Our authorities inept at quelling hatred and bigotry

Anger outside Sydney Town hall over the killing of Hassan Nasrallah included the flag of Hezbollah, a designated terrorist organisation. Picture: Damian Shaw

Late last year it should have been apparent to federal parliament that law alone might not be enough to prevent terrorist sympathisers displaying public support for banned organisations.

Yet here we are, days away from what could be damaging displays of public support for terrorists, trying to decide who to blame: is it police inaction? Or is it the law itself?

Whether we like it or not, the hatred and bigotry of the Middle East is poisoning community relations and our institutions have shown themselves to be unequal to the challenge.

The first step to recovery is to recognise the source of the problem.

There is no denying that a failure to enforce the rule of law has contributed to the breakdown of social norms and rising lawlessness – a point made cogently this week by Mark Le Grand, a former deputy Commonwealth Director of Public Prosecutions.

Those responsible need to be identified and held to account for their inaction.

And in the light of blatant support for terrorism on the streets of our biggest cities, it might also be appropriate to consider whether the law against glorifying terrorism needs to be tighter.

But there is another factor that needs to be considered.

Respect for the rule of law comes naturally to most people in this country. But the principles that form the basis of that idea might not come naturally to those who have grown up in countries with a different tradition.

So if we wish to preserve the rule of law, and understand why some people have felt free to ignore the law banning public displays of terrorist symbols, we need to go all the way back to August 14 last year.

That is when the Law Council of Australia, after examining an incomplete version of the changes to the counter terrorism laws, called for a community education campaign to increase the deterrent effect of those laws.

In particular, it wanted “targeted consultation with the Australian Muslim community to ensure that these offences are well understood”.

And, to be fair to state and federal police, the Law Council also foresaw the possibility of difficulties in policing the new laws and called for “clear education and guidance material to accompany the passage of the reforms”.

That plea for education and guidance about the new laws is outlined in a submission the Law Council sent to the parliamentary joint committee on intelligence and security on August 14 last year.

The logic is impeccable. The first step towards preventing lawless conduct is to ensure those who are subject to the law are made aware of their obligations – particularly those from different traditions.

It is not too late to take up that challenge. If ever there was an occasion that demanded mass education, this is it.

Monday marks the anniversary of the worst mass murder of Jews since the Holocaust.

The days ahead now look set to be hijacked not just by anti-Israel activists, but by those who have previously praised the murders that took place one year ago.

The nation’s leaders have vast communications resources. Why not use them to run an education campaign for the Muslim community about the requirements of the rule of law in general, and the counter terrorism laws in particular?

This should not be seen as discriminatory. It would be a service, possibly in Arabic, to those from a different tradition.

As the Law Council said last year before the latest changes came into effect: “The rule of law requires that the law must be both readily known and available, and certain and clear.”

“Most significantly it is essential that people know in advance whether their conduct might attract criminal sanction.

“If this bill is passed, the Law Council considers it critical that adequate resources be provided to support public awareness raising and education initiatives to support the implementation of these measures.”

If this had been undertaken earlier, those praising the terrorism of Hassan Nasrallah in Sydney mosques this week would have known they were risking seven years in prison.

They would have known that a newly expanded provision in the Commonwealth Criminal Code against advocating terrorism now seeks to crack down on those who incite terrorism by glorifying terrorist acts.

That is how the purpose of section 80.2C of the code is described in the revised explanatory memorandum that accompanied these changes.

It all depends on whether those who glorified this man’s conduct did so in circumstances where there was a substantial risk that it might lead others to engage in a terrorist act.

So was there a substantial risk that those who paraded through the streets behind images of this man or attended services that glorified his conduct might subsequently take to terrorism?

It will be worth watching how state and federal police interpret section 80.2C.

Those who might complain that it curtails their freedom of speech are right. That is exactly what parliament intended after considering the damage that praise for terrorism can cause.

The real question is whether the surge in public support for terrorism means it is time to consider whether that balance is still appropriate.

At the moment the balance in section 80.2C means people are free to glorify and praise terrorism right up to the point at which there is a substantial risk that their praise could lead others to engage in acts of terrorism.

That seems to mean that the law excuses those whose praise incites a risk of terrorism, but penalises those whose praise incites a substantial risk. Go figure.

Chris Merritt is vice-president of the Rule of Law Institute of Australia.