Those who failed to enforce the law against terrorist sympathisers in Sydney and Melbourne over the weekend have some explaining to do.
Why did they permit supporters of Hezbollah in Sydney and Melbourne to defy federal law with impunity?
Was it simple ignorance about the state of the law? Or was it something more troubling?
Police commissioners and ministers in both cities must have known changes to the Commonwealth Criminal Code that came into force on December 11 make it an offence to display the symbols of listed terrorist organisations.
Hezbollah has been on that list since December 10, 2021.
So why were Hezbollah’s supporters allowed to defy this law by displaying its flag and symbols as they marched through our two biggest cities praising dead terrorist Hassan Nasrallah?
Did anyone instruct the police in both cities not to enforce the law about terrorist symbols? If so, who issued that instruction and what was the justification?
The law is intended to stop the display of terror symbols. Acting now, after it’s all over, is not good enough. The new law on terrorist symbols is outlined in section 80.2HA of the Criminal Code which, in some circumstances, imposes absolute liability. This means the prosecution is not required to prove intention, knowledge, recklessness, negligence or any other variety of fault element.
That significantly eases the burden on prosecutors and police because the state of mind of the defendant is, for some parts of the new offence, irrelevant.
That would have been apparent to anyone who had read the supplementary explanatory memorandum to these changes, which is available on the parliamentary website.
Yes, the new provisions require the prosecution to prove elements of the offence. But the test for liability is less onerous than for some other criminal offences.
How difficult could it be, for example, to prove that a reasonable person would consider that public displays of Hezbollah’s symbols and flag would incite others to offend, insult, humiliate or intimidate a targeted group because of their race?
December’s changes to the Criminal Code also include a new provision making it an offence punishable by a year’s prison for anyone to trade in the symbols of a prohibited terrorist organisation. Did anyone monitoring those parades bother to ask where those flags came from? Absolute liability also applies to some of the trading offences.
It’s also a bit rich for state police authorities to simply wash their hands of this failure by asserting it’s all covered by federal law. This law is about stopping the display of terrorist symbols. And that explains why the power to order people to stop displaying those symbols is vested in state and federal police.
Those who fail to obey such an instruction – from state and federal police – could have been fined thousands of dollars if the law been enforced.
If there is something wrong with these new provisions did anyone in the state police or the Australian Federal Police raise this with federal Attorney-General Mark Dreyfus?
Dreyfus and federal parliament deserve some answers.
These new provisions are a necessary response to the racial and religious bigotry that threatens to tear this country apart.
If they had been enforced with alacrity over the weekend, they would have sent a very clear message that nobody in this country is entitled to impunity.
The timing of this failure could not have been worse. Next Monday, October 7, marks 12 months since terrorists from Gaza murdered 1200 Israelis and kidnapped hundreds – including babies.
Selective enforcement of the law could encourage more lawless conduct next week. And that would only increase the difficulty of the challenge for state and federal police.
