed with the then ACT Chief Minister Jon Stanhope, who stated "Law of this significance made in this haste can't be good law".
In 2006, the sedition offences in Section 80.2 of the Criminal Code were reviewed at the behest of the government, by the Australian Law Reform Commission (ALRC) as part of its review of sedition and related laws in Australia, however, it has taken a long time for the changes it recommended to be adopted.
Now at last, having been passed by both houses of Parliament, the National Security Legislation Amendment Act 2010 will become law.
For artists the area of great interest is the repealing of the ‘sedition’ clauses and their replacement with ‘urging violence’.
Schedule 1 to the Bill contains amendments to the treason and sedition (urging violence) offences, in response to recommendations from various reviews and also the input received as a result of public consultation.
The Government has accepted the recommendations of the ALRC Fighting Words: A Review of Sedition Laws in Australia report, which included removing the term ‘sedition’ and replacing it with the phrase ‘urging violence’ and clarifying and modernising elements of the offences.
Schedule 1 of this Bill will also extend the offence to cover urging violence against a group or individual on the basis of national and ethnic origin in addition to race, religion, nationality or political opinion.
Item 18: Subsection 80.2(1) repeals the existing sedition offence in subsection 80.2(1) and replaces it with a new offence called ‘Urging the overthrow of the Constitution or Government by force or violence’.
This new offence will be committed if a person intentionally urges another person to overthrow by force or violence the Constitution, the Government of the Commonwealth, of a State or of a Territory, or the lawful authority of the Government of the Commonwealth, with the intention that force or violence will occur.
Item 20: Subsection 80.2(3) will repeal the existing sedition offence at subsection 80.2(3) and replace it with a new offence called ‘Urging interference in Parliamentary elections or constitutional referenda by force or violence’ and will include an additional fault element that the person intends that force or violence occur.
Item 28: At the end of section 80.3 will provide additional matters to which a court may have regard when considering a defence under subsection 80.3(1) to the urging violence offences in Subdivision C of Division 80.
Section 80.3 contains a defence for acts done in good faith. The proposed new subsection 80.3(3) will provide that, in considering a defence for the urging violence offences, the court may have regard to any matter, including whether the acts were done in relation to artistic work, for genuine academic or scientific purposes, or in the dissemination of news or current affairs.