Sedition and Art

SOMEWHAT ALARMED: Sedition and Art in Australia

© Donald Richardson, February, 2006

The Anti-Terrorist Act was passed by the Senate in December last year. Its purpose - a valid one - is the forestalling of terrorist acts on our shores through the revival of a legal relic, the crime of sedition. The Bill went to Parliament in spite of the expression of serious reservations about the restrictions it seemed to place on the basic democratic rights of freedom of expression and, even, personal liberty by a Senate committee, the Law Council, the communications media, the Media, Entertainment and Arts Alliance, writers and artists. These reservations were largely discounted by the Attorney-General, who undertook to make some changes to the Bill before it went to the vote.

Since the passage of the Bill there has been little media comment on its provisions. This may partly be due to the intervention of the Christmas break - although, if serious concerns remained, this should not have inhibited protest - but it may also indicate that the Attorney-General's promise was made good.

The crime of sedition is comprehensively defined in the Act, but a fair summary would be:
* urging the overthrow of the Constitution or Government by force or violence
* urging interference in Parliamentary elections by force or violence
* urging violence within the community, specifically by one group against another
* urging a person to assist the enemy (defined as an organisation or country with which
Australia is at war - whether war has been declared or not - or which has been
proclaimed to be an enemy)
* urging a person to assist those engaged in armed hostilities against Australia.

On each count the penalty is imprisonment for seven years; but three defences are listed:
* in the case of the provision of aid of a humanitarian nature
* for acts done in good faith (i.e., when trying to show that any authority is "mistaken" or needs to remedy "errors or defects" or could produce "feelings of ill-will or hostility")
* "a report or commentary about a matter of public interest."

The Act does not apply to persons under the age of sixteen years and applies with limited effect to persons 16-18 years old.

Before the Bill went before Parliament, the Media, Entertainment and Arts Alliance listed several grounds of concern, which may be summarized as:
* Sedition is defined so broadly that it will "unreasonably erode freedom of speech and artistic expression"; also that "a journalist who reports a story or publishes comment against the actions of the government, police or judiciary, could be charged.." So, too, "a performer or filmmaker involved in a production that contains an anti-government polemic." In the past, sedition laws have been used to silence writers and creators.
* "The Australian Federal Police can request for a person to be put on a preventative detention or control order" and "a journalist who reveals that a person has been detained, the length of the detention or any other information relating to [this] faces five years imprisonment."
* The police "have increased power to obtain documents.and to force journalists to hand over information, including the identity of confidential sources, if those documents will help in the investigation of a 'serious terrorism offence'."

It would appear that, whereas some of these concerns remain in the proclaimed Act, some have been accommodated. Clearly, journalists may legally report or comment on any issue so long as, in doing so, they do not actually advocate the use of force or violence - especially in matters of public interest. This would cover most instances, but not if there should develop a perceived need to overthrow a very recalcitrant or oppressive government. It may seem unlikely that such a situation could happen in Australia, but no one can be certain of that. We must never forget that Hitler was democratically elected, but later abused his power against some of his constituents. But, a defence can only be applied when a matter is in court and after the defendant has already been deprived of liberty for a time.

One consolation is the fact that the Act will expire in ten years, although - of course - it could be amended or renewed in the meantime. Another is that industrial matters are excluded from the jurisdiction.

Thus, it seems that journalists - and, even, cartoonists - are likely to experience little restriction under the Act. This will apply especially to those working in the major communications media, not least because of their employers' close connection with government. Small publications - like this journal - may not be so fortunate, however. It remains to be seen how the legislation works out in practice. It is to be hoped that the rule followed will be that of the French Interior Minister's attitude to the recent Mohammed cartoon disaster: "excess of cartooning is preferable to excess of censorship."

However it is a major concern that police officers are empowered to take action based on their own judgment and interpretation of terms like "good faith" and "public interest", and this could be especially crucial in relation to artistic expression. In the past police have caused problems in decisions on obscenity in the arts, and it is likely that history will repeat itself in relation to sedition. One wonders how the average cop would handle the Anti-Fascist exhibitions of the 1940s, Aboriginal pictures proclaiming political independence, the recent case in Victoria in which an artist exhibited a charred Australian flag, or the 1990s "Royal Suite" of paintings and etchings by Gary Shead, which represent Queen Elizabeth II and Prince Phillip in an Oz setting. (one shows the Queen, flanked by an Eureka flag, being crowned by a kangaroo; one represents the Queen naked, another the Duke in a drunken stupor.)

Artists tend not to belong to organisations that can fight their legal battles for them, so many are bound to suffer under the Act.

Finally, it is certain that no legislation will prevent terrorist acts occurring. As has been pointed out, the "war on terror" is not a war at all, and terrorism is only a corollary of the international problem - which is really a clash of cultures. Only education can reduce the very real threat to the survival of Western culture. On this, we can only regret that, some years ago, our government closed down Radio Australia and leased the facility to a Christian group - which proceeded to proselytise South-East Asia. Thankfully, Radio Australia is now back on air, but the damage will take years to repair.