Explanatory Memorandum
(Circulated by authority of the Attorney-General, the Honourable Philip Ruddock MP)Schedule 7 - Sedition
This Schedule provides for amendments to the Crimes Act , the Criminal Code , the Migration Act 1958 (Migration Act ) and the Surveillance Devices Act 2004 .
Crimes Act 1914
The Crimes Act is amended by removing the existing sedition offence, which is included in an updated form in the Criminal Code .
This item makes a technical amendment to paragraph 4J(7)(b) of the Crimes Act to ensure that the sedition offences in the Criminal Code will also be excluded from the operation of section 4J. As is the case with the existing law, the new sedition offence will not be able to be heard summarily.
This item repeals sections 24A to 24E of the Crimes Act . These sections contain offences relating to seditious enterprises and seditious words which are to be the new offences in the Criminal Code .
This item make a consequential amendment to paragraph 30A(1)(b) of the Crimes Act (by item 2 of this Schedule) consequential to the repeal of the definition of seditious intention in section 24A by its inclusion in new subsection 30A(3) (by item 4 of this Schedule).
This item inserts a new subsection (3) into section 30A of the Crimes Act as a consequential amendment that maintains the substance of the existing definition of seditious intention . The existing definition of seditious intention in section 24A of the Crimes Act is repealed by item 2 above.
Existing paragraph 30A(1)(b) of the Crimes Act provides that an unlawful association includes any body of persons, incorporated or unincorporated, which by its constitution or propaganda or otherwise advocates or encourages the doing of any act having or purporting to have as an object the carrying out of a sedition intention.
New subsection 30A(3) defines seditious intention to mean an intention to bring the Sovereign into hatred or contempt, to urge disaffection against the Constitution, the Government of the Commonwealth or either House of the Parliament, to urge another person to attempt to procure a change, otherwise than by lawful means, to any matter established by law of the Commonwealth or to promote feelings of ill-will or hostility between different groups so as to threaten the peace, order and good government of the Commonwealth.
The effect of this item is to modernise the definition of seditious intention from the former definition provided in section 24A by using the term 'urging' of another person to attempt to procure a change to any matter established by law in the Commonwealth. The requirement in the former section 24A, that there must be procurement of 'any matter in the Commonwealth' has been removed. New paragraph 30A(3)(c) requires that there must be an urging 'to procure a change in any matter established by law in the Commonwealth'.
The only other difference between section 24A and the new definition is to update the language, with the phrase 'classes of Her Majesty's subjects' substituted with the word 'groups', thereby removing the requirement of a class being a subject of the Crown and substituting a broader requirement of 'groups'.
The effect of this is that seditious intention under new paragraph 30A(3)(d) may include an intention to promote feelings of ill-will or hostility between different groups. These 'groups' may include groups of people of all types, races, religions, political interests and nationalities.
Criminal Code Act 1995
The amendments to the Criminal Code insert offences of sedition into Part 5.1 which had formerly only provided for treason offences. The new offence of sedition in the Criminal Code applies to a person who urges violence against the Constitution or Government, urges interference in Parliamentary elections, urges violence within the community or urges others to assist the enemy. These amendments also clarify the existing provisions relating to the offence of treason. The inclusion of sedition in the Criminal Code is consistent with the general policy of moving serious offences to the new Criminal Code when they are updated. These offences have been update in line with a number of recommendations of Sir Harry Gibbs in the Review of Commonwealth Criminal Law, Fifth Interim Report, June 1991 (the Gibbs Report).
These items amend the headings of Part 5.1 of the Criminal Code and Division 80 of the Criminal Code respectively to reflect the new sedition offences contained in this Part and Division.
This item inserts a new section 80.1A to define organisation for the purposes of the treason and sedition offences in Division 80 of the Criminal Code .
New section 80.1A defines an organisation as a body corporate or an unincorporated body, whether or not the body is based outside Australia, consists of persons who are not Australian citizens or is part of a larger organisation. This definition is consistent with the existing definition of organisation in subsection 80.1(8), which applies only to the current treason offences, and is repealed by item 11 below.
These items insert a second note to subsection 80.1(1A) to indicate the existence of a defence, in section 80.3, to the offence of treason.
This item repeals subsections 80.1(3), (4), (6) and (7) consequential to other amendments made by this Schedule. These provisions currently deal with matters relevant to the treason offences only, but are intended to apply to the new sedition offences equally.
New subsections 80.1(3) and (4) dealt with obtaining the Attorney-General's consent before the issuing of proceedings, which is now provided for by new section 80.5, inserted by item 12 below.
New subsection 80.1(6) dealt with a defence of good faith, which is now provided for by new section 80.3, inserted by item 12 below.
New subsection 80.1(7) dealt with geographical jurisdiction of the treason offences, which is now provided for by new section 80.4, inserted by item 12 below.
This item repeals the definition of organisation in subsection 80.1(8) consequential to the new definition of organisation in new section 80.1A which applies to the entire Division, instead of just the treason offences.
This item adds five new sections at the end of Division 80, to create a new offence of sedition and to give effect to the offences of treason and sedition.
New section 80.2 contains updated versions of the offences of sedition which are currently in the Crimes Act . These offences occur where a person urges another person to act to use force or violence to overthrow, interfere with or threaten the peace, order and good government of the Commonwealth, or assist an enemy at war with the Commonwealth.
New subsection 80.2(1) provides that a person commits an offence if the person urges another person to overthrow by force or violence, the Constitution, the Government of the Commonwealth, a State or a Territory or the lawful authority of the Government of the Commonwealth. The penalty for an offence under this new subsection is imprisonment for 7 years. This is similar in effect to paragraph 24A(d) and section 24D of the Crimes Act . The penalty is increased from a maximum of 3 years imprisonment in line with the Gibbs Report.
New subsection 80.2(2) provides that recklessness applies to the elements of the offence in new subsection (1) that the person is urging the overthrow of the Constitution, the Government or a lawful authority of Government. Section 5.4 of the Criminal Code defines the element of recklessness to mean that a person is reckless with respect to a result if they are aware of a substantial risk that the result will occur, and having regard to the circumstances known to them it is unjustifiable to take that risk.
New subsection 80.2(3) provides that a person commits an offence if the person urges another person to interfere by force or violence with lawful processes for an election of a member or members of a House of the Parliament. The penalty for an offence under this new subsection is imprisonment for 7 years. This is a new aspect of the offences recommended by the Gibbs Report.
New subsection 80.2(4) provides that recklessness applies to the elements of the offence in new subsection (3) that the interference is with lawful processes for election to a House of the Parliament. The element of recklessness is defined in section 5.4 of the Criminal Code .
New subsection 80.2(5) provides that a person commits an offence if the person urges a group or groups (whether distinguished by race, religion, nationality or political opinion) to use force or violence against another group or other groups (as so distinguished) and the use of the force or violence would threaten the peace, order and good government of the Commonwealth. New subsection 80.2(5) modernises the language from classes or groups as recommended by the Gibbs Report. The penalty for an offence under this new subsection is imprisonment for 7 years.
New subsection 80.2(6) provides that recklessness applies to the elements of the offence in new subsection (5) that the violence is against a group or groups that are distinguished by race, religion, nationality or political opinion. The element of recklessness is defined in section 5.4 of the Criminal Code .
New subsection 80.2(7) provides that a person commits an offence if the person urges another to engage in conduct and intends the conduct to assist by any means an organisation or country, and the organisation and country is at war with the Commonwealth, whether or not the existence of a state of war has been declared and specified by Proclamation made for the purpose of paragraph 80.1(1)(e) to be an enemy at war with the Commonwealth. The penalty for an offence under this subsection is imprisonment for 7 years.
Paragraph 80.1(1)(e) provides that it is an offence of treason to engage in conduct by whatever means with intent to assist a county or organisation who is an enemy at war with the Commonwealth and is specified by Proclamation to be an enemy at war with the Commonwealth.
New subsection 80.2(8) provides that a person commits an offence if the person urges another to engage in conduct and intends the conduct to assist by any means whatever, an organisation or country, and the organisation or country is engaged in armed hostilities against the Australian Defence Force. The penalty for an offence under this subsection is imprisonment for 7 years.
New subsection 80.2(9) provides for defences for the offences provided for under new subsections 80.2(7) and 80.2(8) where there is engagement in conduct by way of, or for the purposes of, the provision of aid of a humanitarian nature.
The first note to new subsection 80.2(9) indicates that a defendant bears an evidential burden in relation to the defence provided by this subsection, pursuant to subsection 13.3(3). Subsection 13.3(6) of the Criminal Code provides that evidential burden means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
The second note to new subsection 80.2(9) states that there is a defence in new section 80.3 for acts done in good faith, which applies to all of the offences in new section 80.2.
New section 80.3 - Defence for acts done in good faith
New section 80.3 provides for defences to the offences in sections 80.1 (relating to treason) and 80.2 (relating to sedition), for acts done in good faith.
This section effectively mirrors the defence of good faith contained in section 24F of the Crimes Act , which applied to the sedition offences in that Act, and the treason offence in section 80.1 of the Criminal Code (by virtue of subsection 80.1(6)). The only substantive difference between section 24F of the Crimes Act and new section 80.3 of the Criminal Code is that the new provision gives more discretion to a court in considering whether an act was done in good faith. This is discussed in more detail in relation to new subsection 80.3(2) below.
New subsection 80.3(1) provides that it is a defence to the offences of treason and sedition in sections 80.1 and 80.2 if the person who did the act which would otherwise constitute the offence:
- (a)
- was trying in good faith to show that any of the Sovereign, the Governor-General, the Governor of a State, the Administrator of a Territory, the advisers of any of these people or a person responsible for the government of another country are mistaken in any of his or her counsels, policies or actions;
- (b)
- was pointing out in good faith errors or defects, with a view to reforming those errors or defects in the Government or legislation of the Commonwealth, a State or a Territory, the Constitution or the administration of justice of or in the Commonwealth, a State, a Territory or another country;
- (c)
- was urging in good faith another person to attempt to lawfully procure a change to any matter established by law in the Commonwealth, a State, a Territory or another country;
- (d)
- was pointing out in good faith any matters that are producing, or have a tendency to produce, feelings of ill-will or hostility between different groups, in order to bring about the removal of those matters; or
- (e)
- was doing anything in good faith in connection with an industrial dispute or an industrial matter.
The note to new subsection 80.3(1) indicates that a defendant bears an evidential burden in relation to the defences included in the new subsection, in accordance with subsection 13.3(3).
New subsection 80.3(2) provides that a court may take into account any relevant matter in considering a defence under new subsection (1), including whether the acts were done:
- (a)
- for a purpose intended to be prejudicial to the safety or defence of the Commonwealth;
- (b)
- with the intention of assisting an enemy which is at war with the Commonwealth and specified by Proclamation made for the purpose of paragraph 80.1(1)(e) to be an enemy at war with the Commonwealth;
- (c)
- with the intention of assisting another country, or an organisation, that is engaged in armed hostilities against the Australian Defence Force;
- (d)
- with the intention of assisting a proclaimed enemy of a proclaimed country (within the meaning of subsection 24AA(4) of the Crimes Act);
- (e)
- with the intention of assisting persons specified in paragraphs 24AA(2)(a) and (b) of the Crimes Act; or
- (f)
- with the intention of causing violence or creating public disorder or a public disturbance.
The references to section 24AA of the Crimes Act are references to offences of treachery. A proclaimed country means a country proclaimed to be an ally, while a proclaimed enemy of a proclaimed country means an enemy proclaimed to be an enemy of that ally.
New subsection 80.3(2) differs from subsection 24F(2) of the Crimes Act . Subsection 24F(2) provides that if the acts were done for any of the purposes, or with any of the intentions, set out above, the act is taken not to be an act done in good faith. In contrast, new subsection 80.3(2) provides that these are matters to which a court may have regard, but that these matters are not in and of themselves conclusive that a particular act was not done in good faith. This difference ensures wider application of the defence of good faith and ensures greater judicial discretion in considering whether this defence applies.
New section 80.4 - Extended geographical jurisdiction for offences
New section 80.4 provides that the extended geographical jurisdiction - Category D, provided for in section 15.4 of the Criminal Code , applies to the offences in Division 80. The effect of this is for the offences to apply whether the conduct constituting the alleged offence or a result of the conduct constituting the alleged offence occurs in Australia or outside of Australia, and in relation to any person, whether resident or non-resident, citizen or non-citizen, of Australia, at the time of committing the offence.
This extended geographical jurisdiction applied to the existing treason offence by virtue of subsection 80.1(7), repealed by item 10 of this Schedule.
New section 80.5 - Attorney-General's consent required
New subsection 80.5(1) provides that proceedings for an offence against Division 80 must not be commenced without the Attorney-General's written consent. This provision applied to the existing treason offence by virtue of subsection 80.1(3), repealed by item 10 of this Schedule.
New subsection 80.5(2) provides that even though proceedings may not be commenced without the Attorney-General's consent as required by new subsection (1), a person may be arrested for an offence against Division 80, a warrant for the arrest of a person for such an offence may be issued and executed, and the person may be charted and be remanded in custody or on bail. However, no further proceedings may be taken until that consent has been obtained and the person must be discharged if proceedings are not continued within a reasonable time. This provision applied to the existing treason offence by virtue of subsection 80.1(4), repealed by item 10 of this Schedule.
The effect of this subsection is to provide firm safeguards to a person arrested or charged with an offence under Division 80. Those safeguards ensure that no actual court proceedings may be commenced until the Attorney-General has provided written consent to those proceedings, or where proceedings are not continued within a reasonable time, the person must be discharged.
New section 80.6 - Division not intended to exclude State or Territory law
New section 80.6 provides that Parliament intends that Division 80 is not to apply to the exclusion of a law of a State or Territory to the extent that the law is capable of operating concurrently with Division 80. This is to ensure that these laws do not exclude any State or Territory laws dealing with the urging or inciting terrorist activity, or other seditious activities.
Migration Act 1958
These items make technical amendments to the Migration Act as a consequence of the amendments made to the Crimes Act and the Criminal Code by this Schedule. Item 13 removes a redundant cross-reference to a section of the Crimes Act that has been repealed, while item 14 ensures that the reference to serious offence in section 203 of the Migration Act , which already includes the treason offences, also includes the sedition offences.
Surveillance Devices Act 2004
These items make technical amendments to the Surveillance Devices Act 2004 both as a consequence of the amendments made to the Criminal Code by this Schedule and in an attempt to tidy up paragraph 30(1)(a) of that Act.
Items 15 and 17 repeal subparagraphs 30(1)(a)(v) and (vii) respectively, which refer to Divisions 72 and 101, 102 and 103 respectively. These Divisions are now referred to in subparagraph 30(1)(a)(viii), as amended by item 18.
Item 16 removes the reference to section 80.1 of the Criminal Code from subparagraph 30(1)(a)(vi). Division 80, which now includes both the treason and sedition offences, is referred to in subparagraph 30(1)(a)(viii), as amended by item 18.