What is the purpose of government? One answer—to benefit the greatest number with the greatest happiness—is advanced by utilitarians with whom, concerning government, many people agree. Another answer—to safeguard the rights of individuals—is common too. But Jeremy Bentham, the original theorist of utilitarian ethics, called rights ‘nonsense on stilts’ (Ross 1995, 85). However, it is conceivable that utility is maximised only when there are inviolable prohibitions which would prevent agents from performing actions, such as expropriation or incarceration, which, in the absence of a glib justification, seem intuitively wrong. Positive rights are problematic, but negative rights, or freedom from harm and coercion, are necessary for a functional society. Sedition, the crime of promoting rebellion against the established order, violates neither positive nor negatives rights but, given certain, albeit complex and unlikely, conditions, could lead to their revolutionary abolition. The question whether a democratic majority can punish an individual for not violating rights on a causally tenuous or purely moral pretence will be answered in the negative.
The importance of sedition law in Australia is closely tied with how it is defined. It has variously meant treason, the use of violence, and even merely the advocacy of violence, against a nation, a state, a monarch, a group, or even an individual. Sedition law in Australia had its genesis as a war-time provision against the internal division or agitation of citizens. The War Precautions Act 1914 (PCA 1914) gave the Commonwealth unprecedented powers of censorship and control over citizen activity. It defined sedition as any activity which, in its weakest form, encourages hostility towards the British Empire. The National Security Act 1939 (PCA 1939) and its regulations ensured that any activity deemed inimical to a war effort, both at home and abroad, was labelled as seditious. Key to both definitions is the implicit understanding that sedition activity does not need to pose any legitimate threat to the stability of social order. The voicing of a dissenting opinion alone is sufficient to have one convicted for sedition. The subjective nature of sedition is borne out by War Precautions Act Repeal Act 1920 (PCA 1920) which, as a modification of the War Precautions Act 1914, included emendations which, ironically, while seeking to redress grievances caused by mistaken convictions of sedition, in fact increased the power of the judiciary by granting them the right of interpretation over whether a potentially seditious act was or was not done in ‘good faith’. This vague definition and the necessity of interpretation allowed the government the ability to abuse its powers and to take “political prisoners”. The modification and reintroduction of classes of seditious offence in the Anti-Terrorism Bill (No. 2) 2005 (PCA 2005) prohibit, among other things, the intention to bring the sovereign into contempt or to urge disaffection against the House of the Parliament. In addition, urging the urging of these things is illegal.
Discussion of the merits of sedition can focus on whether it is right or whether, irrespective of its rightness, it can be justified by a means-ends cost-benefit analysis. This essay will argue, first, and briefly, that the utilitarian defence of democracy as the means by which the greatest happiness is secured for the greatest number is, in fact, hindered by the crime of sedition. It will then argue that sedition cannot be justified by an appeal either to individual or to majority rights.
One objection to utilitarianism and to democracy is that both can appeal to “utility” or to “majority rules” to justify noxious behaviour. One way around this is to practice rule-utilitarianism which urges us to follow a particular rule as a way to secure utility. Such a rule might be “do not jail people who have caused no harm”. Even though it is conceivable that happiness might be increased by breaking the rule—for example, by jailing an innocent man who people think is guilty, or by accepting innocent lives as necessary political collateral—it makes sense to follow the rule in ordinary cases. These rules are sometimes clothed in “human rights language” and can prevent a majority from exercising tyranny over a minority, from violating their rights. As regards sedition, the following intuition pump might help make this reasoning clearer.
Person A posts on his Facebook profile words which hold the Queen in contempt and which urge people not to vote in the upcoming federal election because government is incompetent and does more harm than good. The comment attracts very few likes and comments and in no ways poses any “clear and present danger” to the integrity of the political process. No rights whatsoever are maligned. Nevertheless, his comments do fit the definition of sedition, and he is arrested and thrown into jail. As the man caused no harm, his incarceration is the only harmful event. Crimes of sedition of this type actually decrease utility and, as a rule, should not be defended. Arguments that use utility-majority arguments to defend sedition are incoherent and it is better to follow the rule “do not harm those who cause no harm” than to enforce the law of sedition.
Sedition cannot be justified in democratic-utilitarian terms. Can it be justified in democratic terms as a right of the majority? No. A summary exposition of the evils of majority tyranny is all that this essay can permit. So, quickly: negative rights give protection from something, positive rights give entitlement to something. A democratic right can be construed as either to right of the majority to something, such as the enforcement of its opinion, or its protection from something, such as—what? Harm? It is unlikely that an abstract entity can be harmed in any purely physical sense. Can it be harmed by having its rights frustrated? Perhaps. For example, the democratic process might be harmed if a democratically elected politician declines to do what the polity tells them to do. But the frustration of a democratic “right” might be justified if its frustration protects another, more important right, for example, the right of an individual not to be unjustly persecuted or to have their freedom of speech restricted. The question whether one right has precedent over another is tricky, but it cannot—must not—be true that any entity, be it a concrete individual or an abstract majority, has a right to impose its will without regard for the rights of others. Just as an individual cannot incarcerate someone because he wills it, so, too, is democracy unable to use the euphemism of “seditious intent” to incarcerate because they express distaste (for sedition is a crime of expression) for dissenting opinion.
One way to resolve the question of which right is paramount is to discover where rights come from. Putting aside the troublesome assertion that law and rights are natural or divine, this essayist will assume that they are man-made and that the relationship between state and citizen is contractual. There must, by necessity, be some give-and-take between the state and the citizen regarding their obligations to each other as their relationship is co-dependent. But which has precedence? The only type of state which has theoretical total primacy over the individual is fascism (Mussolini 1935). No answer as clear as this is forthcoming about Australia’s complex liberal democracy. However, one could plausibly assume that in any country where the leaders are elected by edict of citizens and which, per above, is immune to majority incursion on minority rights, that any government of this type will, if consistent, favour the rights of the citizen over the rights of the state.
Yet even this tentative observation does not mean that the state as democratic majority consents to the state. If it cannot hinder individuals with talks of utility or of rights, perhaps it can do so with talk of morals. Sedition is a crime of intention, divorced from consequences on utility or rights, and thus is “bad in-itself”. Having the state enforce issues of morality and effectively destroying the “private sphere” would be an obvious instance of the state consenting to its citizens and not permitting the inverse. Thus Lord Devlin (1965, 13) argued that the state could interfere with private morality and to enforce moral behaviour if in doing so it could protect itself from dissolution. This fails for a simple reason: the problem of proximity between an act of “immorality” and the dissolution of a state. Exceedingly few, if any, immoral acts will have a direct effect on the integrity of a state. A defence of pre-emption—i.e., that it is better to “nip the problem in the bud” than to wait until it is too late—can be answered by renaming it as the fallacy of the slippery slope. Interfering with individual liberty is prima facie wrong, and, as noted by legal philosopher H.L.A. Hart, performing an act which is prima facie wrong requires a strong justification, which, per above, does not seem to be forthcoming.
So far this essay has argued that sedition is not a crime, that its enforcement is criminal; the essay question—does sedition law give the state power over its citizens which the citizen cannot assume?—has not been addressed directly. But it has been answered. If the criminal status of sedition cannot be justified in any way, and if the power of interpretation of which crimes are and are not sedition falls, ultimately, on the prosecutors who are mostly immune to retribution—that is, if the state operates in a moral sphere beyond good and evil without the authority of, and without the need to refer to, its citizens—then the state does, indeed, consent to the state, and not vice versa, at least as regards sedition.
Devlin, Lord. 1965. The Enforcement of Morals. Oxford: Oxford University Press.
Harrison, R. 1995. ‘Jeremy Bentham’. In: Ted Honderich, ed. The Oxford Companion to Philosophy. Oxford University Press. pp. 85–88.
Hart, H.L.A. 1968. Law, Liberty and Morality. Oxford: Oxford University Press.
Mussolini, B. 1935. Fascism Doctrine and Institutions. Rome: Ardita Publishers.
Parliament of the Commonwealth of Australia (PCA). 1914. War Precautions Act 1914. PCA: Canberra.
PCA. 1920. War Precautions Repeal Act 1920. PCA: Canberra.
PCA. 1939. National Security Act 1939. PCA: Canberra.
PCA. 2005. Anti-Terrorism Bill (No. 2) 2005. PCA: Canberra.