While there are concerns about the free speech and censorship implications of the national security reforms proposed by Attorney-General George Brandis — albeit not as serious as some make out — further reforms flagged by Brandis have far greater potential to undermine free speech.
Speaking to the ABC yesterday, Brandis opined that current anti-terrorism laws are too narrow in regard to the offence of promoting terrorism.
“You have to identify a particular terrorist act. So one of the reforms that I’m looking at is a broader prohibition against the promotion or encouragement of terrorism … There’s a general law. It’s a very ancient part of the criminal law that makes it a crime to incite violence. If it’s a crime to incite violence, surely it ought to be a crime to incite or promote terrorism.”
As shadow attorney-general Mark Dreyfus spotted immediately, if it’s already a crime to incite violence, then why the need to add an additional offence? The Commonwealth Criminal Code already makes urging someone to commit an offence — with the intention that an offence actually be committed — a crime punishable by up to 10 years’ jail, depending on the offence.
There’s a threshold issue in all this, which is whether a general promotion of violence should be a criminal offence. A person has already been jailed in Australia for promoting violence: Islamic fundamentalist Belal Khazaal, whose case Chris Berg wrote about two years ago. Khazaal was convicted and jailed under s.101.5 of the Criminal Code, which makes it an offence to collect or make a document that “is connected with preparation for, the engagement of a person in, or assistance in a terrorist act”, for a rather shoddy ebook urging jihad and offering some tips.
So, there’s already a law that relates to making documents associated with terrorism. But Brandis appears to want to go further and ensure anyone supporting terrorism in general can be prosecuted, in some way that current incitement laws don’t cover.
One self-evident problem is that one person’s terrorism is another’s heroic freedom fighting. Australia’s terrorism laws include creating “a serious risk to the health or safety of the public or a section of the public” in both Australia and overseas. Post 9/11, the West isn’t quite so gung-ho in its attitudes toward the proxies it backs in various conflicts around the world. But the United States, not to mention less savoury states like Saudi Arabia, has been providing weaponry to moderate forces fighting the monstrous regime of President Bashar al Assad in Syria — a conflict where both sides have been guilty of atrocities even before the arrival of the atavistic butchers of ISIS. Australians heading over to fight Assad are deemed to be incipient terrorists even as our imperial overlord ramps up its supply of weapons to opposition groups. Is promoting violence against the Assad regime what Brandis has in mind?
The broader problem, however, is that the War on Terror has been characterised by, inter alia, constant expansion of both the definition of terrorism and the application of anti-terror laws. In Australia, anti-terror laws have been used as a model for laws relating to trade unions and bikie gangs. In the US and the UK, the problem has been one of definitional creep. Protests by pacifists and people complaining about water quality have been labelled “terrorism” in the United States; groups targeted by the Department of Homeland Security’s intelligence “fusion centers” include Ron Paul supporters, the Occupy movement, the American Council of Civil Liberties, pro- and anti-abortion activists and gun ownership advocates.
Worst of all, in the UK, in attempting to justify the detention of journalist Glenn Greenwald’s partner David Miranda, the UK government successfully argued in court that simply publishing documents that might influence a government was “terrorism”, and that the motives of the publisher didn’t matter. “Terrorism is terrorism, whatever the motives,” the police prosecutor argued. The sheer breadth of the UK definition of terrorism is now causing real alarm there.
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Is promoting and supporting public interest journalism that embarrasses governments or reveals criminal conduct by government agencies terrorism? Is reporting what Edward Snowden has revealed — revelations that have led Congress to curtail some of the National Security Agency’s mass surveillance activities, and prompted the Obama administration to review its mass surveillance programs, claiming it had intended to initiate a debate anyway — terrorism?
Remember, “terrorism is terrorism, whatever the motives”.
Would the widening of current laws favoured by Brandis extend to whatever another Five Eyes country — like the UK — might deem terrorism? Or would it be limited purely to what Australian law deems terrorism? In which case, what specifically is not covered by both the incitement laws and the current, successfully-applied law that makes creating a dodgy ebook urging jihad a crime worth 12 years’ jail? Brandis should give us an example of how exactly the current, hardline laws are somehow too “narrow”.