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section heading icon     Australia

This page discusses the Australian sedition and treason regimes.

It covers -

subsection heading icon    introduction

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 threats.

Prosecutions from last century included action against

  • radical 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
  • lawyer and Communist Party figure Fred Paterson (1897-1977) over a speech in 1930 in the Brisbane Domain
  • Communist Party leader Lance Sharkey over alleged incitement of support for the USSR during the Cold War.

subsection heading icon    treason

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 (1903-1964)

subsection heading icon    sedition

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" to -

i) 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

The 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.

subsection heading icon     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).

subsection heading icon     studies

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' 2002 study 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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version of July 2006
© Bruce Arnold