In 1949 Laurence Louis Sharkey was sent to jail for the maximum of three years for sedition.
Sharkey was an official of the Australian Communist Party. His crime? He told a Daily Telegraph reporter: “If Soviet Forces in pursuit of aggressors entered Australia, Australian workers would welcome them. Australian workers would welcome Soviet Forces pursuing aggressors as the workers welcomed them throughout Europe when the Red troops liberated the people from the power of the Nazis. Invasion of Australia by forces of the Soviet Union seems very remote and hypothetical to me. I believe the Soviet Union will go to war only if she is attacked and if she is attacked I cannot see Australia being invaded by Soviet troops. The job of Communists is to struggle to prevent war and to educate the mass of people against the idea of war. The Communist Party also wants to bring the working class to power but if fascists in Australia use force to prevent the workers gaining that power Communists will advise the workers to meet force with force.”
Fifty-six years later it seems silly that anyone would treat the romantic ramblings of a diehard communist with anything but disdainful mirth. But it shows what happens when you whip up fear and hysteria.
Sharkey was convicted under Section 24D of the Commonwealth Crimes Act. The provisions are still in force today. His case went to the High Court which held the provisions to be valid.
It was the last time someone went to jail for sedition in Australia. At least, I can find no later case.
Since then the law has become a dead letter. Jailing people for things they say – rather than the things they do – has been regarded (until now) as not the way of a liberal democracy. Better to have the material out there to be derided, countered, laughed at or ignored than suppressed.
But attitudes of government have change. It is this law which Attorney-General Philip Ruddock seeks to make more severe with his Anti-Terrorism Bill.
He wants it to carry a seven-year maximum penalty and he wants to add a crime of urging “a group or groups (whether distinguished by race, religion, nationality or political opinion) to use force or violence against another group or other groups”.
Further, he wants to lower the usual criminal requirement of intention to “recklessness”.
Fortunately, he is not going to have his way totally.
The old tactic of whipping up fear of some external enemy to encourage support and unity at home is not working as well as it has in the past.
Political leaders use the tactic not only among the masses as a whole but also within their own political parties.
“Support me with unquestioning unity or our political opponents will get us all,” the argument runs.
The trouble for the Howard Government these days is that the tactic is not working within his party because Labor as an enemy is defeated or at least ineffectual now the Government has a majority in the Senate. The backbench is no longer giving unquestioning support to everything.
Another tactic – disguising the devilish detail — is also unravelling. On terror, industrial relations and other matters the Government’s strategy has been quite clever. First, it unveils a broad policy for debate. During the debate objections are met with the reply: “ Well, wait for the detailed legislation and your fears will be allayed”, or, “You don’t know what you are talking about because you haven’t seen the legislation so you are arguing from assumption.” Then the Bill comes out. By then the Government hopes the issue will no longer be news. It also argues that there is no need for long parliamentary debate or committee hearings because the matter has been debated for so long already.
But people are waking up that that is not the case. You can debate a broad policy for as long as you like, but it is no substitute for clause by clause debate and inquiry on the words of the Bill itself.
Courts do not work on broad principle. Rights and duties, fines imprisonment and damages are determined on detailed examination of the facts and the precise words of the law.
Even these rushed inquiries on anti-terrorism, industrial relations and welfare-to-work proposals are discovering that. And these are inquiries chaired by Coalition members with Coalition majorities.
The effective Opposition in Australia is the Coalition backbench, not the Labor Party.
And so it was this week that Coalition backbenchers got major changes on the Anti-Terrorism Bill (and on industrial relations).
The seven-year penalty stays, but proof of intention to urge violence will be required – rather than mere recklessness. Further reportage of political matters is specifically excluded – an improvement on the present law.
Nonetheless, criminalising the utterance of words is still abhorrent. It reveals a fear mentality and it preys on fear because it assumes that the listeners of the words will be swayed by them. And when the crime is couched in terms of someone urging one “group” to inflict violence against another “group” it assumes that a whole “group” will be swayed by the urgings. And which “group” might rise to the urgings? The communists or fundamentalists or whatever is the target of the latest hate and fear campaign.
Ultimately, communism failed to get a foothold in Australia not because the expression of its ideology was suppressed, but because it was debated and rejected, and any actual violence on the way was dealt with under the ordinary criminal law. The same for terrorism.
Let’s hope the new law, like the old one, becomes a dead letter. Let’s not have any unnecessary martyrs please – jailing the outspoken is much more likely to spark violence than the speech itself.