Sedition and inter-group violence

Presented by:

Dr Sarah Sorial and Prof Luke McNamara

Wednesday, 4 March 2009

Abstract

The Rudd Government has signaled that it will abolish the sedition laws that were controversially introduced/revised by the Howards Government in 2005 as part of a suite of anti-terrorism measures. In December 2008 the Attorney General announced that the government would adopt the Australian Law Reform Commission’s recommendations, including those that relate to s 80.2(5) of the Criminal Code (Cth), which currently prohibits the "urging of inter-group violence". The Labor Government’s move will be welcomed in many quarters, particularly by those who criticised the 2005 sedition reforms for getting the security/human rights balance wrong. But will the adoption of the ALRC’s recommendations constitute a significant change over the current provisions? In this paper, we examine what the prospective bill will look like, in light of the ALRC's proposed amendments. We argue that many of the recommendations made will not make any material difference to this controversial provision. We address the contention that the offence of urging inter-group violence is worth keeping, notwithstanding its dubious origins, because it finally gives Australia the racist incitement offence than many regard as a necessary companion to exiting racial vilification laws, and which proponents have failed to achieve by other legislative means. The paper also considers two further questions: Will moving the offence to a different category in the Criminal Code (from anti-terror to public order) make any material difference in terms of how it will be justified, interpreted, and enforced? Can the offence still be defended constitutionally by virtue of the external affairs power and Australia's international treaty obligations, as suggested by the ALRC, despite the fact that the rationale appears to have shifted from anti-terrorism and security to non-discrimination and human rights?

Dr Sarah Sorial is currently ARC Post Doctoral Research Fellow at Faculty of Law/Faulty of Arts (Philosophy), University of Wollongong

Prof Luke Mcnamara is Dean of Law Faculty, University of Wollongong