ALRC president Professor David Weisbrot said the law could be drastically improved if the term ‘sedition’ was discarded in favour of a focus on anti-violence measures.

“We found that there is a real problem in the current law’s continued use of the word ‘sedition’, which is historically associated with stifling and punishing criticism of the established authority. Once you get beyond the term, there is support for the basic thrust of the new offences,” Weisbrot said.

The ALRC report, Fighting Words: A Review of Sedition Laws in Australia, made 27 recommendations for reform of the legislation. Along with ditching the “red rag” term ‘sedition’, they include requiring the Crown to prove that a person urged others to use force or violence against community groups or the institutions of democratic government, and with the intention that this violence would eventuate; and to lead a process through the Standing Committee of Attorneys-General to reform state and territory laws in this area “which mostly are a good deal worse than the federal law,” Weisbrot said.

According to the ALRC, media commentators, satirists, artists and activists need no longer be concerned their conduct will land them in breach of the law, so long as they don’t encourage the use of violence.

The five-month consultation by the ALRC into the sedition laws made “it plain that we need a clear distinction in the law between free speech and conduct calculated to incite violence in the community — which properly should be the subject of the criminal law,” Weisbrot said.

“Context is critical in these circumstances, so under our recommendations, courts would be required to take into account whether the conduct was a part of artistic expression; or genuine academic or scientific discussion; or a news report or commentary.”

Attorney-General Philip Ruddock welcomed the report, after having announced the ALRC would review the new sedition offences in Schedule 7 of the Anti-Terrorism Act (No. 2) 2005 and related offences in Part IIA of the Crimes Act 1914 in March of this year.

“The [ALRC] recognised that by modernising the offences, the government had sensibly shifted the focus away from critical statements to conduct urging others to use force or violence to overthrow the government or to target particular groups within the community,” Ruddock said.

The government will carefully consider the ALRC’s report in an effort to ensure there are appropriate Commonwealth offences to deal with such conduct, Ruddock said. Shadow Attorney-General Nicola Roxon responded by labelling the legislation “clumsy” and “poorly drafted”.

Further important recommendations in the report include amending the offences of “assisting” the enemy to clarify that this refers to material assistance, such as providing arms, funds, personnel or strategic information; outright repeal of the outdated unlawful associations provisions in the Crimes Act, which have been superseded by recent terrorist organisation-related laws; and reviewing old related offences, such as treachery and sabotage, to decide if they should be repealed or modernised.

“Technically, the laws must be drafted in sufficiently precise terms to ensure they cannot be applied inappropriately or used in a way that would infringe upon freedom of expression — whether directly or by prompting artists or commentators to self-censor for fear of prosecution,” Weisbrot said.