In last week's show we drew your attention to the new sedition offences, as proposed in the leaked draft of the government's Anti Terrorist bill, which is still on our website.

Dictionaries define sedition as conduct or language inciting rebellion against the government. As a criminal offence it has a long and dishonourable history as a means of shutting down political dissent, back in the Cold War and before.

Our concern is how the new sedition offences might criminalise the expression, reporting and publication of the range of opinions in our society.

Read Schedule 7 of the Draft Bill here

The Attorney General's office had sent us this:

Will this offence prevent journalists from reporting on terrorist activities? These offences are not designed to prevent journalists from reporting in good faith. — Question and Answer brief from the Attorney General's Office

Read the Talking Points on Sedition in full here

But there's nothing in the good faith provisions that explicitly refers to the media.

So rather than just rely on the Attorney General's good faith, we sought senior counsels' legal advice. They confirmed we were right to be worried.

The Bill does not do anything to provide that assurance ... In terms of any possible defences for acts done in good faith, it seems to us that they have relatively limited operation to media publications of "seditious" opinions. — Senior Counsel advice to Media Watch, pg 19

Read the legal advice provided to Media Watch by barristers Bret Walker SC and Peter Roney on this issue in full here

So, how might the media find itself in trouble? Let's look at some specific examples.

This is journalist John Pilger speaking on the ABC's Lateline programme last year, about the insurgents in Iraq:

John Pilger: ...we've always depended on resistances to get rid of occupiers, to get rid of invaders. And what we have in Iraq now is I suppose the equivalent of a kind of Vichy Government being set up. And a resistance is always atrocious, it's always bloody. It always involves terrorism. You can imagine if Australia was occupied by the Japanese during the Second World War the kind of resistance there would have been, and so on. We've seen that all over the world. Now, I think the situation in Iraq is so dire that unless the United States is defeated there that we're likely to see an attack on Iran, we're likely to see an attack on North Korea and all the way down the road it could be even an attack on China within a decade, so I think what happens in Iraq now is incredibly important. Tony Jones: You mean defeated militarily? John Pilger: Yes. Tony Jones: Can you approve in that context the killing of American, British or Australian troops who are in the occupying forces? John Pilger: Well yes, they're legitimate targets. They're illegally occupying a country. And I would have thought from an Iraqi's point of view they are legitimate targets. They have to be, sure. — Lateline, ABC TV, 10 March 2004

Read the Lateline transcript in full here

Pilger's comments caused an uproar at the time. Foreign Minister Downer described them as "dangerous".

Pilger Should Say Sorry John Pilger has plumbed new depths with his distasteful and dangerous comments about Iraq. He should immediately apologise to his fellow Australians, especially the relatives and friends of our armed services personnel serving in Iraq. — Foreign Minister Downer, 11 March 2004 www.foreignminister.gov.au/releases/2004/fa036_04.html

Many Australians would probably agree with Alexander Downer. But do we think Pilger should be charged with sedition for comments like those?

Our legal advice is that he could be found guilty under s80.2 of the Draft Bill.

In our view it would be open to construe Pilger's words as urging or inviting any person to engage in the conduct of the forceful elimination of Australian troops and their defeat in Iraq. There would certainly be an arguable case sufficient to place the evidence and surrounding circumstances before a jury. — Senior Counsel advice to Media Watch, pg 16

The penalty remember is a possible 7 years in jail. Now you may not be a Pilger fan, but would you really want to silence him like that?

Our legal advice does not of course say this is certain, but the breadth and the vagueness of the proposed new offences is part of the danger.

The inevitable consequence of the Bill will be to stifle the making of those statements, or even the reporting or repetition of them by others legitimately involved in public debate on such issues. — Senior Counsel advice to Media Watch, pg 16

But how could the new laws reach beyond the person who makes the seditious comments, to criminalise the media outlet that puts them to air?

According to our legal advice:

If a journalist or producer of a television programme invited such a commentator onto a program knowing that such comments were likely to be made and directly or indirectly invited those comments by directed questions ... the producers of the program ... could be equally exposed. — Senior Counsel advice to Media Watch, pg 19

So in our hypothetical case, Tony Jones and Lateline could be charged.

Now before you say "but no sane jury would convict them for that", check what Sunday Herald Sun columnist Andrew Bolt wrote about Pilger's comments at the time. It wasn't, he said, just Pilger who was the traitor and the enemy in our midst, it was also the ABC, who gave his views a platform.

Traitors in our fight for survival Andrew Bolt On Wednesday Pilger appeared on ABC TV's Lateline to promote his noxious views. This apologist for terrorists - this moral pygmy - is ... welcomed into an ABC Studio and promoted by SBS ... Not all the enemies of our civilisation are Islamic or foreigners. Many are people we pay to defend our culture, but, we find, betray it instead. — Sunday Herald Sun, 14 March 2004

We could of course have chosen other examples. Like this snippet from the SBS Insight program, which features the radical Melbourne Cleric, Sheikh Omran:

Reporter: Is it a good Muslim's duty to go and fight the coalition forces for jihad in Iraq at the moment? Sheikh Mohammed Omran: I would say yes. — SBS TV, Insight, 30 October 2003

Our advice is that Omran's comments would be likely to be found seditious as "urging" assistance to the enemy.

There is a high likelihood that clause 80.2(8) has application ... the suggestion that it is indeed one's duty might well be capable of satisfying the requirement of urging in the proposed amendments. — Senior Counsel advice to Media Watch, pg 16

Now while we have no truck with what Sheikh Omran is saying, we do take the view that's it better that we know what he's thinking and saying, rather than driving views like his underground. Or alternatively making him a criminal martyr. Our advice is that SBS's liability would depend on the context in which Omran's comments were broadcast.

Far more vulnerable to prosecution will be media outlets like Islamic web sites.

It would be easy to see how opinion or comment by others (published, for example, on a Muslim or other ethnic media resource) could be seen to be endorsing "seditious" opinion by its mere publication. — Senior Counsel advice to Media Watch, pg 18

We do of course believe it's crucial that we have laws that criminalise the incitement of violence and terrorism. We have them already. There's also a case that the government is right, that the old laws of sedition are out of date.

But it's crucial that laws which inhibit the right to free speech should be carefully drafted and much debated, or they'll do more harm than good, especially as according to the Bill there's no sunset clause on these new offences.

You can read the full legal opinion that we commissioned on our web site.

And offer your own opinion.

Until next week, good night.