Writers and artists are alarmed. So are some lawyers. They fear the Federal Government’s new sedition laws could strike at the heart of free speech. By Karen Kissane.
COMEDIAN Rod Quantock likes to joke that the proposed sedition laws so bitterly attacked by the arts community might actually end up saving it. “I think it’s a bit of an inspiration,” he says.
He points out that Australia has won only one Nobel Prize for literature, which went to novelist Patrick White. “Most Nobel prizewinners come from repressive regimes,” he says. “This offers us a great chance to win more Nobel prizes, even though we might have to accept them anonymously from behind bars.”
Quantock, latterly best known for his comic bus tours, says he will pursue other opportunities provided by the terror laws: “I was thinking of a terror target tour of Melbourne.
You get a discount if you are even vaguely Middle-Eastern looking.”
Quantock’s humour has always been black. So are the prospects for artists, writers, comics, journalists and political dissenters, according to the wide-ranging groups who see the Federal Government’s planned changes to the law on sedition (see box) as a dangerous threat to free speech.
The Government and its defenders retort that the changes merely tweak laws that have been on the books for decades, and that the purpose of the changes is not to undermine democratic freedoms but to defend them.
Sedition is broadly defined as conduct or speech that incites rebellion. The Government’s proposals are meant to be aimed at those who incite or encourage terrorism, but the wording of the bill has aroused disquiet, not just in the Opposition – which wants sedition removed from the anti-terror laws – but even in the Howard Government’s own ranks. MPs including Petro Georgiou, George Brandis and Malcolm Turnbull have been critical of the proposals.
Playwright Hannie Rayson says the proposed bill contains three types of rules on sedition: sedition and treason offences that require an element of force or violence; new offences that do not require an element of violence but merely support of “any kind” for “the enemy”, which can be defended only if the accused proves he or she acted in terms of “good faith”; and a slightly expanded test for banning an “unlawful association” based on a very broad definition of “seditious intention”. The proposals also increase the penalty for the main sedition offences from three to seven years.
Rayson says: “Where artists will be caught by these provisions is the section of the proposed sedition law which outlaws support of ‘any kind’ for ‘the enemy’. The enemy is defined as individuals or organisations in a state of conflict with Australian forces outside Australia. At the moment this includes the Philippines, Afghanistan, Iraq and East Timor.”
Most of the recent crop of refugee plays, films, mini-series and documentaries are caught by this,” Rayson says. “In urging a more humanitarian approach to refugee issues, most artists are seeking to portray ‘the enemy’ in a positive light, not as a faceless unknowable alien threat but as a human being. The artist’s interest in exploring psychology, human relationships, the human condition, is going to urge disaffection with the cruelty that is being meted out to these people by government policy.”
Rayson believes that the sedition net will be cast so wide that it could even capture Mambo T-shirt artists who bring the Queen or the Government into disrepute. “They have no defences available to them. They can’t rely on the ‘good faith’ provision,” she says.
Many senior legal figures are also concerned about the proposals. Alistair Nicholson, formerly chief justice of the Family Court and now an honorary professor at the University of Melbourne, says the sedition laws forbid attacks on the constitution.”
I think a lot of people think there is a lot wrong with the constitution, and that they should be able to say that,” he says.
The defence of “good faith” does exempt those who can prove that, for example, they were pointing out in good faith the flaws of government legislation with the aim of reforming it. But Nicholson says the sedition proposals reverse the traditional onus of proof. In law, it is customary for the prosecution to have to prove its case beyond reasonable doubt. The accused must prove nothing. But under these proposals, the accused would have to prove that he or she was acting in good faith.
Nicholson says sedition laws have been used in other countries to suppress political dissent. “People like (Nelson) Mandela would be charged with sedition; anyone who was against the system would be charged with sedition,” he says.
Professor George Williams, of the University of NSW, is another concerned lawyer.
Under the proposals, he says, “you would have to trust the Government not to prosecute”.
He fears the legislation will have “a chilling effect” on both journalism and academic discourse, and says there is no defence for satirists on TV shows such as the ABC’s The Glasshouse.”
I do support banning speech that’s a direct incitement to violence, including terrorism – (but) this net is too wide,” Williams says.
A spokeswoman for Attorney-General Phillip Ruddock says artists will continue to have freedom of expression “as long as they fall short of actually urging someone or some group to go out and carry out violence against our community or our troops abroad”.
The spokeswoman says Australia has had sedition laws for decades and that no artists or writers have ever been prosecuted under them. The Government is trying to protect democratic values from terrorists who would destroy them, she says.
But what about future governments?
Could they misuse the powers for selfish political ends?
Gerard Henderson, executive director of The Sydney Institute, says no. “No Coalition government or Labor government is ever going to jail the likes of David Williamson or Hannie Rayson – The idea that this is going to institute a fascist or a communist or an apartheid state is completely erroneous.”
Henderson says existing sedition laws have been in place for 40 years without being misused: “In that time, no one’s been jailed for any comments, even people who actually advocated that Australians should provide money to the Viet Cong, who would use that money to buy weapons to attack our soldiers in Vietnam.”
Henderson says people should bear in mind that it is not governments who would prosecute alleged offenders, but police. And it is not governments who would sit in judgement, but judges and juries. “John Howard and Kim Beazley don’t have the right to go around prosecuting people.”
The chairman of the Australian Press Council, Professor Ken McKinnon, is another who believes that even the revised Anti-Terrorism Bill remains “a serious threat to free speech”. He fears that journalists will be prevented from breaking news on security issues, leaving the public reliant on “leaked spin from security agencies”.
Independent reporting is prevented by provisions that make it a crime to report on detentions and which allow for summary detention of journalists. With regard to the sedition clauses, McKinnon asks: “Why put an onus on the media to prove that what they publish is ‘in good faith’? Will publication of articles that ridicule Prince Charles or advocate replacement of the monarchy with our own president be subject to legal challenge, with the paper having to prove ‘good faith’?
Would any defence constitute ‘good faith’ in the hands of monarchists anyway?” There is an argument that the laws need updating now because of the need for greater security in the war on terror. For Nicholson, the opposite holds true: “I don’t think it should be brought up to date in this climate. I think there should be a reference to the Australian Law Reform Commission so that any changes are done carefully and are subject to really reasoned thinking.”
The bill goes to a Senate review, which is due to be completed in five weeks. Mr Ruddock has promised that, if it is passed this year, the Government will review it next year to see if any further amendments are required.
A: The legislation updates the sedition offence to cover those who urge violence against the constitution or Government, urge interference in parliamentary elections, urge violence within the community or urge others to assist the enemy. The legislation requires the Attorney-General’s consent before the issuing of proceedings and extends the geographical jurisdiction for offences to outside Australia and to non-citizens.
A: The provision gives discretion to a court in considering whether an act was done in good faith. For instance, if the person was pointing out in good faith the errors or defects of government legislation with an aim of reforming the legislation.
A: Up to seven years’ jail.
A: The Federal Government has promised a review of sedition offences after the legislation is passed.

First published in The Age.