The Australian Parliament is considering new criminal offences for accessing, transmitting, soliciting, possessing or controlling violent extremist material. The offence comes with five years imprisonment.
The Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023 attracted immediate criticism from Muslim organisations due to its proposed ban of the ‘Islamic state flag,’ but other elements in the Bill have received no media coverage to date.
The Australian Muslim Advocacy Network (AMAN) has described the ‘IS Flag ban’ as unnecessary and harmful to Australian Muslims, but says Australians need to pay attention to the other offences in the Bill.
“The new offences concerning violent extremist material make it a serious criminal offence to merely access content, regardless of whether a person intends to be involved in violent extremism or not.”
“Civil society organisations involved in monitoring harm to community could be at risk, and people who share content from war, occupation and conflict zones overseas” said AMAN.
“These offences go further than comparable offences in the UK, which have been used extensively with teenagers.”
AMAN said that the definition of ‘violent extremist material’ was not clear enough to provide certainty to ordinary Australians. “It is not as clear or obvious as something like child pornography.”
“The way the Bill defines violent extremist material is very much dependent on contextual information that internet users may not have access to. The definition itself is over a page long.”
“The definition also continues the problematic category of ‘religious cause’. It is troubling that police would be making decisions about what constitutes violent extremist material against a backdrop that is already marred by confusion and bias,” said AMAN.
The Attorney General’s Department has said, “[t]he new offences would facilitate law enforcement intervention at an earlier stage in an individual’s progress to violent radicalisation, and provide greater opportunities for rehabilitation and disruption of violent extremist networks.”
“The definition of serious violence ensures that violent extremist material only includes material that deals with conduct so serious as to engender public harm purely through its possession or distribution.”
The Law Council of Australia said that existing sections 101.4 and 101.5 of the Criminal Code were sufficient to capture the type of conduct the Bill seeks to address. The Council cautioned against creating offences for simply accessing or possessing material,
“There is a broader range of circumstances in which a person may unwittingly come across material that engages with extremist ideology that may meet the proposed definition of “violent extremist material,” said the Law Council.
“The broad definition of violent extremist material may inadvertently capture persons who access or view so-called “manifestos” which are directed to legitimate matters of political dissent or struggle.”
Like AMAN, the Law Council also believed that greater regard should be given to the fault element of intent (intent of the person to access or possess violent extremist material).
Similar laws have been attempted overseas and failed, after being found to breach constitutional human rights.
Two French bills adopted in 2016 and 2017 were struck down on three occasions between 2017 and 2020 by the Constitutional Council. The bills made it a criminal offence to consult terrorist-related websites regardless of intent.
It was punishable of up to two years of imprisonment and a 30,000 euros fine. The Constitutional council struck down this provision as violating freedom of expression.
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