Can the AFP charge protesters for displaying the Hezbollah flag? It’s complicated

At weekend rallies in Australia’s major cities, attendees flew the flags of the militant group, Hezbollah, and raised portraits of its slain leader, Hassan Nasrallah. A small group in Melbourne went further, chanting slogans referencing a historical massacre of Jews.

Police are now investigating after a political debate about whether those involved should or could be charged under laws that started operating this year.

Those counter-terrorism laws prohibiting hate symbols were legislated in response to an increase in neo-Nazi groups displaying flags and saluting. So how do the laws work? And will they be effective?

Demonstrators hold Hezbollah flags and pictures of Hassan Nasrallah, the late leader of the Lebanese militant group, at a rally in Sydney. This masthead does not suggest that any person pictured will or should be charged.Credit: AFP

What do the laws ban?

The laws ban the promotion and idolisation of extremist views, and expanded the meaning of what it means to be an advocate for terrorism.

The amendment established a new offence in the Criminal Code for publicly displaying the symbols of a “prohibited terrorist organisation”.

Australia declared Hezbollah to be a terrorist organisation in 2021, having included its armed wing on the terror list since 2003.

Under the laws, the offences carry a maximum penalty of 12 months’ imprisonment.

Police officers have the power to direct people to remove a banned symbol from public display, but they do not have the power to remove it themselves. Failure to comply with a police direction to remove a symbol has a maximum penalty of more than $6000.

Is just flying a flag enough to be prosecuted?

The Australian Federal Police has made clear flying a flag alone isn’t enough.

Other elements need to be proven. First, the person displaying the symbol has to know it represents a terrorist organisation.

Second, it has to be displayed in a particular context. That includes situations involving spreading racial hate, intimidation, offence or violence because of race, religion or nationality.

AFP Deputy Commissioner Krissy Barrett confirmed on Tuesday the police were investigating protesters but said the display of the Hezbollah symbol alone was not enough for a successful prosecution.

“We need to prove that it is a terrorist organisation symbol and then it’s got to be done in circumstances in which a reasonable person would consider that the conduct either advocates inciting others to use violence or use force [and] could incite others to humiliate, intimidate, based on race or religion,” Barrett told ABC Radio National.

This masthead does not suggest that any person pictured at the protests will or should be charged, given the context of their presence at the protest is not known.

University of Queensland international studies and free speech expert, professor Katharine Gelber, said the AFP was correct that brandishing the Hezbollah flag would not be enough to meet the legal requirements for prosecution.

“This provision is quite broad because it covers a variety of hate symbols, and it’s hard to substantiate,” she said.

“So what we’ll have is the federal government legislating and legislating and legislating and not actually getting any outcomes on paper through the courts.”

Have the laws been used yet?

Two people had been charged under the laws before the weekend protests, but neither case has gone through court. The AFP said those cases were brought by state police in NSW and Queensland.

A NSW Police spokesman said on Monday that the force had seized two flags “displaying a terrorist organisation symbol” during Sunday’s rally. It is yet to make referrals to the federal police.

The AFP is probing at least six incidences after a referral from Victoria Police.

As of September 30, no individual has been charged by the AFP for the public display of Nazi symbols or prohibited terrorist organisation symbols.

Will the laws be strengthened?

Opposition Leader Peter Dutton has said Prime Minister Anthony Albanese should recall parliament to give the AFP powers to arrest protesters for promoting the Hezbollah symbol if the current rules are insufficient.

“I believe that there are provisions within the existing law. If there’s not, the prime minister should recall parliament and deal with whatever deficiency there is in the law,” he told Nine’s Today program on Tuesday.

But Home Affairs Minister Tony Burke dismissed Dutton’s call as a distraction.

“The moment it’s about the Middle East, the moment it’s about something on the other side of the world, Peter Dutton wants to talk about that and nothing else, and suddenly wants to say, ‘Let’s recall the parliament’. If you were going to recall the parliament, you’d be doing it to do something on cost of living,” Burke told Radio National on Tuesday.

“These are laws that Peter Dutton supported when they were passed a year ago.”

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