The unexpected enactment of new treason provisions: can it possibly be justifiable?

Abstract

For four decades, the offence of high treason in Australia remained unchanged. However, in 2002 the Commonwealth Parliament enacted new treason provisions as part of new counter-terrorism legislation. The new legislation has broadened the scope of the offence of treason in Australia. Thus far, the only reason given by the Government for legislating new treason provisions is that the offence of treason had to be modemized to reflect the nature of modern conflict. Any further elucidation of the rationale for the legislating of the new provisions cannot be found in the deliberations of the Senate Legal and Constitutional Legislation Committee or the parliamentary debates on the counter-terrorism legislation. Modemisation would appear to be an insuficient justification for the enactment of the new provisions, due to the nature of the offence. An examination of relevant jurisprudence and commentaries reveals the presence of four possible contentions which indicate that the enactment of the new treason provisions may not be justifiable. This paper will show that these contentions may be refuted.