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17 December 2021

A recent article from the Daily Mail has pushed the false claim of anti-lockdown protest organiser Jim Rech that Dan Andrews can face the death penalty for committing treason.

Rech has brought a private prosecution against Dan Andrews in the Myrtleford Magistrates Court, requiring Andrews or his legal representation to appear before the court on Dec. 17. Rech has accused Andrews of misprision of treason and fraud, among other charges, over his actions since the COVID-19 pandemic started.

Rech spoke at an anti-lockdown rally, where he claimed that Dan Andrews can be convicted of misprision of treason, which he said carries the death penalty if martial law is declared, or a life sentence if martial law isn’t declared.

The death penalty was abolished for all offences at a federal level in Australia in 1973, with the Death Penalty Abolition Act 1973 (Cth). This also applied to the Northern Territory and the Australian Capital Territory. All state governments have also passed legislation to abolish the death penalty, and in 2010 the federal government prevented states from reintroducing it, passing the Crimes Legislation Amendment (Torture and Death Penalty Abolition) Act 2010 (Cth). State governments cannot overrule federal laws.

Australia does not recognise an offence named ‘misprision of treason,’ although treason is recognised. Under section 80.1(1) of the Criminal Code Act 1995 (Cth), treason involves harming, killing, restraining, or imprisoning the monarch, the Governor-General, or the Prime Minister, as well as killing the monarch’s spouse or heir. Dan Andrews is not guilty of any of those offences.

Subsection 80.1(2) provides that assisting a person who has committed treason, or knowing that they have committed treason and not telling the police in a reasonable period of time, is also treason. The latter offence, concealing treason, is what is meant by ‘misprision of treason,’ but it falls under the offence of treason, rather than being a separate offence. The maximum penalty is life imprisonment.

Claiming that Andrews is guilty of treason under the definition provided in section 80.1 is ridiculous, as it would require arguing that Dan Andrews has personally been involved in, or known of, an attack against the Prime Minister, Governor-General, or Queen.

Bringing a case under the last two definitions of treason in subsection 80.1(1), namely instigating someone who is not a citizen to invade Australia, or declaring war on, or preparing to declare war on, the federal government, is even more outlandish.

As Andrews has met any of the requirements for committing treason under federal law, it is necessary to consider Victoria’s legislation. This is found under section 9A of the Crimes Act 1958 (Vic). This law defines treason in much the same way as its federal equivalent, except it does not mention the Prime Minister or Governor-General, and it includes intending to commit treason as an offence. Again, Andrews has not committed any of these offences, as far as ALN is concerned.

So obviously, pursuing any treason charges against Andrews will not be successful. There is no legal avenue for charging Andrews with treason or ‘misprision of treason.’ Even if there was, there is no death penalty. The only other option would be for the Prime Minister to advise the Governor-General to declare martial law, something which is extremely difficult to do. Even in the unlikely event it was declared, it is unlikely that Andrews would be tried in a criminal law court for treason while martial law is in place.

But, can the federal government even declare martial law against a state government? Such a question could be raised if there was significant disagreement between Prime Minister Scott Morrison and Dan Andrews over COVID-19, so it is worthwhile entertaining.

Paragraph 51(vi) of the Commonwealth of Australia Constitution Act 1900 (Imp) does grant the federal government control over the armed forces, as well as “the control of the forces to execute and maintain the laws of the Commonwealth.” One could assume that allows the military to be used “to execute and maintain the laws,” but the High Court of Australia held in Re Tracy; Ex Parte Ryan (1989) 166 CLR 518 that that job falls to the Australian Federal Police, not the military.

It has been suggested in Burns v Ransley (1949) 79 CLR 101 and R v Sharkey (1949) 79 CLR 121 that it could be used to protect Australia from internal threats, but a military threat from any state government is unlikely. The only remaining way for martial law to be declared would be under section 119 of the Constitution, but that would require the state government asking the federal government for martial law to be declared, and any assertion that Andrews would ask for martial law to be declared against him is ludicrous.

So there is no possibility of martial law being declared by the federal government against a state government. And even if there were, it is unlikely that criminal law actions could still be pursued.

Promoting outrageous claims like this do nothing more than harm the cause of those who are genuinely opposed to the mandates and lockdowns. It provides ammunition for pro-mandate activists and the corporate press to use against the anti-mandate movement, as the entire movement is painted as crazy by association.

People like Rech need to be denounced and disassociated from if the movement wants to maintain any credibility. And media outlets like the Daily Mail who give these crazy claims attention need to be condemned, because all they do is expose the movement to more ridicule by giving the claims publicity.

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Stuart Jeffery, aka LibertyDownUnder, is the founder of the Australian Liberty Network. He is also the host of the Gumtree of Liberty and Gumtree of Liberty Live podcasts, and is editor of the Liberty Review. Stuart is currently studying a Bachelor of Laws and Bachelor of Arts, majoring in international relations, at the University of Southern Queensland.

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