Terrorism and Sedition

New South Wales Police estimate there are about 300 sovereign citizens in the state and their numbers are 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 NSW police 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.”

Detective Superintendent John O’Reilly from NSW Police Counter-Terror Command warns:

“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.”

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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 U.S. 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 terrorism 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.


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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Indefinite Detention

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.”

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