A free speech U-turn is under way, with Peter Dutton leading the charge

Does Peter Dutton read the legislation he votes for? This week he is outraged at the thought that protesters who brandished Hezbollah flags and photos of its slain leader Hassan Nasrallah may not automatically have committed a federal crime. Here, he’s referring to laws passed in January, which ban the display of Nazi and terrorist symbols.

Dutton wanted police to throw that particular book at these protesters until the Australian Federal Police pointed out it isn’t that simple. The legislation banning these symbols only applies where displaying them amounts to something like incitement or vilification.

Credit: Illustration: Simon Letch

Now, it’s entirely possible that threshold was crossed here, which is why police are investigating six cases for the moment. But the point is there is a threshold to be crossed. Dutton seems outraged there is a threshold at all. Which is quite something because he voted for exactly that.

It isn’t hiding, either. It’s not in some obscure nook or cranny. It is right there, clear as day, in the very section that creates the offence in the first place (section 80.2HA of the Criminal Code for those playing at home). In fact, it’s there twice: once in relation to terrorist symbols and once in relation to Nazi ones.

It was there in the very first draft of the bill. That bill was amended more than once. To begin with, it banned only Nazi and Islamic State symbols, but was later broadened to include all listed terrorist groups. But at no point was that threshold challenged or removed. While the Coalition moved one amendment (which was voted down), it had nothing to do with this threshold whatsoever. The Coalition clearly, repeatedly, had no problem with it.

That’s because these sorts of thresholds are very familiar. They’re a pretty standard feature in hate speech legislation, for example, on which these new symbol-banning laws are deliberately based. Hence, the key language in this law – banning displays that are “likely to offend, insult, humiliate or intimidate” a group – copies verbatim the language you see in 18C of the Racial Discrimination Act.

Which is a fascinating coincidence because you might recall the Coalition once regarded 18C as an unacceptable assault on free speech and wanted to repeal it. This was a Coalition that believed “people do have the right to be bigots”; that you can’t legislate away prejudice; that sunlight is the best disinfectant; that the solution to offensive speech or dangerous ideas is to refute them, not ban them.

When it came to vilifying racial minorities, they weren’t upset there was a threshold before an offence could be made out. They were upset that the threshold was too easy to reach. For them, the offence simply shouldn’t have existed.

Clearly, the Coalition has lost its appetite for free-speech absolutism. I’m far from the first to observe that when it comes to the carnage in the Middle East this past year, nearly everyone seems to have reversed their positions on speech. Conservatives, once desperate to protect the right to offend, now scan every protest for offence and demand arrests. Progressives, once preoccupied with the harms of speech, for whom both words and silence are violence, who charge that offensive speech makes people unsafe, now assert the primacy of free speech.

Between all this, in a relatively consistent position, stands the law, reflecting a well-established, deeply considered tradition in liberal democracy. A tradition that says governments do not criminalise speech on its own, even abhorrent speech, or criminalise ideas, even scandalous ones. That’s because liberal democracy is most fundamentally a contest of ideas. And as such, the government should never be trusted to say which ideas are allowed, especially when it involves throwing people in prison.

But government does have the right to protect a certain set of red lines that are crossed when speech tips over into some broader, fundamental transgression. So, when speech is inciting violence, the government can say a crime has been committed. Not – importantly – because someone said some offensive or even evil words, but because they are likely to cause violence. This might seem a subtle distinction, but it is essential. It means the government does not punish content, only likely consequence.

Our new federal symbol-banning laws follow that same tradition because symbols are simply a form of speech. To ban them, merely for being displayed and nothing more, is therefore to ban speech. Hence, the law bans them when they amount to something more.

Of course, you could say that’s always the case with a Nazi or terrorist symbol; that these things are always an incitement to violence or an act of vilification. And indeed, in many cases and in many contexts – perhaps most – that might be true. But it’s also not terribly difficult to think of cases where it might not be. For example, if such an absolute ban had applied in the 1980s, and we’d followed America’s views on who is a terrorist, it would have been a criminal offence to display a photo of Nelson Mandela. Countless university students wearing Che Guevara T-shirts might have wound up in prison. Would these really have been cases of incitement or vilification?

“We’re not going to suppress the idea by banning the symbol,” said Nationals senator Matt Canavan this week, dissenting from his Coalition boss. “Locking people up for flying a flag is a halfway measure. It won’t defeat extremism – rather it risks spreading it.”

Canavan admits he wasn’t fully convinced of the laws when they came to the parliament, and articulates a fairly routine liberal objection to this whole approach. But whether you share his position or not, Canavan’s intervention forces us to consider an important question: why exactly do we want to ban such symbols? Try to answer that, and you’ll very quickly start using concepts like community safety, security, incitement or vilification. Which, of course, is perfectly reasonable. It also happens to be exactly what the current law targets. Read it and see.

Waleed Aly is a regular columnist.

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