Knee-Jerk Laws Are Bad Laws

Let’s be clear, here: as a free speech advocate, I don’t believe that states should be banning flags, symbols or slogans of any group. Whether it’s the Nazi hakenkreuz, the communist hammer-and-sickle, a Che Guevara icon or the Hezbollah flag.

Not only because the same state that can ban the iconography of ideologies I despise can also ban those of which I approve. More importantly, banning flags doesn’t make the ideology disappear, it only drives it out of sight. If there’s a wasp in the room, as C S Lewis said, I like to see it. No matter how uncomfortable it may make me or anyone else.

I also believe that the law must, if the rule of law is to mean anything, apply equally to all.

So, if Australian governments are going to – as they have – prosecute individuals for displaying banned Nazi symbols, they must equally vigorously prosecute those showing other banned symbols.

Such as the Hezbollah flag.

You can’t purchase a Hezbollah flag on eBay. Purveyors of flags in Australia are prohibited by law from selling it, and without descending into creepy nooks of the internet on the dark web only one online vendor of dubious provenance offers the flag for sale for $US40 ($58) but is out of stock. Perhaps there has been a run on sales.

Judging by the sheer volume of the ‘moderate Muslim majority’ waving Hezbollah flags in Melbourne and Sydney this past week, this is probably true.

Yet, despite such flags being prohibited, not one charge has been laid.

That’s because the relevant laws are a dog’s breakfast.

Merely displaying the flag in a public space is not sufficient for an arrest to be made. Police need to go through a veritable laundry list of vague law in part because our politicians imposed the reasonable person test – the formless everyman sitting on a Bondi tram – to determine if a person waving the Hezbollah flag at a rally is engaged in the “dissemination of ideas based on racial superiority or racial hatred, (which) could incite another person or a group of persons to offend, insult, humiliate or intimidate”.

There are various other codicils, and immediately we move into grey areas of interpretation to be left in the hands of police, judges, juries and magistrates.

The laws were written in haste last year, after Victoria police inexplicably escorted a group of neo-Nazis, who gatecrashed a Kellie-Jay Keen women’s rights rally in Melbourne, to front and centre on the steps of Parliament House. In a typical government, ‘we must be seen to be doing something’, knee-jerk response, both the Victoria and federal Labor government rushed the laws through.

And, as always, laws written in haste are very bad laws.

A week later the bill quietly was changed and took the giant leap from prohibiting the display of Nazi symbols where a reasonable person is likely to conclude that a Nazi hakenkreuz is totemic of racial hatred to symbols of proscribed terrorist groups where that same reasonable person may draw a different conclusion.

The motivation of parliamentarians appears to have been the all-too frequent legislative impulse: “We need to do something. This is something. So, let’s do this” […]

This is a mess of the government’s making based on cobbled-together law. The responsibility for the shambles extends to the entire federal parliament, which waved through the bill late last year in an orgy of self-congratulation. The Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Act 2023 is black-letter law that attempts to solve two distinct problems with one muddled law.

It may be useful in prosecuting those who tote Nazi symbols in public or online but it is less clear how it may serve to prohibit other symbols of racial hatred including Hezbollah’s flag.

Now, the same politicians who passed such obviously bad laws are pointing the finger of blame at police. Anyone but themselves, of course. But police can only try and prosecute the laws the politicians have passed. As Kerry Packer once told the Senate, he didn’t write the laws they accused him of using to minimise his tax (which he bluntly agreed he did), they did. If they don’t like the outcome of the bad laws they write, they have no one else to blame but themselves.

Flag banning is very bad law. It should be repealed immediately and let sunlight be the best disinfectant.