Laws against inciting violence and sedition in Australia
In the wake of the storming of the Capitol Building in Washington DC earlier this month, I have been asked by several people to write a blog on the laws against sedition and inciting violence in Australia and what charges could be laid in the event an armed mob stormed our Parliament House.
In this blog I will set out what laws may apply if a similar incident were to occur in Australia. For this blog I am only looking at higher level crimes as opposed to charges such as trespassing or the destruction of property which may also apply to a situation like what we saw with the storming of the Capitol Building.
Laws protecting against treason, advocating, and inciting violence are set out in Chapter 5 (Division 80) of the Criminal Code Act 1995 (Cth). There are several laws here which could apply if this hypothetical scenario where to occur in Australia. These provisions are very complex, and I have only provided a general overview.
Treason – 80.1
The first potential charge that could come from a storming of Parliament House is treason. Most people will have heard of treason but may not be aware of what it refers to.
Treason applies if a person causes the death of, harms, imprisons or restrains any of the following people: -
the Sovereign;
the heir apparent of the Sovereign;
the consort of the Sovereign;
the Governor-General; or
the Prime Minister.
In this section ‘the Sovereign’ refers to the Queen of England.
Treason can also occur where a person levies war against Australia or does any act preparatory to levying war against Australia, or instigates a person who is not Australian to make an armed invasion of Australia or its territories. You can also commit treason if you know another person intends to harm, imprison, restrain, or cause the death of any of the above people.
The penalty for treason is imprisonment for life.
Treachery – 80.1AC
The next potential, and little-known charge is treachery. A person commits treachery if they engage in conduct which involves the use of force or violence, and that conduct has the intention of overthrowing the Constitution, the Government of the Commonwealth, a State or Territory, or the lawful authority of the Government of the Commonwealth.
In a situation where an armed mob stormed Parliament House and committed acts of violence with the intention of overthrowing the Government, they would potentially be guilty of treachery.
The penalty for treachery, like treason, is imprisonment for life.
Urging the overthrow of the Constitution or Government by force or violence – 80.2(1)
The next potential charge that could arise is the urging of the overthrow of the Constitution or Government by force or violence. A person is guilty of this offence if they intentionally urge another person to overthrow by force or violence the Constitution, the Government of the Commonwealth or of a State or Territory, or the lawful authority of the Government of the Commonwealth.
An essential element of this offence is that the person must do so intending that force or violence will occur. The penalty for this crime is imprisonment for seven years.
Again, it is easy to envision how this charge could be used should a mob storm Parliament House and committed acts of violence.
Urging interference in Parliamentary elections or constitutional referenda by force or violence – 80.2(3)
If the events we saw happening in the Capitol occurred in Australia, this charge would be particularly relevant given the mob had the intention of disrupting the count of the presidential vote.
In Australia, a person is guilty of this offence if they intentionally urge another person to interfere, by force or violence, with lawful processes for an election of a member or members of a House of the Parliament, or a referendum.
Again, an essential element of this offence is that the person must do so intending that force or violence will occur. The penalty for this crime is imprisonment for seven years.
Good faith defence – 80.3
There is a defence available to anyone charged with the above offences. This is for acts which have been done in good faith. The section is lengthy and sets out several ways a person can act in good faith and not be guilty of the offences listed.
A person is also not guilty of the above offences if they point out in good faith errors or defects, with a view to reforming errors or defects in: -
the Government of the Commonwealth, a State or Territory;
the Constitution;
legislation of the Commonwealth, a State, a Territory or another country; or
the administration of justice of or in the Commonwealth, a State, a Territory or another country.
A person is not guilty of the above offences if they: -
have tried in good faith to show either the Sovereign, the Governor-General, any State Governor, the Administrator of a Territory, an adviser of any of those people or a person responsible for the government of another country that they are mistaken in any of their counsels, policies, or actions;
urge in good faith another person to attempt to lawfully procure a change to any matter established by law, policy or practice in the Commonwealth, a State, a Territory or another country;
point out in good faith any matters that are producing, or have a tendency to produce, feelings of ill‑will or hostility between different groups, in order to bring about the removal of those matters; or
do anything in good faith in connection with an industrial dispute or an industrial matter, or publish in good faith a report or commentary about a matter of public interest.
In looking at whether the good faith defence would apply, the Court has a number of considerations, including whether the acts were done: -
in the development, performance, exhibition or distribution of an artistic work;
in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or
in the dissemination of news or current affairs.
There is a lot to consider when looking at the good faith defence provisions, and it is difficult to reconcile them with the use of violence to attempt to overthrow the Government. The main takeaway from this defence is that the good faith defence appears open to those who are genuinely attempting to effect positive change. The good faith defence would also appear to be a requirement for a healthy functioning democracy.
While we hope an incident like storming the Capitol building never occurs in Australia, there are significant laws in place to protect our government and our democracy.
Please note: the information in this article is general in nature. For specific advice about your circumstances, contact us to make an appointment with one of our solicitors.
