GOVERNMENT BILL: Extremist Material
November 28th, 2017
On 28th November, Mark spoke to the Statutes Amendment (Extremist Material) Bill 2017.
The Hon. M.C. PARNELL: I will be brief in relation to the second reading component of this bill. The intent of the bill is certainly something the Greens support. The classic example usually presented is in relation to a person who might be in possession of bomb-making material, a precursor event, if you like, to an act of terrorism, and the question has rightly been asked whether the law is sufficient to charge that person with an offence that is, effectively, a precursor offence to an act of terrorism. Most of us get that; we understand it and we want our law enforcement authorities to be able to capture people before they commit terrorism offences rather than afterwards.
Having said that, there are some serious questions that need to be asked in relation to this bill, and I am grateful to the Law Society for writing to all members of parliament and setting out some of their concerns. There is a danger that bills like this, whilst they have every good intention and whilst they will have the general support of the parliament, may result in overreach and may result in unintended consequences.
The Law Society's submission makes the point that the criminal penalty that is being created here is in relation to being in possession of or having collected certain information, rather than whether it is the intent of the person that that material or information be used for terrorism. To use the Law Society's own words, they say that the effect of the insertion of section 83CA of the Criminal Law Consolidation Act, if enacted as drafted, would be to potentially render non-terrorist related activities terrorism and its participants terrorists.
The society suggests that if such a provision is to be included in the Criminal Law Consolidation Act, the offence should contain an element of intent or purpose; for example, a person who collects or possesses such information 'for a purpose connected with the commission of an act of terrorism'. The Law Society is taking a fairly standard and traditional approach to the criminal law, which suggests that a criminal intent is required as well as a criminal act.
In relation to the amendments to the Summary Offences Act, the Law Society raises an interesting issue about the definition of extremist material. They note that this is material that a reasonable person would understand to be directly or indirectly encouraging, glorifying, promoting or condoning terrorist acts, or seeking support for or justifying the carrying out of terrorist acts. It also extends to material that a reasonable person would suspect has been produced or distributed by a terrorist organisation.
Part of the challenge we have there is that we have a reasonable person test that is expected to modify a range of material, which most of us would find inoffensive or excusable. A few of us have been talking about this bill tonight, and I mentioned that I have quite an extensive collection of patriotic ballads from various conflicts, starting with the Irish Rebellion of 1798, right through to more recent conflicts. In fact, I told the anecdote of a certain former Labor minister—who may or may not have been called Patrick Conlon—who, in the members' refreshment room very late one night, was singing in full voice the ballad of Roddy McCorley.
Roddy McCorley was a terrorist. Roddy McCorley failed to understand that the British occupation of his country was in fact a very legitimate act that should have been supported. In fighting for the freedom of his people, he engaged in terrorist activities. For his trouble, he was hanged by the Bridge of Toome, as the ditty goes. It might sound as though I am being flippant, but my point is that I also have friends who are military enthusiasts and who have a great deal of material that they have collected.
A lot of the activity in the Boer War, in the late part of the 1890s, is generally regarded as guerrilla warfare, terrorism. The difference between a terrorist and a freedom fighter is who wins. If they won they were freedom fighters and if they lost they were terrorists, and they remained such. Some of this material would be generally out there, generally regarded as being of historical interest. Some people might even have an unhealthy interest in it. We see Neo-Nazis on the television glorifying some of the awful atrocities of the Second World War. I do not think that anyone is suggesting that whatever those people might be doing is directly involved in terrorism. It might be offensive, it might be something that is an affront to right-thinking people, but is it a terrorist-related activity?
The Law Society does question whether the scope of the bill is correctly pitched. Similarly, they raise questions about the exemption, if you like, or the defence, and that is the defence of legitimate public purpose. The bill does not specify how that exemption might apply. The Law Society, for example, says:
…the Bill does not specify…where religious texts stand. A number of international crimes classified as terrorism involved perpetrators invoking religious doctrines to justify their acts.
It goes on to give a couple of concrete examples:
The provision has the potential to criminalise the activities of local, non-government, diaspora, friendship, and advocacy, organisations, which are not connected with terrorism. For example, it has the potential to criminalise the activities of local organisations which support the creation of an independent state for the Kurdish people, or Palestinian people, respectively.
Whilst these concerns are important, and the Greens share them, ultimately the intent of the bill is one that we strongly support. We want to make sure that the police have the ability to ping people and to prosecute them when they have material that is clearly aimed at terrorism, whether it is bomb making or other material, but the Law Society's position is also defensible. In conclusion they say:
The provision does not look at the intent of the individual but rather what a 'reasonable person' would suspect and then, applies a narrow view of legitimate public purpose. There is a real danger that both offences created under this Bill will apply to people who are not about to commit an act of terrorism.
The Society does not support the Bill in its current form and would urge the Government and the Parliament to consider the redrafting of the Bill to address the issues raised above.
I wanted to put that briefly on the record. I know it is getting late in the piece and a large number of bills need to go through. The Greens share the concerns of the Law Society, but we will allow the bill to pass because we do not want to be seen to be nitpicking, and the overall intent of the bill is one that we support. We want our law enforcement authorities to be able to intervene early in the life cycle of radical extremists and to get people before they commit acts of terrorism.
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