By Michael Bradley  Friday 10 October 2014

Photo: In 2007, ACMA found that Jones had broadcast material that was likely to encourage violence or brutality. (AAP: Tracey Nearmy)

Remember Alan Jones and the Cronulla riots? How would the proposed "advocating terrorism" laws have applied to his on-air comments in the lead-up to the fighting? Michael Bradley writes.

"These preachers of hate" - Tony Abbott to Alan Jones, regarding Hizb ut-Tahrir, October 8, 2014.

Round 2 of George Brandis's campaign to legislate terrorists into submission is in full swing, with the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 introduced into Parliament and now being considered by the same committee that rubber-stamped the last massive bunch of new freedom-loving "national security" laws.

Much of the focus has been on the foreign fighters question, as Julie Bishop is given the right to declare anywhere in the world a no-go zone and the presumption of innocence is chucked in the same bin as freedom of the press and the right to privacy, as part of the quest to end the current surfeit of beheadings on Australian soil.

Once again, there are all kinds of hidden gems in this new bill. One is the new offence of "advocating terrorism", being inserted in the Commonwealth Criminal Code with a five-year prison term. We already have extensive provisions outlawing the urging of violence against people and groups due to their race, religion, nationality, national or ethnic origin or political opinion, but apparently that won't do.

You will commit the new offence if you advocate the doing of a terrorist act or commission of a terrorism offence, and you are reckless as to whether anyone will actually do it.

"Advocate" means "counsels, promotes, encourages or urges". The definition of a terrorist act is breathtakingly wide. If you thought advocating terrorism means telling people to commit violence for political or religious ends, well, no. A terrorist act is one that causes death or physical harm or serious property damage, or endangers life, or creates a serious health or public safety risk, or seriously interferes with, disrupts or destroys an electronic system.

It has to be done to advance a cause, and with the intention of intimidating a section of the public or a government.

Terrorism offences are not restricted to acts of destruction. They include directing, being a member of, recruiting for, training, getting funds to or from or providing support to a terrorist organisation.

So - what do these incredibly complex provisions mean? There are two devils in this detail. The outlawing of incitement to violence has never been controversial, but we haven't previously extended this to such a wide definition of advocacy. And the range of acts, the advocacy of which will now be an offence, is extremely wide.

There is a broad "good faith" defence, which gets you off if you are in good faith just pointing out the government's mistakes, urging a change to the law or pointing out something that is tending to produce feelings of ill-will between different groups. But the burden of this defence is on you.

Very clearly this new law is a direct burden on free speech and it therefore calls into play the constitutional protection. If challenged, the Government will have to show that it is a proportional method of achieving the desired outcome of protecting our national security. The present High Court, if asked, would most likely wave the law through. It's been extremely reticent about getting in the way when the national security card is being played.

Putting aside legality, is it necessary? Are we so insecure about our society's wellbeing that we need to criminalise language that we've found ourselves able to tolerate until now? It isn't at all clear why this extension beyond the existing incitement to violence offences is needed.

By the way, remember Alan Jones and the Cronulla riots? In 2007, the Australian Communications and Media Authority found that he had broadcast material that was likely to encourage violence or brutality and to vilify people of Lebanese and Middle-Eastern backgrounds on the basis of ethnicity. He had, among other things, read out a text message saying "every Aussie in the Shire get down to North Cronulla to support the leb and wog bashing day".

Read the definitions carefully and recall just what happened in Cronulla in 2005. If this new law is passed, and Jones does the same again, the question might well arise as to whether he's been advocating terrorism. It's almost worth doing just for the sweet irony.

Michael Bradley is the managing partner of Marque Lawyers, a boutique Sydney law firm. View his full profile here.

What does it mean to 'advocate terrorism'? - The Drum (Australian Broadcasting Corporation)