The purpose of this Briefing Paper is to explore any potential implications for NSW arising from the recent debate on free speech, most notably in respect to the Commonwealth sedition laws. These were enacted in the context of the new anti-terrorism legislation, as Schedule 7 of the Commonwealth Government’s Anti-Terrorism Act (No 2) 2005 [the 2005 Act].

The paper focuses on three areas of the law, all of which impinge on the issue of free speech. First, it considers the law of sedition as this applies federally and in NSW. Secondly, the law of incitement is discussed. Thirdly, the paper presents an overview of the law of racial and religious vilification, taking account of the Anti-Discrimination Amendment (Religious Tolerance) Bill 2005, a Private Member’s bill introduced in the NSW Legislative Council on 15 September 2005.

Sedition: The validity of the Commonwealth 2005 Act relies to an extent on the referral in 2002 by the States to the Federal Parliament of ‘certain matters relating to terrorist acts’- Schedule 7 is an exception. By section 80.2(1)(b), the Federal sedition offences expressly protect ‘the Government of…a State’ from persons who urge others to overthrow it by ‘force or violence’. In other words, the new Federal sedition laws extend to cover the protection of State governments. (page 2)

There is no specific statutory offence of sedition in NSW. Instead, the common law is relied upon. However, by section 35 of the Imperial Acts Application Act 1969, following a conviction for seditious libel the court may give an order for the seizure of all copies of the libel. There is therefore statutory recognition of the offence of seditious libel. This provision does not seem to have been used. It may be argued that it remains relevant in the present uncertain climate. If so, it may also be time to update its language and to consider the need for some substantive revision, as has occurred at the Federal level. Alternatively, it may be that State sedition laws generally, in NSW or elsewhere, have little if any role to play in the light of the broad new Commonwealth offences. (pages 18-24)

Incitement: Commentaries on the new sedition offences at the Commonwealth level point out that many of the offences contemplated under Schedule 7 could be successfully prosecuted under the ‘Incitement’ provisions of the Criminal Code, in combination with other offences. (page 25)

The general law of incitement in NSW belongs to the common law. This is not to say that specific statutory offences of incitement do not exist in NSW. Examples include: the incitement of serious racial vilification; the provision of on-line services that incite in matters of crime or violence. Also relevant is the Crime Prevention Act 1916 (NSW). The Act is a procedural innovation, permitting incitement offences to be tried summarily. (pages 27-32)

Anti-terrorism and vilification law: Vilification laws are another means by which free speech may be curtailed. The issue of vilification is raised in the context of recent legislative and other anti-terrorist measures. A new dimension to the debate on racial and religious vilification at the Commonwealth level is found in section 80.2(5) of Schedule 7 of the Commonwealth’s Anti-Terrorism Act (No 2) 2005. One view of this provision is that it seeks to redress the perception that anti-terrorist legislation, while general in application, may in fact target a particular section of the community. (page 33)

Similar ground has been covered in the UK, where attempts to introduce stricter anti-terrorist laws have been accompanied by attempts to assuage concerns expressed by minority groups, by expanding the existing offences of incitement to racial hatred to apply to those who stir up hatred against a group of people based on their religious beliefs. Both arms to this legislative strategy have proved highly controversial. (pages 36-39)

Racial vilification laws: These exist in several Australian jurisdictions, including NSW under the Anti-Discrimination Act 1977, where civil and criminal remedies apply. The term ‘ethno-religious’ was inserted into the definition of ‘race’ in the Act in 1994, but was not itself defined. The interpretation of this term has proved problematic, especially as to its application to Muslims. The NSW Law Reform Commission recommended that the term ‘ethno-religious origin’ be removed from the definition of race. It also recommended that religion should be included as an unlawful ground of discrimination. However, it was not satisfied that the vilification provisions should be extended to cover religious vilification. In 1999 it ‘found little evidence of widespread religious vilification in the community’. (pages 51-55)

Religious vilification laws: The 2004 HEREOC report, Isma—Listen: National Consultation on Eliminating Prejudice Against Arab and Muslim Australians found that the majority of Arab and Muslim women canvassed had experienced an increase in violence or offensive remarks since the September 11 attacks and the first Bali bombings. The report commented: ‘The lack of protection under NSW anti-discrimination law was of particular concern to Muslims in NSW, where the majority of Australian Muslims live’. HEREOC recommended that Federal law be introduced making unlawful discrimination on the ground of religion or belief. Commonwealth vilification laws on the ground of religion or belief were also recommended. (page 57)

At present religious vilification laws exist in three Australian jurisdictions – Queensland, Victoria and Tasmania. Laws that restrict free speech by making unlawful vilification on the ground of religion are extremely controversial. The encouragement of tolerance in a multicultural society is one thing; its enforcement by means of religious vilification laws something different again. Very strong advocates can be found on both sides of the argument, for and against such laws. In NSW, this has proved to be the case in respect to the Anti-Discrimination Amendment (Religious Tolerance) Bill 2005. Both the Government and Opposition have declined to support the Bill on policy grounds. (page 69)

Defining religion for legal purposes is no easy matter. Guarding against the abuse or frivolous use of such legislation can also be difficult. Symbolic law can have value, in educational and other ways, but it can also carry dangers of unintended consequences. Practically, the underlying issue is whether there is a significant social problem and, if so, is it best tackled by means of vilification laws? (page 73)