Terrorism and Sedition

The belief that somehow there exists certain rights that have no constitutional basis, is at the core of OPCA ideology. Theorists maintain they have unlimited preeminent rights, and that government is violating this imaginary body of law. They will use intimidation tactics to lethal force to prevent this, as we have repetitively seen from their adherents in the US. People who are that influenced by these misconceptions undoubtedly have an attitude that makes them a risk to others in the community. They have the potential of resorting to violent behaviour when their beliefs are rejected by the courts, and seem willing to seek revenge for something that the court is itself bound to apply. We see this frustration frequently on social media, the courts are “corrupt” because they are not upholding the “true law”, and following the fantastical script the OPCA adherent has in their head.

I have myself received constant abuse and threats for simply citing the binding decisions of the “corrupt corporate courts” on matters of law. On numerous occasions, I was threatened with being “hung for treason” for acknowledging legislation assented by the “fictional” Queen of Australia. This has become quite the common occurrence with many different peoples interactions with supporters of vexatious litigant Wayne Glew, as he has for years insisted that the death penalty still exists as law, because the Death Penalty Abolition Act 1973 is invalid. I have had identical threats from Steven Spiers and many others.

In “The Lone Terrorist in the Workplace”  and “The Violent True Believer as a “Lone Wolf” – Psychoanalytic Perspectives on Terrorism” Forensic Psychologist and threat assessment expert J. Reid Meloy and Jessica Yakeley identified the US Sovereign Citizen and Canadian Freemen-on-the-Land ideologies as a potential source for the last of three key elements that motivate ideologically driven violence in “lone wolf” terrorists:

  • (1) a personal grievance blamed on others,
  • (2) moral outrage linked to a “victimized” group,
  • (3) that is framed by a superficial, cherry-picked ideology which rationalizes aggression.

Meloy explicitly groups OPCA ideologies with the beliefs of right wing hate groups and ultra conservative Islamic groups such as ISIS and Al Qaeda.

In 2015, New South Wales Police estimated there were about 300 sovereign citizens in the state and their numbers were growing. The Counter Terrorism and Special Tactics Command Assessment shows the number of sovereign citizens in NSW doubled from 2009 to 2011 and nearly tripled from 2009 to 2012. Interactions with police increased 50 per cent in 2011, with a “notable increase in threats of violence.”

Detective Superintendent John O’Reilly is the Commander of the Counter Terrorism and Special Tactics Operation Group for NSW Police. He said they had been examining overseas trends and threats:

“Sovereign citizens are people that don’t buy into our legal framework, our system of government,” he said. “They consider themselves individuals and operate outside the law and outside our tax system.”

He warned:

“They have the motivation and capability to act against government interests and should be considered a potential terrorist threat.”

Police intelligence of incidents involving sovereign citizens in Australia ranges from displaying homemade registration plates and “plans to use paint bombs to disrupt court proceedings”, to making plans to kidnap a judge, judicial officials and a police officer. The report also states that in 2012, sovereign citizens threatened to burn down the home of a judge and “cause harm with firearms”.

They had “plans to murder Sheriff Officers if they attempt to seize property”. While Commander O’Reilly stressed Australia had not experienced any of the high impact violence resulting in death or casualties associated with the movement overseas, he said there were indications of radicalisation.

“A number of instances have ended up in people being placed under arrest and sometimes there has been a degree of resistance on the basis that they claim that the police officer has no authority over them. We are always conscious of preventing terrorism and we are mindful of any movements that have the potential to go down that path.”

The Australian: “Growing terror threat of the ‘sovereign citizen’“:

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ABC: “Sovereign citizens: Terrorism assessment warns of rising threat from anti-government extremists“:

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SCL: “Sovereign Citizens: The Real Terrorist Threat?

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A number of people influenced by sovereign citizen ideology have either been placed on, or the New South Wales Police Fixated Persons Unit have sought, Interim Supervision Orders or Extended Supervision Orders for three years, with specific conditions, pursuant to the Terrorism (High Risk Offenders) Act 2017 (NSW). These include Juha Kulevi Kiskonen who threatened police officers and army personnel that they would “have their necks snapped” and be “held to account” if they didn’t pledge allegiance to the kingdom of Australia, Christopher Bruce Hardy who sent similarly threatening emails to a member of parliament, and later searches of his residence revealed literature about how to make booby traps, and manufacture plastic explosives, and 411 digital blueprints for the 3D printing and manufacture of 12 firearms and replica firearms, as well as a commercial pressure cooker and literature how to make an improvised explosive device constructed from a pressure cooker, Joseph Gavin, and Keith Knights, who made similar threatening statements in videos.

A group calling themselves “Equity of the People’s Nation” planned to take over the federal government through an “alternate” Australian Federal Police to execute various “arrest warrants” of high profile politicians that self-proclaimed “Governor General” Teresa Van Lieshout had created. They released a viral video with a still of AFP Commissioner Reece Kershaw, falsely depicting him as detailing anti-government sentiment and encouraging others to join, promising a police coup of the Australian government. This sparked police raids across three States, recovering 470 fake Australian Federal Police badges, and several members including Teresa Van Lieshout were subsequently arrested and charged.

Similarly, vexatious litigant Wayne Glew had published videos encouraging people to perform citizen arrests on various politicians, executing “arrest warrants” created by a group called “Velvet Revolution”, and hold them on “bail” in undisclosed locations to face a common law court. He was subsequently arrested and charged for incitement to commit deprivation of liberty.

This behaviour was amplified during the COVID-19 pandemic, with countless protesters making similar statements threatening politicians which often went without prosecution. This can be seen in various protest organisers during the pandemic, such as ex-SAS officer, Riccardo Bosi, often dressed in military fatigues, calling for politicians and others to be charged with treason and hanged.

ABC: “AFP forced to mobilise against ‘specific threats’ to politicians over weekend, commissioner says“:

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The Australian: “Australian police crack down on protesters who try to incite violence“:

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Due to this civil unrest, the police in most States were on high alert during the pandemic. In the Director-General’s Annual Threat Assessment, the head of the Australian Security Intelligence Organisation (ASIO) Mike Burgess, warned that the greatest ­security threat facing the nation was from conspiracy theory ­extremists and anti-government “sovereign citizen” individuals and groups that “…don’t fit on the left–right spectrum”. He  announced the organisation would dump terms such as “rightwing extremism” and “leftwing extremism” due to this evolution.

“We are seeing a growing number of individuals and groups that don’t fit on the left–right spectrum at all; instead, they’re motivated by a fear of societal collapse or a specific social or economic grievance or conspiracy. So we need to use language that can accommodate groups that are outside the traditional categories. Many of our Five-Eyes partners have changed their terminology for similar reasons. At ASIO, we will use ‘religiously motivated violent extremism’ and ‘ideologically motivated violent extremism’.”

In the Victoria Police submission to the Parliamentary Joint Committee on Intelligence and Security Inquiry into Extremist Movements and Radicalism in Australia, Victoria police said extreme leftwing and rightwing individuals had joined conspiracy-based groups espousing “conflating ideologies” during the pandemic, something it says has proved a challenge for law enforcement. 

“Their willingness to flout government restrictions for ‘the greater good’ has already been evident in Victoria, with protest activity occurring despite warnings that it represented a breach in emergency COVID restrictions and that participants would be fined. Victoria Police also notes an identified trend during COVID-19 where individuals traditionally holding RWE or LWE ideologies join online extremist and/or conspiracy groups that espouse conflating ideologies. For law enforcement, this has presented a challenge in effectively tasking and investigating these individuals as they do not fit neatly into pre-existing tasking and coordination frameworks.”

Im the US, the Sovereign citizen movement is considered by the Federal Bureau of Investigations as the highest threat of potential domestic terrorism. Similarly, in the Royal Canadian Mounted Police’s 2016 “Terrorism and Violent Extreme Awareness Guide,” which is a list of extremist groups and their characteristics in Canada, the Freeman on the Land movement is known for its quasi-legal actions, and officers are advised caution in interactions. 

Sedition and Treason

Effectively defunct for nearly half a century, sedition laws returned to public notice in 2005 when changes were included in an Anti-terrorism Bill announced by Prime Minister Howard prior to a “counter-terrorism summit” of the Council of Australian Governments on 27 September. Schedule 7 of the Anti Terrorism Act (No. 2) 2005, repealed Sections 24A to 24E of the Crimes Act (1914) and reintroduced them in the Criminal Code (1995), along with several new classes of offence, in a Division 80—Treason and sedition. Crimes in this division now attract a maximum penalty of seven years’ imprisonment. The Bill was introduced on 3 November and passed into  law on 6 December 2005 after government amendments adding some protection for the reporting of news and matters of public interest were introduced in response to community pressure.

Early prosecutions for sedition in Australia include the conviction of Henry Seekamp for seditious libel over the Eureka Rebellion in 1854; the conviction of 13 trade union leaders of the 1891 Australian shearers’ strike for sedition and conspiracy; and the action against radical Harry Holland, jailed for two years in 1909 over his advocacy of violent revolution during the Broken Hill miners’ strike. During the First World War Sedition laws were used against those who opposed conscription and war, in particular the Industrial Workers of the World (IWW) in Australia. In 1916 members of the IWW in Perth were charged with sedition including 83-year-old Montague Miller, known as the grand old man of the labour movement. Miller was released after serving a few weeks of his sentence but was re-arrested in 1917 in Sydney at the age of 84 and sentenced to six months jail with hard labour at Long Bay Gaol on the charge of belonging to an unlawful association. The Sydney Twelve were all charged and convicted with various offences including sedition.

In 1949 a case came before the High Court involving the utterance of what were alleged to be seditious words: Burns v Ransley. Gilbert Burns, a member of the Communist Party of Australia (CPA) said that in any war between Soviet Russia and the West, the CPA would fight on the side of the Soviets. Burns was convicted of uttering seditious words under the Crimes Act 1914. Burns appealed to the High Court but his appeal was dismissed. Burns argued that the Commonwealth did not have Constitutional power to make laws with respect to crime, and could not make political criticism a criminal offence. However, Latham CJ said that section 61 read in conjunction with section 51(xxxix) allows the Commonwealth to make laws to protect itself.

His Honour noted that while Parliament does not have the power to enact legislation punishing political criticism, ‘excitement to disaffection against a Government goes beyond political criticism’. The last prosecution was in 1960, when Department of Native Affairs officer Brian Cooper was prosecuted for urging “the natives” of Papua New Guinea to demand independence from Australia. He was convicted, and committed suicide four years later, after losing his appeal.

Seditious Intention

The definition of “seditious intention”:

“An intention to effect any of the following purposes:

(a) to bring the Sovereign into hatred or contempt;
(b) to urge disaffection against the following:

  • (i) the Constitution;
  • (ii) the Government of the Commonwealth;
  • (iii) either House of the Parliament;

(c) to urge another person to attempt, otherwise than by lawful means, to procure a change to any matter established by law in the Commonwealth;
(d) to promote feelings of ill-will or hostility between different groups so as to threaten the peace, order and good government of the Commonwealth.

Subdivision 80.2 of the Criminal Code 1995 (Cth) specifically criminalises Urging the overthrow of the Constitution or Government:

(1) A person commits an offence if the person urges another person to overthrow by force or violence:

  • (a) the Constitution; or
  • (b) the Government of the Commonwealth, a State or a Territory; or (c) the lawful authority of the Government of the Commonwealth.

Similarly, it introduces the offence of [urging] 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, and Urging violence within the community:

  • (a) the person urges a group or groups (whether distinguished by race, religion, nationality or political opinion) to use force or violence against another group or other groups (as so distinguished); and
  • (b) the use of the force or violence would threaten the peace, order and good government of the Commonwealth.

Additionally, it is now specifically illegal to urge a person to assist the enemy:

(a) the person urges another person to engage in conduct; and
(b) the first-mentioned person intends the conduct to assist, by any means whatever, an organisation or country; and
(c) the organisation or country is:

  • (i) at war with the Commonwealth, whether or not the existence of a state of war has been declared;
  • (ii) specified by Proclamation made for the purpose of paragraph 80.1(1)(e) to be an enemy at war with the Commonwealth, or to [urge] a person to assist those engaged in armed hostilities

(a) the person urges another person to engage in conduct; and
(b) the first-mentioned person intends the conduct to assist, by any means whatever, an organisation or country; and
(c) the organisation or country is engaged in armed hostilities against the Australian Defence Force, except where such urgings are by way of, or for the purposes of, the provision of aid of a humanitarian nature.

These new crimes are all punishable by Imprisonment for 7 years.

The new law specifies, under section 80.4 Extended geographical jurisdiction for offences, that Section 15.4 (extended geographical jurisdiction – category D) applies to an offence against this Division. Originally introduced into Australian law as a consequence of Australia’s acceptance of the International Criminal Court, Section 15.4 of the Criminal Code 1995 (Cth) provides that offences under category D apply:

  • (a) whether or not the conduct constituting the alleged offence occurs in Australia; and
  • (b) whether or not a result of the conduct constituting the alleged offence occurs in Australia.

Category D —  initially applicable only to such crimes as genocide and crimes against humanity — specifically omits provisions restricting its scope to Australian citizens, and therefore applies to any person in any country, giving Australia universal jurisdiction over the crime of sedition.

Unlawful Organisations

Section 30A declared that any body of persons, incorporated or unincorporated (or any branch or committee of an unlawful association, and any institution or school conducted by or under the authority or apparent authority of an unlawful association) which by its constitution or propaganda or otherwise advocates or encourages (or which is, or purports to be, affiliated with any organization which advocates or encourages) sabotage; damage to property used in cross-border trade or commerce; revolution or war against either any civilised country or organised government; or the doing of any act having or purporting to have as an object the carrying out of a seditious intention was an unlawful association.

The Act goes on to criminalise members (deemed, in the absence of evidence to the contrary, to include attendees at a meeting, those speaking in public in advocacy of an association or its objects or distributing its literature), officers, representatives and teachers in any institution or school conducted by or under the authority or apparent authority, of an unlawful association, as well as persons printing or selling material produced by, or intentionally permitting a meeting in their premises of, such an association.

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In Al-Kateb v Godwin [2004] HCA 37 the High Court confirmed that the executive government can order a person’s indefinite detention – without trial and without allegation of criminal conduct. (from 55):

“It is not true, as Kirby J asserts, that “indefinite detention at the will of the Executive, and according to its opinions, actions and judgments, is alien to Australia’s constitutional arrangements”. During the First and Second World Wars, the National Security Regulations authorised the detention of persons who, in the opinion of the executive government, were disloyal or a threat to the security of the country. Many persons born in Germany were detained under these Regulations in both wars, while many persons born in Italy were detained under the relevant regulation during the Second World War.

However, detention was not confined to those born in the countries with which Australia was at war. As the detention of members of the Australia First Movement demonstrates, foreign birth was not a necessary condition of detention. P R Stephensen, one of the leaders of that Movement, was detained for almost three and a half years.

During the First World War, reg 55(1) of the War Precautions Regulations 1915 (Cth) provided that where the Minister for Defence “…has reason to believe that any naturalized person is disaffected or disloyal, he may, by warrant under his hand, order him to be detained in military custody in such place as he thinks fit during the continuance of the present state of war”. The validity of that regulation was upheld by this Court in Lloyd v Wallach (1915) 20 CLR 299. The Court unanimously held that the regulation was validly made under the War Precautions Act 1914 (Cth) which was enacted under the defence power. No member of the Court suggested that the regulation infringed Ch III of the Constitution.

During the Second World War, reg 26 of the National Security (General) Regulations 1939 (Cth) provided: “The Minister may if satisfied with respect to any particular person that with a view to prevent that person acting in any manner prejudicial to the public safety or the defence of the Commonwealth it is necessary to do so make an order … directing that he be detained in such place and under such conditions as the Minister from time to time determines …” This Court unanimously upheld the validity of the regulation in Ex parte Walsh [1942] ALR 359. Starke J said that the application for habeas corpus was “hopeless”. (at 360) In Little v The Commonwealth (1947) 75 CLR 94. Dixon J held that an order of the Minister under this regulation was not examinable upon any ground other than bad faith.”