It was done for the Viet Cong in numerous countries during the US involvement in Vietnam. It was done for the African National Congress (ANC). It was done for the Irish Revolutionary Army (IRA). Across the United States, Europe and Australasia, all three organisations, demonised as terrorist outfits, received tacit, symbolic support from protestors. In some cases, support was genuine and pecuniary. Now, the Lebanese Shia militant and political group Hezbollah, designated a terrorist organisation in a number of Western states, has inspired flag holders to appear at protests against the expanding conflict in Gaza and Lebanon.
In the previous first three instances, all outfits were integrated into the political fold of their countries, revealing the flimsy nature of badging organisations as terrorist entities. War makers and practitioners of violence can become peacemakers and creatures of paper pushing officialdom. Such transformations take time and an acid bath of reality.
That backdrop offers context in understanding, and sternly critiquing, the hysteria of critics keen to press charges against those sporting Hezbollah symbols. At the very least, it should consider the mockery that is free speech in a country such as Australia, awash with authoritarians concerned about the watery concept of social cohesion. Down under, the skimpy protections for free speech are being whittled away year by year. The Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023, passed in December last year, makes it an offence to publicly display and trade in prohibited symbols, along with the Nazi salute. Prohibited symbols are defined as prohibited Nazi symbols or “a prohibited terrorist organisation symbol.”
The Criminal Code Act 1995 as amended, offers a number of glutinous elements that must be made out in such a charge. They are thickly unclear and, it follows, difficult to apply. To be charged with a prohibited symbol offence, a reasonable person (drafters can never resist this feeble term) would have to consider that any public display would involve dissemination of ideas based on racial superiority, hatred or constitute incitement “to offend, insult, humiliate or intimidate”. That same inscrutable reasonable person would also consider the display to involve “advocacy of hatred of a group of persons distinguished by race, religion or nationality or a member of the targeted group” with the incitement element also present. Thirdly, such conduct must be “likely to offend, insult, humiliate or intimidate a reasonable person who is a member of a group distinguished by race, colour, sex, language, religion, political or other opinion or national or social origin.”
These elements are nonsensical, attempting to impose unmeasurable standards about feelings that are rarely reasonable and always almost subjective. Subjectively, people are constantly offended by what they disagree with. The whole field of political opinion is one lengthy record of taking offence. It quickly follows that some might also be intimidated, insulted, or humiliated by an opponent’s contrary view, notably when it comes to discrediting a position. Freedom of speech, axiomatically, requires the exclusion of the offended from consideration. But the concept is fragile in Australia’s regulation-crazed environment.
Arrests have already been made. On October 2, a 19-year-old woman was arrested and charged for publicly displaying the symbol of a prohibited organisation at a Sydney demonstration. The question, however, is whether did so with the requisite intention, absurdly determined by the hypothetical reasonable person, to incite offence, insult, humiliation and intimidation. Ahead of protests scheduled for October 6 and 7, Australian Prime Minister Anthony Albanese, not wishing to find himself in a messy quagmire of prosecution and confusion, warned that they should not take place. “It would not advance any cause. It would cause a great deal of distress.” Again, free speech, felled by the concept of hurt feelings.
The Australian Federal Police (AFP) has created a dedicated taskforce to investigate nine allegations of prohibited symbols being displayed in Victoria, demonstrating how vagueness in legislation is always good for creating work for idle authorities. Operation Ardana will consider the display of such symbols “while potentially inciting or advocating violence, or hatred, based on race and religion.”
AFP Deputy Commissioner Krissy Barrett offers her view about what behaviour would satisfy the test. “The context around the conduct is extremely important … If they’re holding the flag, what are they saying? What are they chanting? What are they wearing? What sort of physical behaviour are they demonstrating?”
The Home Minister Tony Burke is only too grateful to leave it to Barrett and her colleagues, given his own muddle about how such laws are to apply. Instead of offering any clarifications, he has warned mischievous Hezbollah flag wavers that they risk losing their visas. “We don’t know whether they are actually on visas … [but] we do have a higher standard if you’re on a visa.”
Opposition Leader, Peter Dutton, all sledgehammer and no grace, senses room for political exploitation, ostensibly calling for legal improvements to an already shabby law. “The laws already exist, and if the laws are inadequate then the Australian Federal Commissioner should advise the minister and the parliament should deal with it as a matter of urgency.”
In addition to the Commonwealth law, states laws also exist to layer the prosecution case. The Victorian Premier Jacinta Allan, for instance, is convinced that Victoria police had the relevant powers to deal with those who “may be displaying terrorist flags”.
With the paranoid authoritarians in charge, the very concept of valid protest has been reduced to a hint, a suggestion. Keep it anodyne and any relevant arguments humbly polite. Avoid the inherent brutality of a broadening bloody conflict hostile to international law. Most of all, make social cohesion a license to muzzle.