All Australians have a reciprocal citizenship obligation not to assist an enemy our government deploys our defence force to fight. Sedition and treachery laws are therefore essential and in no way affect peaceful and responsible democratic dissent.
Those arguing that reform of our sedition laws is unnecessary because no successful prosecutions have occurred for decades are missing at least one key point.
The law itself may have been archaic, and prosecutions may not have been attempted because of this, but seditious or treacherous crimes have certainly been committed.
Call it treason, treachery, sedition or whatever, but when Australian citizens actively and intentionally undertake actions designed to undermine the operational security or effectiveness of the defence force — and especially where they imperil its personnel or aid the enemy that our defence force is fighting — they have clearly committed a disloyal act well beyond the acceptable bounds of legitimate peaceful dissent from a government decision.
During the Korean War, for example, the communist journalist Wilfred Burchett (no matter whether he was formally a Soviet Bloc agent or not) actively assisted the North Koreans and Chinese, not least in their interrogation, subversion and prolonged maltreatment of Australian prisoners of war.
During the Vietnam War, some Australians intentionally and/or recklessly sabotaged or stole ADF equipment in Australia to prevent its use in South Vietnam.
Others deliberately and viciously harassed the families of soldiers serving overseas.
Some even collected money for the North Vietnamese front group in South Vietnam, the National Liberation Front, not caring that it was or might be spent on weapons or ammunition to kill Australian soldiers.
None of these obviously despicable acts were prosecuted because the laws were outdated and timorous governments from Menzies to Whitlam balked at updating them.
There are echoes of the legal dilemma that affected David Hicks here.
Our veterans of these wars have never forgotten these betrayals. This is not a theoretical or arcane issue of law for those veterans — or for serving members of the defence force.
It should not be a forgotten issue for their fellow Australians that these defence force members protect.
A strong reciprocal obligation not to harm or endanger our defence force personnel exists. This reciprocal obligation is absolute and in no way conflicts with the exercise of legitimate peaceful dissent.
Our defence force necessarily implements the policies and orders of our elected government.
It does this within the bounds of the Australian constitution and Australian law, the constraints of international law, and the professional operational methods and essential discipline we expect of the ADF.
Our defence force also has to act with disciplined restraint and moral integrity in the chaotic physical, legal and moral conditions of combat.
In implementing the orders of our elected government under these trying conditions members of our defence force do not have the choice to 'opt out' and disagree with the government decision concerned.
To allow this would mean we had an armed rabble rather than the disciplined defence force required of a democracy.
Such a rabble would be operationally ineffective, threaten Australia's reputation in the world, and eventually imperil Australian democracy itself.
Irrespective of the political controversy surrounding other provisions of an updated sedition law, it is clearly unfair to commit the defence force to operations and then tolerate its active betrayal by fellow Australians either intentionally or even recklessly.
If the such updated laws are to be repealed in general, such betrayals of the defence force will still need to be covered elsewhere, in either the Commonwealth Crimes Act or the Defence Act.
Quite rightly, under the Security Legislation Amendment (Terrorism) Act, 2002, an Australian citizen anywhere in the world now commits treachery if he or she (among other things):
intentionally assists, by any means whatsoever, an enemy, at war with the Commonwealth;
- intentionally assists, by ‘any means whatsoever’, another country or organisation that is engaged in armed hostilities against the Australian Defence Force (ADF); or
- forms an intention to do any of the above acts and manifests that intention by an overt act.
In a liberal democracy ruled by law we owe no less to the men and women of the Australian Defence Force we send to fight Australia's wars on our behalf.Back to Issues index