Balneus

Australian Lefty on Politics, Governance, Science and Info Management

The scope of treason and sedition? Has the executive offended?

Posted by Dave Bath on 2007-08-01


There’s obvious intent to cause harm in the Haneef case, intent to destroy our western freedoms.  Haneef may be innocent, but Minister Andrews and others in the executive are guilty: possibly of treason and sedition.  At this stage, with the AFP aware from the start that Haneef had tried to call the British police immediately after the "suspicious" internet chatroom incident, there is no excuse for the selective presentation of facts designed to deceive the public.

The Federal Attorney-General is deeply involved in these proceedings.  The leading law officer in the land also intended to deceive the Australian public.

It is inconceivable that the Prime Minister is not deeply involved as well.

Further down, I’ll quote from relevant acts that make me deeply suspicious that the actions of the executive could come within the scope of the offences of treason or sedition.

If Parliament had been sitting, and they’d opened their mouths, their intent to damage an individual, the reputation of Australia, and destroy the values of our society would have been worse.

These offences (whether against a specific law or not, I don’t know) are not mere negligence, nor the more serious recklessness, but acts of intent, sins of commission rather than omission.  Even the watered-down code of conduct for ministers that condone incompetence and recklessness are totally blown away.

These intentional actions by key ministers, and probably with the consent of all of cabinet, betray the principles and operation of those principles that our nation, indeed our whole civilization, are built on.  These overt actions may well be treason and or sedition.

First, this government has stated that a wide range of statements, not mere hostile actions or conspiracy to commit them, assist those engaged in hostilities against the Australian Defence Forces.  Recent executive actions and choices have given such combatants a powerful means of recruitment which hopefully, the actions of ordinary citizens committed to our freedoms may have averted.

It is certain that the executive would have known that their actions would unavoidably dissuade many tourists from visiting Australia, or damaging the economy by dissuading those who might help capacity constraints from seeking a working visa (such as a 457).

This review from NationalSecurity.gov.au discusses seditious acts:

The aim might be to dissuade tourists from visiting Australia or to damage the economy.

Violence against persons is not necessary.

Given the unavoidable way these intentional actions provide the means for hostile groups to gain support (much like knowingly providing explosives – but recruitment provides the means for many acts against the Australian Defence Forces, critical infrastructure or population that exceeds an explosion or two) we should look at the Criminal Code Act 1995, definition of treason, section 80.1A

1. (e) engages in conduct that assists by any means whatever, with intent to assist, an enemy:
    (i) at war with the Commonwealth, whether or not the existence of a state of war has been declared;
(f) engages in conduct that assists by any means whatever, with intent to assist:
    (i) another country; or
    (ii) an organisation;
that is engaged in armed hostilities against the Australian Defence Force;
(h) forms an intention to do any act referred to in a preceding paragraph and manifests that intention by an overt act.
Note 1 A defendant bears an evidential burden in relation to the matter in subsection (1A). See subsection 13.3(3).
Note 2: There is a defence in section 80.3 for acts done in good faith.

There is no good faith.  Significant assistance to hostiles was an unavoidable consequence of these intentional actions.  The penalty is lifetime imprisonment

From section 80.2 we find a definition of sedition:

(1) A person commits an offence if the person urges another person to overthrow by force or violence:
    the lawful authority of the Government of the Commonwealth.

Again, recklessness applies.  The penalty is 7 years imprisonment.

Section 80.3A provides defences for good faith (which is patently not the case for the PM, AG and Minister Andrews).

Unfortunately, 80.5A provides a copout from prosecution proceedings:

(1) Proceedings for an offence against this Division must not be commenced without the Attorney‑General’s written consent

But 80.5A (2) does not prevent action not involving prosecution in court:

Despite subsection (1):
    (a) a person may be arrested for an offence against this Division; or
    (b) a warrant for the arrest of a person for such an offence may be issued and executed;
and the person may be charged, and may be remanded in custody or on bail

Again, while the primary intent of the actions of the executive may be political advantage, the necessary consequences included significant assistance to hostile persons because of the authority of the executive.  A private citizen or association does not have the clout of the executive or parliament, and their statements are therefore much less likely to provide a means for hostiles to gain recruits.

So, it seems the actions of the executive have fostered the cause of hostiles, given the broad definitions they have applied to others.  This is dealt with by the Security Legislation Amendment (Terrorism) Act 2002 which covers organizations (and the executive and their party is certainly an organization).

101.6 (1) In this Division:

member of an organisation includes:
    (a) a person who is an informal member of the organisation; and
    (b) a person who has taken steps to become a member of the organisation; and
    (c) in the case of an organisation that is a body corporate—a director or an officer of the body corporate.
    recruit includes induce, incite and encourage.

102.7 Providing support to a terrorist organisation
(1) A person commits an offence if:
    (a) the person intentionally provides to an organisation support or resources that would help the organisation engage in an activity described in paragraph (a) of the definition of terrorist organisation in this Division;

Remember, recklessness (e.g. a high probably of the outcomes even if the primary intent of the action was not directly related to terrorist acts) is covered.

The 2006 review of this legislation notes (section 4.5):

The Sheller Committee rejected the proposition that the offence of treason is not appropriate in a modern democratic society.

Section 4.26 of the review discusses the consent of the Attorney-General, and provides a rationale to remove the need for his consent:

The ALRC reasoned that terrorism offences do not require the Attorney-General’s consent and that the CDPP is independent, and must take account of a range of factors when exercising the discretion whether or not to prosecute. The factors that must not influence CDPP prosecution decisions include: (a) the race, religion, sex, national origin or political associations, activities or beliefs of the alleged offender or any other person involved… (c) possible political advantage or disadvantage to the Government or any political group or party.

Section 4.27 discusses the opinion of the politician-dominated committee:

On this basis, the ALRC has recommended that the requirement for the Attorney-General’s consent be removed. The Committee does not agree with this conclusion.

Funny about that….

Another note includes…

services (assisting) ‘Hostile activities’ include …placing a foreign public in fear

I’d imagine many tourists contemplating a visit to Australia, noting the enhanced ability of terrorist organizations to recruit by the actions of the executive, would have increased fear suffering from of attack in Australia.

I haven’t gone into the offences directly against the good government of the country, by undermining public confidence in the executive because of the authority of the executive as opposed to a private citizen, that is, if the politicians have allowed themselves to be subject to the laws that apply to everyone else.  Perhaps such offences don’t exist.  I don’t know – but they should.

You’ll note that all the above is intended in good faith to improve the standing of Australia in the world, including giving cause that many common citizens seek just treatment of all and thus decrease the risk of recruitment to terrorist organizations.  All of the above is intended in good faith to uphold our democratic freedoms.

If the increased scope for security agencies to covertly obtain evidence by entering premises and examining electronic records (including bugging) passes successfully through parliament in the next week or two, then it seems that there’s enough cause to covertly examine all communications and records of the executive over the past month.  If they find a hint, mentioned anywhere, that their actions might lead to political gain while causing an increase in hostile feelings towards the nation, … well …

Indeed, one must wonder whether the possibility of providing reasons for hostiles to recruit by raising ire in the Moslem world was raised within the Liberal Party going back as far as the preparations for action in Iraq.

Does anyone with more legal expertise than I see the scope of the legislation cited to include intent to recklessly assist terrorist organizations to recruit and incite violence?

4 Responses to “The scope of treason and sedition? Has the executive offended?”

  1. […] from Laurhedel, and David Bath makes a prima facie case that Andrews and Howard have committed treason and sedition as defined by the Criminal […]

  2. […] Balneus posts mentioning Haneef, especially this one on the nature of sedition which examines whether the Howard regime was more guilty of sedition […]

  3. […] "The scope of treason and sedition: Has the executive offended?" (2007-08-01) looks at interpretations of the criminal code, and changes mooted under Howard (I cannot remember if they got through) that include economic damage under treason and/or sedition. Possibly related posts: (automatically generated)Giving Aid and ComfortForeign Aid and GrowthEU Nations Seek Fairness in Vow to Aid Auto Sector […]

  4. […] included " ‘Hostile activities’ include …placing a foreign public in fear" in "The Scope of Treason and Sedition: Has the Executive Offended" […]

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