By Chris Berg Tuesday 30 September 2014
Photo: The new counter-terrorism bill is a mix of sensible change mixed in with redundancy and extraordinary overreach. (AAP: Lukas Coch)
We've always had robust laws against inciting violence, so why is the Abbott Government now introducing the new offence of "advocating terrorism", asks Chris Berg.
Incitement to violence is against the law. It's always been against the law.
Every Australian state penalises incitement. The Commonwealth makes it unlawful to incite the commissioning of any criminal offence, not just violence.
This legal framework has developed over centuries. The prohibition on incitement has ancient common law roots. It is robust. It is coherent. It is a long-established and very well-founded limit on free speech.
So here's a question: with the rich and robust law against incitement, why is the Abbott Government introducing the new offence of "advocating terrorism"?
Last week the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 was introduced into Parliament. Like the first national security bill that preceded it, it is dense and complex - a mix of sensible change mixed in with redundancy and extraordinary overreach.
I argued in The Drum a few weeks ago that the foreign fighter threat is both genuine and pressing. We've seen over the last fortnight how events in distant Iraq have materially changed the security environment in Australia. Many proposed legislative changes - particularly to foreign evidence laws and passport confiscation powers - make sense.
But the new bill goes much further than that.
The bill makes it illegal to visit some parts of the world without proving to a court that you visited for family or humanitarian reasons. It extends the control order regime and expands detention powers held by customs.
And it makes it illegal to advocate - counsel, promote, encourage, or urge - the doing of a terrorist act or the commission of a terrorist offense. (The section in the new bill is 80.2C.)
On its face this is extraordinary. The word terrorism is a term of art. A lot of people call Israel a terrorist state. Others respond that Palestine is terroristic.
More concretely, the Commonwealth Criminal Code defines a terrorist act as any action that a) causes or threatens harm to life, property, risk to health, or disruption of electronic infrastructure; b) is motivated by a political, religious or ideological cause; and c) is intended to intimidate the government or the public in general. (See section 100.1 of the Commonwealth Criminal Code here.)
The definition is broad because it has to be. What we describe as "terrorism" is really a collection of offenses. Every part of a terror plot is potentially prosecutable under laws that have been around for centuries. These include the most obvious - murder and attempted murder - down to things like conspiracy and weapons possession.
Indeed, as Bret Walker, the former Independent National Security Legislation Monitor, told the Australian Human Rights Commission's free speech conference in August: "One of the best arguments against the counter-terrorist laws is that we didn't need any of them, because we've long criminalised murder, conspiracy to murder, and incitement to murder."
There are, certainly, some conceptual distinctions between traditional crime and terrorism. The latter is primarily intended to create fear. And governments hope to prevent terrorist acts rather than just punish them after the fact. Those differences perhaps justify some distinct anti-terror legislation.
But since September 11 governments have seemed intent on severing the concept of terrorism from its constituent parts - cleaving it off into a distinct body of law. This has created, as Bret Walker pointed out, massive redundancy, complication and confusion. The real winners from this decade of security hyper-legislation are lawyers.
Just how much redundancy has been piled into our anti-terror laws?
Well, in 2005 the Howard government passed sedition law reform that, in the words of the then-attorney general, Philip Ruddock, was intended to prohibit "any conduct or advocacy that is likely to encourage somebody to carry out a terrorist act". Sound familiar?
It's striking how little justification the Government has offered for the new advocating terrorism offense - let alone an account of why existing incitement or the 2005 sedition laws are inadequate.
But it appears the advocating terrorism offence isn't just one of the dozens of new crimes and security powers in the Government's voluminous anti-terror bills.
No, it seems to be the key to whole thing. It has deep political significance.
Think back to August, when the Government announced its turn towards national security. That announcement was made at a press conference where Tony Abbott also said he was abandoning the promise to repeal section 18C of the Racial Discrimination Act. We were told this was a matter of clearing the decks so everybody could get behind Team Australia.
Yet last week Fairfax reported Abbott shelved free speech reform so section 18C could be used against Islamic hate preachers.
This makes the August press conference even more disingenuous than it appeared at the time.
It seems the Government believes advocating terrorism and offending, insulting, humiliating or intimidating on the basis of race or ethnic origin are two sides of the same coin.
The promised reforms to section 18C weren't a "complication". They were directly contrary to the Government's desire to suppress speech that would otherwise be free.
Chris Berg is Policy Director at the Institute of Public Affairs. View his full profile here.
The redundancy of new anti-terrorism laws - The Drum (Australian Broadcasting Corporation)
