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.
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