A pair of baby Giant Pandas were born in Wakayama zoo. Here's one of them:
Here's somebody's funny take on it.
Ever heard of 'Mountain Zebras'? Apparently they're different to normal Zebras.
Before I ForgetPleiades mailed in this link. It's the MKDiary again, this time covering artists and the seditions law:
Advice to Peter Garrett MP from Peter Gray SC, 28 October 2005So if Peter Garrett votes with Beazley, we'll finally find out he is the hypocrite we always suspected him to be.
I am asked to advise, urgently, on the likely impact of the Anti-Terrorism Bill 2005 (“the Bill”) on the free expression of opinion, especially in relation to creative and artistic expression. The provisions in the Bill which are of particular relevance are those which would change the law of sedition in Australia.
At present, so far as the Commonwealth is concerned, the law of sedition is codified in sections 24A to 24F of the Crimes Act 1914. Those sections are reproduced as Appendix ‘A’ to this Opinion. The Bill would repeal those sections in their entirety. In their place the Bill would enact new provisions in Division 80 of the Criminal Code Act 1995 (“the Criminal Code”). Division 80 comes within Chapter 5 of the Criminal Code, headed “The security of the Commonwealth”. Division 80 as it presently stands deals with one subject-matter, namely s. 80.1, “Treason”. The Bill would amend Division 80 so as to deal with two subjects, namely “Treason and sedition”. It would insert in Division 80 a new section 80.2, “Sedition”. Schedule 7 to the Bill, which contains inter alia the proposed new s. 80.2, is reproduced as appendix ‘B’ to this Opinion.
Sedition is an ancient offence. There have been only a handful of prosecutions in this country in the last century, and none for decades. Under the present definition of seditious intention in s. 24A of the Crimes Act, what would have to proved is an intention to bring about one of a number of quite specific purposes namely
1. to bring the Sovereign into hatred or contempt
2. to excite disaffection against [the Government]
3. to excite [Australian citizens] to attempt to bring about change, otherwise than by lawful means, to any matter in Australia which has been established by law of the Commonwealth; or
4. to promote feelings of ill-will and hostility between different classes [of Australian citizens] so as to endanger the peace, order or good government of the Commonwealth.
Seditious words are defined in s. 24B (to) as “words expressive of a seditious intention”, while seditious enterprise is defined in s. 24B (1) as “an enterprise under taken in order to carry out a seditious intention”.
Significantly, the conduct which is presently proscribed, the conduct which constitutes the actual offences, is engaging (oneself) in a seditious enterprise (s. 24C) or publishing (oneself) seditious words (s. 24D). Moreover, both those sections require, as well as the intention to bring about one of the four specific purposes identified in s. 24A, the further intention of “causing violence or creating public disorder or a public disturbance”. The Crimes Act does not spell out, among other things, what “public disorder” or “public disturbance”, mean, and whether a particular act amounted to sedition or not would inevitably be shrouded in uncertainty in many cases; however, it is at least clear that the prosecution would need to prove both the engaging in the conduct in question and the existence of the several “intentions” referred to above. Carelessness or recklessness would not be enough, nor would the mere encouraging of others to engage in the offending activities.
The proposed s. 80.2, to be introduced by the Bill into the Criminal Code, would change the law in numerous respects, including at least the following:
1. The conduct proscribed will be, not the engaging in a seditious enterprise or the publishing of seditious words oneself, but the “urging” of another person to do various things.
* .. Such “urging” is not defined in the Bill or the Criminal Code. Nor, so far as I have been able to ascertain in the time available, has it been the subject of judicial explanation or consideration. The Macquarie Dictionary gives as the principal meaning of “urge”, “to endeavour to induce or persuade, as by entreaties or earnest recommendations; entreat or exhort earnestly”, and includes as one of a number of subsidiary meanings, “to press by persuasion or recommendation, as for acceptance, performance, or use; recommend or advocate earnestly”. The Shorter Oxford yields similar meanings the first of which is “present or state earnestly or insistently in argument, justification or defence”.
* .. It would seem therefore that the term need not by any means be restricted to positive or express recommendation or persuasion, but could for example extend to cover indirect “urging”, by way of analogy, or dramatisation, or imagery, or metaphor, or allegory, or allusion, or any of the myriad devices and techniques available to a creative artist.
2. It will be enough that the accused “urges” such other person to do the act in question; that other person will not need to be shown to have responded in any way to such urging.
3. Indeed it would not appear to be necessary to show that the accused had any particular person, or audience, in mind when he or she engaged in the conduct said to constitute the “urging”.
4. With the exception of the offences to be created by s. 80.2 (7) and (8) – as to which see below – the prosecution will not be required, as it is at present, to prove any subjective intention on the part of an accused, for example to cause violence, or to create public disorder or a public disturbance. The offence will be committed by engaging in conduct, of whatever kind, which may be found objectively to amount to the “urging” of another person to do the acts in question.
5. In some cases – see s. 80(2), (4) and (6) – it will be sufficient for the prosecution to show “recklessness” (as distinct from deliberateness or actual intention) on the part of an accused as to whether a “circumstance” exists or will exist. “Recklessness” is defined in s. 5.4 if the Criminal Code as follows:
Recklessness
1. A person is reckless with respect to a circumstance if:
(a) he or she is aware of a substantial risk that the circumstance exists or will exist; and
(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
2. A person is reckless with respect to a result if:
(a) he or she is aware of a substantial risk that the result will occur; and
(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
3. The question whether taking a risk is unjustifiable is one of fact.
4. If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.
In these cases, a fortiori, the accused will not need to be shown to have actually intended the result.
5. The offences to be created by s. 80.2 (7) and (8) do not involve the “urging” of force or violence (notions which have hitherto formed an important part of the concept of sedition). They involve, rather, the “urging” of conduct which is intended by the accused “to assist, by any means whatever, an organisation or country” which is either “at war with the Commonwealth” or “engaged in armed hostilities against the Australian Defence Force”. Thus in the case of these proposed offences, a subjective intention on the part of the accused must be proved, namely that the conduct being “urged” would “assist” a hostile organisation or country. Such “assistance”, however, may be by “any means whatsoever”. It need only be minimal. It may be entirely peaceful and nonviolent. Encouragement; expressions of regret or remorse; publication of accurate factual material sympathetic to such an organisation or country; publication of accurate factual material unsympathetic to Australia’s position in relation to such an organisation or country; expressions of opinion about factors which might lie behind the policies or actions of such an organisation or country: all of these activities, among countless others, would be very likely to amount to such “assistance”, and thus to expose someone who “urged” another person to engage in such conduct to a 7 year goal term. The Bill provides, in s. 80.3, a defence for certain acts done in “good faith”. In this respect it substantially mirrors the corresponding provisions in s. 24F of the present Crimes Act. However, the acts in respect of which this defence is available are limited to such matters as trying to demonstrate or point out mistakes or defects in Government policy, or trying to bring about the removal of feelings of ill-will or hostility between different groups. It seems unlikely that this defence would avail an accused except in very limited circumstances.
Australians involved in creative or artistic fields seem to me to be particularly vulnerable to the risk of prosecution under the regime to be introduced by the Bill.
Take David Hare’s recent play Stuff Happens. That was a play whose characters were for the most part, real people engaged in pubic policy concerning the war in Iraq: George Bush, Donald Rumsfeld, Colin Powell, Dick Cheney, Condoleeza Rice, Tony Blair among others. The dialogue given to those characters was in part derived from transcripts of what the real people had actually said, and in part imagined. Clearly enough, the playwright was inviting the audience to mistrust, or disbelieve, or ridicule much of what these characters, the ‘leaders of the free world’, were saying. Would the publication of such indirect criticism of American/British policy and actions on Iraq “assist” the insurgents in Iraq? Or al-Qaida? Arguably so. Might some audience members be encouraged, or “urged”, by such a play to engage in conduct (whether acts of terrorism, at one end of the spectrum, or merely the further public dissemination of such criticisms, near the other end) of a kind which would or might contravene ss. 80.2 (1), (3), (5), (7) or (8) of the Bill? Quite possibly. Would the writer be aware of the risk that such a result might eventuate? Again, quite possibly. Risks of contraventions of provisions of the Bill would arise, perhaps in a more acute way, with for example
* .. a play or film or television program depicting in a sympathetic or even non-hostile way the policies or strategies or motivations of the Iraqui insurgents, or of al-Quaida, or of other groups which may from time to time be at war with or engaged in armed hostilities with Australia
* .. a newspaper or magazine article, or book, which took a similar noncritical or explanatory approach, even if based on factual material which was completely accurate
* .. a song, or picture, or written work, which expressed corresponding sentiments or which utilised the musical or artistic or literary traditions or styles associated with the culture of a hostile organisation or country in a way which signified sympathy with or admiration of that culture
* .. any imaginative/creative work (literary, visual or other) which repeated or included seditious views expressed by others
In all of these hypothetical cases, the play, or film, or book, or song, or picture, or television programme could well be found to constitute, objectively, the “urging”, of a person or persons exposed to it to engage in proscribed conduct. In any such case, ordinarily all of those involved in the dissemination of such works would potentially be guilty of sedition under the Bill: writers, directors, producers, actors, singers, painters, editors, publishers, distributors, broadcasters. All would arguably have “urged” such conduct.
At the very least, it seems to me that the increased uncertainty about the scope of the new offences and the potential severity of the punishment for them would inevitably tend to stifle, or to drive underground, the free expression of opinion and of creative or artistic responses to public and governmental affairs.
Blackstone Chambers PETER GRAY SC
28 October 2005
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