Liberal Party restricts free speech through anti-terror laws

by on 8 May, 2015
Vladimir Vinokurov is a solicitor and a deputy Victorian State director of the Australian Taxpayers’ Alliance. The views expressed here are his own.

Vladimir Vinokurov is a solicitor and a deputy Victorian State director of the Australian Taxpayers’ Alliance. The views expressed here are his own.

Prime Minister Abbott’s new law criminalising “hate preachers”—those who advocate, but do not themselves commit, acts of terrorism—is illiberal and entirely unjustified. Abbott has flagged that it could be used to target groups like Hizb ut-tahrir, an Australian Islamist group that is often silent on whether it condemns acts of terror here, and often praises acts of terror abroad. The law carries a harsh penalty of up to 5 years’ imprisonment, and they could have a range of unintended consequences. It could also censor some of the same controversial material as section 18C of the Racial Discrimination, which the government once promised to repeal. And in an eerie echo of one of his predecessors, Prime Minister Robert Menzies, Abbott is risking a constitutional challenge in enacting these laws. So why is he introducing them?

In considering whether restrictions on advocating terrorism are justified, we must remind ourselves that living in a free society means allowing every person to live express themselves as they see fit unless they are actually harming others. Obviously causing people physical harm is something we shouldn’t tolerate. Nor should we tolerate direct threats of immediate harm: threats to kill, or the like. But the onus must be on those who would restrict our speech to prove that the restriction in question is justified.

This law is unnecessary. There are already laws that criminalise incitement to violence. These laws should adequately address those circumstances in which extremists counsel their followers to commit specific acts of violence.

The problem with banning terror advocacy lies in its vagueness. One man’s terrorist is another man’s freedom fighter, and advocating terrorism is not the same as threatening specific people with immediate harm.  Consider this: is calling for the overthrow of Kim Jong Il and the North Korean government an act that “condones” terror? What about the Iraqi government? What about the Australian government? Are the manifestos of our ineffectual socialist movement, which regularly call for revolution in Australia, cause for harsh jail terms and imprisonment? Moving further afield, some Australian writers have even penned articles in newspapers in support of what is commonly regarded as a terrorist group—Hamas. Hamas is a listed terrorist group in Australia, Europe and the United States. Should we jail all of these writers? Surely, for real liberals the answer must be no: people should not be jailed for words unless there is a real and immediate threat of violence expressed by their author. Debates about wars and the discontented rumblings of the far left, or other peaceful extremists are simply not a matter for law enforcement.

Even if advocating terrorism can be harmful because it persuades people towards extremist views, the costs of banning such speech could be even higher. That’s why we shouldn’t restrict people from advocating for terrorism. Restrictions could incite unrest amongst extremists, activate their membership and cause their ideas to become even more popular as a result. This may create even more terrorism in turn.

The historical record shows how this has occurred in places such as Weimar Germany. Weimar Germany’ many attempts to censor vehemently racist and anti-Semitic opinion only stirred the Nazi movement into a frenzy of outraged activity, and Nazi leaders were quick to use episodes like the imprisonment of Nazi propagandists as an excuse to hold rallies or protests in their support. Julian Stretcher, the editor of the Nazi newspaper Der Sturmer, was reportedly jailed and then released to cheering crowds. These incidents demonstrate how censorship can bolster support for extremist movements by giving them attention and activating their supporters. The acts of censorship committed by the Weimar regime may well have normalised subsequent acts of censorship by the Nazis—even if it was censorship for a different cause entirely.

Hizb ut-tahrir’s leaders are not blind to the power of censorship: they have accused Australia’s political class of being hypocrites who use the rhetoric of liberalism as a tool for the maintenance of political power, even as they seek to suppress extremist opinions like their own.

What Abbott seems to forget is that people’s views can change. Reason and persuasion will win over far more extremists than brute force ever will. Indeed, part of the point of tolerance is to teach people to be tolerant in turn. People’s views can be, and often are turned away from extremist opinion in Western society for precisely this reason. That is partly how our liberal, tolerant society came into being: through the successive decisions of many people to live and let live, and extend tolerance to more and more people of different backgrounds and beliefs.

The laws have other drawbacks. Conceivably, even expressing understanding for the motives of combatants in war time might be regarded as a breach of this law. For instance, columnists often write that they can empathise with the motivations of terrorists even as they condemn their means. Human empathy is normal; even those who oppose terrorists should attempt to understand them. But if a columnist also strongly condemns the present policies of the government, he may fall afoul of these laws if he does not trouble himself with also explicitly condemning terrorism. It is all too easy to see how the controversial conflicts of our time and the columnists who write about them might fall afoul of these restrictions in the right circumstances.

It is not to the point to claim that these laws do not exclude “genuine debate.” What constitutes genuine debate lies in the eye of beholder. The potential for censorship remains. Just as Andrew Bolt got himself into legal trouble because a judge thought he wasn’t being sufficiently sensitive to the feelings of his subjects, so too, a judge might find that a columnist was advocating terror rather than engaging in debate because he was not being sufficiently sensitive in making the case for an unpopular rebel cause.

From a classical liberal perspective, therefore, the government’s approach to this issue is befuddling. On one hand it once claimed to support freedom of expression, particularly if the subject matter is offensive, in calling for the repeal of section 18C of the Racial Discrimination Act (which bans racially offensive speech). On the other it condemns offensive speech in support of ‘radical’ causes of which it disapproves. There is a profound contradiction here. No doubt the spread of racially offensive speech is a justification for the censorship of racist ideas under the Racial Discrimination Act; but many of those very same offensive ideas will be expressed by those who fall afoul of these provisions. Indeed, the government’s explicit intent is to repress the expression of extremist views like those put forward by the increasingly prominent Islamist group Hizb ut-tahrir. But ultimately, this law, like section 18C, could substantially restrict the scope of political debate even further than its enactors may intend.

It is also worth noting the historical irony: Abbott is in a sense the ideological successor of the first Liberal Prime Minister, Robert Menzies. Menzies led a campaign to ban the Communist Party and criminalise the expression of communist beliefs in Australia and was nearly successful in the attempt.

The High Court struck down the laws Menzies introduced on the basis that they were outside the scope of the Commonwealth’s law-making powers and had nothing to do with national defence. After all, a political party is merely a group of people, and communism, like Islamism, is a set of beliefs, not a bomb. A person’s associates and ideas, in and of themselves, are not the same as acts of violent terrorism and revolution.

Today, Mr Abbot’s law could also infringe upon another constitutional limit to legislative power: the implied freedom of political communication, invented by the High Court in the early 90’s.

Despite Menzies’ failure to ban communism, Australia survived the Cold War—and Robert Menzies lived on to become Australia’s longest serving PM. Perhaps Mr Abbott hopes to follow in his footsteps.

5 thoughts on “Liberal Party restricts free speech through anti-terror laws

  1. If society has chosen it does not want unrestricted speech – which it has through its reaction to the 18C changes – then what obligation is Mr Abbot under to suddenly stick to the principle in regards to terrorism? For he, as an elected member of parliament, is only meant to be the people’s representative.

    Left thinking has imposed draconian laws on society in the name of progress and people’s ‘best interests’: so why can Mr Abbot not turn it around and use this thinking for his own agenda?

    For the record, extremism ≠ bad. Extreme is just something you are not used to. From a rational standpoint, whether radical Christianity, Judaism, Islam or National Socialism; extremest views make far more sense than moderate ones.

  2. I think most agree to not have total freedom of speach (e.g. yelling “fire” in a cinema). But these laws in particular are so far reaching that we face risk of abuse by the govt of the very fundamentals of democracy. The most scary laws in this area are already in place since shortly after 9/11. Luckily they haven’t seemed to be abused yet, but time will tell.

    Are we overreacting to the terrorism threat? More people die from falling off ladders in Australia.

  3. Anyone who has to ask the question, “Are we overreacting to the terrorism threat.” simply doesn’t understand what is being dealt with. I will be interested to read the views on this subject after we have had our first full blown terror attack in Australia. Rest assured it will happen.

  4. I see a great danger emerging for the efforts to pass laws that restrict freedom in the purported interests of thwarting the terrorist threat. This piece in the Herald must be of concern to the fear mongers: http://www.smh.com.au/federal-politics/political-news/you-can-cancel-my-passport-islamic-state-doctor-tareq-kamleh-loved-australia-but-wont-return-20150621-ghtgf6

    The man who has gone to the Middle East to treat kids and does not intend to come back must raise concerns. The image of a death cult that employs a paedatrician to treat kids does not look good. How can people maintain their fear when the Death Cult has a human side?

    More to the point, why do we need additional laws, especially laws that would run contrary to the spirit of the constitutional separation of powers between legislature and judiciary? Surely we should be protected if our law enforcement authorities issue a warrant for the arrest of a misguided person fighting with ISIS, then if he or she presents at the inbound Immigration counter they could be arrested. Does that not keep the threat outside our community?

    So why would we want to create additional and draconian laws to deal with something that we can deal with using existing laws? Perish the thought that it could be grandstanding to keep fear at the front of people’s minds.

  5. Well Allan, since you are convinced it will happen why should we surrender our civil freedoms in a vain attempt to prevent such an event?

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