Free speech & censorship
This page discusses the Australian sedition and treason
It covers -
Australian law regarding is similar to that in New Zealand
and Canada, reflecting a common legal heritage from Britain
(discussed in the following two pages of this note).
The Australian colonies inherited the UK security law
regime, with the 1819 'Six Acts' for example being echoed
in legislation such as the 1827 NSW enactment against
"publication of Blasphemous and Seditious Libels".
Each colony adopted and adapted English law regarding
riot, respect for the Crown and public menaces.
The initial federal Crimes Act, subsequently much amended,
reflected updating of the UK and colonial legislation
during the 1890s regarding Fenians, anarchists and other
Prosecutions from last century included action against
Henry Holland (1868-1933), jailed for sedition in NSW
during 1909 over advocacy of violent revolution during
the Broken Hill miners' strike and jailed in NZ during
the 1913 waterfront dispute
and Communist Party figure Fred Paterson (1897-1977)
over a speech in 1930 in the Brisbane Domain
Party leader Lance Sharkey over alleged incitement of
support for the USSR during the Cold War.
Under the Commonwealth Criminal Code treason has two aspects.
Section 80.1 of the Criminal Code Act 1995 (Cth)
makes it an an offence to cause the death of, or harm
to, the Sovereign, the heir apparent, the Governor-General
or the Prime Minister.
It also encompasses levying war against the Commonwealth
of Australia and assisting an enemy at war with Australia.
There have only been a handful of prosecutions, typically
relying on the 1351 UK Act.
One example is the prosecution, later abandoned, of former
POW Charles Cousens
Other 'Offences against the Government' as part of the
Crimes Act include treason (s. 24), treachery (s. 24 AA)
and sabotage (s. 24 AB).
Treachery encompasses "any act or thing with intent"
overthrow the constitution of the Commonwealth by revolution
or sabotage; or
ii) overthrow by force or violence the established Government
of the Commonwealth, of a state or of a proclaimed country
Australian regime has been strengthened over the past
thirty years, with federal/state government agencies
for example gaining greater surveillance powers regarding
organisations that have variously included the Ananda
Marga and Al-Qa'ida and the federal government moving
to proscribe particular bodies. The salient enactment
is the Security Legislation Amendment (Terrorism)
Act 2002, which encompasses a list
of proscribed organisations.
the 2005 legislation
Controversial anti-terrorism proposals from the federal
government in 2005 have sought to extend the existing
sedition regime by introducing offences of urging "assistance
of any kind" to the enemy (a broad definition that
has been criticised as overly wide) and by expanding the
test for banning an "unlawful association",
based on a similarly broad definition of "seditious
intention". The ability to use "good faith"
defences has been limited (and in some circumstances completely
removed, with the publisher of writings of an unlawful
association for example having no defences).
There has been no overarching academic study of Australian
treason law. For sedition see Kevin Baker's Mutiny,
Terrorism, Riots & Murder: A History of Sedition in
Australia and New Zealand (Dural: Rosenberg 2006),
the Australian Law Reform Commission's 2006 report
Fighting Words - Report on the Review of Sedition
and Related Laws (following on its discussion paper
and issues paper
of the same year) and the 2005 report
of the Senate Legal & Constitutional Affairs Committee
Inquiry into the provisions of the Anti-Terrorism
Bill (No. 2) 2005.
Perspectives on recent legislation are provided in Jenny
Hocking's Terror Laws: ASIO, Counter-Terrorism and
the Threat to Democracy (Sydney: UNSW Press 2003)
and Beyond Terrorism: The Development of the Australian
Security State (Sydney: Allen & Unwin 1993) and
What Price Security?: Taking Stock of Australia?s
Anti-Terror Laws (Sydney: UNSW Press 2006) by Andrew
Lynch & George Williams.
Past practice in Australia is explored in Roger Douglas'
Saving Australia from Sedition: Customs, the Attorney-General's
Department and the Administration of Peacetime Political
Censorship and in
The Cousens case is examined in Ivor Chapman's Tokyo
Calling: The Charles Cousens Case (Sydney: Hale &
Iremonger 1990) and the relevant entry in the ADB.
For the 1949 Sharkey and Gilbert cases see Stuart Macintyre's
The Reds: The Communist Party of Australia from origins
to illegality (St Leonards: Allen & Unwin 1998),
Robin Gollan's Revolutionaries & Reformists: The
Rise and Fall of the Communist Party of Australia, 1920-1955
(Canberra: ANU Press 1975), Ross Fitzgerald's The
People's Champion: Fred Paterson, Australia's Only Communist
Member of Parliament (St Lucia: Uni of Queensland
Press 1997) and John Murphy's Imagining the Fifties:
Private Sentiment and Political Culture in Memzies' Australia
(Sydney: UNSW Press 2000).
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