November 08, 2011

Radio Australia: Sedition an easily abused statute says academic

Updated November 7, 2011 17:26:22

The law Fiji trade union leader Daniel Urai has been charged under was removed from New Zealand's statute books several years ago for being too archaic.

That's according to legal expert Bill Hodge says the law of sedition dates back to the reign of King Henry the Eighth, and has been abused by governments as an easy way of jailing opponents.

That's why he says New Zealand and any other countries got rid of it, although they've retained the more serious offence of treason.

Presenter: Bruce Hill
Speaker: Professor Bill Hodge, Law Faculty at Auckland University
Listen here.

HODGE: It has been on the statute books in countries like New Zealand, Australia. It's a very old statute and it basically means that you're bringing into contempt or exciting disaffection against either Her Majesty or the government of Her Majesty in that jurisdiction. It is a very old statute, happily it has been done away in most modern jurisdictions.

HILL: Are you surprised to find a trade unionist in Fiji charged with this crime though?

HODGE: Well first of all, I'm not surprised to find it on the statute books in Fiji. There's probably reasons for them never having gotten around to purging the books of these old fashioned and very unpleasant statutes, but I think they have found it convenient to keep these old statutes of these old crimes still on the books. So no, I'm not surprised, it's an old, old technique from well, I'm attempting to say a modern problem, but it's still an old problem of criticising the government and the government not liking criticism and throwing the person in jail for being party to criticism.

HILL: Well, Daniel Urai, the trade unionist, has been charged under a section of the crimes act which talks about, not just opposition to the government, but also creating some sort of political violence. Is sedition that kind of a crime?

HODGE: Well, there's no requirement for violence. One of the subsections does refer to encouraging violence or lawlessness or disorder, but another one is to procure alterations of matters affecting the Constitution, laws or the government. So it may be that he went to an overseas conference and suggested that there should be support for changing the form of government or changing the form of laws or something like that and technically, I have to agree with the military dictatorship there. Technically, he is probably in violation of seeking a change to aspects of the legal system and or the government to Fiji.

HILL: So he's guilty?

HODGE: Well, of that statute yes, I hate to say it, but it sounds like he is suggesting, and I'm guilty as well, for suggesting there should be change and there should be change, that statute would be a good place to start, get rid of the dam thing. Any opposition spokesperson in any country is always on the edge of what you would call sedition if you define it has exciting disaffection against the government, that's what they do every election period.

HILL: How common was it to be charged with sedition up until the time it was actually scrapped? Was it falling into abeyance anyway?

HODGE: Well in New Zealand, it was just one of those antique statutes that we finally got around to jettising, getting rid of it. But it wasn't pleasant to have it on the books, because you never knew when somebody would get an attack of madness and start bringing charges and it's a bit more systematic up in Fiji and they're not mad, they're deadly serious. But yes, it was in abeyance in New Zealand and I think there would have been an outrage. I remember being in a Civil Liberties Council and saying to the government, get rid of this, it's just of no use and you don't need it, and they eventually agreed.

HILL: What happens however, and I'm just taking the Fiji government side here, what if you felt that someone was doing something which was really going to affect the country, which might led to a violence and a political overthrow the people didn't want?

HODGE: Sure, well there certainly still are the offences of treason, there are still the other offences relating to unlawful assemblies and all the offences relating to violence or bringing in weapons and we've got one at the moment where people have been training with molotov cocktails and they're still being charged under the Arms Act, as not being an arm that they're allowed to have. There is no shortage of good statutes to get people who are planning violence or violent overthrow.

One thing that Fiji does not have, New Zealand, Australia is a shortage of good statute. There's plenty of other alternative charges.

HILL: Is it easy to prove sedition?

HODGE: Well, sedition is pretty easy to prove, although in New Zealand we added a defence which is as long as you intended in good faith to show that Her Majesty had been misled or mistaken. I'm not sure if that defence is available in Fiji, so I'd have to say on the face of it, if you criticise Her Majesty's government or criticise the government in that jurisdiction then that amounts to sedition.

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